A) Precedents Cited
Fanning is the central authority governing appeals based on allegedly inconsistent verdicts.
The Court of Appeal in BGZ treated Fanning as settling two key propositions:
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The appellate court does not overturn verdicts merely because they appear surprising or difficult to
reconcile; the test is stringent.
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It is generally permissible for a jury to accept a complainant’s credibility/reliability on one count but
not on another, absent a specific direction requiring an “all or nothing” approach.
The BGZ court expressly relied on Fanning at [27] (as quoted in the judgment) to
reinforce the legitimacy of “compartmentalised” assessments of credibility across counts.
ii) R v Stone (unreported) (Devlin J) and R v Hunt [1968] 2 QB 433
The court adopted Devlin J’s formulation from R v Stone, endorsed in R v Hunt [1968] 2 QB 433,
placing the burden on the appellant to show the verdicts “cannot stand together,” meaning:
no reasonable jury, properly applying their minds to the facts, could have reached the combination of
verdicts returned.
In BGZ, this was the decisive lens: the question was not whether the verdicts were intuitively
uneasy, but whether they were legally irreconcilable given the evidence and directions.
B) Legal Reasoning
The applicant’s case was that the three alleged behaviours were so intertwined in the complainant’s account
that convicting on count 3 while acquitting on count 2 (and count 1) was “inexplicable” and “illogical.”
The Court of Appeal rejected that characterisation for several linked reasons.
i) The “separate counts, separate verdicts” framework mattered
The trial judge gave explicit and careful directions that each count had to be considered separately and
that verdicts could be a “mixture.” The Court of Appeal treated those directions as central: they structured
the jury’s task as a count-by-count evaluation rather than an assessment of a single incident requiring
consistent outcomes.
The court also observed that the jury had not been directed that counts 2 and 3 “stood or fell together.”
In that context, the applicant’s “inextricable link” submission effectively contradicted the legal framing
the jury had been instructed to apply.
ii) Mixed verdicts can rationally reflect differential certainty
Applying Fanning, the court accepted that a jury may be sure about one allegation from the
same witness but not sure about another—particularly where the witness is very young and accounts show
variations. The appellate court emphasised that this does not become illogical simply because the evidence
comes from the same complainant.
iii) Evidential distinctions provided a rational route to the verdicts
The court pointed to features capable of explaining why the jury might be sure on count 3 but not count 2:
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Count 3 (licking underwear) appeared as an “unprompted feature” around the earliest disclosure
and was therefore capable of being seen as more spontaneous or less interview-contaminated.
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Count 2 (licking vagina) was accepted (by the Crown as well) to have been explored through
leading questions in the ABE interview, potentially reducing the jury’s confidence in whether
that specific allegation was reliably elicited.
Without purporting to second-guess the jury, the Court of Appeal held these differences meant that the
verdicts were not beyond what a reasonable jury could reach.
iv) The “no reasonable jury” threshold was not met
The court treated the applicant as failing to discharge the burden described in Stone and
affirmed in Fanning: the verdicts did not “cannot stand together” in the strict appellate sense.
The court therefore refused leave.