Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sexual offences - Sexual penetration - Whether verdict was unreasonable or could not be supported having regard to the evidence

Evidence - Whether Liberato direction should have been given - Recent complaint - Whether evidence wrongly admitted - Whether erroneous direction - Evidence that complainant took morning­after pill - Whether evidence admissible - Whether erroneous direction given concerning the evidence about the morning­after pill - Distress - Whether correct direction given

Criminal Appeals Act 2004 (WA), s 27(2), s 30(3)(a), s 30(3)(c), s 30(4)

Evidence Act 1906 (WA), s 36BD, s 50

1 PULLIN JA: The appellant was convicted after a trial before Mazza DCJ and a jury of charges that:

(1) On 5 April 2003 at Kalgoorlie [the appellant] sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis.

(2) On the same date and at the same place [the appellant] again sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis.

2 The appellant and the female complainant were students at a University in Kalgoorlie. On the night of 4 April 2003, the complainant went to the University social club and later to a hotel. The appellant went separately to the social club and to the hotel. At the hotel the appellant bought the complainant an alcoholic drink which was the only alcohol that she consumed that night. At about midnight the appellant offered the complainant a lift back to her residential college where she lived as a student. When in the appellant's vehicle, the complainant and appellant decided to go for a drive around Kalgoorlie. The appellant drove to Hammond Park where he parked the motor vehicle. They talked and then the complainant agreed with the appellant's suggestion that they move into the back seat. They kissed. The complainant's bra was removed. The complainant gave evidence she resisted this happening. Her bra was put back on and the complainant said to the appellant that she wanted to go home. They stopped at a service station on the way home and the appellant bought cigarettes. The appellant then suggested that they go to the house where he lived. The complainant agreed. They went to the lounge room of the house and according to the complainant's evidence they then sat outside for a short time and talked. They returned to the house. The appellant explained that another student and his girlfriend were sleeping in a nearby bedroom and the complainant agreed with the appellant to go to his bedroom where they would make less noise. In the bedroom the complainant sat on the appellant's bed. The appellant kissed her. The complainant said she kissed him back. The complainant gave evidence that the appellant then pushed her onto the bed. The complainant said she told him 'this is not right'. She gave evidence that the appellant's mobile phone rang and he sat up on the bed and had a conversation. The complainant said she remained on the bed. When the phone conversation ended the complainant said that the appellant then tried to take off her top and she resisted and said 'No. Enough. Don't do this'. The complainant then said she 'blacked out' meaning, she explained, that she had taken her mind 'to a happy place'; that when she came out of the 'blackout' she remembered the appellant had then taken her jeans off and his jeans off and that the appellant then briefly penetrated the complainant with his penis, this being the subject of the first charge.

3 The complainant gave evidence that the appellant then got off the bed and rummaged around for a condom. The complainant remained on the bed. The appellant, having found the condom and put it on, returned to the bed. The complainant gave evidence that he penetrated her again for a short time. During the second penetration, the complainant gave evidence that she kept saying 'No, I don't want to do this, this is not right, no'. This was the subject of the second charge. The complainant said that the appellant stopped because the complainant was crying. I will refer later in more detail to the evidence about the events in the bedroom when dealing with the grounds of appeal. Both the complainant and the appellant then dressed and the appellant drove her back to her college.

4 It is sufficient for this short recital of the facts to say that the appellant denied that there was any sexual penetration at all. He agreed that they went to the bedroom. He agreed he put on a condom. He said that he did not penetrate the complainant because she said she did not want him to do so. He said that they lay on the bed and he cuddled her for a while before he drove her back to the college.

5 Next day the complainant met a female friend for lunch. This was arranged when the friend called the complainant at about 10.30 am. The friend then drove and picked up the complainant and they went to 'Subway' for lunch. Before getting out of the car to go into 'Subway' they had a conversation. The friend gave evidence that the complainant was 'flat, very upset ...'. The friend said it was hard to get information out of her. The friend gave evidence that the complainant said that the appellant had 'forced himself onto her' and that he had 'inserted his penis inside her', that she did not know 'whether he had actually ejaculated or wore a condom because she had blacked out'. At the girlfriend's suggestion, the complainant went to the hospital and the complainant was prescribed a morning-after contraceptive pill. At the girlfriend's suggestion the complainant saw a social worker.

6 It is not clear when the police became involved but detectives interviewed the appellant nearly five months later on 4 September 2003 and charged him some time after the interview.

1. The verdicts of guilt should be set aside as being unsafe, unsatisfactory and not supported by the evidence.

1. The complainant's evidence was that she had 'blacked out' prior to the alleged acts of penetration and that she had 'blacked out' more than once.
2. Given that the complainant's evidence as to penetration was uncorroborated, it was not reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of either count.

(2) The learned trial Judge erred in law in failing to instruct the jury that even if they positively disbelieved the appellant's evidence, they could not convict him unless the prosecution had made out its case to the required standard.

PARTICULARS

1. The case was essentially a contest of oath against oath.
2. In the circumstances it was appropriate that the trial Judge give the jury a direction of the type referred to in Liberato v R by the High Court.

1. The failure to give such a direction was an error of law.

1. The learned trial Judge erred in law by permitting the evidence of complainant to be admitted.

1. The complaint by the complainant to the witness [the complainant's girlfriend] was not spontaneous and resulted from leading and suggestive questions from the witness.
2. The answers to the questions were non specific and not directly referable to the acts said to constitute the offences.

1. The evidence ought not to have been allowed into evidence as recent complaint tending to bolster the Complainant's testimony.

3A. The learned trial Judge erred in directing the jury that the evidence of complaint to the witness [the complainant's girlfriend] was capable of bolstering the complainant's credibility.

1. The learned trial Judge erred in law when he instructed the jury that the complainant's conduct in attending hospital to obtain a 'morning after' pill was consistent with her testimony and capable of bolstering her credibility, whereas the jury should have been instructed that this evidence was equivocal and the conduct may have been motivated by factors which neither reflected favourably or adversely on the complainant's evidence.

4A. The learned trial judge erred in admitting into evidence any evidence relating to the Complainant's request for the Morning After Pill.

PARTICULARS

1. The evidence had no probative value.
2. The evidence had significant prejudicial effect and should have been excluded.

1. The learned trial Judge erred in law when he instructed the jury that the distressed state of the complainant when she spoke to the witness [the complainant's girlfriend] was a matter which they could take into account as bolstering the complainant's credibility, when he should have warned them that this evidence can carry little weight, and that this evidence could only be used to bolster the complainant's evidence if they were satisfied that all other explanations were excluded.

8 Leave to appeal was refused on ground 2, and an application was made by the appellant to review that refusal. Ground 1 will be dealt with last.

9 Roberts-Smith JA refused leave to appeal and the appellant seeks a review of that decision.

10 The appellant complains, in effect, that his Honour failed to give what is commonly called a 'Liberato' direction. This is a reference to what Brennan J said in Liberato v The Queen [1985] HCA 66; [1985] HCA 66; (1985) 159 CLR 507 at 515, where his Honour said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

11 The Liberato direction is designed to prevent the jury falling into error by jumping to the conclusion that the charge has been proved if they do not believe an accused when there is a contest between an accused and a prosecution witness. The direction informs the jury that the task of deciding which witness they will believe is separate from the task of deciding whether or not all of the elements of the charge have been proved beyond reasonable doubt.

12 This case did involve a conflict between the evidence given by the complainant and the appellant, particularly about whether sexual penetration occurred or not.

If in the jury room, and I'm not saying you would, you said, 'Well, I prefer the state case over the defence case,' that's not proof beyond reasonable doubt and you would find the accused not guilty. You could only find the accused guilty if an offence if you are satisfied of guilt beyond reasonable doubt.

I'm sure that you can see that a criminal trial is all about whether the state has proved that the accused is guilty beyond reasonable doubt.

It's not about, it is never about, choosing which of the two cases that have been put before you you prefer. Even if, I'm not saying you would, but even if you reject the accused's account of events, both from the witness box and in the videotape record of interview, conviction does not automatically follow. You still could not convict the accused unless based on the evidence of the complainant you are satisfied of his guilt beyond reasonable doubt.

15 In my opinion this direction covered the points which the Liberato direction is concerned with. It explained that if the appellant's evidence was rejected, conviction would not automatically follow. It pointed out that it was still necessary, before the appellant could be convicted, for the jury to be satisfied of the appellant's guilt beyond reasonable doubt.

16 Justice Roberts-Smith was correct to conclude that this ground had no reasonable prospects of success. As a result, the application to review his decision should be dismissed.

17 These grounds concern the evidence that was given by the complainant's girlfriend about what happened later on the day of the offences before lunchtime. The issue is whether the evidence amounted to 'recent complaint' and, if so, about the trial Judge's direction concerning it.

18 Ground 3 complains about the admission of the evidence and ground 3A assumes that the evidence was properly admitted and the complaint is about the direction that the evidence could bolster the complainant's credibility.

19 The evidence of the complainant's girlfriend was that she was working as a nurse at the Kalgoorlie Hospital in April 2003, and that on 5 April 2003 she telephoned the complainant at about 10.30 and they arranged to have lunch together. When they met, the friend detected the complainant was 'flat, very upset'. The following evidence was then given:

Could you explain what you mean by that?---She couldn't give me very much eye contact. She was very upset, just wasn't very talkative.

Did you have any conversation in the car?---We did, yes. I asked her what was the matter before we got out to go to lunch.

So where exactly are you at this stage?---In the car as the moment, at Subway. We haven't got out yet.

What did you say to her?---I asked her what happened the night before.

Did she reply? Did she say anything in response?---She said that she had a bad night, that she was with somebody, and then I asked her did that mean that she had sex with somebody and she just nodded at me.

Just taking it slow - - -?---Okay.

- - - could you just describe - or tell the jury word for word what did she say to you about that night?---She said that she had a bad night; that she was with somebody. It was very hard to get a lot of information out of her. We had to ask lots of questions backwards and forwards. When I asked her was she with somebody, she said yes. I asked her who it was. Then she told me.

What did she say?---She said that she had sex with [the appellant].

Did you know who [the appellant] was?---I did, yes.

And who was that?---Another guy that lived - either lived at [the] College or was involved with [the] College or the mining school.

Did she say - I might just take you back from the beginning. Did she say how the night started or who she was with?---She went out with a group of friends - one of our friends, [J]. There were a lot of people that went out together so she didn't give the exact names of exactly who.

Did she say where they went?---To de Bernales.

...

What did she say about the actual night with [the appellant]?---That he had forced himself onto her; she knew that he had inserted his penis inside her; and that she didn't know whether he had actually ejaculated or wore a condom because she had blacked out.

20 No objection was taken to the leading of this evidence but, if the admission of the evidence amounts to a miscarriage of justice, the verdict may be overturned notwithstanding the lack of objection. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 at 304 and see also A Child v Andrews (1994) 12 WAR 552 at 559.

21 When considering evidence of a recent complaint made by the victim of a sexual offence, it is important to bear in mind the law and the rules which govern receipt of that evidence.

22 Speaking generally, a party may not call evidence supporting the credibility of a witness called by that party. A party may not call evidence supporting the disposition of the witness to tell the truth. See Cross on Evidence, 7th Aust ed, at 17250. A witness may not be asked in chief whether the witness has formally made a statement consistent with the witness' present testimony: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 513 per Gaudron J. The authors of Cross describe it as the 'rule against narrative' or 'the rule against self-corroboration'. The subject is discussed by McHugh J in some detail in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, when he refers to the rule as the 'bolster rule' (although the 'rule' is not a fixed rule of law (see [53])). His Honour said at [49]:

That rule stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked ['[I]n general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up' R v Turner [1975] QB 834 at 842'].

23 His Honour explained that the line between evidence relevant to credit and evidence relevant to a fact in issue is often indistinct and unhelpful. He explained at [52]:

The rationale behind the credit and facts-in-issue distinction does not depend on logic. It 'is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness' [Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 at 298]. It is rooted in the need for 'case management' [Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 at 296] rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that 'they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue' [Toohey v Metropolitan Police Commissioner [1965] AC 595 at 607, per Lord Pearce].

24 There are some recognised exceptions to the 'bolster rule' and one of them relates to complaints in sexual cases. Evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of 'recent complaint'. It is not admitted as evidence of the facts in issue but as evidence of consistency which buttresses the credit of the complainant. See Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 at [4]; M v The Queen at 514 and Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 472. In Kilby's case, Barwick CJ explained that:

The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.

25 The use to which evidence of recent complaint may be made is limited to doing exactly what the general 'bolster rule' prohibits.

26 If there is an issue as to whether what was said amounts to a complaint then the trial Judge has to decide as a matter of law whether it is capable of being understood to be a complaint. If the ruling is that it is capable of doing so, there may still remain an issue for the jury in which case the jury may have to be instructed as to the distinction between a complaint in law and statements by the victim which fall short of constituting a complaint: Manwaring v The Queen [1983] 2 NSWLR 82 at 90.

27 It is a condition of the admission of such evidence that the complaint must have been made voluntarily. The complaint should not have been elicited by questions of an 'inducing' or 'intimidating character': R v Osborne [1905] 1 KB 551 at 561. Ridley J in that case gave examples of questions which might be seen as inducing a complaint but also gave examples of questions which do not impermissibly induce a complaint. He gave the example of a person asking the victim why she is crying. The relationship of the questioner and the complainant and other circumstances will be matters for the presiding Judge to take into account when deciding whether the complaint has been made voluntarily. See R v Osborne at 556. If the question put by the witness to the complainant is in a leading form, this is a factor relevant to deciding whether the evidence is admissible: R v Freeman [1980] VicRp 1; [1980] VR 1; R v Gallagher (1986) 41 SASR 73 at 77.

28 The evidence of the friend of the complainant was that she was prompted to make inquiry of the complainant about what had happened because she was 'very upset'. The questions which were asked by the friend were merely questions trying to clarify what she was being told by the complainant. The complaint itself about sexual penetration without consent was said by the complainant herself without the friend putting words into her mouth.

29 In my opinion, the evidence was properly admitted. It was capable of being understood as a complaint. It was not induced, it was spontaneously made and voluntarily made despite the questions asked by the friend. As a result, ground 3 must be dismissed.

30 In summing up, the trial Judge gave the following direction:

The state submits to you that the complainant's behaviour in telling someone what had happened to her shortly after the alleged events is conduct consistent with someone who has been sexually assaulted.

If you accept this argument, and as I have said it is a matter for you whether you do, [the complainant's friend's] testimony may bolster the complainant's credibility. So [the complainant's friend's] evidence, if you accept it, goes only to the complainant's credibility. It is evidence of conduct which may be consistent with someone who has been sexually assaulted but it is not evidence of the truth of what the complainant said to [the complainant's friend].

31 That direction, that the complaint 'bolstered' the complainant's testimony, was a direction according to law. As a result, ground 3A must also be dismissed.

32 These grounds complain about the admission into evidence, and the direction given by the trial Judge, about the fact that sometime before midday, after the incidents complained about, the complainant went to the hospital and arranged for a doctor to authorise and dispense a morning-after pill. A morning-after pill is an oral contraceptive. The complainant's girlfriend had suggested to the complainant that she go to the hospital for this pill. The evidence of the girlfriend when cross-examined was as follows:

So it was your idea to go and get the morning after pill?---Yes.

And it was your idea to go and get the social worker, was it?---Yes.

And it was your idea that she should go and see the social worker?---Yes.

Your idea she should go and see SARC?---No. That was through the social worker.

So you did all the running around in the days that followed, did you?---With [the complainant's] consent and for help, yes.

But pretty much off your own bat?---Yes.

Yes, I have nothing further.

33 A doctor gave evidence that he authorised nurses to dispense the pill to the complainant. The doctor gave evidence that:

Basically if somebody has had unpredicted [sic unprotected?] intercourse within 72 hours you can prescribe them the morning-after pill and in emergency we normally dispense the morning-after pill, we don't write a prescription, we actually give them the pill. There's two types of pills. You can either give Nordiol, and that's repeated 12 hours later, or you can give another drug called Postinor-2. The common side effects of the morning-after pill is nausea and vomiting and sometimes you can get a bit of break-through bleeding so we always give the patient an antemetic. We always advise the patient to see their GP for follow-up and do a pregnancy test two weeks after they are issued the morning-after pill.

Thank you doctor. Did you in fact describe [the complainant] the morning-after pill?---Yes, she was actually dispensed the morning-after pill by the nurses in the department.

34 Ground 4A contends that this evidence had no probative value, meaning that it was not relevant. Evidence of a fact will be relevant when that fact and the fact to be proved are so related to each other that, according to the common course of events, one, either taken by itself or in conjunction with other facts, proves or renders probable the past, present or future existence or non-existence of the other. See Stevens, Digest of the Law of Evidence, 12th ed, Pt 1, adopted by McHugh J in Palmer at [55]. In determining relevance, it is fundamentally important to identify the issues of the trial: Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [7].

35 The evidence about taking the 'morning after' pill was relevant to the issue about whether or not intercourse occurred. It may be assumed that, in the absence of any evidence to the contrary, this pill is only prescribed as a contraceptive pill. The side effects, if the complainant knew about them, leave open the conclusion that a woman would not take the pill unless there had been an event occur which might cause her to become pregnant. The fact that a person takes such a pill is therefore probative of the fact that the person had intercourse a short time before taking the pill.

36 This evidence was therefore properly admitted (and there was no objection to it) and there was no reason to exclude it on discretionary grounds. As a result, ground 4A must be dismissed.

37 Ground 4 complains about the direction that the trial Judge gave concerning the evidence about the morning-after pill. His Honour said:

Dr Bhasin said that the complainant sought and was dispensed with; that is, given, the morning-after pill. Asking for the morning-after pill may be conduct which may bolster the complainant's credibility on the basis that it is conduct consistent with someone who was engaged in sexual intercourse in circumstances where they were unsure whether any contraceptive measures had been taken or were effective.

38 This passage, appearing as it does immediately after the direction given about complaint, suggests that the trial Judge had in mind that this evidence was somehow connected with the evidence of complaint, and should and could only be used to bolster the credibility of the complainant. In fact - and counsel for the respondent conceded during this appeal that - this evidence had nothing to do with the evidence of recent complaint. The evidence was probative of whether or not penetration had occurred.

39 His Honour therefore erred in directing that the complainant's credibility was bolstered by the fact that she took the morning-after pill.

40 The Judge should have directed the jury that it was circumstantial evidence which provided evidence that penetration occurred. Because it was circumstantial evidence, the jury should have been instructed that it only afforded proof of penetration if there was no other reasonable inference open explaining why she took the pill. See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 529. While such a direction does not have to be given in every case, it was necessary here. There was another inference open. It was that the complainant had falsely informed her friend that there had been sexual penetration. The girlfriend then took over and arranged to take the complainant to the hospital and to see a social worker. If the complainant had made a false complaint then she may have felt foolish if she had then acted inconsistently with her false complaint. She may have felt under social pressure to take the girlfriend's advice and take the pill. There was no evidence that she was told that there were side effects in taking the pill. The doctor gave evidence that there are side effects. He did not say he told the complainant about them. The appellant's case was that the complaint by the complainant to her girlfriend was a false complaint. The possibility of a false complaint was therefore not fanciful. It would be fanciful if the jury did not believe the appellant; but this was evidence which would help the jury decide who to believe, and they were merely told that her conduct in 'asking for the morning after pill' may bolster the complainant's evidence. She undoubtedly did ask for the pill, and the erroneous Judge's direction would therefore have had a significant impact in the jury's mind because the jury were doubtless looking for factors which would allow them to decide whether they believed the appellant or the complainant.

42 The respondent contends, relying on s 30(4) of the Criminal Appeals Act 2004, that if any ground of appeal were to be decided in favour of the appellant, that the court should still dismiss the appeal on the basis that no substantial miscarriage of justice has occurred. I will consider the respondent's submission that there was no substantial miscarriage of justice after considering ground 1.

43 Ground 5 is a complaint about the Judge's instruction to the jury concerning the complainant's distressed state when she spoke to her girlfriend. The direction his Honour gave was as follows:

[Y]ou heard the evidence from [the complainant's girlfriend] that the complainant was not herself when she saw her around lunchtime on 5 April 2003. If you are satisfied beyond reasonable doubt that the complainant was in a state, the state testified to by [the complainant's girlfriend]; that is, a distressed state, and you were satisfied that that distress was genuine; that is, that it derived as a result of an alleged sexual assault, you may take that into account as bolstering the complainant's credibility.

Whether you do or not is a matter for you. However, if her distressed condition was attributable or could reasonably be attributable to some other cause such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not bolster her credibility.

44 Evidence of the distressed state of a complainant who claims to have been raped is evidence which may corroborate the evidence of the complainant. The subject was discussed in detail by the Victorian Full Court in R v Flannery [1969] VicRp 72; [1969] VR 586, where the Full Court said at 591:

In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.

45 The law was briefly summarised in R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 by Nettle JA, Ashley JA and Coldrey AJA, agreeing at [42]:

Although evidence of distress is capable of corroborating a complainant's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where ... the observation of the complainant's distressed condition is made at sometime after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.

46 It is to be noted, however, that there are circumstances where distress may not be displayed until months after the incident complained of and yet constitute corroboration. See for example R v G [2005] NSWCCA 306.

47 In R v McDougall [1983] 1 Qd R 89 at 91, Campbell J said:

The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that jury be told that generally evidence of a distressed condition is of little weight.

48 In Eades v The Queen [2001] WASCA 329 at [34] Murray J, after agreeing with the observation made by Campbell J in McDougall, said:

In my respectful opinion, that is sound in principle. Whether or not a warning of this character is required and if so, in what terms ... should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case.

49 The ground does not complain about the admission of the evidence, but about the direction given by the trial Judge. The ground contends that the trial Judge should have directed that the evidence of distress could 'carry little weight and that this evidence could only be used to bolster the complainant's evidence if satisfied all other explanations were excluded'.

50 In my opinion, the trial Judge correctly directed in accordance with law that the jury had to be satisfied that the complainant was in a distressed state, that it was genuine and that it was as a result of the sexual assault, in which case the jury could take the evidence into account as 'bolstering' the complainant's credibility. It would have been preferable if his Honour had said that the evidence of distress could, in those circumstances, corroborate the complainant's testimony that there had been sexual penetration without her consent. In other words it was circumstantial evidence which helped prove the charges. However, the word 'bolster' is similar in meaning to 'corroborate' and the Judge added (correctly in my view) that if the complainant's condition could reasonably be attributable to some other cause, such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not 'bolster her credibility'. In effect this was a Shepherd direction concerning the circumstantial evidence, ie that the jury had to consider whether the evidence of a distressed condition should only be treated as corroborative evidence if there is no other reasonable explanation consistent with innocence.

51 The direction was therefore correct and ground 5 must be dismissed.

52 This ground of appeal is pursuant to s 30(3)(a) of the Criminal Appeals Act 2004 (WA), which provides that the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. There are two independent limbs to this provision. The first requires the court to consider whether, having regard to the evidence, the verdict of guilty is unreasonable. The second is that the verdict cannot be supported, having regard to the evidence. Section 30(3)(a), or its equivalent throughout Australia, has been considered on many occasions before. I will repeat what I said in AK v The State of Western Australia [2006] WASCA 245:

Insofar as this ground asserts that the verdict was unsafe and unsatisfactory, the appellant is relying on s 30(3)(a) of the Criminal Appeals Act 2004. This section, or its equivalent in other States, has been discussed and analysed on many occasions by the High Court. Some of the more important discussions may be found in Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346, Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 and Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250.

From these cases, and other cases to which they refer, a number of propositions emerge:

(a) The words of the section should be used and not the many 'judicial expositions' about what the words mean. Weiss (supra) [9] and [33]. Thus, a ground relying on s 30(3)(a) should complain that the verdict of guilty, having regard to the evidence is unreasonable or cannot be supported, rather than using phrases such as 'unsafe and unsatisfactory', 'unjust or unsafe', or 'dangerous or unsafe': see M v The Queen at 492, MFA v The Queen at [25] and [58], or 'dangerous' or 'unsatisfactory': Chamberlain (No 2) at 618.

(b) The Court of Appeal may interfere with a verdict under s 30(3)(a) even though there has been no misdirection, erroneous reception or rejection of evidence, no complaint as to the course of the trial and there is some evidence on which a reasonable jury might convict: Chamberlain (No 2) at 531; Morris at 473. If the issue is that there was no evidence, then that will raise an allegation of an error of law: see Raspor (supra) at 350; M v The Queen at 492; Morris at 473.

(c) The function of the Court of Appeal in determining whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence is different from that of a trial Judge considering whether, as a matter of law, there is evidence on which the accused could be convicted: MFA v The Queen [26].

(d) When considering an appeal under s 30(3)(a), the Appeal Court is obliged to review the whole record of the trial and to make its own independent assessment of the evidence: M v The Queen at 492, Weiss [41] and Darkan [84]. However, in doing so it must make due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding on the record: Weiss at [41]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], Darkan [84]. These 'natural limitations' include the fact that:

(i) the appellate court does not typically get taken to, or read, all the evidence received at the trial: Fox v Percy [23];

(ii) the jury or Judge has had the benefit of having seen and heard the witnesses: M v The Queen at 493; Fox v Percy at [23]; Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561, but bearing in mind that 'an ounce of intrinsic merit or demerit ... is worth pounds of demeanour': Fox v Percy [30] quoting Atkin LJ, and

(iii) that the jury (or in this case the Judge) is the body entrusted with the primary responsibility of determining guilt or innocence: M v The Queen at 493.

'Full regard' must be paid to these natural limitations: M v The Queen at 493, citing Deane J in Chamberlain (No 2) at 621.

(e) The 'natural limitations' mean that on all but 'rare occasions' it will be impossible to conclude that a verdict of guilt by the jury is unreasonable and cannot be supported having regard to the evidence. See Street CJ in R v Smith [1979] 2 NSWLR 310, cited by Deane J in Chamberlain (No 2) at 621; Lai v The Queen [1990] WAR 151 at 466.

(f) The task of the appellate court is not to decide what a reasonable jury, or the jury in the particular case, would decide. Instead, it must decide for itself as to whether it has a reasonable doubt: Weiss at [35] and[41]. If it does, then the jury should, in most cases, also have experienced such doubt: M v The Queen at 494.

(g) An Appeal Court may experience doubt about the guilt of the appellant where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, and 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 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. In those circumstances the court is bound to act and to set aside a verdict based on that evidence: M v The Queen at 494.

In my opinion, the third of the 'natural limitations' referred to in (c) above means that the jury's (or Judge's) verdict may tip the balance against allowing the appeal if the Appeal Court's view, after reviewing the evidence, is finely balanced between determining whether there is doubt or not.

53 It is therefore necessary to review the whole of the record of the trial and to make an independent assessment of the evidence. I have already summarised the evidence, but it is now necessary to mention some of the evidence in more detail. First, I should refer to more evidence of the appellant, because I have only so far briefly mentioned his evidence and the fact that he denied that there was any penetration.

54 The appellant's evidence was in the form of the video record of interview and oral testimony at trial. The video record of interview did not occur until about five months after 5 April 2003, on 4 September 2003 at the Scarborough Police Station. In the video record of interview the appellant explained that the complainant and he went for a drive, stopped at Hammond Park and then went back to his house. There were lengthy questions about the time spent at the social club and at the hotel. He explained that at Hammond Park they got into the back seat of the car; that he undid her bra strap; that they kissed and that he helped her do the bra strap up again. The appellant said that he asked to go to her place and that she said that she did not want to because she had friends there.

55 His video record of interview reveals him saying that they went to his house; they went to the bedroom; they kissed; that they both undressed but not completely. He said that he touched her vagina with his finger; that he left the bed and put a condom on; that he returned to the bed and that she told him to stop, which he did. He said that at no stage during the evening did he penetrate her with his penis.

56 The substance of what he said in the video record of interview was repeated in his oral evidence. The trial Judge in his summing-up described the video record of interview and oral evidence as 'generally consistent'. In his evidence-in-chief the appellant explained that in the house there were three bedrooms. One was occupied by the appellant, another was occupied by a student friend called R and his girlfriend C, and the other bedroom was occupied by another student friend M. The evidence of the layout of the house was given as follows:

Where was your bedroom in relation to the other bedrooms of the house, if I can put it that way?---Right in the middle of the other two.

So was there a passageway that leads from this lounge-type room or - - ?---Yeah, there's a passageway. There's a lounge and then there's a dining and kitchen and then there's like a hallway basically and then there's the first bedroom and then there is my bedroom. Aside there's the laundry and my bedroom and there's M's bedroom, like that.

So M's bedroom is furtherest away?---Yeah.

Do you share a wall with M?---Yeah.

And on the other side of your wall, from what you have told us is that the - - -?---The laundry.

The laundry, and on the other side of the laundry wall is?---R's bedroom.

57 The appellant gave evidence that on the evening in question he borrowed C's car and went to the social club. After the events at Hammond Park, and buying cigarettes at the service station, he and the complainant went back to the house. His evidence-in-chief about the events in the bedroom were then as follows:

All right. You said you kissed then you got up and switched the lights off. How did matters develop from there?---We kissed and I did, I asked her if I could undo her bra again, I did that, and basically she - I helped her take her shirt off, take her top off, afterwards, and as I'm helping her up and we're kissing and we're touching, I took my shoes off and I think I undid my jeans as well.

Is there any light inside the room? Are you able to see - - -?---Yeah, I mean, it's not like bright like this but obviously you see.

What state did you get down to in your state of undress?---Well, I took everything off. I had my undies on at one stage but, yeah.

What about [the complainant]? What did she get down to, clothing wise?---She had nothing on but her undies at the end, I mean, not even, I mean she took even her socks off.

What then was happening between you and her if anything?---We just kissing and she's on my side and she's got her head on my shoulder, just kissing and touching, and she's got one leg on my side like this, she's basically - I don't know how to explain that, to make a picture what I'm talking about - - -

Well, what was the next phase? What happened?---Then it's like it's getting really hot, you know, it's - we both are very aroused, like, we just like - I think basically you get to that level, like, you know, and I got up to put a condom on, and I know I had some in my desk and I took one out, I put it on and she said, 'What are you doing?' and I said, 'Yeah, I'm putting a condom on.'

It might be obvious but where is she, on the bed, off the bed; where - - -?---Yeah, she was on the bed.

Are you standing up, you're sitting down - - -?---Yeah, I was standing up.

You have told us you put the condom on?---Yes.

Do you still have any of your underclothes on at that stage?---I didn't, obviously I had to take it off to put the - pull it down to put the condom on, but I went back to bed and she said she's not ready, I mean, she asked, 'What are you doing?' I said yeah, I'm putting a condom on, and she said no, she's not ready for that, tonight's the first night.

So you're now back in bed?---Yeah.

What position is she on the bed?---When I get back to bed she was still in that position as I left her but now she says she doesn't want to do it and I'm just kissing her and she's, no, she's touching my shoulder, you know, and I said all right, you know, and she - I told her to basically roll over and I - because I - I just wanted to hold onto her and I just cuddled her and she rolled over towards the - facing the window, basically.

So where were you after she rolled over to face the window?---I was always sleeping behind, obviously.

So what happened then?---She had her arm on my head.

Yes?---Actually, she had her head on my arm and - - -

Were you touching her - - -?---Yeah.

Were you touching her in any way?---My hand is on her breast and - - -

She's got her head on her arm - - -?---Yeah.

Your arm, I think you said?---Yeah.

She said she doesn't want to, so what actually happens at that stage? Well, how long did you stay in the position you were in?---Probably about 15 minutes and we just kind of talking as well and she says, 'Yeah, I think I better go home,' you know.

Were you saying anything in relation to whether she should stay or go home?---Yeah, I thought I told her to stay, you know, and she said no, she has to go and it's getting a bit late and she has to wake up early tomorrow, and I said 'Yeah, you can sleep here, no problems,' you know, and she said no, she wants to go, and I said okay.

58 In cross-examination he was questioned without any significant or material change emerging from what he had said in the video record of interview and his evidence-in-chief.

59 It is also necessary to set out in some more detail some of the complainant's evidence. In evidence-in-chief the complainant said she went to the house because she trusted the appellant. As to the events in the bedroom, the complainant said in cross-examination that the appellant kissed her and pushed her down onto the bed. The complainant said that she 'was kissing him ... I didn't want to but I thought I'd just kiss him and then get over with it and tell him to stop'. She also said in answer to an earlier question about the fact she kissed him, that it was 'not in the passionate way he would have been kissing, and I was afraid of him'. She was not asked to explain why that was so.

What happened then?---The phone rang, his mobile phone rang, and he answered it. I don't know who was on the other side.

Did he have to get up off the bed to answer the phone or not?---I think he just had to sit up straight and sit on the bed. I can't actually remember if he actually got off the bed or not. I just remember him answering the phone.

And after that?---He hung up and he got back to his usual - started kissing me again.

When he was on the phone, where were you?---I was on the bed. I was at that stage facing the window and sort of holding myself in like the foetal position because I was in a predicament that I didn't know how to really get out of, yeah.

Is facing the widow facing away from where he was on the telephone?---Facing away from him, yeah. I had my back towards him.

He returned, and what happened after that?---He just kept on saying, 'Relax.' He tried to take off my top and at that stage I was basically holding my top down. I was saying, 'No. Enough. Don't do this' - and he was basically trying to pull my top off, which he managed to do. I may - I can't remember exactly when I blacked out. I did black out. I basically just took myself out of that situation, took my mind somewhere where I could feel, like, in a happy place.

At what point did you say you blacked out?---I can't remember when I blacked out. I blacked out more than once in the whole night.

Can you describe what you mean by 'blacking out'?---It's like basically your body is there but your mind is not there; you have taken your mind to a happy place, a place where you feel comfortable and safe. For me it was, because I was in this predicament, in this situation that I didn't know how I was going to get out of, it was the only way for me to escape and feel that I was safe even though I wasn't.

You have said that he was trying to take your top off. Correct?---Yes.

When did you next come to, if I can use that expression, out of your blackout? What do you remember happening next?---I can remember him with - he had my jeans off. Somewhere along in that time he got my jeans off and he had taken his jeans off as well and he had actually penetrated - I can't remember if my underwear was taken off with my jeans or if he had taken my jeans and my underwear off separately.

Do you actually recall him taking your jeans or underwear off or not?---No, I don't.

And so your underwear and your jeans were off?---Yes.

And what happened?---And he penetrated, his penis went into my - the vaginal area.

61 The complainant then described the first act of penetration, the fact that it was painful, 'it hurt, it felt like I was being torn' and that he penetrated her for about 10 seconds. She recalled that he said something about whether she was on the pill or not, that he then went searching for a condom, that he found it and he then got back onto the bed. The complainant described the act of penetration which formed the basis of the second count.

62 In cross-examination (AB 100) the complainant was asked:

Do you remember lifting your backside off so he could take your knickers off?---No, I didn't do that.

You don't know how your knickers came off?---No, I don't.

You can remember him asking you if you were on the pill?---Yes, that was - because I - as he penetrated the first time it really, really hurt, and because he didn't have a condom on he would ask that.

63 In cross-examination the complainant was asked about 'blacking out'. The evidence was as follows (AB 103):

You have told us about blacking out?---That was before he penetrated.

And you blacked out what, a couple of times, did you?---I think it was twice.

When you say you were blacking out you're saying that you had gone unconsciousness?---I basically take my mind to a different place, to a place where I feel safe and happy.

It's like a dreamlike state, is it?---Yes, you could say that.

You're not actually there in the room?---No, I wasn't there. My body was there but I had taken my mind so that I could feel in safe, secure - yeah.

And this is when you say that the penetrations occurred?---Well, yeah. When he penetrated the pain basically brought me back to reality. It was the pain that I felt.

64 The complainant then was cross-examined further as follows:

Okay. This blacking out, you can't tell us - you say it was a couple of times?---It was twice.

Twice; and it's not a situation where you are unconscious. Is that right?---It's just - it's basically you just - your body is there but you take your mind away from it.

You don't really know what's happening at the time, do you?---No. I just came to when he penetrated the first time.

I want to put it to you that at no time did he ever penetrate you?---He did penetrate. I felt pain and it was sore and I know that was penetration.

65 At AB 106 there was a further cross-examination about the second penetration as follows:

You were facing the wall and he was behind you? Is that - - -?---Well, when he got back onto the bed, I was on my back. He'd got me on to my back and penetrated with the condom.

So this occurred during these blackouts, did it?---No. The blackouts occurred before the first penetration and then afterwards when he got off the bed. All I could hear - and then I was trying to basically tell him no which I did. I said no.

I think you told us that you were woken up from your blackout by the pain?---Yes.

66 In further cross-examination at AB 112 the complainant was cross-examined as follows:

You just what, when you have a blackout you just go limp?---It's an escape mechanism.

You don't go limp?---No, it's just a escape mechanism for the mind.

So you don't know what's actually happening with your body while your mind is on a beautiful beach somewhere?---Yes, but I was aware when he actually penetrated the first time because of the pain.

67 It is also important to mention the evidence of the complainant's girlfriend. In examination-in-chief she said:

What did she say about the actual night with [the appellant]?---That he had forced himself onto her; she knew that he had inserted his penis inside her; and that she didn't know whether he had actually ejaculated or wore a condom because she had blacked out.

68 In cross-examination the following questions were asked and answers given by the complainant's girlfriend:

When my friend asked you earlier you added these words: 'She had had a bad night.' Do you remember saying that about five minutes ago?---Yes.

That's not how you described it in your statement, was it?---Not exactly, no.

No. So this is as you got to the place where you were going to have lunch?---Yes.

Before you step out of the car?---Yes.

And what she said was that she was with someone last night?---Yes.

And you thought perhaps that meant sex?---Yes.

So you asked her that and she said - she nodded, basically. She didn't say anything. She nodded?---Yes.

From what you understood from this conversation with her this alleged thing that had happened had happened in a car?---Yes.

So she told you it happened in a car?---I cannot remember exactly whether she said it happened in the car or not.

You agree that's how you have described it?---Yes.

That's how you understood it from the conversation?---Yes.

They had been to a house, then they had gone back into a car and then it happened in the car?---That was my understanding, yes.

69 Finally, I should mention the evidence of a doctor who examined the complainant six days after 5 April. This examination was on 11 April 2003. The doctor took the history of sexual assault and found no evidence of bruising and no evidence of any abnormal findings in the complainant's vagina.

70 It is relevant to bear in mind that the complainant understood that the appellant's flatmate and fellow student R and his girlfriend were in the house at the time of the incidents and that the complainant did not seek to call out to attract their attention. The complainant did not complain to anyone at her college. She did not complain when her friend telephoned her.

71 Having set out those significant parts of the evidence, I will now summarise the facts not in dispute. They are:

(a) the appellant drove in his car with the complainant to Hammond Park;

(b) the complainant agreed to get into the back seat;

(e) the appellant helped the complainant put her bra back on;

(f) the complainant agreed to go to the appellant's house;

(g) the complainant agreed to go to the appellant's bedroom;

(j) the appellant's mobile telephone rang and he answered it and had a conversation; the complainant remained on the bed while the conversation took place;

(l) the appellant got off the bed and looked for a condom and put it on. The complainant remained on the bed;

(m) after the appellant put on the condom the complainant indicated that she did not consent to the appellant penetrating her;

The critical difference between the complainant and the appellant was whether or not the appellant penetrated the complainant on two occasions. To resolve that difference, the jury had to weigh up the conflicting evidence and to reach a decision assisted by just a few other, but important, pieces of evidence to which I will now refer.

72 First, there was the evidence of the complainant's girlfriend, who understood from speaking to the complainant that the acts complained of occurred in the car and not at the house. Although the girlfriend expressed some uncertainty at first, she ended up testifying that that was her understanding from what she was told by the complainant. That was evidence impacting negatively on the complainant's credibility. Secondly, there was the evidence of the complainant to the effect that when she asked the appellant to stop what he was doing at Hammond Park, he complied with her request. That evidence does not directly prove one way or the other whether penetration occurred, but it is circumstantial evidence suggesting that the appellant was not inclined to persist in the face of a refusal. Thirdly, the complainant told her girlfriend that she did not know whether the appellant ejaculated or wore a condom because she blacked out. That was not the complainant's evidence in court. In court she described the activities of the appellant when he said he was getting a condom. She gave evidence that he 'penetrated without the condom' and that 'he penetrated the second time with the condom'. In evidence-in-chief she said she did not look at his penis but the second penetration felt 'smooth' and she said 'I'd guess that's probably the condom'. Her explanation in court was, therefore, that she did not know whether he wore a condom because she did not look (although it felt as though he was wearing one) but her account to her friend was that she did not know whether he wore one because she blacked out. This impacts negatively on the complainant's credibility. Fourthly, there was the unusual evidence that the complainant took herself off to a 'happy place', which she described as blacking out (more than once). Fifthly, if penetration occurred the first time, then when the appellant left the bed to put on a condom and therefore acted as though he intended to penetrate her again, it is surprising that the complainant did not leave the bed or try to call out or leave the room. There was evidence that the door was open. The complainant believed there were other people in the house. Sixthly, she did not complain to anyone at the college that she had been sexually assaulted or to her friend when she telephoned.

73 These pieces of evidence give rise in my mind to anxiety and doubt about the correctness of the verdicts. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ at 495 referred to the 'anxiety and discomfort' experienced by Sully J in the Court of Criminal Appeal when he joined with the other Judges in dismissing the appeal at that level. Justice Sully had said:

For my own part, I would say at once that, were it permissible to approach the matter upon the basis now accepted in the United 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.

74 Cripps JA and Finlay J, who were the other members of the court, concurred with Sully J in dismissing the appeal but dissociated themselves from any feeling of anxiety or discomfort in doing so.

75 Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (supra) at 495 said:

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.

76 Like Sully J in M v The Queen, my anxiety is about whether the evidence reaches the point where I can be satisfied that it was open to the jury to conclude that there was no reasonable doubt that the offences were committed. It is no answer to say that there is some evidence to sustain the verdict. There undoubtedly was some such evidence. Whether there is evidence to sustain a verdict involves a question of law. See Raspor at 349, M v The Queen at 492.

77 This ground is based on the first limb of s 30(1)(a), which requires the court to consider whether the verdict is 'unreasonable' having regard to the evidence. This provision allows an Appeal Court to conclude that a verdict is unreasonable despite there being evidence to sustain the verdict. The provision is an important safeguard in our system of criminal justice because the reasons for a jury's decision are occult. I am fully conscious of the fact that the jury has had the advantage of seeing and hearing the evidence at first hand, but it is now well recognised that judging a case by reference to the demeanour of a witness in the witness box, while sometimes the only way of resolving disputes, it is not always reliable. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said at [31]:

[I]n recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem

Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA [1999] HCA 3; (1999) 73 ALJR 306 at 329 [88]; [1999] HCA 3; 160 ALR 588 at 617-618]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

78 I have mentioned the evidence which provides an independent means of assisting in deciding, not where the truth lies, but whether there is any reasonable doubt about the appellant's guilt. The six points of evidence referred to above, give rise to a reasonable doubt in my mind about the guilt of the appellant. This doubt is doubt the jury should have experienced.

79 Finally, I return to consider the respondent's submission that there was no substantial miscarriage of justice. Under s 30(4) of the Criminal Appeals Act 2004, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred, notwithstanding (in this case) the erroneous direction about the 'morning-after' pill evidence. This is a task for this court and not one reached by considering what a reasonable jury would have done: Weiss v The Queen [2005] HCA 81; (2005) 222 CLR 300 [34] and [35]. I do not consider, in the circumstances of this case, that no substantial miscarriage of justice has occurred. The jury members were doubtless looking for independent evidence to help them decide who they believed. They knew that the complainant took the morning-after pill. That was not in dispute. They were then informed by the trial Judge that they could use that evidence to 'bolster' the complainant's evidence without pointing out that there was open another reasonable inference consistent with innocence. In the context of this case, that was a substantial miscarriage of justice.

80 In summary, I uphold ground 1 and ground 4 and I would therefore allow the appeal and set aside the two convictions. The appellant has already served the custodial part of his sentence and he is now out of prison on parole. There should not be a retrial because the evidence of the trial was insufficient to justify a conviction. See Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 at 321. As a result, there should be judgments of acquittal. Even if I had only upheld ground 4, I would still have ordered judgments of acquittal in the exercise of the court's discretion.

81 MILLER JA: The appellant was convicted of two counts of sexual penetration without consent. He appeals against those convictions on a

number of grounds, some of which were added at the hearing of the appeal. There is a general ground which contends that the verdicts of guilty should be set aside as unsafe, unsatisfactory and not supported by the evidence. There are other grounds which contend that the learned trial judge erred in law in his directions to the jury and erred in law by admitting certain evidence.

82 It is convenient to first outline the facts of the case. The two offences were alleged to have occurred in the early hours of 5 April 2003 at Kalgoorlie. The appellant was alleged to have sexually penetrated the complainant without her consent. Both counts alleged sexual penetration without consent by penetration of the vagina with the penis.

83 The prosecution case at trial was entirely reliant upon the testimony of the complainant. The appellant testified in his defence and it was a case of 'oath against oath'. Whilst the complainant contended that she had been sexually penetrated without consent on two occasions, the appellant contended that there had been sexual contact between the complainant and himself, but it had fallen short of penetration. He denied that he penetrated her on any occasion.

84 The complainant testified that at the time of trial she was 26 years of age. She had just moved to Perth from Kalgoorlie after graduating at the Western Australian School of Mines with a Science Degree in Extractive Metallurgy.

85 In April 2003, she was a student at the School of Mines and living at Agricola College in Kalgoorlie. She was in her third year. She knew the appellant as a fellow student. He did not live at Agricola College, but lived elsewhere in Kalgoorlie.

86 On Friday evening, 4 April 2003, the complainant went to the social club at the college. She did not drink alcohol and drank only non-alcoholic drinks on the night. She saw the appellant at the social club. He was drinking alcoholic drinks. She knew the appellant from an orientation programme, having met him approximately two months before 4 April.

87 The complainant spent some time at the social club before leaving to go to an hotel in Hannan Street. She went to another hotel to celebrate the birthday of an acquaintance and then returned to the first hotel. There, she saw the appellant. She spoke with him and he bought her a drink. At about midnight, she told the appellant that she was tired and that she was going home. He said that he was tired, that he had a car and he would take her home. She accepted a lift back to Agricola College with him. When they got in the vehicle, the appellant asked the complainant whether she would like to go for a drive and she agreed to do so. They drove north of Kalgoorlie and stopped at a park known as Hammond Park. They spoke in the car about religion and relationships. The complainant related part of the discussion as follows:

... Yeah. Somehow we started talking about relationships. He asked if I had a boyfriend and I said no and I said 'I don't really want relationships because' - I said to him that I don't want to have to have sex before marriage; I want to sort of be pure in a sense; and I said, 'That's why I don't really go out with anyone, because of that,' yeah, and I said that I missed the companionship, I missed the hugs and stuff like that, but it wasn't as if I was looking for one; I could live with it, basically.

Was there any other discussion between you and he about sexual matters?---Yes. He did ask if I was a virgin. I said 'No', and I said, 'because I had a bit of a problem with my ex-boyfriend.'

The appellant told the complainant that he had just come out of a relationship and he, too, missed companionship.

88 At Hammond Park, the complainant and the appellant got into the back seat of the vehicle. The complainant said that it was at the appellant's suggestion and she assumed that they were 'just going to talk'. They did talk in the back seat, but the appellant kissed the complainant. She responded. After a short time, she pulled away and said, 'No, I don't really want this. I don't want to do this. I'd rather just be friends'. The complainant said that the appellant told her not to worry and to relax. He began to undo her bra strap. She said, 'No, I don't want this', but he said, 'Don't worry' and was able to undo her bra strap. He continued to tell her not to worry and to relax. He said, 'It's okay'. The complainant said that the appellant then stopped. She said she wanted to go home and he agreed. He 'hooked ... up' her bra strap and they both got into the front of the vehicle and the appellant began to drive it. The appellant asked the complainant if she would like to come to his house, but she said she did not wish to do so and wanted to go home. At a garage, he pleaded with her to come to his house. The complainant said that she was under the impression that he 'wasn't going to try ... anything' and so she agreed.

89 The complainant and the appellant proceeded to the appellant's house. He told her that he had two friends who lived there and that they should be quiet so that they did not wake them. They arrived at the house at about 12.30 am and went to the lounge to watch television. They were unable to get any reception or there was nothing to watch and the television was turned off. They went outside for a period and then the appellant suggested to the complainant that they should go to his room to talk. The complainant said that she thought nothing of this, as she was used to going to the rooms of male students at the college. She went with the appellant to his room. There was really nowhere to sit except on the bed, so she sat on the end of the bed. The appellant went to the bathroom and then returned and sat next to her. He kissed her again. She kissed him back, but quickly. The appellant pushed her back to lie on the bed and told her to relax. She described him as 'sort of on top of me'. Her evidence was as follows:

And what happened after that?---I was saying no, I didn't want to do this - 'This is not right.' He just kept on saying, 'Don't worry about it. Just relax.'

Again, what did you mean - 'I didn't want to do this'?---'I don't want to kiss you. I don't want to be in this position and I don't want to be having to be lying on the bed while you're trying to kiss me.'

Did you actually say that or is that just what you thought in your own head?---That's what I was meaning when I was saying, 'I don't want to do this.'

So they were the words that you spoke to Mehdi?---Yes.

'I don't want to do this'?---I didn't say that I didn't want to do this, I don't [sic] to kiss him. I just said, 'I don't want to do this.'

How was he reacting to you saying that?---He wasn't reacting. He was just saying, 'Relax. Don't worry about it.' It wasn't like, 'Okay, I'll stop.' He just kept on saying, 'Just relax. Don't think about it. Do what you want.' Yeah, he didn't do anything else but that. That's all I can remember him saying.

90 The complainant said that the appellant's telephone then rang. The appellant answered the telephone, hung up and then started kissing her again. She continued to tell him not to do it. Her evidence continued:

He returned, and what happened after that?---He just kept on saying, 'Relax.' He tried to take off my top and at that stage I was basically holding my top down. I was saying, 'No. Enough. Don't do this' - and he was basically trying to pull my top off, which he managed to do. I may - I can't remember exactly when I blacked out. I did black out. I basically just took myself out of that situation, took my mind somewhere where I could feel, like, in a happy place.

At what point did you say you blacked out?---I can't remember when I blacked out. I blacked out more than once in that whole night.

Can you describe what you mean by 'blacking out'?---It's like basically your body is there but your mind is not there; you have taken your mind to a happy place, a place where you feel comfortable and safe. For me it was, because I was in this predicament, in this situation that I didn't know how I was going to get out of, it was the only way for me to escape and feel that I was safe even though I wasn't.

...

When did you next come to, if I can use that expression, out of your blackout? What do you remember happening next?---I can remember him with - he had my jeans off. Somewhere along in that time he got my jeans off and he had taken his jeans off as well and he had actually penetrated - I can't remember if my underwear was taken off with my jeans or if he had taken my jeans and my underwear off separately.

Do you actually recall him taking your jeans or underwear off or not?---No, I don't.

And so your underwear and your jeans were off?---Yes.

And what happened?---And he penetrated, his penis went into my - the vaginal area.

91 The complainant said that the appellant penetrated her for only a short period of time. It was about 10 seconds. She described it as 'quick in and out'. He asked her if she was on the pill. She said she was not. He got off the bed and searched for a condom. She remained on the bed, curled up. She described what then followed:

What do you remember happening after he was scrounging around on the ground?---He'd found the condom, he grunted something which I don't know what he said, I just, yeah, he was looking for a condom and he was scrounging around on the floor and looking for it and then he got back onto the bed.

...

What do you remember happening next?---He got back on the bed and started penetrating again. He basically was trying to put his penis into my vaginal area, which he did, and he kept on - he went in fully and out and he kept on going in and out. It wasn't long, I don't know how many times he penetrated in and then pull it out but it was more than two times that - - -

92 The complainant said that she kept telling the appellant 'I don't want to do this, this is not right, no', but he kept insisting that she relax. She was crying and saying, 'No', and he just stopped. He told her to stop crying because she was making him feel guilty. The complainant said that she wanted to go home. She put her clothes on. The appellant took her back to Agricola College and before the complainant got out of the car he said, 'We're still friends, right' or something similar.

93 The complainant went into the college and straight to the shower. She said she felt dirty, sore and was in pain. She was still crying. Her words were, 'I just wanted to get this all off me, so I had a shower'.

94 The complainant was asked whether the appellant had ejaculated. She said he did not, as 'He didn't get the chance to'.

95 During the course of the morning that followed, the complainant met with her friend, Nicole Ellen Franke ('Ms Franke'). She said she told her what had happened and Ms Franke advised her to get the morning-after pill. She went to the hospital to the emergency room and waited there until a doctor came.

96 The complainant was extensively cross-examined. The question in issue was whether she had been penetrated. Much emphasis was placed upon the complainant's evidence of 'blacking out'. It was squarely put to the complainant that at no time had the appellant ever penetrated her. She denied it.

97 Ms Franke gave evidence that on Saturday, 5 April 2003, she called the complainant at about 10.30 am and they arranged to have lunch together. Ms Franke picked up the complainant and they went to Subway in Kalgoorlie. She noted that the complainant was upset. She described her as 'very flat, very upset, not the usual [the complainant]'. She would not make eye-contact. Ms Franke asked her what had happened the night before and the following exchange occurred:

Did she reply? Did she say anything in response?---She said that she had a bag [sic bad] night, that she was with somebody, and then I asked her did that mean that she had sex with somebody and she just nodded at me.

Just taking it slow - - -?---Okay.

- - - could you just describe - or tell the jury word for word what did she say to you about that night?---She said that she had a bad night; that she was with somebody. It was very hard to get a lot of information out of her. We had to ask lots of questions backwards and forwards. When I asked her was she with somebody, she said yes. I asked her who it was. Then she told me.

What did she say?---She said that she had sex with Mehdi.

...

What did she say about the actual night with Mehdi?---That he had forced himself onto her; she knew that he had inserted his penis inside her; and that she didn't know whether he had actually ejaculated or wore a condom because she had blacked out.

98 Ms Franke took the complainant to the emergency department at the hospital to get the morning-after pill. She was with her at the hospital, but could not recall whether she was given a pill at the hospital or given a prescription to get the pill. She then took her home.

99 Ms Franke was cross-examined on the basis that from what she understood about the initial conversation with the complainant, she had an understanding that what had happened had occurred in the appellant's motor vehicle. She did not say that that was what the complainant said, but that it was her understanding that they had been to a house and then had gone back into a car and that the event had occurred in the car.

100 Ms Franke agreed that it was her idea that the complainant should get the morning-after pill and that she should see a social worker. It was effectively put to her that she was the instigator of the events that followed the luncheon meeting:

So you did all the running around in the days that followed, did you?---With [the complainant's] consent and for help, yes.

But pretty much off your own bat?---Yes.

101 Dr Hitesh Bhasin gave evidence that he saw the complainant at 11.36 am on 5 April 2003 at the emergency department at Kalgoorlie Regional Hospital. She requested a morning-after pill. Dr Bhasin said that if somebody had experienced 'unpredicted intercourse within 72 hours', this pill could be prescribed. In an emergency, it would be dispensed. The pill was dispensed to the complainant by nurses at the hospital on the day in question.

102 The appellant testified that he was 27 years of age at the time of trial. He was born in Iran and came to Australia in 1996. He was completing a degree in mining education at Kalgoorlie in 2003. He testified that on the night of Friday, 4 April, he saw the complainant at the social club and he recognised her. He later went to Judd's Hotel, where he saw her again. She was standing alone and so he spoke to her. He was drinking beer. She was also drinking, but he could not recall what it was that she was drinking. Later, he bought her a drink. He ended up leaving the hotel with her at about 1 am and he asked her if she wanted a lift to her place. She said she did and when they got in the vehicle, he asked her if she would like to go for a drive around Kalgoorlie. He had only been in Kalgoorlie for about a month and liked to be shown around. She asked him if he wanted to go to a park and he said, 'Yeah, why not'. They stopped at a park. He asked if he could kiss her and she said he could. They began kissing and touching. There was talk about relationships. He asked her if he could touch her breast and she agreed. He put his hand 'inside her shirt' and as far as he was concerned 'she liked it. She wanted to participate in it'.

103 The appellant said that he suggested that they move to the backseat and she agreed. In the backseat there was passionate kissing. The appellant was touching the complainant's breast and she was responding. He asked if he could undo her bra and she agreed. He then asked her if she wanted to go somewhere more comfortable but she said that it was not a good idea to go to her place. He suggested that they could go to his place. He helped her to do up her bra. They got back into the front of the vehicle. They went to a petrol station and then to the appellant's residence. They entered the house and went to the living room where they had some drinks, sat down and turned on the television. There was nothing on. They began kissing and the appellant then asked the complainant if she would come to his bedroom to which she responded that she would. The appellant said he turned off the lights. He recounted what then occurred in the following way:

You said you kissed then you got up and switched the lights off. How did matters develop from there?---We kissed and I did, I asked her if I could undo her bra again, I did that, and basically she - I helped her take her shirt off, take her top off, afterwards, and as I'm helping her up and we're kissing and we're touching, I took my shoes off and I think I undid my jeans as well.

...

What state did you get down to in your state of undress?---Well, I took everything off. I had my undies on at one stage but, yeah.

What about [the complainant]? What did she get down to, clothing wise?---She had nothing on but her undies at the end, I mean, not even, I mean she took even her socks off.

What then was happening between you and her if anything?---We just kissing and she's on my side and she's got her head on my shoulder, just kissing and touching, and she's got one leg on my side like this, she's basically - I don't know how to explain that, to make a picture what I'm talking about - - -

Well, what was the next phase? What happened?---Then it's like it's getting really hot, you know, it's - we both are very aroused, like, we just like - I think basically you get to that level, like, you know, and I got up to put a condom on, and I know I had some in my desk and I took one out, I put it on and she said, 'What are you doing?' and I said, 'Yeah, I'm putting a condom on.'

It might be obvious but where is she, on the bed, off the bed; where - - -?---Yeah, she was on the bed.

Are you standing up, you're sitting down - - -?---Yeah, I was standing up.

You have told us you put the condom on?---Yes.

Do you still have any of your underclothes on at that stage?---I didn't, obviously I had to take it off to put the - pull it down to put the condom on, but I went back to bed and she said she's not ready, I mean, she asked, 'What are you doing?' I said yeah, I'm putting a condom on, and she said no, she's not ready for that, tonight's the first night.

...

When I get back to bed she was still in that same position as I left her but now she says she doesn't want to do it and I'm just kissing her and she's, no, she's touching my shoulder, you know, and I said all right, you know, and she - I told her to basically roll over and I - because I - I just wanted to hold onto her and I just cuddled her and she rolled over towards the - facing the window, basically.

104 The appellant said that after about 15 minutes he agreed to take the complainant home. He admitted that during the course of what had occurred he had touched the complainant on the vagina with his finger.

105 The appellant's evidence was basically consistent with what he had told police during the course of a video record of interview on 4 September 2003. The transcript of the video record of interview is in the following terms:

1. So at what point did she say no, what was she saying when you were actually putting the condom on?
2. She - - I - - I don't think she said anything when I put the condom on other than come to bed she said no.
3. So it wasn't until after you got back into the bedroom with the condom on that she said no?
4. Yeah.

1. Yeah, and also what we absolutely need to establish is, are you positively certain that you did not have sex with her like you did not penetrate her?
2. Yes.
3. You can be absolutely - -
4. I touched - - I touched her with my hand.
5. Yep.
6. But I did not put my penis in her.

106 The grounds of appeal were amended at the hearing. Ground 1 contends that the verdicts of guilty should be set aside as being unsafe, unsatisfactory and not supported by the evidence. It is convenient to deal with that ground after dealing with the other grounds.

107 Ground 2 contends that the learned trial judge erred in law in failing to instruct the jury that even if they positively disbelieved the appellant's evidence they could not convict him unless the prosecution had made out its case to the required standard. It is contended that a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507) should have been given.

108 Leave to argue this ground of appeal was refused by Roberts-Smith JA on 19 December 2006 and the appellant seeks to review that decision. The nature of review proceedings where there is an appeal from a decision of a single judge of appeal under s 27(2) of the Criminal Appeals Act 2004 (WA) was considered in Keating v The State of Western Australia [2007] WASCA 98. Steytler P and McLure JA said at [23]:

As we read s 27(2), given its context and evident purpose, leave to appeal must be given if the Court is satisfied that a ground has a reasonable prospect of succeeding (albeit the section is couched in negative terms, requiring the Court not to give leave unless satisfied that the ground has a reasonable prospect of succeeding). While there may be some limited scope for reasonable minds to differ on the issue of whether an individual ground does or does not have a reasonable prospect of succeeding, the test is an objective one. Consequently if, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the ground or grounds differently than the single judge, finding that there is a reasonable prospect of success, it is difficult to imagine that, even if no express error is found, the Court would not find implied error, entitling it to set aside or vary the decision of the single judge.

The question is whether Roberts-Smith JA can be shown to have been in error in refusing leave in relation to ground 2.

109 In Liberato v The Queen Brennan J at 515 expressed the view that when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness it is essential that the jury be told that even if they prefer the evidence for the prosecution they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. They must also be told that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt as to that issue.

110 A so-called Liberato direction is not required as a matter of law in every case of 'oath against oath': Salmon v The Queen [2001] WASCA 270; Leyshon v The State of Western Australia [2006] WASCA 132; Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51.

111 In Leyshon v The State of Western Australia, Steytler P at [13] - [14] had the following comments to make about the need for a Liberato direction:

In my opinion, in a case in which there is a substantial or significant conflict between the evidence of defence and prosecution witnesses, it must be made plain to the jury that, if they do not believe the defence evidence and prefer that given by the prosecution witnesses, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they do accept. It is important, also, that in such a case the jury should understand that evidence that is neither positively accepted nor positively disbelieved might give rise to a reasonable doubt. There is no particular form of words that must be used and these propositions might become obvious to the jury from the way in which the trial Judge directs them as regards the onus and standard of proof (as happened in this case). However, it is the responsibility of every trial Judge, in a case of the kind to which I have referred, to ensure that these propositions are understood by the jury.

112 It seems to me that in the present case the learned trial judge effectively gave such a direction. There are two passages in which the learned trial judge did this. They are:

It's not about, it is never about, choosing which of the two cases that have been put before you you prefer. Even if, I'm not saying you would, but even if you reject the accused's account of events, both from the witness box and in the videotape record of interview, conviction does not automatically follow. You still could not convict the accused unless based on the evidence of the complainant you are satisfied of his guilt beyond reasonable doubt.

...

Turning back to the accused's testimony, it probably goes without saying, but if you accept the accused's testimony, and in particular his denials that there was any act of sexual intercourse, and that whatever happened occurred by consent, then you would find him not guilty. Even if you don't accept what he says, but you think that what he says could reasonably be true, then you must find him not guilty. If you are unable to say in this case where the truth lies, then you must find the accused not guilty, and that's because you couldn't be satisfied beyond reasonable doubt of guilt. You can only convict the accused of an offence if you completely reject his account and you are satisfied beyond reasonable doubt that the complainant's evidence on that count is true.

113 When these two passages are combined, it is clear that the jury was properly directed on the issue. It may be that the learned trial judge did not use the words 'positive disbelief', but it is clear that is not necessary in every case of oath against oath for the trial judge to use those precise words when directing the jury. It is not a formulaic requirement.

114 The case relied upon by counsel for the appellant to support this ground of appeal does not suggest that the words 'positively disbelieve' must be used. In Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116, Kirby J (with whom Sheller JA and Dowd J agreed) said at [26] that the preferable formulation in relation to burden and standard of proof is as follows:

'First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?'

This is essentially what the learned trial judge said in the present case.

115 In my opinion, it has not been shown that Roberts-Smith JA was in error in any way in refusing leave to appeal on ground 2. I would therefore dismiss the appellant's appeal from that refusal.

116 This ground contends that the learned trial judge erred in law by permitting the evidence of complaint to be admitted. The essential contention is that the complaint made by the complainant to Ms Franke was not spontaneous and resulted from leading and suggestive questions from Ms Franke. Further, it is contended that the questions were non-specific and not directly referable to the acts said to constitute the offences.

117 There was no objection at trial to the evidence of Ms Franke. It follows that it cannot now be said that the conviction of the appellant should be set aside on the ground of a wrong decision on a question of law. In R v Soma [2003] HCA 13; (2003) 212 CLR 299, Gleeson CJ, Gummow, Kirby and Hayne JJ put it this way at [11]:

There having been no objection at trial to the evidence that was given and received about the respondent's police interview, it cannot be said that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law. The question then must be whether 'on any ground whatsoever there was a miscarriage of justice' (s 668E(1)) [Criminal Code, Qld]. If there was not, the Court of Appeal was required to dismiss the appeal. (Footnotes omitted).

The relevant provision in this state is s 30(3)(c) of the Criminal Appeals Act.

118 The ground of appeal is thus misconceived. Nevertheless, the question remains whether there was any miscarriage of justice occasioned by the admission of the evidence of Ms Franke.

119 A convenient summary of the law in relation to complaints in sexual cases is to be found in Heydon J D, Cross on Evidence (7th Aust ed, 2004) [17265] et seq. Leaving aside the commentary and the cases footnoted, the propositions are as follows:

(a) Complaints may only be proved as evidence in chief in criminal prosecutions for a sexual offence.

(b) The complaint must have been made voluntarily. That is, it should not have been elicited by questions of 'an inducing or intimidating character'.

(c) The complaint must have been made as speedily as could reasonably be expected.

(d) The principle is not limited to offences against females, but extends to offences against males.

(e) The principle is not limited to cases where consent is in issue.

(f) The particulars of the complaint may be proved. But they are not evidence of the facts of which complaint was made. They go only to the credibility of the complainant.

(g) The complaint must relate to the sexual character of the offence and not to some other offence alleged to be committed at the same time.

(h) The complaint may be a mere narrative that the offence took place (without consent if consent is an ingredient), but it need not be the expression of a grievance or accusation and need not convey anger, despair or any particular emotion.

(i) It is for the judge to determine whether the statement is capable of being a complaint and meets the conditions for admissibility; it is for the jury to determine whether it is in fact a complaint.

(j) It is not essential to the admissibility of the complaint that its terms be proved by the complainant; they can be proved solely by a person to whom complaint was made.

(k) A complaint cannot be proved by the evidence of the complainant alone.

120 Section 36BD of the Evidence Act 1906 (WA) modifies the third of these principles in that a trial judge on the trial of a person for a sexual offence is required to give the jury a warning to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and the jury must be informed that there may be good reasons why a victim of an offence such as that alleged, may hesitate in making or may refrain from making a complaint of that offence.

121 The questions at issue in the appeal in this case are whether the complaint was:

(ii) in consequence of questions which were non-specific and not directly referable to the acts said to constitute the offences.

122 In R v Freeman [1980] VicRp 1; [1980] VR 1 the Full Court of the Supreme Court of Victoria (Starke, McInerney and Murphy JJ) said at 5:

Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne's Case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading.

The ultimate question must always be does the 'complaint', in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness.

123 In R v Freeman, 5, the court considered that on the facts of the case the relevant questions were inter alia:

(1) how proximate was the complaint when first made to the event;

(2) what happened in the interval between the events complained of and the making of the complaint;

(3) what likelihood there was that the 'complaint' was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put into the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;

(4) whether the complaint could have been induced as a consequence of the relationship existing between the prosecutrix and the person to whom the complain was made (cf R v Adams and Ross [1965] Qd R 255) so that it was not spontaneous but contrived or induced;

124 These questions are pertinent to the present case. First, the complaint was clearly made close in time to the event. No complaint is made in the grounds of appeal about that. Second, there is nothing significant about what happened in the interval between the events complained of and the making of the complaint. Again, no complaint is made about that in the grounds. Third, the question is whether Ms Franke put into the complainant's 'mind and mouth' the statements she made by reason of the questions asked. Fourth, the question is whether the complaint could have been induced by reason of the relationship between Ms Franke and the complainant. Nothing turns on that in this case.

125 In my opinion, the evidence of complaint in the present case met the requirements of law for the admissibility of complaints in sexual cases. Ms Franke saw the complainant on the morning-after the events in question. She observed the complainant to be very flat and upset. She was not her normal self. She avoided eye contact with Ms Franke. Ms Franke simply asked her what had happened the night before. She was told that she had a bad night and that she was with somebody. Ms Franke asked her did that mean she had sex with somebody and the complainant nodded. Ms Franke said it was hard to get a lot of information out of her and she had to ask 'lots of questions backwards and forwards'. When she asked who the complainant was with she was told. The complainant said 'that she had sex with [the appellant]'. Ms Franke also said that the complainant told her that he had forced himself onto her and that he had inserted his penis into her.

126 I do not take this evidence to be the consequence of Ms Franke putting anything into the 'mind and mouth' of the complainant. Ms Franke was interested to know why the complainant was not her normal self. She asked her whether she had had sex with somebody but she did not ask her whether that was consensual or non-consensual. She made no suggestions to that effect. She asked who it was the complainant had had sex with and she was told. The circumstances do not indicate that the answer was the product of a 'suggestive question to a suggestible mind'. I can see no evidence of the complaint being elicited by questions 'of a leading and inducing or intimidating character': R v Osborne (1905) 1 KB 551, 561 (Ridley J).

127 In R v Freeman the prosecutrix (complainant) was observed in a laneway lying on the ground. Several persons were seen to be running away. The prosecutrix was crying and could hardly talk. She walked back to her friend's flat but on arrival was too upset to say what had happened to her. She made a telephone call to an acquaintance. In response to his question 'did somebody hit you or have you been raped or something' she at first made no reply, but when the question was repeated she burst out crying and replied that she had been raped. The Full Court said at 7:

Ordinarily the form of question asked by H would be regarded as leading and as suggesting the answer 'Yes' to some part. But the context in which the question was put was one where the prosecutrix had made what H said he regarded (and which it was open to the learned trial Judge and the jury to have regarded) as a rather strange request for a girl to make to a man. It was a request which might be regarded as one more likely to be made to her own female flatmates than to a male. It obviously suggested to H that something was wrong and her reaction - namely, that she burst out crying - would have confirmed that impression. That impression would have been strengthened when, in response to his next and much more direct question, she 'just went pretty quiet'. It was only after H had repeated the question that she made the statement that she had been raped.

The learned trial Judge saw and heard the prosecutrix. He was in a position to determine whether she was a suggestible witness or in some way under H's influence or domination. His Honour saw and heard H and he was in a position to determine whether it was likely that the question had been put by H in such a context or in such a tone of voice as to preclude the answer from being considered to be her spontaneous complaint and so consistent with her sworn evidence. The questions were natural questions to ask in the circumstances (cf R v Heaton (1906) 6 SR (NSW) 694), and they would not appear to have been of an intimidating character (as, perhaps, were those in R v Adams and Ross, supra).

It was open to the learned trial Judge, on the evidence and on his impressions of the prosecutrix and H and on his views of the prosecutrix's then condition (having regard to the evidence concerning the prosecutrix given by Mrs P and her son, Miss D and H) to have taken the view that the prosecutrix was recovering from shock and struggling to bring herself to tell her story, and that H's questions did no more than dissolve the barrier which had hitherto prevented her from telling her story.

His Honour was also entitled to take into account the age of the prosecutrix - she was no mere child - and he was in a position to assess her emotional, intellectual and social maturity.

In the circumstances of the present case, it was open to the learned trial Judge to have formed the view that the questions put to the prosecutrix by H, had merely accelerated the making of the complaint by the prosecutrix and that what she said to H was the product of her own mind and not the acceptance of a suggestion implanted in her mind by H. She was clearly still in a highly emotional state: 'moaning', 'stammering', 'upset', 'dazed', and 'distressed' are but some of the descriptions given to her condition by Mr and Mrs P and Miss D, who saw the prosecutrix immediately after the events and up to shortly before the complaint. Only some half hour elapsed between the happening of the events and the making of the alleged complaint.

On the whole of the evidence it was open to the learned trial Judge to hold that the leading nature of H's questions did not, in these circumstances, render the complaint inadmissible by taking from it the quality of spontaneity which is looked for in such complaints to buttress the prosecutrix's evidence.

128 Applying these principles to the present case, it seems apparent that the complaint made by the complainant to Ms Franke was made in circumstances where the complainant was upset by what had occurred the previous night and Ms Franke did no more than 'dissolve the barrier' between the two women. Further, the questions 'merely accelerated' the making of the complaint by the complainant.

129 Counsel for the appellant at trial did not take issue with the evidence of Ms Franke. This was made clear to the jury by the learned trial judge. Further, counsel had cross-examined Ms Franke to draw from her the fact that she had an impression that the events complained of had happened in the appellant's car. The learned trial judge told the jury that:

Mr Crispe submitted to you essentially today that if that was what the complainant told Ms Franke, then that was inconsistent with the evidence that the complainant gave about where the sexual intercourse occurred, so from the defence point of view rather than bolstering the complainant's credibility Ms Franke's evidence impacts adversely on it.

This is an argument for you to consider and if you think fit adopt. You should when considering this argument bear in mind that Ms Franke said in re-examination that the complainant did not give any exact details about what occurred and where it occurred.

130 Counsel for the appellant also placed emphasis upon the fact that Ms Franke was 'the one' who had organised the complainant to go to hospital for the morning-after pill and who had later arranged for her to see a social worker. The defence was contending that Ms Franke's actions had 'put the complainant on a path of reporting the case to the authorities, a path which ... saw the case take on a life of its own from which the complainant could not retreat'. Thus, it was central to the defence case that although the complainant had asserted to Ms Franke that she had had sex with the appellant on the night before, the circumstances in which it had occurred had been suggested by her to be somewhat different from those which she was contending at trial and, the ultimate complaint against the appellant was in consequence of Ms Franke's intervention. Seen this way, the defence wanted the evidence of complaint because it set in train the events which the defence relied on as suggesting that Ms Franke was the cause of complaint being made about the appellant. As McHugh J pointed out in Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769, [20], where admission of evidence is seen as being 'for the appellant's forensic benefit', because it is a 'weapon which could be used to impugn the credibility of the complainant in a case where conviction depended on her word against that of the appellant, and because it supported the defence theory of the case', no substantial miscarriage, or for that matter any miscarriage, of justice could be said to have occurred. That is precisely the present case.

131 The question is not whether the learned trial judge erred by allowing the evidence to be admitted but whether there was a miscarriage of justice in consequence of the evidence being admitted. I can see no indication of any miscarriage of justice. In my opinion, the evidence of complaint was entirely admissible and no miscarriage of justice was occasioned by the admission of that evidence. Ground 3 therefore fails.

132 Ground 3A was added at the hearing of the appeal. It is to the following effect:

The learned trial Judge erred in directing the jury that the evidence of complaint to the witness Franke was capable of bolstering the complainant's credibility.

133 The direction of the learned trial judge on the complaint evidence was as follows:

If you accept this argument, and as I have said it is a matter for you whether you do, Ms Franke's testimony may bolster the complainant's credibility. So Ms Franke's evidence, if you accept it, goes only to the complainant's credibility. It is evidence of conduct which may be consistent with someone who has been sexually assaulted but it is not evidence of the truth of what the complainant said to Ms Franke.

134 It was, in my view, necessary for the learned trial judge to tell the jury that the evidence of complaint could only be used to buttress the credibility of the complainant. The learned trial judge used the word 'bolster' but there is little difference between the two words. The words 'buttress' and 'bolster' are effectively the same. To 'buttress' is to ... 'sustain or strengthen ...'. To 'bolster' is to ... 'prop up': The Shorter Oxford English Dictionary on Historical Principles Vol 1. In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, [49], McHugh J referred to 'the bolster rule' in the context of general inadmissibility of evidence that tends to bolster the credibility of a witness. The passage is as follows:

That rule stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked. (Footnotes omitted).

135 Evidence of complaint is an exception to this general rule and is thus something that can 'bolster' the credibility of a complainant in a sexual case. In Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, Barwick CJ at 472 put the rule in the following way:

The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.

136 That is essentially what the learned trial judge said, and in my opinion, it was properly said in the circumstances of the case. That is to say, the evidence of Ms Franke was properly before the jury for the purpose of showing consistency in the conduct of the complainant. I can therefore see no substance in ground 3A.

137 Ground 4A was added to the grounds of appeal at the hearing. It should logically be dealt with before ground 4. It contends that the learned trial judge erred in admitting into evidence any evidence relating to the complainant's request for the morning-after pill. The particulars annexed to the ground contend that the evidence had no probative value and it had significant prejudicial effect and should have been excluded.

138 Ground 4 contends that the learned trial judge erred in law when he instructed the jury that the complainant's conduct in attending hospital to obtain a morning-after pill was consistent with her testimony and capable of bolstering her credibility.

139 Ground 4A is misconceived. No objection was raised to the evidence at trial. It is not, therefore, open to contend that the learned trial judge erred in law in admitting the evidence: R v Soma, [11] (Gleeson CJ, Gummow, Kirby and Hayne JJ). The question is whether there was a miscarriage of justice, in which event the Court of Appeal must allow the appeal: s 30(3)(c). This in turn is subject to s 30(4) which provides that even if a ground of appeal might be decided in favour of the offender the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

140 I have referred to the evidence which revealed that on the morning of 5 April 2003 the complainant attended at the Emergency Department of Kalgoorlie Regional Hospital and was there given the morning-after pill. I have pointed out that counsel for the appellant cross-examined Ms Franke to the effect that it was her idea that the complainant should go and get the morning-after pill. This cross-examination was directed at suggesting that Ms Franke was instrumental in the complaints of sexual penetration being made by the complainant. Counsel for the appellant was clearly happy for the evidence to be adduced. He utilised it for forensic purposes. In those circumstances, even if the evidence might otherwise be inadmissible, there could be no miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act: Suresh v The Queen, [17] (McHugh J).

141 Aside from this conclusion, I consider that the evidence was admissible. The complainant's behaviour in attending at the Kalgoorlie Regional Hospital for the morning-after pill was not evidence of complaint. No complaint was made. It was evidence of her behaviour and the consistency of her conduct. It supported her testimony that there had been an incident of sexual intercourse during the preceding night. It was therefore relevant evidence.

142 In Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, Gleeson CJ, Gaudron, Gummow and Hayne JJ at [6] and [7] summarised the basic principles relating to the admissibility of evidence in the following terms:

Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:

'None but facts having rational probative value are admissible',

'All facts having rational probative value are admissible, unless some specific rule forbids.'

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. (Footnotes omitted).

143 I do not accept that there was any miscarriage of justice occasioned by the admission of the evidence about the complainant's request for a morning-after pill. In the first place, for tactical reasons it suited counsel for the appellant for the evidence to be adduced. That means that there could not have been any miscarriage of justice. In the second place, the evidence was relevant because it was probative. It was probative of the issue whether the complainant had engaged in sexual intercourse on the preceding evening. Of course, it was not probative of the question of with whom she had engaged in sexual intercourse, but there was no question that it was the appellant who was with her on the evening beforehand. Nor was it probative of the absence or presence of consent. It was not evidence forbidden by any specific rule.

144 The learned trial judge's direction on the subject was as follows:

I now want to give you some directions about the evidence of Dr Bhasin. That was very brief evidence which was not disputed. Dr Bhasin testified that the complainant was seen by him at the Kalgoorlie Regional Hospital on 5 April 2003. Dr Bhasin said that the complainant sought and was dispensed with; that is, given, the morning-after pill. Asking for the morning-after pill may be conduct which may bolster the complainant's credibility on the basis that it is conduct consistent with someone who was engaged in sexual intercourse in circumstances where they were unsure whether any contraceptive measures had been taken or were effective.

Having said that, however, the request for the morning-after pill is not evidence that the complainant actually engaged in sexual intercourse with the accused, nor is it evidence that if such intercourse occurred it occurred without consent.

145 The complaint made about this direction is that the learned trial judge suggested that the evidence might be conduct which 'may bolster the complainant's credibility on the basis that it is conduct consistent with someone who was engaged in sexual intercourse ...'.

146 If, by this direction, the learned trial judge equated the evidence with evidence of complaint, it was wrong. Evidence of complaint falls into a special category and it is admitted in evidence exceptionally and 'only as evidence of consistency in the account given by the woman claiming to have been raped': Kilby v The Queen, 466 (Barwick CJ).

147 In Suresh v The Queen Gaudron and Gummow JJ at [4] said that evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. Their Honours said:

Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. It follows that evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of 'recent complaint'. And it is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complainant. (Footnotes omitted).

148 Evidence about the morning-after pill did not fall into this category. It was not evidence which buttressed the credit of the complainant but evidence which went to the question of whether the complainant may have engaged in sexual intercourse on the evening beforehand. It was not evidence of anything that she said. It should not therefore have been confused with complaint evidence.

149 The evidence was circumstantial evidence. It was evidence of a basic fact from which the jury was asked to infer a further fact: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J). It was not, in my opinion, evidence that called for a "circumstantial evidence direction". As Dawson J pointed out in Shepherd v The Queen, 578, in cases where the amount of circumstantial evidence is slight, such a direction may be confusing rather than helpful.

150 Whether the learned trial judge confused the evidence with complaint evidence by referring to bolstering the complainant's credibility is not clear. To remove any suggestion that it was being treated in that way the direction should have read 'Asking for the morning-after pill may be conduct consistent with someone who is engaged in sexual intercourse in circumstances where they were unsure whether any contraceptive measures have been taken or were effective ...'. The balance of the direction, that the evidence was not evidence that the complainant had actually engaged in sexual intercourse with the accused nor was it evidence that it occurred without consent, was clearly correct.

151 If the learned trial judge equated the evidence with evidence of complaint and regarded it as buttressing the credit of the complainant, it was an erroneous direction. However, in my view, the clear direction of the learned trial judge to the effect that the evidence was 'not evidence that the complainant actually engaged in sexual intercourse with the accused, nor is it evidence that if such intercourse occurred it occurred without consent' effectively neutralised any injustice that may have occurred to the appellant by use of the words 'bolster the complainant's credibility'. It seems to me that to the extent that there was any error of law on the part of the learned trial judge in suggesting that the complainant's testimony may have been bolstered, there was no substantial miscarriage of justice and I would dismiss the ground under s 30(4) of the Criminal Appeals Act. For the reasons I have given I would also dismiss ground 4A.

152 This ground contends that the learned trial judge erred in law when he instructed the jury that the distressed state of the complainant when she spoke to Ms Franke was a matter they could take into account as bolstering her credibility. It is contended that the learned trial judge should have warned the jury that this evidence can carry little weight and could only be used to bolster the complainant's evidence if the jury was satisfied that all other explanations were excluded.

153 The direction complained of was to the following effect:

... you heard evidence from Ms Franke that the complainant was not herself when she saw her around lunchtime on 5 April 2003. If you are satisfied beyond reasonable doubt that the complainant was in a state, the state testified to by Ms Franke; that is, a distressed state, and you were satisfied that that distress was genuine; that is, that it derived as a result of an alleged sexual assault, you may take that into account as bolstering the complainant's credibility.

Whether you do or not is a matter for you. However, if her distressed condition was attributable or could reasonably be attributable to some other cause such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not bolster her credibility.

154 It will be seen that the learned trial judge again used the words 'bolstering the complainant's credibility'. This is close to the formula which is used when giving directions about complaint evidence. There the words used are 'a buttress to the complainant's credibility'. There is however no complaint made about the use of those words in the context of this direction.

155 In Eades v The Queen [2001] WASCA 329 Murray J (with whom Templeman and Roberts-Smith JJ agreed) said of evidence of distressed condition at [32] - [34]:

In a case of sexual assault, or concerning sexual offences generally, there is no question that the distressed condition of the complainant after the events in question may, if it is independently observed, be capable of being corroborative of the truth of her account, particularly in respect of the issue of non-consent. It is a question for the trial Judge whether the evidence is capable of being used in that way. As to that question, the Full Court of Victoria said in R v Flannery [1969] VicRp 72; [1969] VR 586 at 591:

'In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances ... evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.'

As to the latter aspect, the case of Flannery was referred to by the Queensland Court of Criminal Appeal in R v McDougall [1983] 1 QdR 89 at 91 where, speaking of the warning about the weight of such evidence, D M Campbell J, with whom the other members of the Court agreed, said:

'The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distressed condition is of little weight.'

In my respectful opinion, that is sound in principle. Whether or not a warning of this character is required and if so, in what terms it should be given to assist the jury to a better evaluation of the probative value of evidence, as in the case of warnings to be given to the jury about other evidentiary matters, is to be guided by the principle that what, if anything, a trial Judge is required to do in that regard should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case.

I respectfully adopt this statement of the relevant law relating to evidence of distress.

156 In R v Luisi [1964] Crim LR 605, the English Court of Criminal Appeal (Lord Parker CJ, Widgery and John Stephenson JJ), held that the significance of a girl's distress in a case of attempted rape was over-emphasised by the trial judge. The note of the case is (inter alia) to the following effect:

The significance of the girl's distress was over-emphasised. There may be cases (eg R v Redpath (1962) 46 Cr App R 319) where there can be no suggestion that the distress was feigned. In normal cases, however, the weight to be given to distress varies infinitely, and juries should be warned that, although it may amount to corroboration they must be fully satisfied that there is no question of it having been feigned.

If this statement means that in all cases juries must be warned that distress may be feigned, I respectfully disagree with it. I prefer the statement of principle set out by Murray J in Eades v The Queen.

157 To the extent that ground 5 contends that the learned trial judge should have warned the jury that evidence of distress could carry little weight and could only be used to bolster the complainant's evidence if the jury was satisfied that all other explanations were excluded, the ground must therefore fail. No such direction is called for in every case. It is a question for the discretion of the trial judge.

158 In this case, the learned trial judge told the jury that if they were satisfied that the distress of the complainant was genuine and it derived as a result of the alleged sexual assault, they could take it into account as bolstering her credibility. However, his Honour pointed out that whether or not they did so was a matter entirely for them and he added that if they considered her distressed condition to be attributable or reasonably attributable to some other cause such as remorse derived from consensual sexual behaviour which was later regretted, then her distressed condition could not bolster her credibility. In my opinion, this was a fair direction and one which is in accordance with the principles expressed by Murray J in Eades v The Queen.

159 It is to be noted that the learned trial judge did not address the issue in terms of corroboration but only in terms of bolstering the credibility of the complainant. A corroboration warning is not required by any rule of law or practice and shall not be given unless the judge is satisfied that such a warning is justified in the circumstances: Evidence Act 1906 (WA) s 50.

160 No suggestion has been made that in this case a corroboration warning was required. Further, the learned trial judge was correct in his direction to avoid use of the words 'corroborative of the truth of her account'. It is now preferable in this State to avoid use of the word 'corroborative' or 'corroboration': Moloney v The State of Western Australia [2006] WASCA 193 per Wheeler JA at [19]. In my opinion, there is no substance in this ground of appeal.

161 This ground contends that the verdicts of guilty should be set aside as being unsafe and unsatisfactory and not supported by the evidence. It is based upon s 30(3)(a) of the Criminal Appeals Act which provides that the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. The words 'unsafe and unsatisfactory' are not used in the section, but are in common use in relation to this ground: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ).

162 The test facing a court of appeal in considering whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence is set out in M v The Queen, 492 - 493:

The question is one of fact which the court must decide by making its own independent assessment of the evidence [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' [See Hayes v The Queen (1973) 47 ALJR 603, 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.

...

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 [See Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 686; Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 532; Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 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 [Chamberlain v The Queen (supra), 621].

(See also Bruce v The State of Western Australia [2006] WASCA 236, where Pullin JA, [26] - [27], sets out a number of propositions which emerge from the cases.)

163 When determining the question whether a verdict is unsafe or unsatisfactory it is necessary that this court undertake an independent examination of the relevant evidence: Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454.

164 I have carefully read the transcript of the proceedings in this case. The facts fell within a short compass. The evidence in the case took only two days. As the learned trial judge pointed out to the jury, the prosecution case rested entirely upon the testimony of the complainant. Unless the jury was satisfied beyond reasonable doubt of the truth and accuracy of her account, the jury could not convict. The appellant gave evidence at the trial. If his evidence, even if disbelieved, was sufficient to create a reasonable doubt about his guilt, then he had to be acquitted.

165 It was, of course, a case in which the jury had the undoubted advantage of seeing and hearing from the complainant. As the court recognised in M v The Queen, 493, this court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The jury had the benefit of seeing and hearing the complainant. Full regard must be paid to those considerations.

166 In many sexual assault cases the prosecution case is solely reliant upon the evidence of the complainant. It has often been said that in most instances sexual behaviour between adults will occur in the privacy of the home of one of them. There will seldom be any witnesses who can throw light upon what occurred. In this case, evidence of events that occurred the following morning was admitted for the reasons that I have indicated, but it was not direct evidence as to the events in issue.

167 The case has to be understood in its factual context. The complainant contended that there were two acts of sexual penetration without consent but the appellant contended that there was no penetration at all. The appellant admitted that there was an incident in which he and the complainant were on his bed, but said that when the complainant made it clear she did not wish him to proceed further he desisted. At no time did he get to the point of penetration.

168 Senior Counsel for the appellant placed considerable reliance upon the fact that the complainant in her evidence-in-chief and cross-examination said that she 'blacked out' whilst she was on the bed. The complainant's evidence was unusual. Nevertheless, the complainant was specific that after the episode of 'blacking out' (which she explained as taking her mind to another safe secure area) she was brought back to reality by pain. It was pain occasioned by sexual penetration of her vagina. The second incident of sexual penetration was described in even more detail. The complainant recalled the appellant looking for a condom and then getting back onto the bed and penetrating her fully. She described it as 'just smooth so I'd guess that's probably the condom but it was still painful, it was extremely painful'.

169 Cross-examination on blacking out was extensive. Passages from it are as follows:

You have told us about blacking out?---That was before he penetrated.

And you blacked out what, a couple of times, did you?---I think it was twice.

When you say you were blacking out you're saying that you had gone unconsciousness?---I basically take my mind to a different place, to a place where I feel safe and happy.

It's like a dreamlike state, is it?---Yes, you could say that.

You're not actually there in the room?---No, I wasn't there. My body was there but I had taken my mind so that I could feel in safe, secure - yeah.

And this is when you say that the penetrations occurred?---Well, yeah. When he penetrated the pain basically brought me back to reality. It was the pain that I felt.

...

Okay. This blacking out, you can't tell us - you say it was a couple of times?---It was twice.

Twice; and it's not a situation where you are unconscious. Is that right?---It's just - it's basically you just - your body is there but you take your mind away from it.

You don't really know what's happening at the time, do you?---No. I just came to when he penetrated the first time.

I want to put it to you that at no time did he ever penetrate you?---He did penetrate. I felt pain and it was sore and I know that was penetration.

170 The issue of the complainant's blacking out was fully tested before the jury. The jury had the advantage of seeing and hearing the witness. That is not an advantage enjoyed by the appeal court, but the explanation of the complainant seems to me to be entirely credible.

171 It must be stressed that this was not a case about consent. Whatever position the complainant put herself in by going with the appellant in his vehicle to a park and later to the bedroom of the house in which he was residing was not to the point. The appellant agreed that the complainant indicated she did not want him to proceed any further. He said that this was made clear to him after he had put a condom on. He said that she said 'she doesn't want to do it' and that he said 'all right' and thereafter only cuddled her. The complainant's testimony was that she told him 'I don't want to do this' shortly before she blacked out and that she told him again after he had put on a condom. She said that she said to him 'No I didn't want to do this - "This is not right".' Her evidence was that notwithstanding her clear indication that she did not want the sexual conduct to proceed any further he refused to take any notice of her and penetrated her on two occasions. Penetration was thus the issue. There was no question of the complainant consenting or the appellant honestly but mistakenly believing that she had consented.

172 My assessment of the complainant's evidence is that she gave a very clear and precise explanation of the two acts of penetration. She described how the appellant's penis had gone into her vagina and she said it was painful. The following passages illustrate the point:

... the penetration because it was so painful and sore basically I was sort of more of shocked by it.

When he was inside you for that period of time, you have said 10 seconds or less, was he moving inside you or not?---No, it was just a straight in and then out.

What do you remember happening then?---He got off the bed and was searching for a condom.

173 In describing the second incident the complainant gave the following detail:

Now, you have said he penetrated you. What did he do?---He put his penis into my vaginal area - - -

You said he did that more than once?---More than twice.

More than twice?---I don't know how many times but it went in and out, in and out and in and out - - -

When you say 'in and out' do you mean fully out?---Fully, yeah, he put his penis in and then took it fully out. I don't know why he did that but he kept, yeah, he kept on pulling it out fully and then putting it back.

Can you estimate in terms of time how long he was doing that for? This was on the second occasion?---It was longer than 10 seconds because he kept on going in and out but the going in was, it was quite quick, you know, three, four seconds in and then out, and then - - -

174 The complainant added that on the second occasion it felt 'different'. She said:

It was just smooth so I'd guess that's probably the condom but it was still painful, it was extremely painful.

This testimony was very specific and, in my opinion, it had a compelling ring to it.

175 Senior Counsel for the appellant contended that there were a number of unsatisfactory aspects of the prosecution case, which, when added to the complainant's own testimony about blacking out, meant that the convictions could not be supported by the evidence.

176 The first of these was said to be the equivocal nature of the complaint. It was submitted that there were no obvious signs of distress by the complainant immediately after the alleged sexual assault occurred and the complainant allowed the appellant to drive her home, where they kissed before she left the car. She made no complaint to anybody that night and the first time she told anybody about the sexual assault was the following day. The submission suggests that it was at midday that she told Ms Franke about what had occurred, but it appears from the evidence that the complainant and Ms Franke met shortly after 10.30 am.

177 I do not regard the complaint to have been equivocal as contended for by Senior Counsel for the appellant. The complaint was that the complainant had had sex the previous night with the appellant and that the appellant had forced himself upon the complainant.

178 There is no evidence that the complainant met anybody or had any real opportunity to make a complaint before she met Ms Franke. In any event, s 36BD of the Evidence Act 1906 requires a trial judge to give a warning that any delay in making a complaint does not necessarily indicate that an allegation that an offence was committed is false and the jury must be told that there may be good reasons why a victim of an offence may hesitate in making or refraining from making a complaint at the earliest opportunity. This is allied with the second complaint of counsel for the appellant; namely, that the first time the complainant made a complaint of sexual assault was at about midday the following day. The delay (whether it be 10.30 am or midday that the complaint was made) is of no real consequence.

179 It is also contended that the complaint was not made directly by the complainant, but as a result of 'leading questioning' from Ms Franke. I have already dealt with this contention. I do not consider the complaint to have been elicited by leading questions.

180 The third matter relied upon is that the appellant made no admissions in his video record of interview that he had sexually penetrated the complainant. He also gave evidence at trial and asserted that there had been no penetration.

181 It is not to the point that the appellant denied penetration when questioned by police and when giving evidence. I have already made it clear that this was a case of 'oath against oath' and the prosecution had to establish beyond reasonable doubt the truth and accuracy of the complainant's testimony before the appellant could be convicted. The appellant admitted in both his record of interview and in his testimony that the complainant had made it clear she did not want to engage in sex. The question was whether the appellant had in fact forced sex upon the complainant.

182 The fourth matter relied upon is that the complainant did not undergo any medical examination until six days after the alleged event. No obvious signs of sexual assault were then found. The doctor who conducted the examination was Dr E N Coetzee. He testified that, given that six days had elapsed from the alleged incident, there was nothing remarkable about the fact that there was no evidence of physical injury. In any event, the doctor said that absence of physical injury was consistent with the history supplied by the patient.

183 The fifth matter relied upon is the absence of any forensic evidence. Clothing of the complainant was examined by Ms A M Furmedge at PathWest. No semen or saliva or blood was found on any item. There was a mixed DNA profile on the complainant's briefs, but no complete match could be made with either the complainant or the appellant. The submissions for the appellant contend that there was therefore nothing 'consistent with forcible or non-consensual penetration'. I am afraid I am unable to find any substance in this contention. The absence of semen or blood is quite consistent with the testimony of the complainant. She did not allege violent and/or forceful acts of intercourse. She admitted to having prior sexual experience. She said that the appellant had not ejaculated, because he did not get the chance to.

184 Although I have not enjoyed the benefit of seeing and hearing the complainant, I am satisfied beyond reasonable doubt from the materials before the court that the complainant's testimony about penetration was capable of being regarded as truthful evidence that penetration occurred. The appellant's testimony that they had each basically removed their clothing, he had put on a condom and returned to the bed but desisted when she said she did not want to do it seems to me to lack the quality of truth which the complainant's testimony has. It is not, of course, a question of comparing the two accounts. The complainant's testimony must establish beyond reasonable doubt that the two acts of penetration occurred. I am satisfied that it does and that it was open to the jury to convict.

185 The complainant's testimony was buttressed in its credibility by the evidence of complaint given by Ms Franke. The complainant's evidence about the morning-after pill also went to the question of penetration and supported the proposition that the complainant had been penetrated. It was consistent with penetration that she should have sought the morning-after pill when she did. It did not of itself prove penetration or prove that it was penetration without consent, but it was a factor which went to support her testimony that she had been penetrated.

186 In my opinion, the evidence was such as to justify conviction and I do not consider the verdict to be unsupported by the evidence. I would dismiss the first ground of appeal.

187 For the reasons I have given I would dismiss each of the appellant's grounds of appeal. To the extent that there was an error of law on the part of the learned trial judge identified in ground 4, I consider that the ground of appeal should be dismissed because no substantial miscarriage of justice occurred: s 30(4) Criminal Appeals Act.

188 LE MIERE AJA: I have had the benefit of reading in draft the reasons for judgment of each of Pullin and Miller JJA. The evidence and grounds of appeal are discussed in each of those judgments and it is not necessary that I repeat them.

189 I agree with Pullin and Miller JJA that grounds 3, 3A and 5 and the application to review the decision of Roberts-Smith JA to refuse leave to appeal on ground 2 should be dismissed for the reasons given by their Honours. I will briefly state my reasons for determining grounds 1, 4 and 4A. It is convenient to start with ground 4A.

190 Ground 4A is that the learned trial Judge erred in admitting into evidence any evidence relating to the complainant's request for the morning-after pill. Two particulars are given. First, it is asserted that the evidence had no probative value. Secondly, it is asserted that the evidence had significant prejudicial effect and should have been excluded.

191 Dr Bahsin gave evidence concerning giving the morning-after pill to the complainant. Dr Bahsin initially said that he had no independent recollection of the events. Dr Bahsin then referred to his notes and gave evidence of and about the content of his notes. Dr Bahsin said that the complainant attended the Emergency Department of the Kalgoorlie Regional Hospital at 11.36 am on 5 April 2003. Dr Bahsin said that the complainant requested a morning-after pill. Dr Bahsin then said that the morning-after pill is an oral contraceptive pill and explained the circumstances in which the pill is dispensed as follows:

Basically if somebody has had unpredicted intercourse within 72 hours you can prescribe them the morning-after pill and in emergency we normally dispense the after-morning pill, we don't write a prescription, we actually give them the pill.

Dr Bahsin said that the complainant was given the morning-after pill by the nurses in the department.

192 All evidence which is sufficiently relevant to the issue before the court is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration: Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6]; Festa v The Queen [2001] HCA 72; 208 CLR 593 [14]. Dr Bahsin's evidence relating to the complainant's request for the morning-after pill is relevant to whether or not the complainant was sexually penetrated on 5 April 2003. A woman who has recently had sexual intercourse is more likely to request a morning-after pill than one who has not.

193 Dr Bahsin's evidence that the complainant requested the morning-after pill might be claimed to be inadmissible hearsay evidence of the complainant's request. Evidence of an out of court statement tendered to prove the truth of some fact asserted by the maker of the statement, expressly or impliedly is prima facie inadmissible: Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 577 (Brennan J); Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283; R v Benz [1989] HCA 64; (1989) 168 CLR 110.

194 Dr Bahsin's evidence that the complainant requested a morning-after pill is inadmissible hearsay insofar as it is evidence of the truth of the implied assertion by the complainant that she had recently had sexual intercourse. Dr Bahsin's evidence that the complainant requested the morning-after pill is hearsay if the words spoken by the complainant are relied on testimonially, that is as establishing the truth of the implied assertion that she had recently had sexual intercourse. However, Dr Bahsin's evidence was not led to prove the truth of the complainant's implied assertion, or as evidence of anything the plaintiff may have said. The evidence was led as original circumstantial evidence, as evidence of conduct engaged in by the complainant. Evidence that the complainant sought and was prescribed the morning-after pill was circumstantial evidence, which if proved, meant that it was more likely than not that the complainant had had sexual intercourse recently. It was not evidence led for the purpose of proving the truth of any complaint made to the doctor.

195 The evidence of Dr Bahsin was admissible as original circumstantial evidence. Ground 4A is not made out.

196 Ground 4 is that the learned trial judge erred in law when he instructed the jury that the complainant's conduct in attending hospital to obtain a morning-after pill was consistent with her testimony and capable of bolstering her credibility.

197 In his summing up the learned trial judge dealt with Dr Bahsin's evidence as follows:

Dr Bahsin said that the complainant sought and was dispensed with, that is, given, the morning-after pill. Asking for the morning-after pill may be conduct which may bolster the complainant's credibility on the basis that it is conduct consistent with someone who was engaged in sexual intercourse in circumstances where they were unsure whether any contraceptive measures may have been taken or were effective.

Having said that, however, the request for the morning-after pill is not evidence that the complainant actually engaged in sexual intercourse with the accused, nor is it evidence that if such intercourse occurred it occurred without consent.

198 Whether or not it is hearsay, the rule against self-corroboration generally forbids the repetition of a witness' prior consistent statements. When an exception to that rule applies, the prior statement goes to the witness's credit. Thus, evidence of recent complaint in sexual cases is received as evidence of credibility.

199 Dr Bahsin's evidence was not, and was not received as, evidence of recent complaint. It was not admissible to 'bolster the complainant's credibility'. It was evidence of the complainant's conduct, which circumstantially went to the question of whether intercourse actually took place. The learned trial judge erred in instructing the jury that the complainant's conduct in asking for the morning-after pill may be conduct which may bolster her credibility. The conviction should be set aside pursuant to Criminal Appeals Act 2004 s 30(3) unless s 30(4) applies.

200 Section 30(4) provides that despite s 30(3), even if the ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

201 Criminal Appeals Act s 30(4) provides that even if a ground of appeal might be decided in favour of the offender, the court of appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

202 The task of the court of appeal is to be undertaken

in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty: Weiss v The Queen [2005] HCA 81; 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

203 Three fundamental propositions must be observed:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt: Weiss v The Queen [39] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

204 It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.

205 I would not apply the proviso in relation to ground 4 of the appeal. The jury must have accepted the evidence of the complainant and rejected the appellant's contrary evidence. However, the possibility that the jury took account of the trial judge's wrong direction that the complainant's request for the morning-after pill may bolster her credibility in deciding what evidence to accept or reject cannot be excluded. If the jury did take that evidence into account in deciding to accept the complainant's evidence, the conclusion reached by the jury would not provide a sound basis for reaching a conclusion about whether guilt had been proved beyond reasonable doubt. It is wrong to begin an examination of whether a substantial miscarriage of justice has actually occurred by accepting, as necessarily correct, the preference by the jury for the complainant's evidence over the appellant's evidence when that preference may have been affected by the trial judge's erroneous direction that the complainant's conduct in requesting the morning-after pill may bolster her credibility. I am not satisfied that no substantial miscarriage of justice has occurred. I would uphold the appeal on ground 4.

206 Ground 1, that the verdicts of guilty should be set aside as being unsafe, unsatisfactory and not supported by the evidence, is based on Criminal Appeals Act 2004 s 30(3)(a) which provides that the Court of Appeal must allow the appeal if in its opinion the verdict of guilty on which the conviction is based and should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

207 Where there is a ground of appeal that the verdict, having regard to the evidence, is unreasonable or cannot be supported, the question which a court of criminal appeal must ask itself is set out in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 where Mason CJ, Deane, Dawson and Toohey JJ said:

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. 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.

208 The application of the test was discussed in M v The Queen where the same judges said: (494)

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.

Complainant's evidence that she blacked out

209 Whilst submitting that there were other unsatisfactory aspects of the prosecution case, the appellant's primary submission was that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of either count because the complainant's evidence was uncorroborated and her evidence was that she had 'blacked out' prior to the alleged acts of penetration and that she had 'blacked out' more than once.

210 The complainant's evidence that she blacked out is unusual. However, it must be understood in light of her elaboration upon that experience. Her evidence is not that she lost consciousness but that she took herself out of the situation and took her mind to a happy place, a place where she felt comfortable and safe. Her evidence is that she came out of the 'blacked out' state and realised that the appellant was penetrating her. She said that it was painful, it hurt, if felt like she was being torn.

211 The complainant gave evidence that she blacked out a second time. However, she gave evidence that she was aware of the appellant penetrating her a second time after he had got back onto the bed after looking for a condom.

212 The complainant's evidence concerning her black outs is unusual. However, the complainant's evidence does not for that reason lack credibility in such a way as to lead the Court of Criminal Appeal to conclude that a verdict of guilty is unreasonable.

213 The appellant submits that there were other unsatisfactory aspects of the prosecution case. First, there were no obvious signs of distress by the complainant immediately after the alleged sexual assault occurred. The complainant made no complaint that night. The first time the complainant made a complaint was about midday the following day to her friend, Ms Franke. Secondly, the complaint was not directly made by the complainant but rather elicited by leading and questioning from Ms Franke. Thirdly, the complainant did not undergo a medical examination until six days after the alleged incident. The evidence given by Dr Coetzee did not indicate any obvious signs of sexual assault. Fourthly, there was no forensic evidence consistent with a forcible or non-consensual penetration. Fifthly the appellant made no admissions in his video record of interview on 4 September 2003 that he had sexually penetrated the complainant.

214 The complainant gave detailed evidence that the appellant twice sexually penetrated her and of the events leading up to and surrounding those acts of penetration. The appellant submits that, notwithstanding that detailed evidence, the jury's verdict was unreasonable and cannot be supported for the reasons I have set out. As I have said, the complainant's evidence concerning her black outs is unusual but the complainant's evidence concerning the acts of penetration do not for that reason lack credibility in such a way as to lead to the conclusion that the verdict is unreasonable or cannot be supported.

215 The complainant did not meet or speak to anybody between the time she parted company with the appellant and when she spoke to Ms Franke the next morning. Ms Franke said that the complainant was very flat and very upset. Ms Franke asked the complainant what was the matter. The complainant said that she had had a bad night and that she was with somebody. On further questioning the complainant said that she had had sex with the appellant and that he had forced himself onto her.

216 There are some differences between the complainant's evidence of what happened and the evidence of Ms Franke of what the complainant told her the following day had happened. Ms Franke's evidence included the following:

From what you understood from this conversation with her this alleged thing that had happened had happened in a car?---Yes.

So she told you it happened in a car?---I cannot remember exactly whether she said it happened in the car or not.

You agree that's how you have described it?---Yes.

So that's how you understood it from the conversation?---Yes.

They had been to a house, then they had gone back into a car and then it happened in the car?---That was my understanding, yes.

217 In re-examination Ms Franke gave the following evidence:

You were asked by my learned friend about your belief as to it occurring in the car?---Yes.

Did you go into any detail with [the complainant] about that?---No, we didn't go into great detail about everything.

And to like where it took place?---To where it was, yes, and exactly what had happened, not in great detail.

218 Whilst Ms Franke's evidence was that she understood that the appellant had forced himself upon the complainant in the car, she said that she could not remember whether the appellant had said it happened in the car or not.

219 There is also a difference between the complainant's evidence concerning whether the appellant ejaculated or wore a condom and what Ms Franke said the appellant said to her about those matters. However, it was open to the jury to accept the complainant's evidence notwithstanding any differences between her evidence and what Ms Franke said the complainant had earlier said to her.

220 The evidence concerning the complainant's medical examination and the lack of forensic evidence to prove penetration does not support the prosecution case but neither does it render the guilty verdict unreasonable or not able to be supported. The fact that the appellant made no admissions in his video record of interview or in the course of his evidence and that the appellant's account of relevant events was consistent does not of itself render the guilty verdict unreasonable or not able to be supported.

221 None of those matters taken alone or in combination and together with the complainant's evidence that she blacked out leads me to the conclusion that the jury verdict of guilty, having regard to the evidence, is unreasonable or cannot be supported.

223 I would uphold ground 4 and allow the appeal. Pursuant to Criminal Appeals Act s 30(5) if the court of appeal allows the appeal, it must set aside the conviction of the offences and must, relevantly, order a trial or a new trial or enter a judgment of acquittal.

224 The court has a discretion whether to order a new trial or enter a judgment of acquittal. The discretion is one that must be exercised in a principled fashion so as to fulfil the purposes of the grant: Dyers v The Queen [2002] HCA 45; 210 CLR 285 per Kirby J at [79].

225 In Rabey v The Queen [1980] WAR 84 Wickham J considered the circumstances in which the court, having quashed a conviction, should exercise the discretion under s 689(2) of the Criminal Code (WA). After commenting that, at that time, all the criteria for exercising the discretion toward ordering a new trial, as distinct from simply directing a judgment and verdict of acquittal, had not yet been worked out, his Honour went on to say (95 - 96):

Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and has already been through one trial and an appeal.

226 Where a conviction is quashed in circumstances where the evidence is insufficient to warrant a conviction or that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence presented then an acquittal is the appropriate order: see discussion by Cornes C 'The discretion of a Court of Appeal to order a new trial for a verdict of acquittal' (2006) 30 Crim LJ 343. In other circumstances the appropriate order will usually be a new trial and not a verdict of acquittal. However, it is still a discretionary matter and it by no means follows that an order for a new trial will automatically follow the quashing of the conviction: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627. If the court considers that a reasonable jury could have convicted on the evidence presented, then the court must consider if there are any circumstances which would render it unjust to place the accused on trial again. This is a broad discretion involving a balancing of the interests of the accused and the broader public interest in the administration of justice.

227 In Dyers v The Queen at [82] Kirby J gave instances of where the High Court had refused to order a new trial. These include where the successful appellant has served the custodial part of his sentence. Kirby J added:

Even more powerful will be the case where the successful appellant can show that he or she has served the entire sentence so that, if a second trial were had, it could not result in the practical imposition of any additional, or other, punishment upon the appellant. Sometimes this latter consideration will be subject to a possible countervailing need to order a new trial to vindicate reasons in addition to the punishment of the appellant. Thus, where the successful appellant is a legal practitioner, or some other person for whom a conviction is critical for legal reasons, an order for a retrial may be made, so as to allow the prosecuting authority to decide whether larger considerations of the public interest require a fresh determination of the guilt of the appellant of the charge that miscarried for legal error at the first trial.

228 In R v Ceylan [2002] VSCA 53; 4 VR 208 the Supreme Court of Victoria Court of Appeal allowed an appeal against conviction and ordered verdicts of acquittal. Winneke P, with whom Batt JA and O'Bryan AJA agreed, said that an acquittal was appropriate because:

[n]ot only has the applicant now served a very significant part of the non-parole period directed to be served by the judge, but it seems to me that the offences alleged ... would be, in the face of full and adequate directions, difficult to sustain upon re-trial [27].

229 In R v Thomas (No 3) [2006] VSCA 300; 14 VR 512, Maxwell P said:

On some occasions, the court has entered a verdict of acquittal where it has appeared extremely unlikely that the person would, if convicted, be required to serve any further substantial period of imprisonment, or where the imposition of a monetary penalty was perceived as the probable outcome if a retrial was ordered, or where the individual has been at liberty for a lengthy period of time having served most or all of the sentence earlier imposed [34].

230 In the circumstances of this case a new trial of the appellant should not be ordered. Upon the whole of the evidence at trial it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. However, a conviction was not inevitable. Pullin JA has drawn attention to aspects of the evidence that might well lead a properly directed jury to a verdict of not guilty.

231 The most telling circumstance against a retrial is that the appellant has served the custodial part of his sentence. The appellant has served most of the non-custodial part of his sentence. There would be little prospect, upon reconviction, of an increase in sentence, having regard to the principle of double jeopardy in sentencing. A new trial would mean that the complainant and other witnesses must again experience the inconvenience and stresses and strains of the trial process.

232 I would enter judgments of acquittal of the offences of which the appellant was convicted.