M v R [1994] HCA 63; (1994) 181 CLR 487; (1994) 126 ALR 325; (1994) 69 ALJR 83 (13 December 1994)

ORDER

Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court against convictions be allowed and that the appellant's convictions be quashed and verdicts of acquittal entered.

Date of Order: 31 May 1994

DECISION

2. The appellant appealed to the Court of Criminal Appeal upon the

ground, amongst others, that the verdicts were unsafe and

unsatisfactory. His appeal was dismissed. Sully J, who delivered

the leading judgment in the Court of Criminal Appeal, said of this

ground of appeal:



"For my own part, I would say at once that, were it permissible

Kingdom, I would favour upholding the present appeal upon the ground

now being discussed. I would take that view because, broadly

speaking, I have in purely subjective terms a feeling of anxiety and

discomfort about the verdicts of guilty that were returned against the

present appellant."

3. Cripps JA and Finlay J, who were the other members of the

Court of Criminal Appeal, concurred with Sully J in dismissing the

appeal, but dissociated themselves from any feeling of anxiety or

discomfort in doing so.

4. The approach in the United Kingdom to which Sully J referred

is, it seems, that which has been adopted under s.2(1) of the Criminal

Appeal Act 1968 (U.K.) which allows the Court of Appeal to set aside a

conviction on the ground that in all the circumstances of the case it

is unsafe or unsatisfactory. In Reg. v. Cooper (Sean) Widgery LJ

said of this provision (1 (1969) 1 QB 267 at 271) :

"However, now our powers are somewhat different, and we are

5. Nevertheless, the criminal appeal provisions which are in common

form in this country allow a verdict that is unsafe or unsatisfactory

to be set aside, notwithstanding that those words do not appear in the

legislation. Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.),

which is the relevant provision for present purposes, provides that

the Court of Criminal Appeal must allow an appeal against conviction if

the Court is:



"of opinion that the verdict of the jury should be set aside on the

ground that it is unreasonable, or cannot be supported, having regard

to the evidence, or that the judgment of the court of trial should be

set aside on the ground of the wrong decision of any question of law,

or that on any other ground whatsoever there was a miscarriage of

justice"



provided that the court may dismiss the appeal if it considers that no

substantial miscarriage of justice has actually occurred.

6. Where a court of criminal appeal sets aside a verdict on the

ground that it is unreasonable or cannot be supported having regard to

the evidence, it frequently does so expressing its conclusion in terms

of a verdict which is unsafe or unsatisfactory. Other terms may be

used such as "unjust or unsafe" (6 See Davies and Cody v. The King

[1937] HCA 27; (1937) 57 CLR 170 at 180) , or "dangerous or unsafe" (7 See Ratten v.

The Queen (1974) 131 CLR at 515) . In reaching such a conclusion, the

court does not consider as a question of law whether there is evidence

to support the verdict (8 See Raspor v. The Queen [1958] HCA 30; (1958) 99 CLR 346 at

350-351; Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 at 246, 250) .

Questions of law are separately dealt with by s.6(1). The question is

one of fact which the court must decide by making its own independent

assessment of the evidence (9 Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454)

and determining whether, notwithstanding that there is evidence upon

which a jury might convict, "none the less it would be dangerous in all

the circumstances to allow the verdict of guilty to stand" (10 See

Hayes v. The Queen (1973) 47 ALJR 603 at 604) . But a verdict may be

unsafe or unsatisfactory for reasons which lie outside the formula

requiring that it not be "unreasonable" or incapable of being

"supported having regard to the evidence". A verdict which is unsafe

or unsatisfactory for any other reason must also constitute a

miscarriage of justice requiring the verdict to be set aside. In

speaking of the Criminal Appeal Act in Hargan v. The King, Isaacs J

said (11 [1919] HCA 45; (1919) 27 CLR 13 at 23) :

"If (the appellant) can show a miscarriage of justice, that is

sufficient. That is the greatest innovation made by the Act, and to

lose sight of that is to miss the point of the legislative advance."



And as the Court observed in Davies and Cody v. The King (12 (1937) 57 CLR at 180.), the duty

imposed on a court of appeal to quash a conviction when it thinks that

on any ground there was a miscarriage of justice covers:



"not only cases where there is affirmative reason to suppose that the

appellant is innocent, but also cases of quite another description.

For it will set aside a conviction whenever it appears unjust or

unsafe to allow the verdict to stand because some failure has occurred

in observing the conditions which, in the court's view, are essential

to a satisfactory trial, or because there is some feature of the case

raising a substantial possibility that, either in the conclusion

itself, or in the manner in which it has been reached, the jury may

have been mistaken or misled."

7. Where, notwithstanding that as a matter of law there is evidence

to sustain a verdict, a court of criminal appeal is asked to conclude

that the verdict is unsafe or unsatisfactory, the question which the

court must ask itself is whether it thinks that upon the whole of the

evidence it was open to the jury to be satisfied beyond reasonable

doubt that the accused was guilty (13 See Whitehorn v. The Queen

(1983) 152 CLR at 686; Chamberlain v. The Queen (No.2) (1984) 153 CLR

at 532; Knight v. The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511) . But

in answering that question the court must not disregard or discount

either the consideration that the jury is the body entrusted with the

primary responsibility of determining guilt or innocence, or the

consideration that the jury has had the benefit of having seen and

heard the witnesses. On the contrary, the court must pay full regard

to those considerations (14 Chamberlain v. The Queen (No.2) (1984) 153

CLR at 621) .

8. It was with those considerations in mind that some members of

this Court (15 See Whitehorn v. The Queen (1983) 152 CLR at 660, 687;

Chamberlain v. The Queen (No.2) (1984) 153 CLR at 532-534) have

thought it necessary to qualify the statement by Barwick CJ in Ratten

v. The Queen (16 (1974) 131 CLR at 516) that: "It is the reasonable

doubt in the mind of the court which is the operative factor". Barwick

CJ went on to say:

"It is of no practical consequence whether this is expressed as a

doubt entertained by the court itself, or as a doubt which the court

decides that any reasonable jury ought to entertain. If the court has

a doubt, a reasonable jury should be of a like mind. But I see no need

for any circumlocution; as I have said it is the doubt in the court's

mind upon its review and assessment of the evidence which is the

operative consideration."



The qualification was that no circumlocution was involved in speaking

of a doubt which a reasonable jury ought to have entertained because

account must be taken of the advantage which a jury has in seeing and

hearing the witnesses. To ask only whether the court has a doubt may

place insufficient emphasis upon the fact the jury, having seen and

heard the evidence given, was in a position to evaluate that evidence

in a manner in which a court of appeal cannot.

9. But it is, we think, possible to make too much both of the view

expressed by Barwick CJ and of the qualification suggested. In most

cases a doubt experienced by an appellate court will be a doubt which

a jury ought also to have experienced. It is only where a jury's

advantage in seeing and hearing the evidence is capable of resolving a

doubt experienced by a court of criminal appeal that the court may

conclude that no miscarriage of justice occurred. That is to say,

where the evidence lacks credibility for reasons which are not

explained by the manner in which it was given, a reasonable doubt

experienced by the court is a doubt which a reasonable jury ought to

have experienced. If the evidence, upon the record itself, contains

discrepancies, displays inadequacies, is tainted or otherwise lacks

probative force in such a way as to lead the court of criminal appeal

to conclude that, even making full allowance for the advantages

enjoyed by the jury, there is a significant possibility that an

innocent person has been convicted, then the court is bound to act and

to set aside a verdict based upon that evidence (17 Chamberlain v. The

Queen (No.2) (1984) 153 CLR at 618-619; Chidiac v. The Queen [1991] HCA 4; (1991) 171

CLR 432 at 443-444) . In doing so, the court is not substituting trial

by a court of appeal for trial by jury, for the ultimate question must

always be whether the court thinks that upon the whole of the evidence

it was open to the jury to be satisfied beyond reasonable doubt that

the accused was guilty (18 Chidiac v. The Queen (1991) 171 CLR at 443,

451, 458, 461-462) . Although the propositions stated in the four

preceding sentences have been variously expressed in judgments of

members of the Court in previous cases, we have put aside those

differences in expression in order to provide authoritative guidance to

courts of criminal appeal by stating the propositions in the form in

which they are set out above.

10. In this case the anxiety and discomfort experienced by Sully J

must necessarily have been caused by a doubt he held about the guilt

of the appellant. That doubt appears to have been engendered by

shortcomings in the evidence which are not met by reference to the

jury's advantage in seeing and hearing the witnesses. Sully J was,

therefore, in error in concluding that the appeal should be dismissed.

Applying the principles to which we have referred, we consider the

jury should have had a reasonable doubt in relation to the charges

against the appellant and accordingly are of the view that the verdicts

against the appellant ought not be allowed to stand. In reaching that

conclusion we are not to be taken as sharing all the reasons expressed

by Sully J for his anxiety and discomfort.

11. The daughter, who is the complainant, is a child of the first

marriage of the appellant. There are three other children of that

marriage: two older boys, Jason and Daniel, and Sarah who is the

complainant's twin sister. The first marriage was dissolved amicably

and the appellant remarried. There are two children of the second

marriage, Jacqueline and Jonathon. Fortnightly the children of the

first marriage spent the weekend with the appellant, his wife and the

two children of the second marriage. The house occupied by the

appellant was not large and the complainant and her twin sister

ordinarily slept on a mattress in the lounge room.

12. In 1988, some two years before the events in question, the

complainant had complained of headaches and had been referred by her

local doctor to a psychiatric registrar. She complained that her

half-sister, Jacqueline, who was then eight years old, had been

sexually attacking her and had touched her genital area in an

aggressive fashion. She had not complained either to her parents or

to Jacqueline's mother about these incidents. The psychiatric

registrar reported the matter to the Department of Family and Community

Services which resulted in the family being required to attend an

interview with a social worker. The complainant also informed the

psychiatric registrar that another girl at school had been sexually

attacked by a male relative who had come into her room and that this

had been the subject of discussion at school.

13. The charges against the appellant involved incidents which were

alleged to have occurred on two separate weekends: the weekend of 8

and 9 September 1990 and the weekend of 22 and 23 September 1990.

14. On Saturday, 8 September 1990, the complainant went to the

appellant's house on an ordinary fortnightly visit. On this occasion

she was not accompanied by her twin sister or her two older brothers.

According to the complainant, the appellant came into the bathroom

when she was having a bath to tell her that she was wanted on the

telephone and, before helping her to dry herself, commented on her

growth of pubic hair. The complainant gave evidence that later in the

evening after the rest of the family had gone to bed, she and the

appellant sat on a lounge "watching this video on the tele". She said

that the appellant kissed her placing his tongue in her mouth and

played with her breasts, squeezing her nipple. Subsequently, according

to the complainant, the appellant told her to go to bed, which she did

after giving the appellant a goodnight kiss.

15. The complainant said that she did not speak to anyone about

these events until Monday, 10 September 1990, when she told a friend

at school named Nicole. She said that she also spoke to her twin

sister, Sarah, a few days later. It is these events which are the

subject of the first count of committing an act of indecency upon which

the appellant was convicted.

16. On the weekend of 22 September 1990 the complainant again stayed

at the appellant's house. This time she was accompanied by Sarah and

her older brother Daniel. Daniel shared a detached room at the back

of the house with a friend. The complainant gave evidence that during

the evening of Saturday, 22 September she played cards with the

appellant and some of the other children. According to the

complainant, her half brother Jonathon said that he wanted to sleep on

the mattress in the lounge which the complainant and Sarah usually

shared. The complainant says she agreed with Sarah to sleep in

Jonathon's room which was at the back of the house and was separated

from the bedroom occupied by the appellant and his wife by a bathroom.

There was access to a laundry and a toilet through Jonathon's room.

17. The events which were alleged to have followed were the subject

of the remaining counts of acts of indecency and sexual intercourse of

which the appellant was convicted.

18. The complainant says that she went to bed in Jonathon's room and

shut the door. She gave evidence that the appellant entered the room,

sat down on the bed, kissed her with his tongue, played with her

breasts and sucked them. The complainant said the appellant then

left. She thought that this was because the telephone rang and the

appellant's wife called him. She said that the appellant then had a

shower and returned to the room and sat down on the bed. She gave

evidence that he kissed her, played with her breasts and sucked them

and told her to take her pants down. She said that the appellant then

went into the laundry to get a beer and that when he returned she

complied with his request that she take her pants right off. The

complainant gave evidence of a number of acts of indecency which

followed. She also said that the appellant enquired whether she had

sex with one of her ex-boyfriends, Mark. Her evidence continued:



"I said, 'Dad, we didn't go all the way' or something like that. And

Dad just went, 'Right'. Then he got on top of me and he started to

push his penis into my vagina, and he kept saying 'Lift your hips up

and it won't hurt as much,' So I lifted my hips up because I didn't

want it to hurt, and he just kept trying and he kept saying, 'Lift

your hips up' and all this stuff. And then he finally like took it

out. Then he said to me, 'Hold me'. And I thought he meant a cuddle,

so I sat up and put my arms around him. And then he said, 'No.' Then

he took my left arm and put it on his penis ... He stood up, and he

was standing in front of me, because he had no towel on, you know, he

was just naked. I just looked at him, and he goes, 'That's a penis'

and I just looked at it and just went, 'Yeah'. And then he left the

room I think."



The complainant said that the appellant returned to the room after

some time, kissed her with his tongue, sucked on her breasts and then

left.

19. The complainant gave evidence that upon waking up in the

morning, Sarah asked her if anything had happened that night. She

said that she was too upset and did not want to talk about it so she

said "no". That day was the day of the rugby league grand final and

the family held a barbecue to which a number of friends were invited.

The complainant participated normally in the events of the day. She

said she rang Nicole to get her to come over but Nicole was unable to

come. During the day Sarah broke her ankle and their mother and the

appellant's wife took her to the doctor. The complainant agreed to

stay at the appellant's house to look after Jacqueline and Jonathon.

The complainant said that on the Monday she rang Nicole and told her

"He did it again". When Nicole asked her what she meant, she replied

"Well put it this way, I don't think I'm a virgin any more." The

complainant said that she did not mention the matter to Sarah until

"later on" and did not tell her mother until after she saw the school

counsellor about a month later.

20. In cross-examination the complainant said that the appellant put

his penis in her vagina whilst her legs were over his shoulders and it

felt as if the appellant made complete penetration. She agreed that

he probably worked in and out a number of times and that it amounted

to rape.

21. The prosecution called two medical practitioners who examined

the complainant. The first found the complainant's hymen to be "of

normal character, a little redundant and intact". She said that what

she found was inconsistent with rape. She added that her

understanding of "rape" was "forced vaginal penetration". The second

medical practitioner said that there was no evidence of physical

penetration of the complainant, "no physical evidence one way or the

other".

22. In cross-examination the complainant admitted that she told a

policewoman who interviewed her that in the evening of Saturday, 8

September 1990 when she watched television with the appellant, the

late night movie was on and it was "a cowboy and Indian movie, a

country and western movie". When challenged with the suggestion that

the reason that she had said in her evidence in chief that they were

watching a video was because no cowboy and Indian movie was programmed

for that evening, the complainant said she had meant that they were

watching a movie not a video. She could not remember whether the movie

was in black and white or in colour but maintained that it was about

cowboys and Indians.

23. The complainant gave evidence that Jonathon suggested he sleep

on the mattress in the lounge room on the night of Saturday, 23

September 1990, but Sarah gave evidence that "Johnno was getting tired

so he went and fell asleep on the mattress in the lounge room, and we

didn't worry about waking him up, and Dad just said, 'Well one of you

girls can sleep in Johnno's room' and (the complainant) said, 'I will

then' and I said 'Yes, okay.'" When it was put to the complainant in

cross-examination that, notwithstanding the events which she alleged

had taken place on 8 September, she separated herself from Sarah to

sleep in Jonathon's room, which had no lock, she said "Well Johnno

often asked to sleep in that room".

24. In cross-examination the complainant said that at the time the

appellant was raping her, the appellant's wife was watching tennis on

the television in her bedroom. When it was put to her that there was

no tennis on television on the evening of 23 September 1990, she said

that "it sounded like she was watching the tennis" and that she could

hear it clearly from Jonathon's bedroom. The appellant's wife gave

evidence that on the night in question she had been cleaning the

kitchen in preparation for the barbecue. She said that she did not

recall watching tennis on television on that night and that the last

thing she remembered doing was cleaning the kitchen floor. She said

that her bedroom was within hearing distance of Jonathon's bedroom and

that the bed in Jonathon's bedroom had a wire base and was very

squeaky. The complainant in cross-examination agreed that the bed was

very squeaky and "must have squeaked an awful lot when (her) father

was attacking (her)".

25. The appellant co-operated fully with the police investigating

the complaint and consistently denied the allegations against him. He

gave evidence on oath, again denying the allegations. His evidence

does not appear to have been discredited in any way by

cross-examination. A number of witnesses gave character evidence on

the appellant's behalf, some of whom had, with full knowledge of the

allegations made by the complainant, permitted children of their own

to remain overnight at the appellant's home.

26. The trial judge, although he was, by reason of s.405C(1) of the

Crimes Act 1900 (N.S.W.), not required to give a direction to the jury

as to corroboration, in fact did so in accordance with the views

expressed by this Court in Longman v. The Queen (19 [1989] HCA 60; (1989) 168 CLR 79). He said:



"The accused's counsel has pointed out there is no evidence to

corroborate the evidence of (the complainant). And let me tell you,

that as a matter of law there does not have to be evidence to

corroborate her. As a matter of law, if you did choose to accept her

evidence, over and above that of the accused, then it is open to you

to find the accused guilty, notwithstanding the lack of corroboration.

But of course it would be a very dangerous thing to do, possibly you

may think. That is a matter for your judgment, depending on what you

think of the witnesses themselves."

27. Not only was there no corroboration of the complainant's

evidence, but the evidence of one of the medical practitioners called

by the prosecution was inconsistent with the complainant's account of

sexual intercourse on the night of 22 September. The lack of

complaint to the appellant's wife or to her own mother until a month

after the events of 22 September and the apparent equanimity with which

the complainant conducted herself during the barbecue on 23 September

suggested the need for careful scrutiny of the allegations which she

made against the appellant. In that regard evidence of her previous

behaviour revealed a capacity on the part of the complainant to make a

complaint of a sexual nature to a person in authority about a member

of her family.

28. There was a discrepancy in the complainant's evidence between

what she had told the policewoman was showing on television on the

night of 8 September and what she said in court. There was an

inconsistency between the evidence given by the complainant and the

evidence given by the appellant's wife about the appellant's wife

watching television on the night of 22 September. But more important

than any individual matter was the improbability of the appellant

acting as he was alleged to have done in the circumstances prevailing

on that night, namely, on a squeaky bed in an unlocked bedroom which

was only a short distance from, and within hearing distance of,

another bedroom occupied by the appellant's wife, in a fully occupied,

small house.

29. On the other hand, an innocent man could have done no more than

the accused did in conducting himself as he did during his interview

with the police or in giving evidence on oath at his trial. No doubt

the jury believed the complainant and disbelieved the appellant and

did so having seen and heard them both. But even making full allowance

for the manner in which both gave their evidence, the matters which

cast doubt upon the prosecution case, to which we have referred,

remain unanswered. In those circumstances, in the absence of any

corroboration of the complainant's allegations, it would, in our view,

be unsafe and unsatisfactory to allow the verdicts to stand.

30. It is for these reasons that we joined in the order of the

Court, pronounced at the conclusion of argument, that the appeal be

allowed.

BRENNAN J This was an appeal from the Court of Criminal Appeal in

New South Wales which dismissed the appellant's appeal against his

conviction on two counts of indecent assault on his daughter and on

three counts of sexual intercourse with her. The indecent assaults

allegedly occurred on 8 and 9 September 1990 (the first incident); the

acts of sexual intercourse allegedly occurred between 22 and 23

September 1990 (the second incident). The daughter was aged 13 at the

relevant time.

2. The only evidence of the acts alleged was given by the daughter,

who was one of four children of the appellant's first marriage. That

marriage had been dissolved in what he described as harmonious

circumstances and his first wife described as amiable. He had

remarried and two children were born of the second marriage to R.M.

The children of the first marriage visited their father from time to

time and stayed overnight in the home of his second family where the

offences allegedly occurred. The only ground of appeal which was

pursued in this Court, and the chief ground of appeal argued before

the Court of Criminal Appeal, was that the verdict was unsafe and

unsatisfactory.

The issue defined



3. Different expressions of view can be found in the cases as to

the test to be applied by a Court of Criminal Appeal exercising

jurisdiction under the common form State statutes which create the

criminal appeal jurisdiction. In Chidiac v. The Queen (20 [1991] HCA 4; (1991) 171

CLR 432 at 451-452) , Dawson J said:



" It is clearly established by authority that, in determining whether

the verdict of a jury is unreasonable, or cannot be supported having

regard to the evidence - whether it is unsafe or unsatisfactory - the

test is whether it was open to the jury upon the whole of the evidence

to be satisfied beyond reasonable doubt that the accused was guilty:

Whitehorn v. The Queen (21 [1983] HCA 42; (1983) 152 CLR 657 at 660, 686) ;

Chamberlain v. The Queen (No.2) (22 [1984] HCA 7; (1984) 153 CLR 521 at 534, 607) ;

Morris v. The Queen (23 [1987] HCA 50; (1987) 163 CLR 454 at 461-462, 472, 478-479) ;

Carr v. The Queen (24 [1988] HCA 47; (1988) 165 CLR 314 at 330-334) . If upon the

whole of the evidence a jury, acting reasonably, was bound to have a

reasonable doubt, then a verdict of guilty will be unsafe and

unsatisfactory. ...



The test is not whether the court itself entertains a reasonable

doubt, although that will very often amount to the same thing, but

whether a reasonable jury was bound to do so. The difference is

significant, because a court of criminal appeal must act upon that

view of the facts which the jury was entitled to take, having seen and

heard the witnesses. As Brennan J said in Carr (25 ibid. at 331) :

'An appellate court must itself consider the evidence in order to

determine whether it was open to the jury to convict, but the appellate

court does not substitute its assessment of the significance and weight

of the evidence for the assessment which the jury, properly

appreciating its function, was entitled to make.'"



The test whether it was "open to the jury upon the whole of the

evidence to be satisfied beyond reasonable doubt that the accused was

guilty" was adopted expressly by Gaudron J and me in Knight v. The

Queen (26 [1992] HCA 56; (1992) 175 CLR 495 at 511) and, without express reference,

by the majority in that case (27 ibid. at 504-505, per Mason CJ,

Dawson and Toohey JJ) . But the test conceals an underlying

controversy as to when it is "open to the jury" to be so satisfied. I

respectfully agree with the explanation of the term by Dawson J in

Chidiac: was the jury, "upon the whole of the evidence ... bound to

have a reasonable doubt"? That question defines the function of the

appellate court's jurisdiction. The appellate court's function is to

make its own assessment of the evidence not for the purpose of

concluding whether that court entertains a doubt about the guilt of the

person convicted but for the purpose of determining whether the jury,

acting reasonably, must have entertained a reasonable doubt as to the

guilt of the accused (28 ibid. at 504-505, 511-512) .

4. The question whether a jury, acting reasonably, must have

entertained a reasonable doubt about guilt remits to the appellate

court an inquiry into all the evidentiary aspects of the case. But

the jury have advantages in the finding of facts which are denied to

an appellate court. As Dawson J pointed out in Whitehorn (29 [1983] HCA 42; (1983)

152 CLR 657 at 687) :

"In particular, a court of appeal does not usually have the

opportunity to assess the worth of a witness's evidence by seeing and

hearing that evidence given. Moreover, the jury performs its function

within the atmosphere of the particular trial which it may not be

possible to reproduce upon appeal. These considerations point to

important differences between the functions of a jury and those of a

court of appeal. A jury is able, and is required, to evaluate the

evidence in a manner in which a court of appeal cannot."



Moreover, in making its evaluation of the case against an accused, the

appellate court must acknowledge that the primary responsibility for

finding the facts rests with the jury, not with the appellate court.

As Mason CJ said in Chidiac (30 (1991) 171 CLR at 443; see also

Chamberlain v. The Queen (No.1) [1983] HCA 13; (1983) 153 CLR 514 at 519-520;

Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 at 608) :

" The constitutional responsibility of the jury to decide upon the

verdict and the advantage which the jury enjoys in deciding questions

of credibility by virtue of seeing and hearing the witnesses impose

some restraints upon the exercise of an appellate court's power to

pronounce that a verdict is unsafe."



And so, for both constitutional and practical reasons, an appellate

court can seldom interfere with the verdict of a jury merely on the

ground that the verdict is unsafe and unsatisfactory where there is

evidence to support the verdict.

5. A broader function for an appellate court has been suggested,

namely, to determine whether "there is some feature of the evidence

which raises a substantial possibility that the jury may have been

mistaken or misled": Morris v. The Queen (31 [1987] HCA 50; (1987) 163 CLR 454 at

472-473 per Deane, Toohey and Gaudron JJ) . In Carr v. The Queen (32

[1988] HCA 47; (1988) 165 CLR 314 at 333-334) I attempted to explain that that

proposition, which owes its origin to a phrase in the judgment of the

Court in Davies and Cody v. The King (33 [1937] HCA 27; (1937) 57 CLR 170) , cannot

authorize the setting aside of a verdict as unsafe and unsatisfactory

when the verdict is supported by evidence on which a jury, acting

reasonably, could have convicted and when there is no blemish in the

conduct of the trial. Of course, where evidence that is inherently but

not manifestly suspect is placed before a jury without a warning about

its suspect nature - for example, identification evidence as in Davies

and Cody v. The King - an appellate court may well conclude that the

verdict is unsafe and unsatisfactory (34 Bromley v. The Queen [1986] HCA 49; (1986)

161 CLR 315 at 324-325; Carr v. The Queen (1988) 165 CLR at 329-330) .

But that is because of the absence of the warning: if an adequate

warning be given and the jury nevertheless convict, the appellate court

has no warrant to interfere with the verdict. In cases of the present

kind, it used to be the practice - a practice on which appellate courts

insisted - to warn juries of the danger of acting on the uncorroborated

testimony of a prosecutrix in a trial for a sexual offence. That

practice was abrogated in New South Wales by s.405C of the Crimes Act

1900.

6. The passage in Davies and Cody v. The King (35 (1937) 57 CLR at

180) on which the suggested broader function for an appellate court is

based supports the view that an appellate court's duty to quash a

conviction covers -

"not only cases where there is affirmative reason to suppose that the

appellant is innocent, but also cases of quite another description.

For it will set aside a conviction whenever it appears unjust or

unsafe to allow the verdict to stand because some failure has occurred

in observing the conditions which, in the court's view, are essential

to a satisfactory trial, or because there is some feature of the case

raising a substantial possibility that, either in the conclusion

itself, or in the manner in which it has been reached, the jury may

have been mistaken or misled. This is the basis upon which the

English court has set aside convictions resting upon identification

conducted in an unfair or unsatisfactory manner."



Leaving aside the express statutory grounds for allowing an appeal -

unreasonable verdict, no evidence to support and error of law - their

Honours were addressing the residual ground of "miscarriage of

justice" (36 Criminal Appeal Act 1912 (N.S.W.), s.6) . They referred

first to the cases where there is a failure to observe the essential

conditions of a satisfactory trial. These are the cases which were

described in Wilde v. The Queen (37 [1988] HCA 6; (1988) 164 CLR 365 at 373) as

cases of departure from the essential requirements of the law that go

to the root of the proceedings. Then their Honours described in

general terms the other categories of cases in which an appellate court

might hold that a miscarriage of justice has occurred. In my

respectful opinion, the description was too wide in one respect unless

it is understood as confined by the context.

7. Clearly, an event which produces a substantial possibility that

the jury were misled is a ground for intervention, for a jury should

not be misled in the performance of its functions. Their Honours'

example of the identification cases illustrates the unsatisfactory

nature of a conviction without the giving of a needed warning. But it

would be a mistake to regard any case in which there is a "substantial

possibility that, either in the conclusion itself, or in the manner in

which it has been reached, the jury may have been mistaken" to be a

case calling for the quashing of the conviction. If that were so, the

appellate court would be bound to quash verdicts of conviction in any

trial in which the ultimate finding of facts could be vitiated by the

jury's human fallibility. The "substantial possibility" of which

their Honours spoke is one which is caused by "some feature of the

case". It is the "feature" which constitutes the blemish in the trial,

the "substantial possibility" being the consequence. Though it is not

more particularly described, I venture to suggest that their Honours

were not contemplating a case where the appellate court took a view of

the circumstances different from the view taken by the jury. Rather,

their Honours contemplated events which denied the jury the opportunity

of reaching a proper verdict; for example, a prosecutor's failure

either to call an apparently credible exculpatory witness or to make

the witness available to the defence (38 As in Reg. v. Apostolides

[1984] HCA 38; (1984) 154 CLR 563) .

8. In my opinion, when an appellate court is faced with an appeal

against conviction in which no more appears than a conflict between

evidence that is sufficient in law to support the conviction and

evidence tending to show that the appellant is not guilty, that court

has but one function to perform. That function is to determine

whether a jury, acting reasonably and appreciating the burden and

standard of proof, could have convicted on the evidence available to

support the conviction. That is the question which, in my view, the

Court of Criminal Appeal was bound to address and to answer in this

case.

The facts of the case



9. The indecent assaults allegedly occurred in the lounge room of

the appellant's house when the complainant daughter (K), who was

visiting on an access weekend, was sitting beside her father on a

lounge. There was nobody else in the room at the time, the

appellant's wife (R.M.) and others in the household having retired for

the evening. It was on the following access weekend (they were at

fortnightly intervals) that the acts of sexual intercourse allegedly

took place when K was occupying a bedroom next to a bathroom that was

next to another bedroom occupied by R.M. R.M. had been working in the

kitchen that night, preparing for a barbecue and cleaning the floor.

Then she went to bed.

10. K's room was not locked and her wire-based bed was squeaky.

There were five children other than K in the house. Nevertheless,

R.M. knew nothing of the alleged acts of intercourse between M and K in

K's room. The next morning, K made no complaint to R.M. nor to her

mother who attended the barbecue held that day. In fact she did not

tell her mother of the alleged events for about a month, after she had

told a school counsellor. She had avoided the access weekend following

22-23 September and, when the next access weekend was approaching, K

told the counsellor that she had been "raped" "so that he wouldn't

touch me again". When K was medically examined on 9 November 1990, her

hymen appeared to be intact. K's evidence of the events of the evening

of 22-23 September was uncorroborated.

11. The appellant was interviewed by the police. He firmly denied

K's allegation. He gave sworn evidence at his trial and, so far as

the transcript shows, he was not shaken in cross-examination. He was

supported by substantial evidence as to his good character. The

arguments on his behalf to this Court properly focused on these facts

and on inconsistencies between the circumstances surrounding the

alleged acts as deposed to by K and the actual circumstances. For

example, she did not correctly identify the television programmes

being broadcast at the time of the first alleged incident. On the

other hand, K's evidence of the manner and circumstances in which her

father committed the acts alleged was quite detailed. Her version of

what was said by her father and her responses during the second alleged

incident does not read as a confabulation. She complained first to her

school friend Nicole about the acts of indecency and subsequently about

having had sexual intercourse with her father. She made the first

complaint on the Monday after the weekend of 8-9 September. It was

quite detailed. On Sunday 23 September, the day following the second

incident, she tried unsuccessfully to ring Nicole. The next day she

told Nicole what had occurred. She also tried to tell her sister S at

a later time. Nothing in the family history appeared which might have

motivated K to make false allegations against her father. She was

closely cross-examined, particularly with reference to her description

of her father's alleged penetration of her. Penetration was said to

be inconsistent with the revealed condition of her hymen and her

omission to complain to her mother.

12. Her description of the events of 22-23 September included her

father's penile penetration of her while her legs were over his

shoulders and he was moving in and out. Her cross-examination

included the following:



"Q. And he made a complete penetration?

A. Well it felt like that.



Q. It felt like that?

A. Yes.



Q. And that's when it hurt you?

A. Yes.



Q. Now how many times did he work in and out while he was doing that?

A. I don't know, I didn't count.



Q. But quite a number?

A. Probably yes.



Q. And you've told us that he put his finger in quite a number of

times?

A. Yes."



If this evidence is taken on its face value it might be thought to be

inconsistent with the state of her hymen, but there was evidence from

one medical practitioner that there was no such inconsistency.

Moreover, whether what felt like complete penetration was in fact

complete penetration must surely be a matter for speculation.

Further, when these answers were given, the cross-examination had been

proceeding for some time and the jury may have thought that K was

giving an exaggerated response to questions which she found annoying

because they required answers repetitive of evidence she had already

given. On this aspect of the case, the jury were entitled to accept

that there was a degree of penile and digital penetration sufficient

to satisfy the requirements of s.61A of the Crimes Act 1900 (N.S.W.).

When she was cross-examined as to why she had not told her mother of

these events shortly after they happened, she replied: "I was just

scared of telling her. I didn't know how she'd react, and I don't

think Mum is very good at handling it." That was followed by -



"Q. You see, the obvious person to tell if you didn't want to go to

your father's place was your mother, wasn't it?

A. Probably was, but it's too hard.



Q. Is your mother an unsympathetic person?

A. She's not unsympathetic, no.



Q. Does your mother regard you as a chronic liar?

A. No."



The experience of a jury might find an explanation of this kind

completely satisfying. The mother, though divorced from the father,

had a good relationship with the father's second family and the father

was paying the mortgage on the house occupied by the mother and the

first family. The mother had happily allowed the children to go to

their father on visits. It is understandable that she might not have

been "very good at handling it" and, for a child of 13, to complain to

her mother about the sexual attacks of the father might well have been

"too hard". So far as it is material, the mother said in

cross-examination: "I have no reason to disbelieve my daughter".

13. These are matters rightly to be assessed by a jury. I would

respectfully agree that on the cold print of the appeal book the

allegations are so serious that, as their supporting evidence is

without corroboration, I might well have acquitted had I been a member

of the jury. And an acquittal would sit comfortably with the response

which the appellant made when he was taken for a record of interview

and by the evidence that he gave at his trial buttressed by character

evidence that was called. Yet I am unable to say that the jury who

have had the advantage not only of seeing and hearing K and the

appellant but of observing the way in which they gave their evidence

and their reaction to cross-examination were not entitled to bring in

an adverse verdict.

14. The evidence in the trial reveals no feature on which a court's

assessment should prevail over the assessment made by the jury. It is

the jury's composite and broad experience of life that is paramount in

our structure of administering criminal justice. Words in a printed

transcript may tell one story to the critical legal mind and another

to those who test a story for truth or falsehood according to a broad

experience of life. Inconsistencies which loom large when painted

with the colours of advocacy may be insignificant minutiae once a

witness convinces a jury that he or she is honestly attempting to tell

the truth. It is the sad but salutary experience of every counsel for

the defence that the prosecution's "weak point" is often brushed aside

dismissively by a jury satisfied of the honesty of the prosecution

witness.

15. In this case, the jury did not come lightly to a verdict. They

retired to consider their verdict at about 4 o'clock one afternoon,

were sent home for the evening, returned at 9.15am the next day and

finally returned a verdict at 5.40pm that afternoon after seeking a

redirection on the meaning of "reasonable doubt". On a matter as

difficult as child sexual abuse where the focus of the trial must be

on the veracity of the child and where both child and alleged

aggressor give evidence, an assessment of evidence by an appellate

court is a poor substitute for the assessment made by the jury. And

that is so for a very basic reason: our belief in the validity of the

life experience of juries. When, as in this case, a finding of guilt

or innocence depends on nothing but a contest between a child and her

father as to what happened between them in the absence of others, I am

unable to substitute any view that I might form for the view formed by

the jury. Indeed, I echo the frequent observation of trial judges

that the responsibility rests with the jury and not with me.

16. For these reasons I was unable to join in the order allowing the

appeal.

GAUDRON J The question in this case in which an order has already

been made allowing the appeal is whether the appellant's convictions

for sexual offences involving his thirteen year old daughter are

unsafe or unsatisfactory in the sense that, although there was no error

in his trial or in the trial process, they involve a miscarriage of

justice within s.6(1) of the Criminal Appeal Act 1912 (N.S.W.) (39

Section 6(1) provides that: "The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.") . There are five convictions in question,

two for indecent assault and three for sexual intercourse.

2. I agree with what is written in the joint judgment of Mason

CJ, Deane, Dawson and Toohey JJ as to the nature of the inquiry

involved when it is said that a verdict should be set aside as unsafe

or unsatisfactory. In my view, that inquiry leads to the conclusion

that, in this case, the jury should have entertained a doubt as to

penetration and, thus, should have entertained a doubt as to the

appellant's guilt on the charges of sexual intercourse. However, I do

not think that the prosecution case is brought into doubt in any other

respect.

3. As already indicated, the complainant was 13 years old when,

according to her evidence, the offences took place. She was 15 when

she gave evidence at the trial. Her evidence was that the offences

occurred on the weekends of 8-9 September and 22-23 September 1990

during access visits to her father's home. Her father was divorced

from her mother and lived with his second wife and the two children of

his second marriage. The evidence is to the effect that the

complainant got on well with her father and his new family

notwithstanding some earlier difficulty with, or involving, her

younger half-sister. It will be necessary to refer to this difficulty

in some detail in due course.

4. The complainant's evidence as to the first charge was that she

visited her father on the weekend of 8-9 September and, after everyone

else had gone to bed on Saturday night, her father was sitting on a

lounge watching a video or, perhaps, a movie. She said that she sat

down with him and that he massaged her shoulders and asked her to give

him a kiss. She said, further, that she gave him a little kiss on the

cheek and that "then he started to run his finger down the side of my

body, like from my armpit to just about my waist ... maybe a bit

lower". According to her evidence, he asked her to kiss him again

"and this time he put his tongue in my mouth". She gave further

details involving kissing and the fondling of her breasts. Her

evidence of these events was coherent and concise, lacking precision

only with respect to what her father was watching on the television.

5. The complainant's evidence with respect to the acts constituting

the offences which were said to have been committed on the weekend of

22-23 September was also coherent and concise. She gave evidence

that, on that Saturday night, she volunteered to sleep in her

half-brother's bedroom, towards the back of the house, and that she

then retired, closed the door and went to bed. Some little time later,

she said, her father entered the room and began kissing her and

fondling her breasts. She said that he left the room (she thinks he

was called to the phone by his wife), had a shower and then returned

with a towel wrapped around his waist. Her evidence was that he again

kissed her and fondled her breasts, eventually telling her to take her

pants off. She said that he then proceeded to insert his finger in her

vagina, then his tongue and finally his penis. Her evidence of this

last matter was as follows:



"Then he got on top of me and he started to push his penis into my

vagina, and he kept saying 'Lift your hips up and it won't hurt as

much'. So I lifted my hips up because I didn't want it to hurt, and

he just kept trying and he kept saying 'Lift your hips up' and all

this stuff. And then he finally like took it out."

6. It may be noted at this stage that the complainant's

evidence-in-chief as to the matter last referred to stopped short of

an express assertion of penile penetration. However, the complainant

said in cross-examination that the appellant put her legs over his

shoulders and that it felt as though there had been complete

penetration. She also said in cross-examination that her stepmother

was watching tennis on television when these events occurred,

explaining that she believed this to be so because of what she could

hear from the bedroom and because she thought her stepmother had said

that she was going to bed to watch the tennis. She also acknowledged

in cross-examination that the bed on which she was lying was very

squeaky.

7. Given the nature of the case, the verdicts can only be held to

be unsafe and unsatisfactory if the complainant's evidence is brought

into doubt. Her evidence is uncorroborated. This, of itself, is of

no importance, but where evidence is wholly uncorroborated,

discrepancies and inconsistencies may assume greater significance than

would otherwise be the case. Even so, corroboration or lack thereof is

only one of many considerations which bear on the evaluation of

evidence. And in this case the fact that the complainant's evidence

was coherent and concise is a consideration which weighs in favour of

its acceptance.

8. There are three aspects to the argument for the appellant: the

first concerns the complainant and her evidence; the second concerns

the defence case; and the third concerns the medical evidence led in

the prosecution case. It is convenient to deal first with the medical

evidence. That evidence bears directly on proof of penetration, a

matter which, in my view, was not established to the degree necessary

to sustain verdicts of guilty on the charges of sexual intercourse.

9. The charges of sexual intercourse were brought under s.61A of

the Crimes Act (N.S.W.) 1900 as it stood before its amendment by the

Criminal Legislation (Amendment) Act 1992 (N.S.W.) ("the Crimes

Amendment Act"). When the trial took place in April 1992, s.61A(a)(i)

of the Crimes Act relevantly defined "sexual intercourse" as "sexual

connection occasioned by the penetration of the vagina of any person

... by any part of the body of another person". It was held by this

Court in Holland v. The Queen (40 (1993) 67 ALJR 946 at 949; (1993)

117 ALR 193 at 198) that in that definition "vagina" was to be

understood in its "technically correct sense of meaning the female

organ consisting of the membranous passage or channel leading from the

uterus to the vulva" and not as referring generally to the female

genitalia.

10. The Crimes Amendment Act, which came into force on 3 May 1992,

contains a curious provision (41 Sch.1(2), Explanatory note - item

(2)) which purports to declare that, as from 14 July 1981 (42 The

date upon which the definition of sexual intercourse in s.61A came into

force under the Crimes (Sexual Assault) Amendment Act 1981 (N.S.W.)) ,

an act was an act of sexual intercourse for the purposes of the Crimes

Act if it constituted sexual intercourse as defined in s.61H, the

latter provision being one that was inserted into the Crimes Act in

1992 by the Crimes Amendment Act. Whatever its effect in other cases,

that declaration can have no application in this case for the trial was

concluded before the Crimes Amendment Act came into force (43 See

Holland (1993) 67 ALJR at 949, 953; (1993) 117 ALR at 198, 203) .

Accordingly, this matter must be approached on the basis that it was

necessary for the prosecution to prove penetration of the vagina in its

strict anatomical sense.

11. The complainant was seen by a number of medical practitioners,

including Dr Holloway and Dr Fleming who both gave evidence that her

hymen was intact. Dr Holloway expressed the view that the unruptured

state of the complainant's hymen did not in any way contradict her

statement of sexual interference. However, she acknowledged in

cross-examination that it was inconsistent with rape which she

understood to involve "forced vaginal penetration". On the other

hand, Dr Fleming was firm in her view that there was no inconsistency

with the account given in evidence by the complainant, pointing out

that "(t)here are women who rupture their hymen for the first time

during childbirth." She conceded, however, that "there (was) no

physical evidence one way or another" on the question of sexual

intercourse.

12. Overall, the evidence as to penetration must be regarded as

inconclusive. In all probability, the complainant did not use the

word "vagina" in its strict anatomical sense but, instead, as referring

to her genitalia. Her evidence with respect to the episode in which

she alleged penile penetration did not go beyond an assertion that it

felt as though there had been complete penetration. And the medical

evidence did not advance the prosecution case. In these

circumstances, the jury should have entertained a doubt whether there

was penetration as required by s.61A of the Crimes Act. The

convictions for sexual intercourse are, thus, unsafe and

unsatisfactory. However, the matters which occasion doubt as to

penetration do not carry over into any other aspect of the prosecution

case. Hence, unless some other matter brings the complainant's

evidence into question, it was open to the jury to find sexual

interference as alleged, so long as they stopped short of a finding of

penetration.

13. The matters pertaining to the complainant which were used to

attack her credit were these:



(i) her earlier difficulties with her younger half-sister;



(ii) her failure to make early complaint to her mother or her

stepmother;



(iii) her conduct and demeanour after the events of which she gave

evidence; and



(iv) certain aspects of her evidence which were said to be

unsatisfactory.



The aspects of the defence case on which the argument relied were:-



(i) the appellant's good character;



(ii) his inability to do more than he did to establish his innocence;

and



(iii) the improbability of his having acted as alleged, given the

squeaky bed, the size of the house and the presence in the house of

other members of the family.



It is necessary to refer in some detail to the evidence which bears on

these matters.

14. In 1988, a little over two years before the events in question,

the complainant was referred to the psychiatric registrar of a large

hospital because of recurring headaches. She told the registrar, Dr

Mason, that her half-sister had been tormenting her on access visits

to her father's home by touching her genital area in an aggressive

manner. Her half-sister, who was then eight, was some two years

younger than the complainant and much smaller. Dr Mason reported the

matter to the Department of Family and Community Services (FACS),

considering that she was legally obliged to do so. As a result, the

half-sister and her parents were interviewed by departmental officers.

15. During her cross-examination, Dr Mason indicated that she had

elicited from the complainant that a girl at her school had discussed

some incident involving sexual assault with her classmates. However,

she was not asked whether there was anything to indicate that the

complainant might have made a "copy-cat" complaint. Nor did her

cross-examination or, indeed, anything else in the case indicate that

the complaint with respect to her half-sister was false. This

notwithstanding, the argument proceeded in this Court on the basis

that there was no truth in that complaint and, if there was, it ought

to have been dealt with by the older girl slapping or pushing the

younger one away and, by extension, that the complainant was or ought

to be seen as a person prone to making untrue or unnecessary

allegations of sexual assault.

16. In my view, the argument made by reference to the complainant's

difficulties with her half-sister tends to overlook the fact that she

did not complain of her half-sister's behaviour until referred to Dr

Mason who, presumably, questioned her to ascertain whether there was

anything which might explain her headaches. It also tends to overlook

the fact that it was Dr Mason who brought the matter to the notice of

FACS. And, perhaps of more importance, it tends to overlook the fact

that there may be good reason why a young child would not wish to

engage in conflict with her half-sister in the half-sister's home.

But in any event, there does not seem to me to be any evidentiary basis

for thinking that the complainant lied about her half-sister or

over-reacted in that regard or, by extension, that she lied about the

events on the weekends in question.

17. The arguments made by reference to the absence of complaint and

the complainant's conduct and demeanour on the weekends in question

can be dealt with together. So far as concerns the offence which was

alleged to have been committed on the first weekend, it seems that the

complainant behaved quite normally on the Sunday. And the evidence is

that she did not make immediate complaint to her mother, her

stepmother or any other adult. However, she did speak of the matter to

her school friend on the following Monday and to her twin sister a few

days later.

18. On the Sunday of the second weekend, the appellant held a

barbecue to mark the occasion of the rugby league grand final. Again

the complainant behaved normally, making no complaint to her mother or

her stepmother. As before, she spoke to her school friend the next

day and told her what had happened. She spoke to her twin sister a

little later. About a month later and at the urging of her school

friend, she spoke to the school counsellor. She then spoke to her

mother.

19. One other matter should be recorded with respect to the second

weekend. The complainant's twin sister broke her ankle playing

football at the barbecue. Arrangements were made for her to receive

medical treatment the next day, Monday, in circumstances requiring the

attendance of her mother and her stepmother. As part of these

arrangements, the complainant agreed to go, and in fact went, to her

father's house to mind her half-sister and half-brother. She made no

protest about this arrangement.

20. Complaint is a matter of some significance in sexual offences.

The general rule is that, save where there is a claim of recent

invention, evidence is not admissible to prove prior consistent

statements. However, in the case of sexual offences, evidence of

early complaint is admissible to negative any effect "the alleged

victim's silence might have on her credibility" (44 Timm v. The Queen

124 DLR (3rd) 582 at 587, 315 at 321 per Lamer J See also R. v.

Osborne (1905) 1 KB 551; Kilby v. The Queen [1973] HCA 30; (1973) 129 CLR 460; Ugle v.

The Queen [1989] HCA 55; (1989) 167 CLR 647) . It is admissible whether the victim is

male or female, but, more often than not, the principle has been stated

with respect to women and girls, as has its rationale. Thus, for

example, it was said in Hawkins' Pleas of the Crown (45 Hawkins, Pleas

of the Crown 1716-1721, (1973), bk1, ch.41, s.3. See to the same

effect, Hale, History of the Pleas of the Crown 1736, (1971), vol.1,

ch.58, 633; East, Pleas of the Crown 1803, (1972), vol.1, ch.10, s.7) ,

in a passage referred to by Barwick CJ in Kilby v. The Queen (46

(1973) 129 CLR at 469 per Barwick CJ, citing a reference to the same

passage in Reg. v. Lillyman (1896) 2 QB 167 at 170-171) , that "(i)t is

a strong, but not a conclusive, presumption against a woman that she

made no complaint in a reasonable time after the fact".

21. The presumption discussed in Hawkins' Pleas of the Crown is not

a presumption of law but an assumption of fact (47 See Kilby v. The

Queen (1973) 129 CLR at 469 per Barwick C.J) . And it is an assumption

which has embedded in it a questionable suggestion, namely, that people

are more likely to lie about sexual offences than about other matters.

And of course - though this need hardly be said - there is no basis for

thinking that females are less reliable in these matters than males (48

See generally, McDonald, Gender Bias and the Law of Evidence: The

Link Between Sexuality and Credibility, (1994) 24 Victoria University

of Wellington Law Review 175) . As well, the presumption is no longer

generally seen as conclusive. This last matter is conveniently

illustrated by the requirement in s.405B(2) of the Crimes Act that,

where a question is raised as to failure to complain, a direction is to

be given to the jury to the effect that the absence of complaint does

not necessarily indicate that the allegation is false and that there

may be good reasons why no complaint was made. Even so, the assumption

is still accorded considerable respect and it was held by the Court of

Criminal Appeal of the Supreme Court of New South Wales in Reg. v.

Davies (49 (1985) 3 NSWLR 276 at 278) that, notwithstanding

s.405B(2), a trial judge should, at least as a general rule, direct the

jury that absence of complaint or delay in complaining may be taken

into account in evaluating the evidence of the complainant. However,

that is not a hard and fast rule and a conviction will not be set aside

simply because there has not been a direction of that kind (50 See

Reg. v. Preval (1984) 3 NSWLR 647; Reg. v. Murray (1987) 11 NSWLR 12) .

@PBecause complaint continues to have significance in relation to

sexual offences, it is important for the assumption which justifies

that significance to be formulated in terms which indicate that it is

neither sex-specific nor of general application, as for example in the

statement that "the true victim of a sexual offence will, under normal

circumstances, complain at the first reasonable opportunity" (51 Timm

v. The Queen 124 DLR (3rd) 582 at 587 per Lamer J) . However,

circumstances vary greatly and there may be different views as to what

is normal and, also, as to what constitutes reasonable opportunity. So

much so, in my view, that there is much to be said for the proposition

that the interests of justice are better served if each case is

approached in the light of its own facts with directions to the jury

being fashioned to take account of the assumption, if any, to which

those facts might give rise, rather than by reference to an assumption

expressed in general terms but which, clearly, cannot hold good in all

cases.

22. There is one class of case which cannot be approached on the

basis of an assumption of the kind discussed in Hawkins' Pleas of the

Crown, namely, cases of sexual assault on a child by a person who has

the child's trust and confidence. In cases of that kind, the victim

may be reluctant to resist the offender or to protest and, on that

account, reluctant also to complain. As well, a child in that

situation may be reluctant to complain from fear that he or she will

not be believed, from fear of punishment or, even, fear of rejection

by the offender. In my view, the present matter should be approached

with those considerations in mind. And if approached on that basis,

the argument with respect to the absence of complaint and with respect

to the complainant's apparently normal conduct on the weekends in

question loses all force. And that is so whether those matters are

considered separately, together or in combination with the other

arguments raised on behalf of the appellant.

23. The argument with respect to the complainant's evidence or, more

precisely, those aspects which were said to be unsatisfactory focussed

on her inability to give details of the movie her father was watching

on the first weekend in question and on an apparent inconsistency

between her description of it as "a cowboys and Indians" movie and the

movies actually shown on television that night. As well, attention

was directed to the fact that she told police it was a movie, whereas

she said in her evidence-in-chief that it was a video. These matters

must be assessed in the light of her evidence overall, the effect of

which was that it was her father who was watching the movie and that he

began touching her almost as soon as she sat down near him and

concluded his assault by sending her to bed. In such circumstances,

imprecision and even, inconsistency, is readily understood.

24. The appellant's argument extended to two other aspects of the

complainant's evidence. First, it seems that there was no tennis on

television on the second weekend in question. This, in my view, is

almost entirely irrelevant: the complainant did not claim to have

watched the tennis, only that she thought her stepmother was watching

it; and she gave credible explanations for her belief in that regard.

The other aspect was the discrepancy or, more precisely, the fact that

there was not a complete correspondence between the history taken by

Dr Fleming and the account given in evidence by the complainant. On

this aspect of the argument, it is unnecessary to do more than repeat

what Dr Fleming said, namely, that her history-taking was brief.

25. Leaving aside the question of penetration, the arguments for the

appellant do not cast doubt on the case presented by the prosecution.

Rather, an analysis of the evidence reveals a substantial case without

significant weakness. That is important when it comes to evaluate the

arguments made by reference to the defence case, particularly the

argument based on the improbability of the accused having acted as

alleged. In truth, that is no more than an argument that the

prosecution case was inherently flawed, a proposition which runs

counter to my evaluation of the case as one lacking significant

weakness. And so far as good character and the fact that an accused

person has done all that he could to defend himself are concerned,

these are matters properly to be weighed in the balance in a weak

prosecution case but they cannot bring a jury's verdict into issue in

a case which has no significant weakness.

26. In my view, the proper disposition of this appeal required that

the verdicts on the charges of sexual intercourse be set aside and an

order made that there be a new trial on such lesser charges as the

prosecution considered appropriate but, otherwise, that the appeal be

dismissed.

McHUGH J The question for determination in this appeal was whether,

on the evidence, the convictions of the appellant on five charges of

indecency or sexual intercourse with his daughter were unsafe or

unsatisfactory. At the conclusion of the argument, I was not

convinced that the convictions of the appellant were unsafe or

unsatisfactory. Accordingly, I was unable to join in the order of the

Court that set aside the convictions of the appellant. Further

examination of the evidence has confirmed my tentative opinion that the

appeal should have been dismissed.

2. It is true that the only evidence against the appellant ("M")

consisted of the uncorroborated evidence of his daughter and that at

all times he denied her allegations. She also claimed that full

sexual intercourse had occurred. The medical evidence proved, however,

that her hymen was intact and that there was no evidence of sexual

abuse. In addition, M was said to weigh about 114.5 kilograms (18

stone) and the acts of sexual intercourse were alleged to have occurred

without the consent of the complainant on a "squeaky" bed in a room not

far from other rooms where family members including M's second wife

were present. Yet no one heard anything that suggested that M was

engaged in sexual activity with the complainant. Furthermore, although

the complainant had ample opportunity to complain to her mother and

stepmother about the offences, she did not complain to her mother for

some weeks and did not complain at all to her stepmother.

Discrepancies in the various accounts that she gave and other matters

of less significance were also relied on as making the convictions

unsafe or unsatisfactory.

3. Despite the foregoing matters, I do not think that the jury had

to have a reasonable doubt about M's guilt. The jury had the

incomparable advantage of seeing the witnesses, including M, give

evidence. The complainant gave a detailed account of what had

occurred and, unless she was a consummate liar with a vivid

imagination, the circumstantial detail of her evidence made it ring

true. Although the complainant's evidence was uncorroborated, she

informed a close friend about what had occurred on each occasion as

soon as she reasonably could. She also complained to her sister,

although in less detail and more reluctantly, about what had occurred.

Both the friend and the sister gave evidence confirming the making of

the complaints. The jury also had medical evidence before it to the

effect that an intact hymen in a woman is not inconsistent with her

having had sexual intercourse. The complainant was also thoroughly

cross-examined by one of the most experienced counsel in the country.

Nothing emerged from the cross-examination that necessarily required

the jury to have a doubt about the complainant's evidence. No

plausible motive for the complainant making a false complaint was

suggested although it was asserted in argument in this Court that it

might have been a "copy-cat" complaint because a schoolmate had been

sexually abused. In cases such as the present where the parents are

divorced or separated, it is sometimes suggested that the complainant

has a motive to make a false complaint because of the relationship

between her and the accused or the accused and his wife or ex-wife.

But that was not alleged in this case. Although the complainant's

parents were divorced and her father had re-married, the two families

were close.

4. The jury is the tribunal that has the responsibility of deciding

the guilt of persons indicted for criminal offences. Like all human

institutions, the institution of the jury has its faults. In

particular, juries are likely to be affected by the prejudices and

even the hysterias that from time to time are found in the community.

The composition of the average jury, drawn as it is at random from the

community, makes it likely that the collective experience of the jury

will reflect the prevailing opinions, values and prejudices of the

community. But, although it has become increasingly accepted that

sexual abuse is widespread throughout the community, there is no

evidence nor reason to suppose that juries in sexual abuse cases do

not evaluate the evidence in those cases as impartially as they

evaluate the evidence in other criminal cases that come before the

courts.

5. In my view, the convictions were not unsafe or unsatisfactory.

Accordingly, the appeal should have been dismissed.

Factual Background



6. M divorced his first wife in 1983. They had four children, one

of whom was the complainant ("K"), who was thirteen at the time of the

alleged incidents. M remarried. He has two children, Jacqueline and

Jonathon, from his second marriage.

The evidence for the prosecution



7. The principal evidence for the prosecution was given by K. She

said that, on the weekend of 8 and 9 September 1990, she went to M's

house on an "access visit". During the evening of 8 September, M

entered the bathroom while she was bathing and made remarks about her

body. Later that evening while she was sitting with M on a

"three-seater lounge", he started to massage her back. He then kissed

her. She said that M then put his hand inside her pyjama top and

played with her breasts. He kissed her a few times, then sent her to

bed.

8. K said that on the Monday she asked her friend, Nicole: "Is it

normal for your dad to kiss you with his tongue ... Because dad did."

K said that she told her sister, Sarah, about the incident "a couple

of days later".

9. K also gave evidence that, on the weekend of 22 and 23 September

1990, she went to M's house on another access visit. On Saturday

night, M entered the bedroom where she was. He kissed her and sucked

her breasts. He left the room for a period after being called to the

telephone. He returned with a towel wrapped around his waist. He

then kissed her and again sucked her breasts. He told her to take her

pants off, which she did. M then rubbed and inserted his finger into

her vagina. After that, he placed her legs over his shoulders and put

his tongue into her vagina. He then had penile sexual intercourse

with her. Further sexual activity took place before he left the

bedroom. Much later he came back to the room, kissed her, and told her

that he loved her.

10. K said in evidence that she did not know what to do after this

incident. She thought of telling her brother Daniel who was also at

M's home. But she could see M's head in the loungeroom and was afraid

that he would see her if she went to her brother's room. She was

upset and cried before falling asleep.

11. K said that on the morning after the second incident her sister

came into her room. K said:



"She asked me if anything happened last night, and I didn't want to

talk about it, and I was too upset, and I didn't know what she'd say

or was thinking, so I said, 'No' and she seemed really relieved and

she just went, 'That's good.' And she just said, 'Are you sure?' and

I said, 'Yes.'"

12. K said that she tried to contact Nicole on the Sunday but was

unable to do so until the Monday. She said:



"A. I said to her, 'He did it again.' And Nicole just went, 'What did

you do this time?' Like she knew what I was talking about but she

just wanted to know what he'd done. We had this thing, because her

sister's boyfriend used to call - like her sister is Lee, and he used

to call Lee's like boobs and that, he used to call them heaven, and I

said, 'Well he played with heaven.'



Q: That was a sort of code that you used with Nicole was



A: Yeah. We hadn't actually come up with a code for your vagina or

anything, and I just thought, you know, heaven and I thought you know

maybe I'll call it hell and she'll understand what I mean. And I

said, 'And hell' and she just went, 'What?' and she didn't understand

what I was talking about. So I said, 'Well put it this way, I don't

think I'm a virgin anymore' or something like that. And Nicole just

went silent for a bit and she asked me if I was all right, and we were

having a chat on the phone."

13. K's sister, Sarah, gave evidence that after the first incident K

had "told me that dad had played with her breast and he kept asking

her to kiss him, and then he'd put his tongue in her mouth".

14. Although K was not asked in her evidence-in-chief as to when her

sister was told about the second incident, in cross-examination when

asked about the matter, she said "I can't remember when I told her. I

just remember telling her later on." Counsel for M wrongly insisted

that she had said in examination-in-chief that she had told her sister

on the Monday. K said: "Well I must have then." However, Sarah said

in evidence that she thought that K told her about the second incident

a month or a couple of weeks after she had broken her ankle. That had

happened on the Sunday after the second incident. Sarah said:



"A: She said something like, how would you feel, and I said, 'I know

how you feel.' She goes, 'No, you don't.' And I said, 'Why not?' and

she goes, 'Cause you didn't have anything happen near as bad happen to

you as what I have.' And I said, 'What happened?' And she just told

me that dad tried to have sex with her.



Q: Do you remember any of the detail that she told you, or just that

he tried to have sex with her?



A: After that I just blocked everything out. I didn't want to hear

it."

15. Nicole's evidence confirmed K's evidence that she had complained

to Nicole about what had occurred on each occasion. Nicole said that

she had told K to tell her sister and her mother and had convinced her

to tell a school counsellor.

16. K said that she told the school counsellor about the matter so

that she would not have to go on access visits to the appellant's

house. She denied that she wanted to get her father into trouble.

She said that she did not tell her mother about what had occurred on

either occasion until about one month after the second incident

occurred. The reason was because:



"I didn't know how she'd react, and I don't think mum is very good at

handling it."

17. K's mother said that K had told her about the incidents when

they were going to meet with the Department of Family and Community

Services who had asked to see the mother. Later, however, her mother

said that she was unsure whether someone from the Department told her

first or whether K had.

18. Doctor Margaret Holloway gave evidence that on 9 November 1990

she examined K and found that she was "a young girl of post-pubertal

stages". Her hymen appeared to be of "normal character, a little

redundant and intact". She stated that her findings on examination

were inconsistent with forced vaginal penetration, but not

inconsistent with digital penetration or penetration by the tongue.

19. Doctor Susan Fleming gave evidence that, on 28 November 1990,

after obtaining a history from K, she examined her. She said that K's

"hymen was stretchy, there was no obvious defect in the hymen".

Doctor Fleming said that there was no direct physical evidence of

sexual abuse but that her findings were consistent with the history

given by K. She said that, for an adolescent with this particular type

of hymen, "it is possible to have a finger or even a penis pass through

the hymen without there being any residual physical evidence of this".

Doctor Fleming said: "There are women who rupture their hymen for the

first time during childbirth."

20. The prosecution also tendered a record of interview with M in

which he strenuously denied K's allegations. It is fair to say that

his answers read as the indignant answers of a man against whom false

allegations are made. However, he did concede that he had asked K and

her sister "whether they were still 'intacto'". He did so because

"they were going out with boys two to three years older than they

were". He also suggested to the interviewing officer that the first

priority should be to find out whether K was still a virgin.

The evidence for M



21. M swore that K's allegations were untrue. Nothing emerged in

cross-examination that undermined his denials. M also swore that a

good relationship had existed between the families of his two

marriages. Apart from an incident between K and her half-sister in

June 1988 when K had alleged that her half-sister had "sexually

attacked" her by placing her hand down K's pants, the families had got

on well together. Indeed, it was common ground that M's first wife

had attended a barbecue at his home on the day after the second

incident. Members of both families including K were present. M called

a number of witnesses to prove that he was a person of good character

and reputation.

22. Raellen, M's present wife, said that she had no specific memory

of the weekend of 8 and 9 September 1990. She said that, on Saturday

night 22 September 1990, she went to bed at about 11.30 p.m. and did

not recall when M went to bed. She said that she did not remember

watching the tennis on television that night, as K had said in

evidence. She also said that the bed in the room where K slept was

"very squeaky", a fact that K had conceded in her evidence.

23. After a lengthy retirement, the jury convicted M of all

charges.

The decision of the Court of Criminal Appeal



24. M appealed to the Court of Criminal Appeal (Cripps JA, Finlay

and Sully JJ) which unanimously rejected his appeal. The principal

ground of appeal was that the verdict was unsafe or unsatisfactory.

Sully J said that he would have allowed the appeal but for the

decision of this Court in Whitehorn v. The Queen (52 [1983] HCA 42; (1983) 152 CLR

657) "because, broadly speaking, I have in purely subjective terms a

feeling of anxiety and discomfort about the verdicts of guilty that

were returned against the present appellant". Sully J said:

"Unfortunately for the present appellant, it is not possible to

25. Because the trial judge had given a "corroboration warning" that

was "very favourable", Sully J thought that the convictions could be

set aside only if there was "something so destructive of the

credibility of (the complainant's) version as to permit of a

conclusion, not that the jury acting reasonably might very well have

had a reasonable doubt about the guilt of the appellant, but that the

jury acting reasonably must have had such a doubt".

26. Sully J concluded:



"The matters which I have earlier summarised when dealing with the

appellant's challenges to the credibility of the complainant's

allegations, even when looked at in their totality rather than merely

as disconnected individual items, do not seem to me to have been so

destructive of the complainant's credibility as to entail that any

reasonable jury must either have rejected her outright, or have been

left with an unresolved reasonable doubt overall. The case is one, as

I think, where that special advantage of the jury, not enjoyed by this

Court, of seeing and hearing, among others, the complainant, the

appellant, and the other witnesses as to recent and consistent

complaint, cannot be lightly disregarded by this Court.



In the end, therefore, I am not persuaded that a reasonable

jury, instructed as carefully and as fully as was done in the present

case, must have been left with a reasonable doubt as to the guilt of

the accused."

27. Cripps JA concluded that the "discrepancies" in K's evidence

"were matters for the jury to evaluate and resolve". Finlay J agreed

with Cripps JA

The jurisdiction of the Court of Criminal Appeal

to set aside an unsafe or unsatisfactory verdict



28. Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.) ("the

Act") empowers the Court of Criminal Appeal to set aside a conviction

if it is:



"of opinion that the verdict of the jury should be set aside on the

ground that it is unreasonable, or cannot be supported, having regard

to the evidence, or that the judgment of the court of trial should be

set aside on the ground of the wrong decision of any question of law,

or that on any other ground whatsoever there was a miscarriage of

justice".



Mr Holman, the Attorney-General and Minister of Justice, in the course

of the second reading speech on the Bill which became the Act said:



"The powers of the court to remedy any miscarriage of justice are, I

believe, as wide as can be conceived. The court has full power to

take up any case where leave is once given, because it is alleged that

there has been an error of fact" (53 New South Wales, Legislative

Assembly, Parliamentary Debates (Hansard), 5 July 1911 at 1293) .



In Hargan v. The King (54 [1919] HCA 45; (1919) 27 CLR 13 at 23) , Isaacs J said:



"But the essence of the matter here is that sec.6 of the Criminal

Appeal Act states three grounds on which an appeal 'shall' prima facie

be allowed, viz: (1) verdict unreasonable or not supportable on the

evidence; (2) error in law; (3) miscarriage of justice on any other

ground. ... It is, therefore, not an answer to the appellant to say

that what he complains of is not an error in strict law. If he can

show a miscarriage of justice, that is sufficient. That is the

greatest innovation made by the Act, and to lose sight of that is to

miss the point of the legislative advance."

The test for determining whether a verdict is unsafe or unsatisfactory



29. Many errors that occur in the course of a criminal trial and

bring about a miscarriage of justice are errors of law: insufficiency

of evidence, misdirection or failure to direct on relevant matters of

law and evidence improperly admitted or excluded are examples. When

no error of law has occurred, the power to set aside the conviction

depends on whether the verdict was unreasonable or was a miscarriage

of justice.

30. There will be a miscarriage of justice whenever the accused has

not had a fair trial according to law or whenever the nature of the

evidence, the directions to the jury or the procedures that were

followed raise a real doubt as to whether the conviction can be

regarded as a safe or just conviction. In Davies and Cody v. The King

(55 [1937] HCA 27; (1937) 57 CLR 170 at 180) , the Court said of the comparable

jurisdiction of the English Court of Criminal Appeal that:



"it will set aside a conviction whenever it appears unjust or unsafe

to allow the verdict to stand because some failure has occurred in

observing the conditions which, in the court's view, are essential to

a satisfactory trial, or because there is some feature of the case

raising a substantial possibility that, either in the conclusion

itself, or in the manner in which it has been reached, the jury may

have been mistaken or misled" (56 A similar comment had been made in

the earlier case of McKay v. The King [1935] HCA 70; (1935) 54 CLR 1 in which the High

Court had not found a miscarriage of justice. Dixon J said (at 10) "Even if confessional evidence might appear sufficient to submit to a jury, yet a conviction would doubtless be quashed if it appeared that the jury had been allowed or encouraged to act upon views of it which are unsafe.") .

31. Thus, evidence, although legally admissible, may be so

prejudicial that it ought to have been rejected in the exercise of the

trial judge's discretion to exclude prejudicial evidence. Or, a

direction may not be wrong in law but may be so erroneous in fact or

so one sided that the conviction can be seen as a miscarriage of

justice. Similarly, the failure by a trial judge to direct the jury in

relation to identification evidence (57 Davies and Cody [1937] HCA 27; (1937) 57 CLR

170. See also McKay (1935) 54 CLR at 9-10) or the refusal to grant

separate trials despite the possibility of an unfair trial because of

prejudicial material (58 Reg. v. Demirock (1976) 50 ALJR 550; 8 ALR

452) may make the conviction unsatisfactory. If the jury could not

have rationally rejected the possibility that a shot was fired without

an intent to kill (59 Knight v. The Queen [1992] HCA 56; (1992) 175 CLR 495) , a

conviction for murder will be a miscarriage of justice. Some have seen

the case of a conviction on unsatisfactory evidence as another example

of a miscarriage of justice, but it seems better to treat such cases as

ones where the verdict "should be set aside on the ground that it is

unreasonable".

32. The judges of this Court have used different terminology to

describe the appropriate test for determining whether a conviction is

unsafe or unsatisfactory. Some have said that the test is whether a

reasonable jury would have, or should have or must have had a

reasonable doubt about the accused's guilt (60 Chamberlain v. The

Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 at 534 per Gibbs CJ and Mason J;

Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454 at 465 per Mason CJ, 478 per

Dawson J; Chidiac v. The Queen [1991] HCA 4; (1991) 171 CLR 432 at 458-459 per

Gaudron J, 461 per McHugh J; Knight (1992) 175 CLR at 504-505 per

Mason CJ, Dawson and Toohey JJ; Palmer v. The Queen [1992] HCA 11; (1992) 66 ALJR

270 at 270; [1992] HCA 11; 106 ALR 1 at 2 per Mason CJ, Dawson and Gaudron JJ) .

Others have said that the test is whether, having regard to the

probative value of the evidence, it was open to the jury to be

satisfied of guilt beyond reasonable doubt (61 Plomp v. The Queen

[1963] HCA 44; (1963) 110 CLR 234 at 242 per Dixon CJ, 247 per Menzies J; Whitehorn

(1983) 152 CLR at 660 per Gibbs CJ and Brennan J; Chamberlain (No.2)

(1984) 153 CLR at 607-608 per Brennan J; Carr v. The Queen [1988] HCA 47; (1988) 165

CLR 314 at 333 per Brennan J; Knight (1992) 175 CLR at 512 per Brennan

and Gaudron JJ) . Although some judges have seen the two formulations

as interchangeable (62 See for example Whitehorn (1983) 152 CLR at

686, 688 per Dawson J; Morris (1987) 163 CLR at 472-473 per Deane,

Toohey and Gaudron JJ; Chidiac (1991) 171 CLR at 443 per Mason CJ,

451-453 per Dawson J, 457, 458 per Toohey J) , I do not think that

they necessarily mean the same thing. The second formulation of the

test seems to me to be capable of being understood as giving the jury a

wider discretion to evaluate the evidence. In Morris v. The Queen (63

(1987) 163 CLR at 481) , for example, Dawson J thought that once an

admission was properly in evidence, it was for the jury to evaluate the

medical evidence which placed doubt on the veracity of the admission.

33. In my opinion, the correct test for determining whether a

verdict should be set aside on the ground that it is unreasonable is

whether a reasonable jury must have had a reasonable doubt about the

accused's guilt. To ask whether it was open to the jury to be

satisfied of the accused's guilt beyond reasonable doubt is to come

perilously close to applying the test for determining whether there

was a sufficiency of evidence to convict the accused. To go beyond

asking whether a reasonable jury must have had a reasonable doubt about

the accused's guilt would be an unwarranted intrusion into the jury's

right to determine the facts in a criminal trial. The court must make

an independent assessment of the evidence (64 Ratten v. The Queen

[1974] HCA 35; (1974) 131 CLR 510 at 516; Chamberlain (No.2) (1984) 153 CLR at 534;

Morris (1987) 163 CLR at 463, 473, 478; Chidiac (1991) 171 CLR at 443,

458, 461) and consider the sufficiency, quality and nature of the

evidence. However, before coming to the conclusion that a reasonable

jury must have had a reasonable doubt about the accused's guilt, the

court must give due weight to the advantages that the jury had in

regard to the evidence and the atmosphere of the trial. If, after

considering the evidence, the court concludes that a reasonable jury

must have acquitted, the verdict is unreasonable even though there may

be sufficient evidence, in law, to support the verdict (65 Raspor v.

The Queen [1958] HCA 30; (1958) 99 CLR 346 at 350; Plomp (1963) 110 CLR at 244; Hayes

v. The Queen (1973) 47 ALJR 603 at 604; Whitehorn (1983) 152 CLR at

660, 685; Chamberlain (No.2) (1984) 153 CLR at 532, 604, 618; Morris

(1987) 163 CLR at 461, 472; Chidiac (1991) 171 CLR at 442-443, 452,

463) .

The matters that are alleged to make the convictions unsafe



34. Mr Collins Q.C., who appeared for M in this Court but not at the

trial, put forward a number of matters which, he submitted, made the

convictions unsafe.



(i) The complainant was a thirteen year old child and her evidence

was completely uncorroborated.

35. Section 405C of the Crimes Act 1900 (N.S.W.) enacts that there

is no rule of law or practice which requires the trial judge to warn a

jury of the danger of convicting on the uncorroborated evidence of a

complainant. There is however a duty on the judge to warn the jury of

the dangers of convicting on the evidence if the circumstances of the

case indicate that it is appropriate (66 Bromley v. The Queen [1986] HCA 49; (1986)

161 CLR 315) . The trial judge in this case warned the jury twice of

the need to consider the evidence closely because it was

uncorroborated. Lack of corroboration of K's evidence is insufficient

to establish any reasonable doubt about M's guilt. (ii) The hymen of

the complainant was completely intact.

36. K said that M put his finger and his penis in her vagina. In

cross-examination, she was asked:



"Q: How many times did he rape you, once or twice?

A. Once.



Q: I thought - see you told us that he first put his finger in,

right?

A: Yes.



Q: Then he put your legs over his shoulders?

A: Yes.



Q: Then he - what did he do then?

A: He put his tongue inside my mouth - I mean inside my vagina.



Q: And then what was - the next thing he put his penis in?

A: Yes.



Q: Were your legs still over his shoulders?

A: Yes.



Q: And he made a complete penetration?

A: Well it felt like that.



Q: It felt like that?

A: Yes.



Q. And that's when it hurt you?

A. Yes.



Q. And how many times did he work in and out while he was doing that?

A. I don't know, I didn't count.



Q: But quite a number?

A: Probably yes.



Q: And you've told us that he put his finger in quite a number of

times?

A: Yes."

37. Dr Holloway's evidence was that the hymen was of "virginal

nature". In cross-examination, she was asked:



"Q: Were you given a history by this girl that she had been raped?

A: No sir, not of being raped.



Q: Would you agree with me that what you found was quite inconsistent

with rape?

A: It was inconsistent with rape."



In re-examination, she was asked:



"Q: Doctor, when you say, inconsistent with rape, was it inconsistent

with digital penetration?

A: No it's not inconsistent with digital penetration. Perhaps I'm

not answering correctly or my understanding of the word, rape, may be

different from what is intended.



Q: What is your understanding of the word, rape?

A: Well my understanding of the word, rape, is that there's forced

vaginal penetration."

38. Dr Fleming said "that there was no direct physical evidence of

sexual abuse, but I felt that the examination findings would certainly

be totally consistent with the history that K had given me, that is,

consistent with a finger penetration of her vagina and even with some

degree of penile penetration".

39. Later Dr Fleming said that in "an adolescent who has this

particular type of hymen, and that is a relatively stretchy hymen, it

is possible to have a finger or even a penis pass through the hymen

without there being any residual physical evidence of this".

40. In cross-examination, she was asked:



"Q: The examination of a child's vagina would normally confirm a

serious sexual assault, wouldn't it?

A: I would have to disagree. In a woman who is post-pubertal it is

quite possible to have had vaginal intercourse and for it to be

impossible for a medical practitioner with experience in this area to

say with confidence that vaginal intercourse had occurred.



Q: This girl was in fact virgo intacta, though?

A: That is a term that is used widely by non-medical people. It is a

nonsense term and totally unhelpful in this situation."



Counsel then put to Dr Fleming the evidence given by K and asked:



"Q: If she'd told you that story wouldn't you say then that the hymen

as you found it was inconsistent with that type of intercourse?

A: No, I would not."

41. Although Dr Holloway thought that the state of the hymen was

inconsistent with forced sexual intercourse, K did not suggest that

force was involved. Her evidence was that, after M told her to lift

up her hips, she did so "because I didn't want it to hurt".

Furthermore, although K said that it "felt like" complete penetration,

the jury might reasonably have thought that what might have seemed like

complete penetration to her was in fact only partial penetration. It

was open to the jury to conclude that, because of her fear and

inexperience, she thought that the attempts of M had achieved "complete

penetration". In that respect, the jury might have thought M's

statement to the police that "I would suggest as far as the allegations

are concerned that our first priority would be to find out whether in

fact K is still a virgin" indicated that he knew that she had not been

completely penetrated. As appears below, it is not necessary for there

to be complete penetration of the vagina before the offence occurs. In

any event, it was open to the jury to prefer the evidence of Dr Fleming

to that of Dr Holloway.



(iii) The apparent equanimity of the complainant in the immediate

aftermath of the second incident.

42. K said that she helped her stepmother prepare for a barbecue on

the day after the second incident. She also agreed that she played

"normally with other children" at the barbecue. In cross-examination,

K's mother gave evidence that, although K had been quite quiet early

in the day, she had later participated in the children's games.

43. Mr Collins submitted that a thirteen year old girl who was

assaulted in the way that K alleged could not be supposed to have so

quickly recovered from her ordeal as to behave as she did at the

barbecue. But, in the absence of expert evidence as to how a young

woman of K's age and background would react and interact with people

including her assaulter after the events of the kind that K described,

I do not think that it is open to this Court to set aside the

convictions of M because K did not act in accordance with some

perceived stereotype of a victim of sexual assault. The jury, drawn

from the community, and with the great advantage of having seen and

heard K give evidence, is in a far better position than the judges of

an appellate court to determine whether her conduct was inconsistent

with her complaints. Quite apart from the advantage of seeing and

hearing the complainant, the collective experience of the jury is more

likely to fit them for the task of evaluating the evidence and conduct

of a thirteen year old complainant with K's background than is the

experience of appellate judges. Attitudes towards sexual matters and

the behaviour of young people have changed so much in recent years

that in many instances the views of appellate judges about how

teenagers behave, derived from their own past contact with teenagers,

may well be out of date.



(iv) The conduct of M during the record of interview with police.

44. Mr Collins relied on three matters concerning M's conduct when

interviewed by the police. The first was that he had not wanted a

solicitor present. The second was a comment that K should be

medically examined "as previously she made allegations against my

youngest daughter Jacqueline". The third was the outright denials made

by M in the course of the interview. None of these matters assist M.

Denials are not evidence of the falsity of the allegations nor

inconsistent with guilt. Further, as I have indicated, M was much more

likely than K to know whether full penetration had occurred.



(v) The absence of complaint to the complainant's mother or

stepmother.

45. It is undisputed that K did not complain to her mother until

some time after the incident and did not complain at all to her

stepmother. But she gave a credible explanation for her failure to

complain to her mother. Moreover, she complained promptly to her

close friend, Nicole, and also to her sister. The jury may have found

it not surprising that in the circumstances she did not complain to

her stepmother.



(vi) The interview with the psychiatric registrar.

46. Mr Collins submitted that it "must have raised a concern in the

mind of the jury" that "a thirteen-year-old girl" had "been treated by

a psychiatrist for reasons which did not have any organic explanation"

and that "she should have chosen on two important occasions to discuss

sexual complaints" with her.

47. In 1988, K had been referred to a psychiatric registrar, Dr

Mason, in an attempt to establish a non-organic reason for recurring

headaches. Dr Mason gave evidence that K had said that her

half-sister had "on several occasions touched K's genital area in an

aggressive fashion". Dr Mason reported the incident to the welfare

authorities. In cross-examination, K agreed that a welfare worker came

around to talk to her half-sister after that. In cross-examination, M

said that he had spoken to K's half-sister about it but not to K and

that the two girls had got on well after the incident. In his record

of interview, M, when asked if he had any idea why K would make the

allegations against him, said:



"None what so ever. Unless I've let her down in some way either as a

father or a friend. But I would suggest as far as the allegations are

concerned that our first priority would be to find out whether in fact

(K) still is a virgin as previously she made allegations against my

youngest daughter, Jacqueline which involved the family welfare

community, what ever it is."

48. M's present wife was asked:



"Q: One other matter, do you remember hearing back in 1988, that your

daughter Jackie was supposed to have attacked (K) sexually?

A: Yes that's not exactly how it was sort of put to me.



Q: Well who put it to you, who first told you about it?

A: Carol rang me and said that -

A: No that is Sarah and (K's) mother.

49. Although Mr Collins suggested that K went to Dr Mason because of

the incident with Jacqueline, this suggestion seems incorrect. The

reason that K saw Dr Mason was that she was suffering from headaches

which could not be traced to an organic source. The incident with

Jacqueline was not the motivation for K seeing Dr Mason.

50. Mr Collins also insisted this event indicated an "unhealthy

preoccupation with the subject-matter". However, K's stepmother gave

evidence that the social worker that she had seen about Jacqueline's

behaviour had said that the conduct was "normal sibling behaviour".

In all likelihood, the jury considered that such behaviour among young

children and K's concern about it did not evidence the "unhealthy

preoccupation" that Mr Collins alleged.

51. During the 1988 consultations with Dr Mason, K mentioned that

another girl from her school had been sexually assaulted by a male

relation. In evidence, Dr Mason was unable to recall any significant

details about the matter. In cross-examination, counsel asked K

whether the girl received sympathy and extra attention as a result of

the assault. She answered:



"No, not really, they just wondered why she was crying."

52. Mr Collins also argued that the likelihood of K having had a

conversation in the playground about a classmate being the victim of

sexual assault and then herself being a victim was one in a million.

There is no substance in this submission. As Gaudron J pointed out

during the argument, both the public campaigns concerning sexual

assault and the incidence of sexual assault in the community make it

unsurprising that such a conversation could take place.



(vii) M gave evidence under oath which was not discredited.

53. Mr Collins relied on Sully J's conclusion that "I cannot see

that the sworn evidence given by the appellant was obviously

discredited by cross-examination". I agree that nothing in the

printed pages of M's evidence undermined his denials. But that does

not mean that the jury had to have a reasonable doubt about his guilt.

They saw and heard M and K give evidence and had the opportunity, which

is denied to this Court, of comparing their demeanours. M also called

impressive evidence of good character. However, the commission of

sexual assault, especially within family units, is certainly not

restricted to those people who would be considered to be of "bad

character".

54. If the evidence for the prosecution in this case cannot be

classed as unsatisfactory evidence of guilt, nothing in the evidence

for the defence was so cogent that it required the jury to have a

reasonable doubt about M's guilt.



(viii) The layout of the house.

55. On the night that the second incident occurred, at least eight

people were in the house or in a room outside the house (67 There

seems to have been a suggestion that another of K's brothers was also

in the house. Evidence from K, however, suggests that he was not

there) . K's sister and their half-brother, Jonathon, were in the

loungeroom. Their half-sister was also in the house. M's present wife

was in her bedroom. K's older brother and a friend were in a back

room, outside the house. K was in Jonathon's bedroom which did not

have a lock on the door. It was separated from the bedroom of M and

his wife by a bathroom and hallway. Another bathroom was located

through a sliding door in the laundry on the other side of Jonathon's

room. Access to outside could be gained from the laundry and the

family room (68 Mr Collins submitted that the only way of getting

outside the house was through the laundry. This made Jonathon's room a

thoroughfare. But the submission is incorrect. The plan of the house

indicates that access to outside is possible through a sliding door in

the family room as K said in evidence-in-chief) .

56. Mr Collins argued that it would have been impossible, given the

layout of the house, and the number of people inside the house, for

the second incident to occur undetected. Moreover, the evidence of K

proved that it was easy to hear things happening in other parts of the

house. She gave evidence, for example, that the telephone had rung

and her stepmother had called out to M while he was in the bedroom

with her. K also said that she could hear the television and that it

sounded like the tennis was on. She was asked:



"Q: Of course, I think we've agreed that the bedroom where Raellen was

on the night that you were raped, and at the time you were raped, was

within hearing distance of your room?

A: It would have been really hard to hear with the tele on.



Q: You could hear the tele, hear the tele clearly?

A: Not clearly, you could hear it but, you could hear the noise.



...



Q: I see, well when he came back if you'd called out, don't or

something like that, Raellen would have had to hear, wouldn't she?

A: She might have.

A: No."

57. Mr Collins submitted that on this evidence the jury had to ask

itself: "Could that really have happened in the way she described in

that house? Would someone have been that crazy to do it?" But the

jury might well have thought that, because of the intensity of his

desire for sexual gratification with his daughter, fear of the

consequences or of getting caught were not matters to which M paid

much, if any, attention. It is not without significance that on K's

account M came perilously close to being caught when his present wife

called him to the telephone; yet he returned in a short period to

resume what he had started. When asked by the police officer about

his wife calling out to him while he was in K's room, M said, "I'm not

denying on that night that my wife Raellen called out 'John' but I'm

saying that what went on before that was a whole pack of lies. Christ

she's my daughter." The jury might well have regarded this curious

answer as an implied admission that he was in K's room that night and

that his wife called out to him even though later in the interview he

said: "I wasn't in her room."

58. Moreover, neither the layout of the house nor the presence of

the other persons necessarily raises a reasonable doubt about K's

evidence. That the second incident could occur with other people in

the house not hearing it is far from an impossibility. All members of

the household except for M's wife were some distance from the bedroom,

either in the loungeroom or outside the house altogether. Between the

bedroom where K was and her stepmother's bedroom was a bathroom.

Although the television could be heard from K's bedroom, this does not

mean that her stepmother could hear what was occurring in the bedroom,

given the fact that the television was on in her room.



(ix) Inconsistencies

59. In her statement to the police, K had said that on the night of

the first incident there had been on television a "cowboy and Indian

movie a country and western type of movie". No such movie was shown

on that night. At the time of the second incident, no game of tennis

was being televised but K was sure that "it sounded like (her

stepmother) was watching tennis". However, when asked why she thought

her stepmother was watching tennis, K replied:



"Well Rae always watched the tennis and I think she said, 'I'm going

to bed to watch the tennis' but I don't know, I could have been

mistaken, but that's just what I heard."

60. There was also an inconsistency between K's evidence and her

sister's evidence as to why Jonathon slept in the loungeroom and K

slept in his bedroom on the night of the second incident. K said that

Jonathon had expressed a wish to sleep in the loungeroom. Her sister

said that he fell asleep.

61. Although K had the opportunity to tell Dr Fleming and Dr

Holloway all the details of the second incident she did not do so. Mr

Collins emphasised, for example, that Dr Fleming was not told that K

put her legs over the shoulders of M during the second incident. At

the trial, counsel for M told Dr Fleming of evidence that her legs

were over the shoulders of M and asked:



"Q: It's nothing like what she told you, is it?

A: No, there is a discrepancy between the history that I have."



However, Dr Fleming said that she took a brief history. Dr Holloway

gave evidence that she had not been given a history that K had been

raped. Mr Collins also drew attention to the evidence of K's sister

who said that K had said that "dad tried to have sex with her".

62. Although Mr Collins submitted that these "discrepancies" were so

grave that a reasonable jury must have had a reasonable doubt about

M's guilt, I cannot agree that the "discrepancies" were such that a

reasonable jury must have had such a doubt. K's mistakes as to what

was on television on the two nights in question and as to why Jonathon

slept where he did and the "discrepancies" in K's various accounts of

the incidents are not a sufficient reason for concluding that the jury

must have had a reasonable doubt about the appellant's guilt. Those

matters say nothing about her honesty which was the principal issue at

the trial. K's account was either substantially true or she invented

it. This was not a case which turned on the degree of accuracy of the

complainant's recollection.

63. It is the everyday experience of the courts that honest

witnesses are frequently in error about the details of events. The

more accounts that they are asked to give the greater is the chance

that there will be discrepancies about details and even

inconsistencies in the various accounts. Of course, it is legitimate

to test the honesty or accuracy of a witness's evidence by analysing

the discrepancies and inconsistencies in his or her accounts of an

incident. In a case where accuracy of recollection is vital - such as

the account of a conversation in a fraud case or the description of a

person where identity is the issue - discrepancies and inconsistencies

in the witness's account may make it impossible to accept that

person's evidence, no matter how honest he or she appears to be. But

in other cases, discrepancies and inconsistencies may be of far less

importance if the honesty of the witness, as opposed to the accuracy of

the detail, is the crucial issue. If a jury thinks that the demeanour

of the witness or the probability of occurrence of the witness's

general account is persuasive, they may reasonably think that

discrepancies or even inconsistencies concerning details are of little

moment.

64. In the present case, the jury would have undoubtedly thought

that her accounts of her father's acts either were true or were wicked

inventions. The jury might well have thought that the fact that she

was mistaken in her recollection of what was on television or had

failed to give Dr Fleming or Dr Holloway the exact account of the

incidents that she gave in evidence was of little moment, if they

believed that she was not inventing her evidence. And quite apart

from her demeanour, there was much in the detail of her account that

made her central allegations ring true. To take but two of many

examples: K said that, on the night of the first incident, M had

earlier come into the bathroom and said, "Hop out". K said that, when

she got out of the bathroom, M was looking at her and was "just saying

stuff like, 'Wow, you've got hair down there', and he was making all

jokes about me going through puberty and stuff". K said that, during

the second incident, the appellant was licking her vagina and then he

looked up at her and said:



"A: 'Mark had you didn't he?' and Mark was one of my ex- boyfriends,

and I thought he meant as a girlfriend, and I said, 'yeah', and he

said, 'Where?'. And he started saying like, Lake Congola, at home,

here, and he was listing all these places, and I just went, 'At home.'

And then he said, 'How many times?'. I said, 'Once' because I'd only

been out with him once. And then he said, 'Why?'. And then I knew

what he was talking about.



Q: What did you understand at that point that he was talking about?



A: Then I understood that he meant had I had sex with Mark. So I

said 'Dad, we didn't go all the way' or something like that. And Dad

just went, 'Right'. Then he got on top of me and he started to push

his penis into my vagina, and he kept saying, 'Lift your hips up and

it won't hurt as much'".

The overall picture



65. As Mr Collins rightly insisted, a reasonable jury was bound to

consider the cumulative effect of all the matters on which he relied.

But even when that is done, I do not think that a reasonable jury must

have had a reasonable doubt about M's guilt. The cumulative effect of

the criticisms that Mr Collins made of the prosecution evidence cannot

be lightly dismissed even though, as I think, there was a reasonable

answer to each criticism. But, as Sully J said in the Court of

Criminal Appeal, "even when looked at in their totality" they were not

"so destructive of the complainant's credibility as to entail that any

reasonable jury must either have rejected her outright, or have been

left with an unresolved unreasonable doubt overall". Not only did the

jury have the great advantage of seeing K and M give evidence but the

jury might also have thought that it was improbable that K's evidence

was invented.

66. If M was innocent, then his thirteen year old daughter, for no

known or plausible motive, decided to invent a story that her father

had sexually assaulted her on two occasions. Having fixed a weekend

visit as the scene of the first incident, she told her friend that her

father had played with her breasts and kissed her with his tongue.

She broke down and cried while doing so and, by chance, her sister saw

her crying and later asked her why she was crying. She then repeated

the allegation to her sister. She then waited until the next access

visit and on the following Monday told her friend of even graver

assaults. For some reason, she decided not to tell her sister of the

further assaults that she had invented. Nor at this stage did she tell

her mother about either incident. By chance, her friend suggested that

she should tell the school counsellor. So she did. She then repeated

her lies to the counsellor, to welfare and police officers, to doctors

and to her own mother. Eighteen months later she completed the course

of deception that she had embarked on in September 1990 by telling a

jury of the sexual assaults that she had invented. She supported her

allegations with a wealth of detail concerning statements and actions

of her father that made her evidence sound true. So confident was she

that her lies would be accepted that she even claimed that her father

had had penile intercourse with her even though she knew that she was

a virgin.

67. A reasonable jury might well think that it was unlikely that a

thirteen year old girl, with no known or plausible motive, could tell

such a detailed story of sexual assault and maintain it as well as she

did unless the events which she related in evidence were substantially

true. If she created a favourable impression in the witness box, as

she obviously did, and if M's demeanour did not impress the jury, how

can it be said that on all the evidence a reasonable jury must have

had a doubt about his guilt?

Penetration



68. One final matter needs to be mentioned. In cross-examination, K

said that it felt like complete penetration had occurred. I think

that, having regard to Dr Fleming's evidence, the jury were entitled

to act on the basis that a reasonably full degree of penetration had

occurred, notwithstanding the state of K's hymen or her statement to

her sister that M had "tried" to have intercourse with her. The jury

were not bound to prefer K's sister's recollection of what was said to

her in preference to K's evidence. Her sister made it plain in her

evidence that she did not really want to hear the allegations against

her father and that after she was told she "just blocked everything

out".

69. But even if the jury concluded that "complete" penetration had

not taken place, they were entitled to convict on the charges of

sexual intercourse if they thought that some penetration of the vagina

had occurred. At common law, the slightest degree of penetration of

the female genitalia was sufficient to constitute rape (69 R. v. Lines

(1844) 1 Car and K 393 [1844] EngR 333; (174 ER 861)) . It was not necessary on a charge

of rape at common law to prove penetration of the vagina itself. In

Holland v. The Queen (70 (1993) 67 ALJR 946 at 949;117 ALR 193 at

197-198) , however, a majority of this Court said that s.61A of the

Crimes Act which, at that time, defined "sexual intercourse" to mean

"sexual connection occasioned by the penetration of the vagina of a

person ... by ... any part of the body of another person", required

penetration of "the female organ consisting of the membranous passage

or channel leading from the uterus to the vulva". That decision is

applicable in the present case because the appellant was charged with

offences to which the then definition in s.61A applied.

70. However, even if the jury thought that K's agreement in

cross-examination that it felt like "complete penetration" was

mistaken, they were reasonably entitled to conclude that some degree

of penetration of her vaginal canal had occurred. She gave

evidence-in-chief that "he started to push his penis into my vagina"

and that he "finally like took it out". She also told Nicole that she

didn't think that she was a virgin any more. Upon this evidence and

that of Dr Fleming, the jury were entitled to be satisfied that

vaginal penetration had occurred even if they thought that K, in her

inexperience, was in error in claiming that it felt like complete

penetration. Moreover, the degree of penetration does not seem to

have been an issue at the trial. In his summing up, the learned trial

judge said:



"The accused's counsel finally, I think, said that although different

verdicts were possible, and I have dealt with this already, it is not

likely in this case that you come to different verdicts; if you come

to one verdict in respect of one matter, it is likely that you will,

although you are obliged to consider each matter independently, it is

likely that you will come to a verdict one way, in one count, because

you have come to a certain conclusion about the reliability of the

evidence of either the witness, (K), or the accused; or the doubt that

you have about the witness, (K). And if that is the case, you will

likely do the same thing in respect of each matter."



This passage indicates that the case was fought at trial level on an

all or nothing basis. If the jury believed that M had sucked the

breasts of K or licked her vagina or inserted his finger, then no

doubt counsel for M reasoned that the jury would also believe her

account of the penile intercourse. Arguments concerning the degree of

penetration were obviously seen as not worth putting particularly since

such arguments were inconsistent with M's case that the allegations had

no substance whatever. Moreover, only one of the five charges

concerned penile sexual intercourse. Even if the intact state of K's

hymen made it unsafe to convict M of penile intercourse, it does not

mean that the other two charges of sexual intercourse are unsafe.

Those two charges arose out of K's evidence that M had inserted his

finger and his tongue into her vagina.

71. The appeal should have been dismissed in my opinion because an

independent assessment of the evidence does not establish that a

reasonable jury must have had a reasonable doubt about M's guilt.