AK v Western Australia

HISTORY OF THE MATTER

1. On 26 November 1992, the applicant was convicted by Judge McDevitt of two counts of having sexual intercourse without consent pursuant to s 61D(1) of the Crimes Act 1900 (NSW). The trial took place in the District Court sitting in Broken Hill. Mr Coles was sentenced in relation to each count to a full time gaol sentence comprising a minimum term of 2 ½ years and an additional term of 10 months to commence from the date of his conviction.
2. On 16 September 1993, the Court of Criminal Appeal heard the applicant's appeal against conviction and sentence. The applicant raised the following 14 grounds of appeal: "1. That the finding that the accused did have consensual sexual intercourse with Julie Ann Cini without her consent knowing she was not consenting, is unreasonable or cannot be supported having regard to the evidence 2. That the finding that the accused had digital and penile intercourse with the complainant while she screamed, cried, resisted, and called to her friends for help was unreasonable or cannot be supported having regard to the evidence. 3. That the evidence of Susan Elizabeth Rowland, Gary Christopher Howarth and Karen Marie Ferrett-Howarth did not support a finding that the complainant had been forced to have sexual intercourse without her consent and such a finding was unreasonable. 4. That His Honour erred in finding that the complainant complained of being forced to have sexual intercourse at the very first opportunity that was available to her. 5. That His Honour misapprehended the evidence of Karen Marie Ferrett-Howarth in finding that the evidence of the witnesses was a basis for finding that the complainant did complain of being forced to have sexual intercourse at the first opportunity that was available to her. 6. That the evidence of Judith Ann Manuel and Kenneth Wayne Hobbs was not evidence from which His Honour could infer that screams emanated from the complainant that she was being attacked and what was happening to her was happening without her consent. 7. That there was no evidence upon which His Honour could find that any screams heard by Judith Ann Manuel or Kenneth Wayne Hobbs emanated from the complainant. 8. That there was no evidence upon which His Honour could find that the complainant was being attacked. 9. That there was no evidence upon which His Honour could find that what was happening to the complainant was happening without her consent. 10. That because the accused admitted in a record of interview to Detective Constable Patmore that he was in the area about 1 o'clock that morning, saw a woman lying on the footpath in Beryl Street a short distance from Oxide Street and that a short time later he had placed his fingers in her vagina and was attempting to have penile and vaginal sex with her, a finding that screams came from the complainant was unsupportable and unreasonable. 11. That His Honour misapprehended the evidence of Dr Sander in finding that there were scratches discovered by Dr Sander on the back of the complainant. 12. That His Honour erred in finding that the complainant's screams and the scratches discovered by Dr Sander on the back of the complainant was evidence which corroborated the complainant. 13. That His Honour erred in omitting to consider in the Judgment the following evidence - a. The degree of intoxication of the complainant and her recollection as to events b. The lack of recollection by the complainant about the route she took on the evening c. That on the 5th March, 1991 she told a doctor at the Broken Hill Base Hospital - i. That she fell asleep on the footpath outside a friend's house. ii. Woke at 1.30 to find a man lying on top of her with all clothes on. iii. That he them took her shoes off, underpants off and pulled the dress up. iv. Bent legs up and had vaginal intercourse. v. Was unsure whether ejaculated or not. vi. Did not hit or threaten her. vii. Told her to be quiet when she called out to a friend. viii. No oral or anal contact. ix. She did not struggle. x. He then dressed her and left. d. The evidence of Dr Gutowski that there was evidence of DNA possibly from a number of persons on the undergarment of the complainant and that it was possible that none of the said DNA emanated from the accused. 14. That His Honour, in considering the statement in Court made by the accused, erred in not comparing that statement with the evidence as to - a. The degree of intoxication of the complainant and her recollection as to events. b. The lack of recollection by the complainant about the route she took on the evening. c. The statement made by the complainant on the 5th March 1991 to a doctor at the Broken Hill Base Hospital. d. The evidence of Dr Gutowski that there was evidence of DNA possibly from a number of persons on the undergarment of the complainant and that it was possible that none of the said DNA emanated from the accused."
3. A supplementary ground of appeal was also raised in respect of the applicant's election of a trial by Judge alone.
4. Many of the grounds raised by the applicant in the Court of Criminal Appeal related to specific aspects of the reasoning of the trial Judge and were concerned primarily with the submission that the verdict was "unsafe or unsatisfactory". Since the applicant's case was decided, the High Court has been critical of, and discouraged, the use of the expression "unsafe and unsatisfactory": see, for example, Gipp v R [1998] HCA 21; (1998) 72 ALJR 1012 at 1016 (Gaudron J) and 1035-1037 (Kirby J). The Court has indicated that "close attention must be paid to the language of s 6(1) of the Criminal Appeal Act": Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [12].
5. Since Fleming, a ground or grounds asserting that it was not "open" to the tribunal of fact to reach a guilty verdict has generally been cast in the language of the statute; that is, that the verdict was unreasonable or unable to be supported having regard to the evidence. Most of the argument in the Court of Criminal Appeal in 1993 was directed to such a ground, however described. The language in which it was formulated is not important. What is important is the extent to which the present application covers the same, or similar, ground.
6. The appeal against conviction and sentence was dismissed by the Court of Criminal Appeal. On 4 March 1994, an application for special leave to the High Court was refused: Brian Wayne Coles v R [1994] HCA Trans (Brennan, Dawson and Toohey JJ).

STATUTORY FRAMEWORK FOR APPLICATIONS UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

1. The undated petition in the present matter was lodged in 2018. It is brought pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). The application is to be determined in accordance with ss 78 - 79 of the Crimes (Appeal and Review) Act, which are in the following terms: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from: (a) the fact that the convicted person was: (i) questioned under section 24 of the Crime Commission Act 2012, or (ii) required under section 24 or 29 of that Act to produce a document or thing, or (b) either or both of the following: (i) evidence obtained directly from that questioning or requirement, (ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).
2. The jurisdiction of this Court in exercising these powers is of an administrative (rather than judicial) nature: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 (at pp. 48-50); Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2009] NSWSC 251.
3. I have previously considered the operation of s 78 in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291 at [18] - [22]: "It was said In Varley (at 48) that in deciding to initiate an inquiry: 'a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry.' This element of doubt was discussed in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3] as: '3. Put simply, the question for the judge is whether the material which has been put forward in connection with the application causes the judge unease or a sense of disquiet about allowing the relevant conviction(s) to stand.' The test was adopted by Johnson J in Holland at [6]: '6. The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48;Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].' Beech Jones J analysed the development of this test in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24]: '21.… the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted causes the person considering the matter 'unease or a sense of disquiet' in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which 'as a matter of practical reality' gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]). … 24. Further, I note that s 79(2) of the Review Act refers not only to a doubt or question about the convicted person's guilt but also 'as to any part of the evidence in the case'. It is possible for there to be a doubt or question about such evidence even if there is no doubt or question about the convicted person's guilt (Varley at 46 per Hope JA; Eastman [2003] HCA 28; 214 CLR 318 at [123] per Heydon J). The example given in Varley concerned the ordering of an inquiry to redress unjustified attacks on a particular Crown witness. However in this case I would not exercise the power conferred by s 79(1) to either order an inquiry or refer the matter to the Court of Criminal Appeal unless any question or doubt that might be raised about the evidence or part of it against Bilal Skaf was such as to give rise to 'unease or [a] sense of disquiet' about his convictions.' Finally, as noted by Johnson J in Holland at [9]: 'The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.'"
4. The Attorney General (or respondent) in this case submitted that the requisite sense of "unease or disquiet" described in those earlier cases has been criticized in the context of the language of the test provided in the statute, specifically in s 79(2). In particular, the respondent relied on the decision of the Court of Appeal in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [65]: "This language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'"
5. The respondent also referred to the decision of the Court of Appeal in GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 which considered the operation of s 79(2) and held at [137]-[139] that: "The following observations may be made about the test required by s 79(2) of the CAR Act. First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt. Secondly, the 'doubt' or 'question' the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a 'doubt' or 'question' which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test. Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised 'responsibly and, no doubt, sparingly'. Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is 'not satisfied that there are special facts or special circumstances that justify the taking of further action', throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role."
6. In light of the authorities [3] , it is appropriate to refer to the statutory language of s 79(2) in determining whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. This is a relatively low threshold and mere appearance of a doubt or question is sufficient to enliven the power conferred by the provision. As Johnson J held in Further Application by Gil Bum Yun Pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825 at [40]: "It is necessary to keep in mind that the test in s.79(2) involves the appearance of a doubt or question, not satisfaction that there is a doubt or question. It is this distinction which was emphasised in Buttrose (see [21] above)."

CONCURRENT APPLICATION UNDER PART 7 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001

1. This is one of two related, if not identical, applications being pursued by the applicant pursuant to Part 7 of the Crimes (Appeal and Review) Act. The applicant has also made a petition for review or the exercise of the Governor's pardoning power under s 76 in respect of his conviction.

CONSIDERATION

1. In considering the present application, I have taken into account the material provided by both the applicant and respondent, and that which formed the basis of the original trial and appeal proceedings. While the applicant's submissions were difficult to follow in some respects, five main issues emerged for consideration and determination: 1. Whether the verdicts were unsafe or unsatisfactory (that is, unreasonable or unable to be supported) given the following matters attending the evidence: 1. The first complaint by Julie Cini was not spontaneous and was induced or elicited in response to questions from her friend, Karen Ferrett; 2. The absence of any forensic evidence (from the expert scientists) connecting the applicant to the fluid samples taken from the vagina and underwear of the complainant; 3. The account of Julie Cini which was faltering and uncertain as to matters of fact. These included: 1. The complainant's recollection of resisting Mr Coles; 2. The complainant's recollection of identifying Mr Coles; and 3. The complainant's account at Broken Hill Hospital. 1. The weakness of evidence relied on as corroboration, constituted by the sounds of screams heard by neighbours; 2. The extent to which the complainant was affected by alcohol at the time; 3. The inconsistent evidence concerning damage to the complainant's underpants; 4. The scratches on, or injuries to, the complainant's back; and 5. The immediate and continuing explanation of the applicant of what he recounts took place between himself and the complainant in the early hours of 5 March 1991. 1. Whether the trial Judge failed to direct himself in accordance with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW): 1. There was little or no reference in the trial Judge's remarks on verdict to any legal authority or guidance as to what function the Judge was there performing or undertaking; 2. The trial Judge acted in a way that appeared to be a "box ticking" exercise and failed to discuss any of the weaknesses in the evidence for the prosecution, which should have been considered; and 3. The trial Judge failed to take into account relevant warnings. 1. Whether the circumstances surrounding the election for a trial by Judge alone constitute a "grave irregularity" and were fully considered by the Court of Criminal Appeal or the High Court. 2. The circumstances surrounding the applicant's decision not to provide sworn evidence. 3. Whether the applicant's unusual or atypical personal characteristics should be considered in relation to any or all of the above matters.

Whether the verdicts were unsafe or unsatisfactory (that is, unreasonable and unable to be supported) given various matters attending the evidence

1. It should immediately be noted that the question is not, on this application, whether the verdict is unreasonable or unable to be supported. Rather, the question is the statutory one. This is set out and explained above. If the matter was referred to the Court of Criminal Appeal, the ground may be couched in those terms. However, the applicant's submissions employ the language of an unsafe and unsatisfactory verdict.
2. The applicant submitted that many aspects of the evidence adduced at the trial (identified above) were: "so weak as to lead to a ready conclusion that any conviction flowing therefrom is - and must be - an unsafe and unsatisfactory conviction."
3. Most, if not all, of the matters raised by the applicant were dealt with by the Court of Criminal Appeal in the September 1993 proceedings and relate to whether or not the verdicts were unreasonable or unable to be supported having regard to the evidence. In determining the matter, the Court of Criminal Appeal reasoned that: "It needs to be clearly stated, in my view, that this Court should approach this form of appeal according to the same principles as are applied in appeals from jury verdicts based on the unsafe and unsatisfactory ground. It is not appropriate for this Court to review the facts and to substitute its own verdict for that of the trial judge. The question remains whether or not the trial judge, acting as the trier of fact, should have entertained a reasonable doubt about the guilt of the appellant: Morris v The Queen (1987) 163 CLR 454 and Chidiac v The Queen (1991) 171 CLR 432." [4]
4. It will readily be seen that the function described by the Court is very different to that with which the Court is presently engaged. On the other hand, the Court of Criminal Appeal also pointed out that: "In undertaking the necessary inquiry, the Court must make its own independent assessment by reference to the sufficiency and quality of the evidence, but it must also respect the position of advantage of the trial judge in determining issues of credibility. That arises from the fact that such judge, was able to see and hear the witnesses, in the atmosphere and setting of the trial. The flavour of the trial, and the demeanour of the witnesses, are not something which can be picked up from the transcript." [5]
5. However, the applicant submits that the Court was proceeding on the basis of "the primary judge's flawed examination" and did not fully deal with the matter. The applicant further submits that the Court of Criminal Appeal only "briefly looked at the nature of the charges and the issues which arose for determination".
6. As the respondent pointed out, it appears from the transcript of the High Court special leave application that the proposed grounds of appeal mirrored those in the Court of Criminal Appeal. In relation to those grounds, Brennan J concluded that: "…There is no substance in any of the other grounds advanced in support of the application." [6]
7. It will be seen that many of the matters raised by the applicant may enliven the discretion in s 79(3)(a)(i) to refuse to consider the application because the issues raised have been "fully dealt with" in the earlier proceedings. However, for the most part, I propose to deal with the matter on its merits. I will determine, pursuant to s 79(2), whether or not each aspect of the evidence, or the overall impact of all of the matters considered together, gives rise to the requisite appearance of doubt or question as to the applicant's guilt, under s 79(2). As the material must be considered as a whole in any event, I do not propose to exercise the power to refuse to entertain the application on the basis that many of the arguments were fully dealt with at the time of the original appeal proceedings.

(a) The first complaint

1. The Court of Criminal Appeal considered the evidence of Julie Cini's complaint to her friend, Karen Ferrett. Although the information was induced by Ms Ferrett's questions and not supplied by the complainant spontaneously, and, Wood J, with whom Finlay and Grove JJ agreed, held that: "The evidence was admitted without objection, and no affidavit was filed to suggest that this occurred through oversight or ignorance, or was other than the result of a tactical decision by counsel. However, once in evidence, it was submitted that his Honour should have ignored it because of the leading question asked by Miss Ferrettt. The evidence did not amount to corroboration, it was relevant only to credibility, so far as it showed a consistency of conduct. I am not persuaded that his Honour overlooked the point sought to be made since when referring to the evidence of the complaint being made he added 'even though (it) was made by way of replies to Miss Ferrett'. Of more relevance to consistency of conduct was the appearance of the complainant in a distressed and sobbing state. That was a matter capable of providing corroboration, even though it is traditionally treated as slight and accompanied by a warning as to other inferences open. At the least it was capable, in this case, of showing consistency of conduct. I am not persuaded that his Honour erred in the way this portion of the evidence was handled. Nor am I persuaded that any different view would be taken of the credibility of the complainant if the evidence of complaint was ignored." [7]
2. This matter was dealt with in the appeal proceedings and it is unnecessary to explore it in any great detail.
3. Despite the fact that Karen Ferrett did not mention Julie Cini's complaint in her original statement to police, this does not raise the appearance of doubt or any question as to the applicant's guilt so as to enliven s 79(2). The complaint was raised in Ms Ferrett's statement of 15 January 1992 and was the subject of examination and cross examination at the trial. [8]

(b) Forensic findings

1. The Court of Criminal Appeal also considered the applicant's submission that the trial Judge erred in connecting the applicant to fluid samples taken from the vagina and underwear of the complainant. The Court of Criminal Appeal found that the "DNA evidence was inconclusive", "there was nothing to connect the accused with it" but that "the DNA testing did not necessarily exonerate him" and it did not "attract any degree of doubt" in relation to the applicant's conviction. [9] Similarly, the evidence of Forensic Pathologist, Stephen Jan Gutowski which was attached to the present application stated: "Mr Coles is not excluded as contributor to the seminal stain on the panties but his genetic typing means that he cannot, by himself, account for the typing obtained… the genetic evidence linking Mr Coles to the seminal stain on the panties is weak."
2. The Court of Criminal Appeal addressed the efficacy and effect of the DNA evidence and its relevance to the prosecution case against the applicant. Having considered the matter afresh, in the context of all of the evidence, I do not consider this raises a question concerning the applicant's guilt. I am satisfied that, while the DNA does not advance the prosecution case in any meaningful way, nor does that evidence give rise to the appearance of doubt or raise a question concerning the applicant's conviction so as to enliven s 79(2).

(c) The complainant's recollection and account of events

1. The Court of Criminal Appeal considered the actual and purported inconsistencies in the complainant's evidence. In particular, the Court considered the complainant's recount of her initial identification of a 'Brian' to Karen Ferrett, whether or not a struggle took place, and the version of events she gave at the Broken Hill Hospital.
2. In relation to the complainant's identification of a 'Brian', the Court of Criminal Appeal held that: "Secondly, it was submitted his Honour failed to give sufficient weight to what were seen to be inconsistencies in the evidence of the complainant and Miss Ferrett as to whether she named the complainant by his Christian name alone, or whether she also mentioned his surname. That is a detail of no moment, and could not throw doubt on the credibility of the complainant." [10]
3. The Court of Criminal Appeal said of the history taken at the hospital: "The same may be said of the history taken by Dr. Sander, that the complainant 'did not struggle'. The complainant said that she did not fight the appellant beyond pushing at his shoulders when he first got on her. That was because he was too big. Her account was not inconsistent with a note by way of summary that 'she did not struggle'. She did complain of a sore jaw, and the social worker had some memory of that being mentioned, although Dr. Sander did not record it." [11]
4. The Court found that none of the above inconsistencies raised by the applicant "attract any degree of doubt" (Wood J, Finlay and Grove JJ agreeing). [12] Thus, the issues surrounding the inconsistencies in the complainant's evidence, raised by the applicant in the current proceedings, has been fully dealt with on appeal pursuant to s 79(3)(a)(i) and I will not consider it further.
5. Moreover, in the High Court special leave application, Toohey J concluded that: "…as the Court of Appeal said, in the end it turned on the credibility of the complainant. She was accepted as reliable and truthful and the Court of Criminal Appeal could see no reason why the trial judge should have entertained a reasonable doubt as to her veracity or as to the guilt of the appellant." [13]
6. The inconsistencies in the complainant's evidence do not create any appearance of doubt or question surrounding the applicant's conviction as required by s 79(2). The complainant was subject to examination, cross examination, and re-examination at the trial in respect of her recollection of the events and her credibility. The trial Judge saw and heard her evidence and was in a far better position to make an assessment of her credibility than a Court reading the papers.

(d) The weakness in the 'corroborative' evidence of the neighbours

1. The Court of Criminal Appeal considered the neighbour's recollection of hearing a woman screaming at around the time of the alleged offence. Wood J stated that: "The evidence Mr. Hobbs and Mrs. Manuel gave of hearing screams was said to be inconsistent with the complainant's evidence, and in any event, it was argued that their evidence was intractably neutral. The complainant confirmed that she had called out to Karen as loudly as she could but she could not remember whether additionally she had screamed. She did not deny doing so, and her evidence was therefore not inconsistent with that of the two witnesses who heard screaming at the relevant time. The appellant acknowledged telling her to be quiet because the dogs were barking. In those circumstances I am quite unable to see why the evidence was intractably neutral. On the contrary, it was corroborative of the complainant." [14]
2. The neighbours, Judith Manuel and Kenneth Hobbs, were examined and cross examined on their recollection of events in the initial proceedings. The complainant was also examined and cross examined on the nature and the content of her screams during the trial. [15] She acknowledged that she does not remember screaming and claimed that she was "too scared to remember everything". [16] For the reasons given by the Court of Criminal Appeal, this was important evidence. It does not give rise to the appearance of doubt or raise a question as to the applicant's conviction under s 79(2). The evidence may have been capable of an alternative, innocent, explanation but it was to be considered as part of the whole of the evidence including, critically, the evidence of the complainant.
3. The relevance of the screams was also considered by the High Court in the context of the case, legal principles and warnings.

(e) Complainant's intoxication and route followed

1. The Court of Criminal Appeal considered the complainant's intoxication and her recollection of the travel route taken, concluding that: "Thirdly, it was submitted that his Honour did not take into account the degree of intoxication of the appellant at the time of the alleged offences, some confusion on her part as to the route she had taken from her home to the Ferrett residence, and the DNA evidence. As to the first, the evidence was all to the contrary of her being intoxicated to any significant degree. The route she followed was of no moment, and there was no reason for her to remember it with any specificity…None of these matters seem to me attract any degree of doubt." [17]
2. The applicant submits that the Court of Criminal Appeal erred in concluding that the complainant was not intoxicated to any significant degree. However, there is no substantive evidence before this Court, other than the complainant's recollection of drinking three glasses of ouzo, the observations of Lena Harty and a brief record in the Broken Hill Hospital Notes to suggest otherwise. That evidence was before the trial Court and the Court of Criminal Appeal. The Broken Hill Hospital Notes make reference to the complainant's appearance and mood as "intoxicated, calm" with no indication of the level of her intoxication. Similarly, the evidence of Ms Harty at the trial was that she 'didn't feel' the complainant was sober but did not provide an opinion (insofar as she may have been qualified to do so) as to the level of intoxication or insobriety. [18] The trial Judge took the view that the complainant was intoxicated but this is somewhat of a two edged sword. It does not necessarily diminish the complainant's credibility, particularly given the evidence capable of supporting her account. On the other hand, it potentially made her more vulnerable to the attack, a matter which seemed to be inherent in the trial Judge's findings. The evidence does not give rise to the appearance of doubt under s 79(2).

(f) Damage to the complainant's underwear

1. The Court of Criminal Appeal considered the issue of whether the damage to the complainant's underwear was occasioned by the applicant. The Court determined that: "Her panties were ripped and that was consistent with a degree of force." [19]
2. There did not appear to be sufficient evidence to substantiate any finding that the applicant caused the damage to underwear. The expert evidence suggested that although there was some damage to the underwear, it did not establish with any degree of certainty that the damage was caused by the applicant.
3. Although this issue was not dealt with in great detail in the appeal proceedings, the trial transcript suggests that it formed the basis of extensive examination and cross examination of the complainant. Expert witnesses, Dr Sander and Mr Rudolph Weigner, were also examined on the issue. It is clear from Mr Weigner's evidence that there was some damage to the 'elastic trim' on the complainant's underwear. Although the 'degree of force' was uncertain, it remained a relevant factor for the trial Judge's consideration.
4. The damage to the complainant's underwear was one part of a body of evidence capable of supporting the inference that the sexual encounter was not consensual. It was not the most cogent piece of evidence in itself, but it formed part of a case that included the screaming heard by neighbours, the abrasions on the complainant's back and the distress exhibited by the complainant shortly after her encounter with the applicant. The weakness in this particular item of evidence does not give rise to the appearance of doubt, or raise a question as to the conviction.

(g) The scratches on or injuries to the complainant's back.

1. The verdict judgment indicates that the trial Judge drew an inference that: "…the scratches discovered by Dr Sander on the back of the Complainant are evidence which corroborates the Complainant in that they tend to connect the accused with the crime and that it tends to confirm in a material particular not only that the crime was committed but that the accused committed it." [20]
2. The evidence of Dr Sander at trial indicated that the abrasions on the complainant's back may be consistent with a number of different scenarios. These included consensual intercourse on rough ground, a fall to the ground or scraping one's back against an aluminium fence. However, the scenarios raised in cross examination did not displace the possibility that the injury was obtained during non-consensual sexual intercourse or the dragging of the complainant across the ground.
3. In the Court of Criminal Appeal, Wood J considered this issue and held that: "It was then submitted that the back injury was incapable of providing corroboration since the inference could not be excluded of it having been sustained in the course either of the complainant falling over, or participating in consensual intercourse on rough ground. The presence of physical injury has traditionally been regarded as giving rise to an inference capable of corroboration: Regina v Berill & Ors 5 A CrimR 431. It was open to his Honour to take this evidence into account, and it was in the circumstances of the case corroborative, since on the appellant's account the act of intercourse occurred on a grassy area under the trees. By their nature, the injuries appear more consistent with drag marks than a fall, and it cannot be said the evidence was intractably neutral. It was for the trial judge to weigh the competing inferences." [21]
4. The evidence of scratches to the back was relevant to the complainant's allegation of non-consensual intercourse. The alternative (innocent) scenarios were ventilated at the trial (and on appeal) and do not create an appearance of doubt or question as to the applicant's conviction under s 79(2).

(h) The applicant's explanation of the events of 5 March 1991

1. It is true that the applicant has consistently maintained his innocence and that he told police that the complainant consented very soon after he was arrested. His version of events (given to the police) was before both the trial Judge and the Court of Criminal Appeal and was taken into account. His election not to give sworn evidence will be considered separately. The fact that the applicant maintains his innocence is relevant to the inquiry, but it cannot of itself be determinative of an application such as the present.

Whether the trial Judge failed to direct himself in accordance with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW)

1. The applicant submitted that McDevitt DCJ failed to comply with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW): 33 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
2. This submission was the subject of consideration in both the Court of Criminal Appeal and the High Court.
3. In a case resting on circumstantial evidence, it is well established that the principles of law should be clearly identified and the jury should be directed that it is only permitted to draw the ultimate inference of guilt if it is the only reasonable inference available. I suppose this could be considered to be a "warning", although it is more properly categorised as a direction of law. Even so, this was not a case where the prosecution's case was solely reliant on circumstantial evidence. In fact, it was largely a direct evidence case based on the evidence of the complainant. The prosecution relied on the complainant's direct evidence of what happened to her and a variety of surrounding circumstances (such as the injuries, the complaint and the fact that people nearby heard noises like screaming). Such a case would not ordinarily attract a warning as such.
4. As to a similar argument advanced in the original appeal proceedings, the Court of Criminal Appeal held that: "It was also submitted that the Crown case in part involved circumstantial proof, and that inferences other than those invited were open in respect of certain of the matters relied upon either as providing corroboration, or as establishing lack of consent and knowledge of that fact on the part of the appellant. In reality, the case was a direct evidence case and it would have been inappropriate for the judge to have taken into account a traditional circumstantial evidence warning in relation to those aspects of proof: Shepherd v The Queen (1990) 170 CLR 573 at 580 and 592. The submissions advanced in this regard also overlooked the fact that it is not necessary that corroborative evidence, standing alone, should establish any propositions beyond reasonable doubt. It is sufficient if it strengthens the evidence by confirming or tending to confirm the complicity of the accused: Doney v The Queen (1990) 171 CLR 207 at 211. The trial judge had the opportunity of seeing and hearing the complainant. The trial ultimately turned on her credibility as a witness. She was accepted as reliable and truthful, and I am not persuaded that anything has been shown which should have caused his Honour to entertain a reasonable doubt as to her veracity or as to the guilt of the appellant. I would adopt as applicable to the present case the comments of Hunt CJ at CL in Regina v Delapatrona and Duffield, Court of Criminal Appeal, unreported 16 July 1993 at 27: 'Where the attack upon the Crown case depends largely upon the credit of a vital Crown witness, and where there is no defect in that credit reasonably apparent from the transcript itself (such as admissions made or conflicts left unresolved), this Court will infrequently be able to conclude that the jury ought to have had a reasonable doubt as to the guilt of the accused: Regina v Masters (1992) 26 NSWLR 453 at 467- 468; Regina v Chai (1992) 27 NSWLR 153 at 199 (special leave to appeal refused by the High Court). The reference to the absence of any defect in the credit of a vital Crown witness apparent from the transcript does not, however, mean that the verdict will be held to be unsafe and unsatisfactory simply because an attack upon the credit of that witness is apparent from the transcript: Regina v John Visser (CCA, 6 November 1991, unreported) at 12-13. Very few trials are free from attacks upon the credit of a vital Crown witness. Everything depends upon the circumstances of the particular case, including the nature of the attack, its vitality and its proximity to the particular issue to which the evidence was relevant: Regina v Raymond Kady (CCA 18 June 1993, unreported) at 15-16.'" [22]
5. Counsel for the applicant also raised this issue in the High Court special leave application on the basis that: "The special leave point is, Your Honour, whether or not there was - in fact, this case could be properly categorised as circumstantial evidence and whether or not if it cannot be categorized as circumstantial evidence, the reasoning process of the judge sitting alone must show that he has directed himself within the normal Chamberlain warning…The error in the judgment of the Court of Criminal Appeal is that they have simply said that this is not a case of circumstantial evidence. It is as simple as that…The circumstantial evidence is, in particular, whether or not witnesses heard screams which were identified as female screams, and from that the judge at first instance indicated that the screams emanated from the complainant that she was being attacked and that what was happening to her was happening without her consent. Your Honour, we would simply put that whilst there might be direct evidence in the sense of evidence from the complainant of no consent - and that what was indicated by the Court of Criminal Appeal that there was that direct evidence, but the Court of Criminal Appeal went on to say that this was solely a case of direct evidence. Although it was pointed out and it was argued in front of the Court of Criminal Appeal that there was also circumstantial evidence in - - -" [23]
6. The High Court (Brennan, Dawson and Toohey JJ) concluded that it was open to McDevitt DCJ to infer that the screams emanated from the complainant at the time the offences were committed. In particular, the Court considered that the trial Judge did not contravene s 133(3) and Dawson J stated: "But that warning, as we have pointed out, that there must not be any other rational hypothesis consistent with innocence, but that warning is merely an aspect of the requirement that the Crown prove its case beyond reasonable doubt. There is no question that the judge did not bear that clearly in mind…He is entitled to make that inference" [24]
7. In the High Court, his Honour Toohey J also considered that: "…as the Court of Appeal said, in the end it turned on the credibility of the complainant. She was accepted as reliable and truthful and the Court of Criminal Appeal could see no reason why the trial judge should have entertained a reasonable doubt as to her veracity or as to the guilt of the appellant." [25]
8. It is clear from the verdict judgment that McDevitt DCJ drew the inference that the evidence supported the complainant's credibility: "Both heard screams outside or close to number 414 at about the time at which the Complainant says she was attacked. I accept their evidence. It is evidence from which I may infer, if I accept it, that the screams emanated from the Complainant, that she was being attacked, and that what was happening to her was happening without her consent." [26]

Duty to give reasons more generally

1. A perusal of the verdict judgment shows that there was little express reference to many (if any) of the relevant principles of law. The applicant raised this issue and drew attention to a number of authorities (decided after the present case) which informed the operation of s 33(2) (now 133(2)). In Fleming, the High Court held at [28] that: "Fifthly, whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached."
2. However, the High Court went on to say that it was permissible for a judgment, by implication, to show that a principle of law has been applied to the findings of fact at [30]: "…The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded."
3. In Filippou v R (2015) 256 CLR 47; [2015] HCA 29 the High Court also analysed the operation of s 133 (the current provision in New South Wales relating to verdicts by judge alone). The High Court emphasised that relief requires the breach to amount to a miscarriage of justice at [13]: "Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law."
4. In relation to similar Western Australian legislation, the High Court said it was necessary for a trial Judge sitting in a trial without a jury to engage to some degree with arguments made by counsel: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8; at [16]-[17].
5. I have considered the authorities that post-date the decisions of the Court of Criminal Appeal and the High Court in the applicant's case. It must be said that the reasons provided by Judge McDevitt were not a model of judicial thoroughness. However, where his Honour failed expressly to identify the principles of law and particular facts upon which he relied, the reasoning was at least implicit in the judgment. Although the judgment was pithy and slight, it focused on the facts of the case in circumstances where the issues to be determined were straightforward. Those issues were whether the prosecution had established beyond reasonable doubt that (i) the complainant did not consent and (ii) the accused knew that she did not consent. Putting aside any criticism that might be levelled at the judgment in the light of subsequent decisions such as Fleming, AK and Filippou, this is an issue that was squarely raised in the appeal proceedings in 1993.
6. The applicant's submission regarding the lack of warnings and inadequacy of the judgment was fully dealt with in the Court of Criminal Appeal and High Court proceedings. While it might be thought that the judgment of McDevitt DCJ did not outline the principles of law and findings of fact upon which his decision was based, or at least not thoroughly or by way of necessary implication, this was a matter that was considered in the appellate decisions that followed the trial. It is also not a ground of appeal that should be entertained again, decades later. Even if this constituted a breach of s 33, it would not amount to a miscarriage of justice such that relief would be required. What the Judge did was to set out his factual findings and the evidence he accepted. Once those findings were articulated, the verdict was inevitable. In any event, the deficiencies in the judgment, considered in the light of subsequent authorities, do not lead me to conclude that there is a doubt or question surrounding the applicant's conviction.

Whether the circumstances surrounding the election for trial by judge alone constitute a "grave irregularity" and were not fully considered by the Court of Criminal Appeal or the High Court

1. The applicant submits that he 'very reluctantly' and 'under pressure' elected to be tried by Judge alone. This election took place following an adjournment on the first day that the trial was due to commence. In the materials provided with this application, a memorandum by trial counsel for the applicant was referred to which stated: "Shortly before the trial was due to commence, statements from three (3) witnesses concerning allegations that the accused had in the past sexually molested and/or assaulted them at the International store were made available to my instructing solicitor and myself that matters such as those contained in the statement would have gained notoriety and currency in the Broken Hill area. The decision was made on instructions to dispense with the jury. This was not a course lightly taken given the past experience of myself with His Honour Judge McDevitt, however, given the instructions concerning a change of venue, it seemed the only reasonable alternative available."
2. I accept that the receipt of the impugned statements alleging sexual misconduct would have placed the applicant in a difficult position on the morning of his trial. However, there is no substantive material which suggests that the applicant did not make an informed decision or that trial counsel in any way acted improperly in his provision of advice. In fact, trial counsel (Mr Foord) appears to have considered the options available to the applicant and took the view that the election seemed 'the only reasonable alternative available'. This does not invoke s 79(2). It does not give rise to an appearance of doubt or raise a question surrounding the applicant's conviction.
3. The Court of Criminal Appeal also considered the operation of s 32 (now s 132), albeit from a more practical perspective, and distinguished the instant facts from those in R v Perry (1993) 29 NSWLR 589. Given that the jury was dispensed with following the election for trial by judge alone on 23 November, and the date for the trial was fixed for the next day, s 32 (requiring the election to be filed before the trial date) was not contravened. The Court ultimately held that McDevitt DCJ had jurisdiction to hear the trial and that: "The legislation left open the procedure here followed. His Honour's discretion to stand the proceedings out of the list for 23 November, and to refix them for 24 November, was not challenged. I am therefore satisfied that the relevant date for trial was 24 November and that the election was made before that date. This ground of appeal fails." [27]
4. The High Court also held that the election to proceed with a trial by Judge alone was not a matter sufficient to justify the granting of special leave. His Honour Toohey J considered that s 32 operated such that: "…subsection (5) does not say an accused person who elects to be tried by the judge alone may, subsequent to his trial by that judge, elect to be tried by a jury." [28]
5. This aspect of the case does not raise the appearance of doubt or question surrounding the applicant's conviction.

The circumstances surrounding the applicant's decision not to provide sworn evidence

1. The applicant submits that he was advised not to give sworn evidence and that he "did not understand or comprehend that he enjoyed any real choice in such a decision". It is difficult to accept this assertion at face value. The applicant was represented by counsel at the trial. The fact that he did not give sworn evidence was not raised in the appeal proceedings, at which he was represented by different counsel and during which other aspects of the conduct of the trial were raised. The applicant provided police with an exculpatory version of events shortly after he was arrested. That version is reproduced in paragraph [3] of this judgment.
2. The fact that the Court of Criminal Appeal considered that version to be "somewhat extraordinary" cuts both ways in terms of the decision to give (or not to give) evidence at the trial. [29] Had the accused given evidence, he had two options in terms of the account he gave to police. First, he could have resiled from the version he gave to police and would then have been cross-examined on the inconsistency. Alternatively, he could have stuck with the version given to police and been subjected to cross-examination on the "somewhat extraordinary" version. Whichever course he took, exposing himself to cross-examination was unlikely to have assisted his prospects at trial.
3. The applicant's trial was conducted before the abolition of the dock statement. In other words, the accused (applicant) had the opportunity to make a statement to the Judge without exposing himself to cross-examination. This was an opportunity frequently taken in criminal trials during that period and was considered to be a relatively risk free procedure.
4. There is no evidence from trial counsel or the applicant's solicitor to support the assertion that the applicant was unaware of the choices he had. Further, it was a forensic choice that was often left to the experience and instinct of the lawyers. No doubt it was a question considered by those lawyers and subject of advice to the applicant. As it turns out the applicant made the following statement from the dock: "You Honour, I gave a statement as soon as I realised - police come and got me and [I] realized there was something wrong. They - I asked for Danny O'Brien who advised me I didn't have to give a statement. I thought at the time it would clear it all up. I gave the statement and which you have. Thank you." [30]
5. The statement to which the applicant referred (that is, his signed interview with police) clearly put in issue both the precise facts of what happened as well as making it clear that anything that occurred was consensual conduct.
6. The fact that the applicant did not give evidence was not an irregularity in the trial and does not give rise to the appearance of doubt or question as to the applicant's conviction.

The unusual or atypical attributes of the applicant

1. The applicant submitted that the Court should take into account his personal attributes. In particular, it was put that the applicant presents as: "…cumbersome, slow and poorly equipped to deal quickly with confronting personal events as they unfold."
2. There is insufficient material presented in this application to draw any conclusions regarding the applicant's unusual or atypical attributes. In particular, there is insufficient evidence to draw a conclusion that he did not understand the decision not to give evidence or to make the election to be tried by Judge alone. Similarly, it could not be held that his personal attributes placed him at any other relevant disadvantage in the trial proceedings.
3. Accordingly, there is no basis, on this ground, for a doubt or question as to the applicant's conviction pursuant to s 79(2).

CONCLUSION

1. Having considered the material presented on the application, and giving full weight to the fact that the applicant maintains his innocence decades after serving his sentence, I do not propose to direct an inquiry into the conviction or refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).
2. From this distance, the case presented by the prosecution appeared to be a reasonably strong one. The complainant knew the applicant and there was no dispute as to identification. The complainant made a relatively immediate complaint and exhibited signs of significant distress very shortly after the incident. The neighbours' evidence of screaming and the evidence of injuries tended to support her account. There was some evidence of semen being present on examination of the complainant but that evidence was complicated and I put it aside for present purposes. There was no conclusive corroborative evidence but there rarely is in cases of this kind. However, there was a body of evidence that tended to support the complainant's account that the sexual encounter - which was not disputed - was not consensual. There were inconsistencies in the things the applicant said to police.
3. On all of the evidence, it does not appear that there is a doubt or question as to the applicant's guilt. In reaching that conclusion, I have considered the question whether there is an appearance of doubt, rather than attempting to discern whether there is a doubt. Without supplanting the statutory formulation, but to adopt the language in some of the older cases, the material does not leave me with a sense of disquiet or unease regarding the applicant's conviction.
4. While the vast majority of matters raised were fully dealt with in the original proceedings, and it would have been open to refuse to consider aspects of the application (or perhaps all of it), I have considered the case afresh and on its merits.
5. The application is refused.

Endnotes

1. R v Brian Wayne Coles (District Court (NSW), 26 November 1992, unrep), 9-10.
2. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 9 - 11.
3. Richard William Buttrose v A-G Of New South Wales [2015] NSWCA 221 at [16]-[17], [26] (Beazley P and Leeming JA); Further application by Gil Bum Yun Pursuant to S.78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825 at [40].
4. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 8.
5. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 9.
6. Brian Wayne Coles v R [1994] HCA Trans (Brennan J, Dawson J and Toohey J), 9.
7. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 15-16
8. Trial Transcript, 25 November 1992, 102.
9. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 11, 17.
10. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 16.
11. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 16.
12. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 17.
13. Brian Wayne Coles v R [1994] HCA Trans (Brennan J, Dawson J and Toohey J), 8.
14. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 13.
15. Trial Transcript, 24 November 1992, 14-16.
16. Trial Transcript, 24 November 1992, 66.
17. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 16-17.
18. Trial Transcript, 25 November 1992, 125.
19. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 16.
20. R v Brian Wayne Coles (District Court (NSW), 26 November 1992, unrep), 8.
21. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 14.
22. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 17-18.
23. Brian Wayne Coles v R [1994] HCA Trans (Brennan J, Dawson J and Toohey J), 6.
24. Brian Wayne Coles v R [1994] HCA Trans (Brennan J, Dawson J and Toohey J), 7.
25. Brian Wayne Coles v R [1994] HCA Trans (Brennan J, Dawson J and Toohey J), 8.
26. R v Brian Wayne Coles (District Court (NSW), 26 November 1992, unrep), 7
27. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 7.
28. Brian Wayne Coles v R [1994] HCA Trans (Brennan, Dawson and Toohey JJ), 3.
29. R v Brian Wayne Coles (Court of Criminal Appeal (NSW), 16 September 1993, unrep), 18-19.
30. Trial Transcript, 25 November 1992, 166.

Amendments 28 June 2019 - Correction to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2019