Reasons for Judgment Delivered: 2nd December 1997[

FC 97/046](http://www.canlii.org/en/ca/fc/doc/1997/1997fca97_046/1997fc97_046.html "View Case")

On appeal from the Supreme Court of New South Wales (Court of Criminal Appeal)

M A Green QC with S J Odgers for the appellant (instructed by

T A Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

G S Hosking SC with A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Criminal law - Unsafe and unsatisfactory verdict - Nature of the function of an appellate court in determining whether it was open to the jury to convict - Whether a reasonable jury can arrive at inconsistent verdicts on similar counts - Whether a reasonable jury can discount evidence which is equivocal due to delays in prosecution - Whether the trial judge should direct the jury accordingly.

BRENNAN CJ. The meaning of the phrase "open to the jury to convict" when used to determine whether a verdict of guilty is unsafe and unsatisfactory was considered by this Court in M v The Queen[1]. Different approaches were taken to the application of the test. The majority (Mason CJ, Deane, Dawson and Toohey JJ) proposed as a general criterion a doubt about guilt experienced by the appellate court. Their Honours said**[2]**:

"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."

Gaudron J accepted the correctness of this formulation of the test**[3]. I was unable to accept this formulation, saying[4]**:

"The appellate court's function is to make its own assessment of the evidence not for the purpose of concluding whether that court entertains a doubt about the guilt of the person convicted but for the purpose of determining whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused."

The difference between the two approaches may not be great in practice but it still appears to me to represent a fundamental difference in principle. The majority approach accords with the approach of Barwick CJ in Ratten v The Queen[5]:

"It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration."

This approach was rejected by Dawson J with the concurrence of Gibbs CJ and me in Whitehorn v The Queen[6]:

"With the greatest of respect for the view expressed by his Honour, it does not appear to me to be circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has.

In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced. But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury. In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot."

I adhere to that view because the function of a court of criminal appeal is prescribed by statute and the statute is founded on the principle that the jury, not the court, is the constitutional arbiter of guilt. An equation between a reasonable doubt entertained by a court of criminal appeal and a doubt which ought to have been entertained by a reasonable jury is valid only if the capacity for evaluating the cogency of a witness's evidence and the worldly wisdom of a court of criminal appeal are no less than the collective endowments of a jury. Those skills are as material to the propriety of a verdict as the advantages of seeing and hearing witnesses and sensing the atmosphere of a trial. It is a basic assumption of the criminal process that those skills are not equally shared by judges and juries. Exceptionally, judicial experience is sometimes accorded greater weight than the experience of a jury, in which case a trial judge is required to give the jury a warning that alerts them to what judicial experience has shown**[7]**. Otherwise the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict. In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs.

Nevertheless, there may be exceptional cases where it appears that, despite its skills and advantages and the due observance of all relevant rules of law and procedure, the jury must have fallen into error. This is one category of those cases where a verdict of guilty is unsafe and unsatisfactory. The true test to be applied to that category was stated by Dawson J in Chidiac v The Queen[8]:

"If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory." (Emphasis added.)

This was the test which Gaudron J and I applied in Knight v The Queen[9]:

"The deference which is due to a jury's verdict, both by reason of the jury's presence at the trial and by reason of its function as the constitutional arbiter of the facts, precludes an appellate court from simply substituting its view of the evidence for the view formed by the jury under proper direction. It is only when an appellate court, giving the verdict appropriate deference, concludes that it was not open to the jury to convict that it is right to set aside a verdict of guilty."

I expressed the opinion in M v The Queen[10] that -

"[F]or both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict."

In that case McHugh J**[11]** denied the appropriateness of the "open to the jury" test precisely because it came "perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused". I would respectfully accept the closeness, but not the peril, of the test of "open to the jury". Once it is accepted that there can be no "unwarranted intrusion into the jury's right to determine the facts in a criminal trial"[12], an adverse determination made on evidence sufficient to support a conviction can seldom be impugned simply because the court of criminal appeal has a different appreciation of the facts. Sometimes an inconsistency in verdicts on the counts in an indictment or a conviction where the inculpatory evidence has been demonstrated to be unreliable may show a verdict to be unsafe and unsatisfactory. But these are relatively rare cases.

There are other categories of cases where a verdict of guilty is unsafe and unsatisfactory. These are cases where there has been some failure to apply the rules of law or procedure that are required to ensure a fair trial - for example, a failure to give the jury a warning when a warning ought to have been given, even if the giving of the warning was not generally mandatory. These are cases where there is a substantial risk that the jury may have been misled or misled themselves in some material respect. This appeal falls partly in one category and partly in the other.

The appellant was a gymnasium instructor who conducted a gymnastic academy at Wentworth Falls. The indictment charged him with three acts of sexual intercourse with a female child whom he was instructing at the academy. She was aged 11 during the periods mentioned in the first two counts and 12 during the period mentioned in the third count. The trial took place in February 1996, 5 years after the period mentioned in the first count. The evidence of the child as to the occasions when the alleged acts occurred and the nature of the relationship between the child and her mother on the one hand and the family of the appellant on the other appears in other judgments. So far as the evidence shows, the child made no allegation to any person against the appellant until more than 4 years had elapsed from the first alleged act of intercourse. A feature of the child's allegations is that the acts of intercourse to which she deposed took place when there was nobody present but herself and the appellant. The first two acts allegedly occurred in the gymnasium after training sessions, the third in the appellant's house. On week-night training sessions the appellant was accompanied to the gymnasium by his wife, son and daughter. He also had an assistant, Lucia Darvall, who attended the gymnasium with him on Saturday mornings.

The jury acquitted on the second count, but convicted on the first and third counts. Having regard to the convictions on counts 1 and 3, the only possible explanation of the acquittal on the second count was the existence of at least a reasonable doubt in the mind of the jury engendered by the evidence of the appellant's wife, son and daughter. They gave evidence showing that they were invariably present during the week-night training sessions and travelled home with the appellant afterwards. The week-night training sessions were the occasions on one of which the act of intercourse alleged in the second count related. But Lucia Darvall also gave evidence relating to the Saturday morning training sessions in February 1991. These were the occasions to one of which the act of intercourse alleged in the first count related. Lucia Darvall's evidence, apparently cogent, was that she did not leave the gymnasium before the appellant on any of these occasions and that the appellant invariably drove her home afterwards. However, in cross-examination she gave the following answer:

"Q. Is it possible that in February '91 you went home by the train?

In re-examination, Lucia Darvall gave the following evidence:

"Q. Well in February 1991 during the Saturdays then --

Q. Do you recall ever leaving the hall before everyone else had left?

Q. Do you recall walking to the station and getting on the train?

Q. On those occasions where it was possible that you went home by train from a Saturday coaching, can you tell us when you left in relation to Mr Jones?

A. I would leave shortly after - shortly before he would leave."

If Lucia Darvall had not acknowledged the possibility that she had gone home by train on a Saturday in February 1991, there would have been no ground for distinguishing between the findings that ought to have been made on the first and the second count. Lucia Darvall's acknowledgment that she had possibly gone home by train was necessitated by the 5 years which had passed between February 1991 and the giving of her evidence. Most of that period was due to the lapse of time between the alleged events with which the appellant was charged and the making of the allegations by the prosecutrix. That lapse of time and the subsequent lapse of time before the trial required not only a comment but a warning about the danger of convicting without supporting evidence other than the testimony of the child.

In Longman v The Queen[13], a case of a very lengthy delay in the prosecution of an accused for alleged sexual offences, Brennan, Dawson and Toohey JJ said:

"[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer[14]. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)[15]) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

The same observation is applicable to the present case, although the lapse of time was shorter than in Longman. The jury was not directed about the danger of discounting the evidence of Lucia Darvall although she had acknowledged the possibility of her travelling home by train simply because the lapse of time precluded her ability to be certain about the subject. Had Lucia Darvall been certain about her mode of transport each Saturday in February 1991, she might well have established the innocence of the appellant on the first count or at least have engendered a reasonable doubt about his guilt. As Lucia Darvall's uncertainty appears to be the only ground on which the verdict of guilty on the first count can be reconciled with the acquittal of the appellant on the second count and as the verdict on the first count was reached without an adequate warning about the difficulty of establishing the defence case after a lapse of 4 years, the verdict on the first count was unsafe and unsatisfactory.

In determining whether the verdict on the third count was unsafe and unsatisfactory, it must be remembered that the jury were not satisfied beyond reasonable doubt about the appellant's guilt on the second count and may not have been satisfied of his guilt on the first count if they had been adequately directed about the significance of the delay in the prosecution. When that factor is combined with the absence of any complaint by the child until 2½ years after the alleged third act of intercourse and the apparent friendliness which she exhibited to the appellant and his wife during that time, it is clear that the jury could not have properly evaluated the dangers of convicting on the child's uncorroborated evidence so long after the events of which she complained.

The absence of an adequate direction, the acquittal on the second count, the delay in the prosecution and the evidence of the relationship of the child with the appellant and his wife show that the verdicts of guilty on the first and the third counts are unsafe and unsatisfactory. Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal. In those circumstances, it would not have been reasonably open to them to convict on the first and third counts. Therefore it was necessary to allow the appeal.

For these reasons, I joined in the making of the order allowing the appeal, setting aside the order of the Court of Criminal Appeal, and in lieu thereof ordering that the appeal to that Court be allowed, that the convictions on counts 1 and 3 be quashed and, in lieu thereof, verdicts of acquittal be entered.

GAUDRON, McHUGH AND GUMMOW JJ. The question in this appeal was whether the Court of Criminal Appeal of New South Wales erred in holding the appellant's convictions on the first and third of three counts of sexual assault were not unsafe or unsatisfactory. At the conclusion of the argument, the Court quashed the appellant's convictions and ordered that verdicts of acquittal be entered in respect of those counts. What follows are our reasons for joining in the Court's order.

The appellant was presented for trial before the District Court at Penrith in New South Wales on 20 February 1996 on three counts of sexual intercourse with a child under his authority who was aged between 10 and 16 years. The complainant, a girl, was 11 years old during the period specified in the first and second counts of the indictment and 12 years old during the period specified in the third count. The appellant was her gymnastics coach. He pleaded not guilty to each count.

The complainant testified that during 1991 and 1992 she attended gymnastics classes conducted by the appellant. At that time, she was living with her mother. She said that the classes were held after school on Tuesdays and Thursdays and sometimes on Saturdays. She claimed that the offence which gave rise to the first count in the indictment took place between 1 February 1991 and 1 June 1991 at the completion of one of the weeknight classes. The complainant said that the appellant had told her that he would give her a rub down to ease her tendonitis. When everyone had left the class, he told her to go into the storeroom and lie down on the mats. The appellant told the complainant to take off her bike pants and massaged her legs. He then asked her to remove her bikini pants. The appellant massaged the complainant's vagina and, when he stopped, she could "sort of see him fumbling around and then he put something in my vagina, and I assumed it was his penis". The appellant then drove the complainant home and told her not to tell anyone about the incident "because this is our thing and no one else will understand". The complainant later felt pain in her vaginal area and noticed blood and "white creamy stuff" in her underpants.

The second offence was alleged to have occurred on a date between 1 June 1991 and 30 August 1991. The complainant said that, after a Saturday class, the appellant had again given her a rub down to relieve her tendonitis. No one else was present at the time. The appellant again asked her to take her pants off and massaged her. He then "started fumbling again" and put his penis in her vagina. The appellant stopped when the complainant told him that he was hurting her, but then she felt "something sort of wet and slimy" go into her vagina. The complainant said that she assumed that it was the appellant's tongue. He then got up, told her to put her pants back on and took her home. She later felt pain when she went to the toilet and noticed blood on her underpants.

The third offence was alleged to have taken place on a date between 1 June 1992 and 4 July 1992, the latter date being the date on which the complainant moved away from the area to live with her father. The complainant said that the appellant had told her that, in order to secure a transfer to another gymnastics club, she would have to take flexibility and strength tests. The appellant met the complainant at school and took her to his home. After she did some stretches, he told her to lie on a table for a rub down. The appellant then told her to remove her tracksuit pants and lie on his bed. He rubbed her inner thighs and vagina, "fumbled around" again and put his penis in her vagina. He then told her to get dressed. On the way back to the school, the appellant told the complainant that he was going to have to find a new favourite and gave her a kiss on the cheek. Later, the complainant noticed blood and a white substance on her underpants.

The complainant's testimony was entirely uncorroborated. She also claimed that sexual incidents between herself and the appellant had occurred on two or three other occasions, but she said that she could not remember much about them.

The complainant's cross-examination revealed that she was mistaken in her testimony about the days of the week on which the first two incidents took place. She had testified that the first incident occurred at night time on a Tuesday or Thursday and that the second incident had occurred on a Saturday. However, her account was inconsistent with an earlier statement that she had made to the police. In that statement, she had claimed that the first incident was on a Saturday and the second on a Tuesday or Thursday. Under cross-examination, she claimed that she had "got the days confused. The first time was on a Saturday, the second Tuesday or Thursday."

Cross-examination of the complainant also revealed that she had not made any complaint of the incidents until 1995. There was therefore a four year delay in respect of the offence charged in the first count of the indictment, a three and a half year delay in respect of the second count and a two and a half year delay in respect of the third count.

Other cross-examination of the complainant revealed that she had sent cards to the appellant after the three incidents were alleged to have occurred. The complainant agreed that, on moving from her mother's home after the last of the alleged incidents, she had given the appellant and his wife a card which read "To Vince and Margot, For all you've done, Love and stuff, [the complainant]." In January 1993, the complainant had also sent the appellant and his wife a postcard from the Sunshine Coast. She said that the cards had been sent at the suggestion of her mother. She also agreed that early in 1993 while on a visit to her mother, she had spoken to the appellant's wife who had invited her to stay the night at the appellant's house. After consulting her mother, she had accepted the invitation.

The appellant gave evidence in his defence. He denied any wrong-doing with respect to the complainant or that he had any opportunity to commit the offences alleged in the first and second counts. He said that he had been accompanied throughout Saturday training sessions by Ms Darvall, his assistant coach, and that he had always driven her home at the conclusion of each session. The appellant denied that any training sessions had taken place on Tuesdays. He also denied that any session had taken place on weeknights in the absence of his wife and children. He claimed that they went home with him at the conclusion of each session. In cross-examination, he conceded that initially he had asserted that the weeknight sessions were on Mondays and Thursdays. He admitted that it was only in the latter part of 1991 that they were held on Mondays and Thursdays and that in the beginning they had been held on Mondays and Fridays.

The appellant said that his work as a gymnastics coach required occasional massage of the leg and groin muscles of his students. His evidence on this point was supported by Ms Crampton, the Executive Director of NSW Gymnastics, who said that there was nothing untoward in a coach massaging his student in the manner which the appellant had demonstrated while giving his evidence.

Other witnesses supported the appellant's claim that he had no opportunity to commit the offences that were the subject of the first and second counts. As we have said, the first offence was initially alleged to have occurred on a weeknight. The first count specified a date between 1 February 1991 and 1 June 1991. However, the complainant later said that it took place on a Saturday and that it was definitely in February 1991. Ms Darvall testified that she had acted as assistant coach for the appellant on weeknights and Saturday mornings. She said that the appellant usually picked her up for Saturday morning classes and that she travelled home with him after Saturday classes "most of the time". However, she conceded that there were occasions when she travelled home by train. Ms Darvall said that she had attended all the Saturday morning classes in February 1991. On each occasion she had been driven home by the appellant. However, in cross-examination, she conceded that it was possible that she had travelled home from Saturday classes by train in February 1991. In re-examination, she said that she could not recall any occasion in February 1991 when she had left the gymnastics hall before everyone else left, nor did she recall walking to the train station and getting on a train.

The complainant conceded in cross-examination that she was not sure whether Ms Darvall had been present on Saturdays, but she claimed that, if she had been there on the Saturday in question, she "must have" left before the sexual assault occurred.

The appellant's wife supported his assertion that weeknight training sessions took place on Mondays and Thursdays or Mondays and Fridays and never on Tuesdays. She gave evidence that she had not missed any weeknight training sessions in 1991 and that she had never left the sessions without her husband. The appellant's daughter also testified that she had been present at weeknight gym classes in 1991 and had always left such classes with her father. The complainant had agreed in cross-examination that on weeknights in 1991, the appellant's family had attended the gym classes "all the time".

The jury convicted the appellant on the first and third counts in the indictment but acquitted him on the second count. On 22 November 1996, the Court of Criminal Appeal of New South Wales (Mahoney ACJ, Priestley JA and Sully J) unanimously dismissed his appeal against the convictions.

The power of the Court of Criminal Appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory

Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal of New South Wales is required to set aside a conviction if it is:

"of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice".

In M v The Queen[16], the majority said that although the phrase "unsafe or unsatisfactory" does not appear in s 6, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. In the same case, McHugh J said**[17]** that a "miscarriage of justice" arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. Having regard to the statements in M, there can be no doubt that "a miscarriage of justice" also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.

The test for determining whether a verdict is unsafe or unsatisfactory

In M, Mason CJ, Deane, Dawson and Toohey JJ said**[18]** that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that**[19]**:

"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."

The majority judges explained**[20]** the application of the test as follows:

"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."

Gaudron J agreed**[21]** with the majority formulation of the test, as did Brennan J**[22], although his Honour said[23]** that the question as to whether it was "open to the jury" to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was "upon the whole of the evidence ... bound to have a reasonable doubt"[24] or whether "the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused".

McHugh J said**[25]** that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was "whether a reasonable jury must have had a reasonable doubt about the accused's guilt". McHugh J did not adopt the "open to the jury" test because his Honour thought that such a test came "perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused" and would constitute "an unwarranted intrusion into the jury's right to determine the facts in a criminal trial"[26]. However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.

The misapplication by the Court of Criminal Appeal of the test formulated in M

In the Court of Criminal Appeal, Mahoney ACJ expressed dissatisfaction with the principles governing appellate court review of the safety of jury verdicts. His Honour was of the view that the principles "pose rather than solve the problem which arises in cases of word against word". Mahoney ACJ expressed discomfort with his decision to dismiss the appeal which he believed was necessitated by the application of these principles. In our view, that discomfort was attributable to a misapprehension by the Court of Criminal Appeal as to the manner in which the test in M should be applied rather than to the terms of that test.

Thus, Sully J who gave the principal judgment in the Court of Criminal Appeal said:

"I do not see, in the complainant's evidence ... anything suggestive of so clear a taint or fundamental flaw as would justify this Court in saying that the jury must have had a reasonable doubt about the acceptability, in the requisite legal sense, of the complainant's version."

"As to whether this court should hold that the jury were bound to have a reasonable doubt about the appellant's guilt, I am of the view, similar to that of Sully J, that the complainant's evidence, taken into account with the circumstances of the trial (which included the jury's first hand observation of both complainant and appellant in the witness box) could not be characterised as so weak or flawed as to make it wrong for the jury to accept it." (our emphasis)

Mahoney ACJ, who also agreed with Sully J, referred to a passage from M which contained the "open to the jury" test. However, his Honour said that a Court of Criminal Appeal must make up its mind:

"in the sense of deciding whether it is satisfied that the court has or the jury must have had ... a reasonable doubt as to the accused's guilt".

Sully J also made reference to whether certain conclusions were "reasonably open to the jury", but in addition to that test, his Honour applied the much stricter test outlined above. No other reference was made in the judgments of the Court of Criminal Appeal to the "open to the jury" test formulated by the majority in M.

The adverse impact of the acquittal on the second count

The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms**[27]** of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence**[28]**, in particular, the absence of any medical evidence.

In sexual offences cases, recent complaint, or its absence, is a factor which is ordinarily of limited assistance. This Court has held**[29]** that a complaint "does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts". Barwick CJ said in Kilby v The Queen[30] that a complainant's delay in making a complaint in a sexual offence case has "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". Promptness or delay in complaint is itself relevant only to the credibility of the complainant**[31]**.

In this case, the reasons behind the complainant's failure to make a prompt complaint were not examined in cross-examination or otherwise. However, in this Court, the Crown put forward a number of matters which were said to explain the complainant's delay. The Crown contended that the complainant had initially lacked knowledge of sexual matters; that she had trusted the appellant who was in a position of authority in relation to her; that because of this trust she had obeyed the appellant's instruction not to tell anyone of what took place; that at the time of the incidents the relationship between the appellant and complainant was an ongoing one; that the complainant learnt of her sexuality as time went by through school education classes and from things said by her mother; and that the complainant had ceased to live with her mother shortly after the incident giving rise to the third count and had moved away to live with her father. However, while any of these reasons may be the explanation for the delay, the complainant did not rely on any of them at the trial or offer any explanation for the delay. The unexplained absence of a complaint for four years is a matter that made it essential for a reasonable jury to scrutinise the complainant's evidence with great care.

Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person's right to defend him or herself. An innocent person's ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is "a matter of considerable importance to the person accused", and has the effect of relegating the accused from giving an account of what actually happened to "what must have happened" (our emphasis).

As a result of the long delay in this case, the appellant's opportunity to obtain evidence refuting the circumstances of each alleged offence was significantly reduced. The appellant's and the complainant's movements on the day of the alleged incident concerning the third count were material facts. Proof of them would have gone far to support one or other of the opposing cases. Similarly, whether or not the appellant and the complainant were ever left alone after Saturday classes was a critical fact concerning the first count. Evidence that the appellant was left alone with the complainant would have been highly damning. But if the complaint had been made promptly and the appellant was innocent as he claimed to be, he may have been able to obtain evidence that, on each Saturday in February 1991, he had left the classes in the company of others. The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater.

The difficulty that the delay caused the appellant is illustrated by the concession of Ms Darvall that it was possible that there had been occasions when the appellant had not driven her home from Saturday gym classes in February 1991. Given the time that had elapsed since the alleged incident, her concession was inevitable. While her evidence indicated that the appellant almost invariably took her home from Saturday classes, the delay and its effect on her recollection forced her to concede that she may not have been present on one of the relevant Saturdays. As a result, the appellant may have been deprived of a cast iron alibi that would have brought about his acquittal.

In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.

KIRBY J. The Court, at the conclusion of the argument in this appeal, announced its orders allowing the appeal and quashing the appellant's convictions**[32]**. It reserved its reasons. I now state my reasons.

I disagree with the conclusions reached by the majority that the convictions of the appellant were unsafe or unsatisfactory. As was pointed out in the Court of Criminal Appeal, from which this appeal comes**[33], such differences of opinion are not infrequent. They exist, for example, in the reasoning of the members of this Court in M v The Queen[34]** where the Court explained the way in which an appellate court, evaluating for itself the evidence which was before the jury, should perform its functions mindful of the constitutional role of the jury**[35]** and the advantages which the jury ordinarily enjoys over the appellate court.

Two points were argued in this appeal. The first related to suggested misdirections, or inadequate directions, given to the jury by the trial judge. The second concerned the argument that the convictions were unsafe or unsatisfactory. It was because the majority concluded that the latter argument was made good that its orders did not direct a retrial. Instead, the Court directed that the appellant be acquitted of the remaining counts. In my view, there was no misdirection or inadequate direction. Nor were the verdicts unsafe or unsatisfactory. The appeal should have been dismissed. The jury's verdicts should have been affirmed.

In 1991 and 1992, Mr Vincent Jones**[36]** conducted a gymnastics academy at Wentworth Falls in New South Wales. He did so in conjunction with his wife. Their daughter and son regularly attended the classes. Another pupil who did so, after school mid-week and sometimes on Saturdays, was the complainant whose allegations initiated these proceedings. In February 1991, the complainant was eleven years of age. At the time, she was living with her mother at Blackheath in the vicinity of the appellant's academy. She made no complaint against the appellant until 1995 when, accompanied by her father (who lived separately from her mother) she attended at the Malabar Police Station and made her allegations for the first time to Det Sgt Peter O'Brien.

The complainant's relevant allegations referred to three incidents. They gave rise to the three counts of the indictment, each of which charged an offence of sexual intercourse with a child between the age of 10 years and 16 years who was under the authority of the defendant.

The first incident concerned an event which the Crown alleged occurred in February 1991. The complainant's initial testimony at the trial was that, at the completion of a weekday gymnastic class, the appellant had offered to give her a rub down for a condition of tendonitis. This occurred after "everyone else had left". The complainant was told to lie down on mats in the storeroom. The appellant proceeded to massage her legs with baby oil. He then asked her to remove her bikini. After inserting his finger in her vagina, she claimed that she could "sort of see him fumbling around and then he put something in my vagina, and I assumed it was his penis". The complainant described how the appellant "was moving that around for about 5 minutes and then he started breathing really heavily. And then he stopped and it really hurt"[37]. The appellant then allegedly drove the complainant home. He asked her not to tell anyone about what had happened. When at home she went to the toilet and noticed "white creamy stuff" and spots of blood on her underpants.

The second incident was described as occurring in the winter of 1991 on a Saturday. The events, as outlined, were similar and occurred "after everyone had left and packed up". Again, the appellant allegedly put his penis into the complainant's vagina. According to her evidence when it hurt, and she complained, he desisted. But he then replaced his penis with what the complainant assumed was his tongue. Again he took her home and again she found blood in her underpants.

The third incident allegedly occurred in June or July 1992 by which time the complainant was twelve years of age. According to the complainant, the appellant picked her up from school and took her to his home. After completing a test on flexibility and strength he told her he would give her a rub down. He asked her to lie on his bed where he massaged her and once again, allegedly, put his penis in her vagina. He then returned her to school. As by this time she had informed him that she was leaving Blackheath for Sydney to live with her father, he allegedly told her that he would have to find a "new favourite". He gave her a kiss on the cheek in the car. When she went to the toilet she again noticed blood and a white substance on her underpants.

The complainant agreed in cross-examination that before leaving her mother's home to live with her father she had given the appellant and his wife a card thanking them for "all you've done". About eighteen months later she sent them a Christmas card which was signed by her with "love". Later still, whilst holidaying, she sent a postcard. In evidence, the complainant claimed that these cards had been sent at the suggestion of her mother.

In his evidence Det O'Brien confirmed that the appellant had cooperated fully with police and, from the outset, had denied the complainant's allegations. An interview was conducted which was recorded on videotape and played before the jury. It was made available to this Court and I have viewed it. The appellant repeatedly denied the accusations of the complainant when they were put to him by police. He asserted that she "used to look up to me ... like a Dad, like a second Dad ... I was the only Dad she had in the mountains". Nevertheless, some of his answers were, at least on their face, surprising and less than fully convincing. They included the following:

"Q: [T]he police have received information that between 1st of February 1991 to 28th of February 1991, in the storeroom area of the Blue Mountains Grammar School, you sexually assaulted her. What would you like to say about that?

A: Well, I can't remember the dates, but I, I don't recall ever sexually assaulting [the complainant].

Q: I've been informed that you gave her a massage and asked her to remove her bikini pants. What would you like to say about that?

The cross-examination of the complainant elicited changes in her testimony concerning the days on which the first and second incidents had occurred. She was reminded that she had told the police in her statement that the first occasion had been on a Saturday. She then stated that she had confused the dates. The first incident had indeed occurred on a Saturday and the second on a Tuesday or Thursday.

The days of the week when the offences were alleged to have occurred were important to the defence case. The appellant's wife and daughter testified that they were always present for the classes on weekdays. The wife gave evidence that training never took place on Tuesdays and that she always went home with the appellant and their daughter and son in the appellant's car. She stated that, at that time, she did not have a driving licence and relied on the appellant for transport. The daughter confirmed this testimony. The evidence was important because the complainant had stated that the events giving rise to the first and second counts had happened at the academy after everyone had left.

So far as Saturdays were concerned, the appellant called as a witness Ms Lucia Darvall. She was an assistant gymnastics coach who worked with him. She gave evidence that she attended the academy every Saturday session in 1991. She stated that the appellant "would" drive her home. However, she conceded in cross-examination that it was possible that in February 1991, on the occasion of the first incident, she had gone home by train**[38]**. In re-examination, she stated that she could not recall any occasion in February 1991 when she had left the academy premises before everyone else. Nor did she recall walking to the station or getting onto the train. However, the possibility of a separate and earlier departure remained, conceded by her answer to the cross-examiner.

The appellant called the Executive Director of the New South Wales Gymnastic Association to give evidence. She testified that it was common practice for gymnastics coaches to massage their students, including their muscles in the groin area. It was also common for them to use baby oil for this purpose.

The appellant gave evidence on oath denying the accusations. He did not suggest, nor was it incumbent upon him to do so, any reason why the complainant should fabricate such grave allegations against him. He was unshaken in his cross-examination. He made no admissions and was caught out in no inconsistencies. The case presented to the jury depended principally upon whether the complainant was believed or whether the suggested weaknesses in the prosecution case and the affirmative denials of the appellant were sufficient, with proper directions about the onus and burden of proof, to produce not guilty verdicts.

The trial of the appellant took place in the District Court at Penrith, New South Wales. It was conducted in accordance with the provisions of the Evidence Act 1995 (NSW). That Act abolishes the former requirement of the common law for the court to warn the jury generally about the need for corroboration in cases of this kind**[39]. No request was made to the trial judge (O'Reilly DCJ) to provide a warning, as may still be necessary in the particular circumstances of the case[40]. Nevertheless, in several passages of his summing up, his Honour gave the jury strong directions about the significance of the delay of the complainant and the need to scrutinise the complainant's evidence with great care. He said[41]**:

" Now [counsel] made mention of - well perhaps I could describe it as late complaint. It is common ground in the trial that there was no complaint made until February 1995, whereas the events charged go back to February '91, winter '91 and then June '92. [Counsel] submits in effect that if these events happened reality dictates that there would have been prompt complaint. You will no doubt give careful thought to that submission. I am required by a section of the Crimes Act to warn you that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed was false, the Crimes Act requires me to tell you that there may be good reason why a victim of sexual assault may hesitate in making or may refrain from making a complaint about the assault.

[I]f the charge related to perhaps a social worker, a lady social worker aged thirty five and the alleged perpetrator was readily identifiable ... you would expect immediate complaint. Whereas if the victim was perhaps a Grade One primary school girl you might think there may well be no complaint or very, very late complaint because of the bewilderment of the child in not perhaps knowing what way to turn or what had happened or who to tell. As to where on the scale of things the present case slots in is a matter for you ... to think about using your ordinary commonsense.

Another direction I should give you is this and you might think it is as much a counsel of commonsense as it is of law. That is where, in a serious criminal matter, the Crown case depends entirely on the evidence of one witness that you would need to scrutinise that witness' evidence very, very carefully. Now that is not to say that you would necessarily throw it aside as 'C' grade evidence, simply that the principle is that since so much depends on it you would need to look at it very, very carefully".

At the end of his instructions to the jury, O'Reilly DCJ returned to the delay in the making of a complaint. He drew attention to the acknowledgment of the complainant that, at least by June 1992, she knew the nature of the appellant's alleged conduct and that it was wrong. Even then, she had delayed two and a half years before making a complaint. O'Reilly DCJ said**[42]**:

"[I]f she did really know as at June 1992, precisely what had taken place to her ... you would have expected prompt complaint. I have given you direction about complaint".

After the jury retired, they sent a note requesting the transcript of the complainant's evidence. They asked to hear the tape of Ms Darvall's testimony. These requests were clarified and the tape was replayed for the jury. The jury eventually returned with a verdict of guilty upon the first count, not guilty on the second and guilty on the third. The appellant was convicted in accordance with the jury's verdicts. On 11 April 1996 he was sentenced to four years imprisonment with a minimum term of two years imprisonment expiring on 10 April 1998.

The appellant appealed to the New South Wales Court of Criminal Appeal against his convictions. Upon receiving advice of the appeal, O'Reilly DCJ wrote a letter to the Registrar of that Court expressing certain criticisms of the failure of trial counsel to call character evidence and to seek leave**[43]** to cross-examine Ms Darvall when she vacillated over her evidence as to the Saturdays in February 1991 when the appellant had driven her home. His Honour's letter gave rise to a ground of appeal complaining that the trial had miscarried for want of competent legal representation**[44]**. Trial counsel filed an affidavit explaining his conduct. In particular, he explained that character evidence was not called until the sentencing hearing because it was known to counsel that years before the appellant had been convicted on a charge of indecent exposure. The Court of Criminal Appeal unanimously rejected the ground relating to the adequacy of the appellant's legal representation. That ground was not reagitated before this Court.

That left the grounds of misdirection or inadequate direction and that the convictions following the verdicts of guilty were unsafe or unsatisfactory. The Court of Criminal Appeal unanimously rejected the first complaint. The second took Sully J, who gave the principal judgment, into a detailed examination of the evidence and, specifically, into a consideration of whether there was an inconsistency in the verdict of not guilty on the second count but guilty on the first and third counts. In terms of the holding of this Court in M[45], his Honour ultimately concluded that there was no significant possibility that an innocent man had been convicted, nor that the verdicts were inconsistent, nor "that the jury must have had a reasonable doubt about the acceptability, in the requisite legal sense, of the complainant's version"[46]. Priestley JA agreed that the jury were not "bound to have a reasonable doubt"[47]. Having regard to their "first hand observation of both complainant and appellant in the witness box", his Honour stated that the complainant's evidence "could not be characterised as so weak or flawed as to make it wrong for the jury to accept it"[48]. Mahoney ACJ reached the same view, although not without several expressions of "unease"[49] and "reluctance"[50].

Before this Court, the appellant contended that the Court of Criminal Appeal had erred in rejecting the complaints about the adequacy of the directions of the trial judge. He also argued that the Court had adopted an incorrect approach to the complaint that the verdict was unsafe or unsatisfactory. It was submitted that that Court's approach fell short of the vigilance against the risk of miscarriage of justice which the holding of this Court in M's case requires.

There was no relevant misdirection by the trial judge

None of the matters upon which the appellant claimed that O'Reilly DCJ had incorrectly or inadequately instructed the jury were raised for redirection at the trial. Nevertheless, in the Court of Criminal Appeal, the merits of the complaints were fully explored as they were in argument before this Court. I am content to consider them upon the assumption that, if they were made good and a substantial miscarriage of justice were made out, this Court would not withhold relief because of any procedural deficiency**[51]**.

As ultimately formulated, the complaints of misdirection were three-fold. First, it was submitted that the judge had failed to give a warning concerning the significance of the absence of evidence corroborating or confirming the complainant's testimony**[52]. Secondly, it was complained that the judge did not direct the jury that the delay in the making of the complaint should be taken into account in assessing the complainant's credibility and in assessing the evidence available to the defence to respond to, and rebut, the complaint[53]**. It was argued that the jury should have been directed that it was likely to be difficult for the defence to obtain unequivocal evidence relating to the circumstances of the incidents years after they were alleged to have taken place. Thirdly, it was submitted that the judge should have warned the jury "above all" to be careful about reading too much into the fact that Ms Darvall had conceded the possibility that, in February 1991, she had not always gone home with the appellant.

It is important in all cases of this kind to consider the adequacy of judicial directions to a jury in the light of the issues which were contested at the trial, bearing in mind the ex tempore character of most such judicial instruction and the reliance which a judge can ordinarily place in the vigilance of counsel to call to notice errors or inadequacies seen as significant at the time.

The delay in making a complaint was a major feature of the appellant's defence. Directly and indirectly, questioning of the complainant made reference to it. Although she was never expressly asked by either counsel to offer an explanation for the delay, many questions were addressed both to the complainant and to her mother concerning the complainant's maturity and level of sexual knowledge and understanding at specified times relevant to the alleged offences. In the passages which I have quoted, from both the beginning and the end of O'Reilly DCJ's instruction to the jury, his Honour laid emphasis upon the delay. However, he left it to the jury, as the law and commonsense required, to evaluate the significance of such delay in the particular circumstances of this case.

The reasons for delay on the part of young complainants in bringing to notice complaints of sexual misconduct are many**[54]. Those reasons are well documented. They may include (in the case of younger victims) ignorance about the nature, quality and character of the act performed upon them; a feeling of powerlessness (particularly where, as is usually the case, the offender is a family member or close acquaintance); shame and embarrassment; and fear (often well founded) of discouragement or disbelief on the part of family and of officials[55]**. Complainants will sometimes be reluctant to raise these excuses at trial. Their reluctance to provide detailed explanation should not unduly undermine their credibility. Of course in some cases the delay or other circumstances may suggest the unreliability of the complaint. It remains open to the defence to explore the issue in cross-examination although sometimes that will be a risky process. Although the law, police and prosecution procedures and court practice have changed in recent times to ensure that making of proper complaints by young victims of sexual offences is easier for them, they have also changed to discourage pressure for recantation and to promote accurate fact-finding. Nevertheless the prosecution of crimes of this character continues to present major challenges to the criminal justice system. Those challenges include the proper trial of such serious allegations but in a context which still assures the accused of the right to a fair trial which it remains the judge's overriding duty to uphold.

This is not a case, as Crofts v The Queen[56] was, where the judge misdirected the jury as to the effect of the amended terms of the legislation_._ Nor is it a case where the judge failed to alert the jury at all to the overall significance of the delay of complaint and the special significance of the delay following the third incident, by which time the complainant acknowledged that she knew that the appellant's alleged conduct was wrong. The circumstances of this case fall far short of those in Longman v The Queen where the delay was of the order of 21-25 years**[57]**. Nevertheless, the delay was significant and it was obvious. It was also expressly referred to in the judge's charge. Whilst it is always, in my view, preferable for some express reference to be made to the difficulty which delay ordinarily presents to the defence in rebutting such allegations, in the context of this trial, I do not regard the judge's instruction to the jury as inadequate. The appellant called the witnesses who were relevant to his rebuttal of the incidents mentioned in the first and second counts. There were no other persons present at the appellant's home at the time of the incident mentioned in the third count. The judge's warnings of the need for very close scrutiny of the complainant's evidence were suitably repeated and emphatic.

So far as the suggested failure of O'Reilly DCJ to refer to the need for care in considering the evidence of Ms Darvall, it is unsurprising that no request was made at the trial, on behalf of the appellant, for a re-direction along these lines. Any such re-direction would have drawn attention to the possibility which Ms Darvall's testimony had opened up. This was that, on the particular occasion when the first incident allegedly occurred, she could "possibly" have taken the train home, leaving the appellant and the complainant alone together at the academy. The matter was squarely left for the assessment of the jury. The fact that the jury asked for the evidence of Ms Darvall to be replayed shows that they gave her testimony particularly close attention.

I see no misdirection, or inadequacy of direction, that suggests that the trial miscarried or was conducted otherwise than in accordance with law. I favoured rejection of that ground of appeal.

The foregoing conclusion presents for decision the matter upon which I differ from the majority. I do so with hesitation because I recognise that in this case, as in most cases which reach this Court on such a question, the accused has various arguments to contradict the prosecution's case and to suggest a risk of a miscarriage of justice which it is the duty of appellate courts to guard against.

None of the allegations of the complainant against the appellant was corroborated. However, as a matter of law, corroboration was not required**[58]. To adopt a position that a case which comes down to "word against word"[59]** is necessarily, and without more, unsafe would be to contradict both common experience and the reforms which the legislatures in this country and elsewhere have adopted in recent years. It is of the nature of many crimes, most sexual crimes and virtually all sexual crimes against children that they are committed in a way designed to escape detection and the prying eyes of potential corroborating witnesses. Offenders take pains to cover their tracks and to avoid detection. The absence of corroboration was therefore not unique. It was not fatal to the prosecution's case.

Next, the appellant relied upon the confusion on the part of the complainant about the days and circumstances of the first and second incident on which the offences allegedly occurred. However, given the passage of time, the age of the complainant and the circumstances of the trial, this confusion was not altogether surprising. In the end, to a very large extent, the complainant removed it by correcting her evidence, in a way that it was open to the jury to accept. Clearly, they did so by accepting the complainant's testimony relevant to the incident charged in the first count.

Then, it was submitted that the verdicts were inconsistent with the testimony of the appellant's wife and daughter and of Ms Darvall. So far as the wife and daughter are concerned, it seems probable that the jury's verdict on the second count is explained by a conclusion on their part that their evidence left a reasonable doubt about the proof of the offence alleged to have occurred on a weekday after school. However, Ms Darvall's evidence certainly left it open for the jury to conclude, as they did, on the first count. If they accepted that, on the day of the offence referred to in that count, Ms Darvall had left the gymnasium in advance of the appellant, to travel home by train, that would indeed have left him alone with the complainant, as she had testified. It would remove the evidentiary obstacle to convicting the appellant if the jury accepted the evidence of the complainant, as clearly they did in relation to the first incident.

Then it was submitted that it was implausible that the complainant would not have seen the appellant's penis being inserted in her vagina in the first incident when, on her evidence, she was left to "presume" that this was what had occurred. Far from undermining the complainant's testimony, I consider that her evidence on this score to have been wholly believable. Not only did the description of the mats upon which the act of sexual penetration was alleged to have occurred confirm the possibility that the complainant could be positioned as described, making visual identification difficult. It would have been so easy for the complainant to say that she saw the appellant's penis. Yet she did not. The testimony she actually gave had a ring of truth and authenticity which it was open to the jury to accept.

Next, the appellant complained about the delays in the making of the complaint and the difficulties which these presented for his defence. It is true that the delays were relevant, as they virtually always are. However, this issue was squarely placed before the jury and it was clearly a major plank in the defence attack advanced by trial counsel. As I have already pointed out, it was twice adverted to by the trial judge in his instructions to the jury.

Then reference was made to the greeting cards which were sent by the complainant to the appellant and his wife - acts which, it was suggested, were inconsistent with a feeling of a serious wrong - which feeling certainly existed, on the complainant's evidence, by the time the cards were posted. However, it would have been open to the jury to accept the complainant's statement that the cards were sent by her on the suggestion of her mother at a time when she had not brought herself to report the incidents and complain to her parents. Although the mother gave evidence at the trial, she was not questioned about this matter. The significance of the cards was left to the jury to unravel.

Then it was argued that the appellant had emphatically denied the offences, cooperated fully with police, permitted a search of his home and acted in every way consistently with innocence. These matters too were known to the jury.

Counsel took this Court to a passage in M[60]:

"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 passage acknowledges the advantages enjoyed by juries in evaluating testimony and other evidence which goes to the credibility of witnesses. These advantages extend beyond merely experiencing "the atmosphere" of the trial or the "tenor of evidence". The jury have the advantage of seeing the appellant and the complainant give their respective testimony. Some scientific research casts doubt upon the weight which should be given to the trial court's advantage of viewing the demeanour of witnesses in judging the reliability of their testimony**[61]. However, the conventional assumption of the trial system in Australia, in both civil[62]** and criminal**[63]** trials, is that the evaluation of truth-telling is ordinarily to be performed by the tribunal of fact. It is that tribunal which sees witnesses and hears the entirety of the trial whereas the appellate court typically reads transcript and is taken by the parties to selected parts of the evidence, commonly read out of sequence, as the extracts seem best suited of supporting their respective arguments**[64]. Neither party in this case mounted a frontal attack upon this basal assumption of the trial system so often referred to by this Court. It has frequently been said that juries play a particularly important role in cases involving sexual offences[65]**. The appellate court is bound in law to recognise and respect the advantages to the jury in this regard. This Court must continue to affirm the primacy of the position, and the forensic advantages, of the primary triers of fact - in this case the jury.

The Court was taken to four issues which were said to fall outside the "exception" in M relating to the advantages of juries - the uncorroborated nature of the allegations, the evidence from Ms Darvall and the appellant's wife and daughter concerning the opportunity which the appellant had to commit the offences, the delay in making the complaint and the consistent denials of the appellant. However, the strength of each of these points is closely linked to an assessment of the credibility of the witnesses. The evaluation of these issues clearly falls within the deference to be paid to jury verdicts contemplated in M. Furthermore, if there were weaknesses in the case of the Crown, the jury were entitled to evaluate those considerations against their assessment of the strength of the testimony of the complainant, the absence of any apparent motive to lie and the inclusion by her of details which would not ordinarily be included by someone who aimed to fabricate that evidence.

The majority judgment in this case has raised the issue of the correct approach to determining if a jury's verdict is unsafe or unsatisfactory. In my view the approach taken by the Court of Criminal Appeal in this case was not incorrect. The test for determining an unsafe or unsatisfactory verdict, as enunciated by Mason CJ, Deane, Dawson and Toohey JJ in M, is whether the appellate court thinks that it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty**[66]. In the separate judgments of Brennan and McHugh JJ in M there was some debate as to whether that test included an inquiry as to whether the jury must have had a reasonable doubt as to the guilt of the accused[67]** or whether such an inquiry constituted an entirely separate test**[68]**. The debate seems to arise from the phrasing of the majority approach. To be properly understood and applied, the question which the appellate court must actually ask is whether it was not open to the jury to convict the accused. Implicit in such an inquiry would seem to be the issue of whether the jury were bound to have a reasonable doubt as to the guilt of the accused.

Whether or not the approaches are in fact interchangeable**[69], I see nothing in the reasons of the members of the Court of Criminal Appeal which indicate error in applying the test in M. Mahoney ACJ correctly cited the passage in M which expressed the "open to the jury" test[70], Sully J repeatedly used the phrase "open to the jury"[71]** and Priestley JA considered whether the jury were "entitled" to accept the evidence of the complainant**[72]**. The emphasis of the Court of Criminal Appeal on whether the evidence was too flawed to be accepted, or whether the jury were bound to have had a reasonable doubt was a necessary part of their Honours' evaluation of the safety of the jury's verdict. I see nothing in the reasons given to suggest that the Court felt that it was not open to the jury to convict the accused. Nor can I accept that an increased emphasis on the words "open to the jury" would have led the Court of Criminal Appeal to a different conclusion and thus demonstrates error.

This leaves the final, and principal, argument advanced during the hearing of the appeal. Although no separate ground of appeal was expressed, either before the Court of Criminal Appeal or in this Court, complaining that the verdicts of guilty on the first and third counts should be quashed because they were inconsistent with the verdict of not guilty on the second count, the appellant submitted that the apparent incompatibility of the verdicts was sufficient to raise the possibility that an innocent person had been convicted and that the guilty verdicts were unsafe or unsatisfactory.

It was suggested that the prosecution case against the appellant depended throughout upon the jury's acceptance of the complainant's evidence. If she was rejected on the second count (where her evidence was not materially distinguishable from that given in support of the first and third counts) it would follow that the jury had erred in the distinction which they drew by their verdicts. This would suggest that the verdicts represented a compromise and that the convictions of the appellant were unsafe or unsatisfactory. Using this argument, the appellant persuaded a majority of this Court that the sense of unease and hesitation expressed in the Court of Criminal Appeal by Mahoney ACJ, and possibly reflected in some of the remarks of Sully J, ought to have been given effect in verdicts of acquittal.

I regret that I cannot accept these arguments. There is a perfectly rational explanation for the differentiation of the jury's verdicts. The jury were repeatedly and correctly instructed by O'Reilly DCJ that they must bring in separate verdicts upon each of the counts of the indictment. Each of those counts was differentially explained to them. The possibility of separate verdicts was never contradicted and, logically, could not be so for each count referred to a distinct and separate incident to which evidence of the complainant, the appellant and other witnesses was relevant. Before the jury could convict upon any of the counts, they were instructed that they had to be satisfied beyond reasonable doubt that the prosecution had proved the facts necessary to establish each offence. It would have been perfectly open to the jury to have a reasonable doubt about whether the prosecution had proved the facts necessary for a conviction on the second count. While the indictments were phrased generally, the Crown presented its case on the basis that one incident had occurred on a weeknight and one on a Saturday morning. The incident referred to in count 2 was alleged to have occurred after school, mid-week. Evidence suggested that at the relevant time the appellant's wife and children had invariably driven home with him. That evidence contradicted the evidence of the complainant that the appellant and the complainant were left alone. Either on the basis of the uncertainty and confusion about when this incident occurred or, more likely, on the footing that it had not been proved to the requisite standard, the jury, conforming to their duty, could have rejected that count without necessarily rejecting the complainant's testimony as a whole. For example, they might have considered that the incident probably did occur but, in conformity with the instruction about the standard and burden of proof, they could properly conclude that they should acquit on that count.

Any other hypothesis would require a conclusion that, in all cases of this kind, complainants must be wholly believed or wholly disbelieved. That would put at naught the need for separate verdicts on the separate counts of the indictment and the principle of particularity in the proof of separate offences charged upon such separate counts. That principle necessarily posits the possibility (at least in the way this trial was conducted) that different verdicts may be returned on different counts, as occurred here. It would also overlook the practical way in which juries often approach different charges expressed in different counts of an indictment**[73]**.

Whereas the evidence of the wife and daughter afforded the appellant quite a strong alibi in relation to the incident referred to in the second count, on the first, he had only the equivocal testimony of Ms Darvall. On the third he had no such evidence at all. In those cases, the choice was starkly one for the jury to make. If they believed the complainant, they would convict the appellant. And they did.

I could not, therefore, conclude that the inconsistency was such as to demonstrate a fatal incompatibility between the respective verdicts which the jury returned**[74]**. Nor could I consider that the other bases advanced for the appellant, taken individually or together, cast such a doubt on the safety of the convictions as to warrant this Court's concluding that the jury must have had a reasonable doubt about the appellant's guilt on counts 1 and 3. There being no relevant misdirection, this Court should have upheld the jury's verdict.

The Court allowed the appellant's appeal. But in my opinion, for the reasons given, the appeal should have been dismissed.

[1] [1994] HCA 63; (1994) 181 CLR 487.

[2] [1994] HCA 63; (1994) 181 CLR 487 at 494.

[3] [1994] HCA 63; (1994) 181 CLR 487 at 508.

[4] [1994] HCA 63; (1994) 181 CLR 487 at 502.

[5] [1974] HCA 35; (1974) 131 CLR 510 at 516.

[6] [1983] HCA 42; (1983) 152 CLR 657 at 660, 687.

[7] Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 324.

[8] [1991] HCA 4; (1991) 171 CLR 432 at 451.

[9] [1992] HCA 56; (1992) 175 CLR 495 at 511.

[10] [1994] HCA 63; (1994) 181 CLR 487 at 502.

[11] [1994] HCA 63; (1994) 181 CLR 487 at 525.

[12] [1994] HCA 63; (1994) 181 CLR 487 at 525 per McHugh J.

[13] [1989] HCA 60; (1989) 168 CLR 79 at 91.

[14] [1987] UKHL 2; [1987] AC 128 at 141.

[15] [1989] HCA 46; (1989) 168 CLR 23 at 31-32, 42-44, 56-57, 71-72.

[16] [1994] HCA 63; (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ.

[17] [1994] HCA 63; (1994) 181 CLR 487 at 523.

[18] [1994] HCA 63; (1994) 181 CLR 487 at 493.

[19] [1994] HCA 63; (1994) 181 CLR 487 at 493.

[20] [1994] HCA 63; (1994) 181 CLR 487 at 494.

[21] [1994] HCA 63; (1994) 181 CLR 487 at 508.

[22] [1994] HCA 63; (1994) 181 CLR 487 at 501.

[23] [1994] HCA 63; (1994) 181 CLR 487 at 501-502.

[24] Citing Dawson J in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 451.

[25] [1994] HCA 63; (1994) 181 CLR 487 at 525

[26] [1994] HCA 63; (1994) 181 CLR 487 at 525.

[27] The second count alleged that the offence took place between 1 June 1991 and 30 August 1991.

[28] Although desirable, corroboration was not required as a matter of law: see s 164 of the Evidence Act 1995 (NSW).

[29] Crofts v The Queen [1996] HCA 22; (1996) 70 ALJR 917 at 920; [1996] HCA 22; 139 ALR 455 at 459.

[30] [1973] HCA 30; (1973) 129 CLR 460 at 472.

[31] Sparks v The Queen [1964] AC 964 at 979.

[32] The orders were pronounced on 12 August 1997 and are stated in the reasons of the majority.

[33] See R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 30 per Sully J.

[34] [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ; Brennan, Gaudron and McHugh JJ dissenting.

[35] Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 502.

[36] In the courts below the appellant's name was suppressed and he was referred to by his initials "VRJ". In this Court, on 12 August 1997, it was ordered that the anonymity be terminated.

[37] Evidence of the complaint in the trial. Transcript at 7.

[38] Ms Darvall also appeared to contradict the evidence of the wife of the appellant that she had been present at all evening classes in 1991.

[39] Evidence Act 1995 (NSW), s 164.

[40] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 446.

[41] Summing up by O'Reilly DCJ, R v Jones unreported, District Court of New South Wales, 26 February 1996 at 4-5 (emphasis added).

[42] Summing up of O'Reilly DCJ at 26.

[43] Evidence Act 1995 (NSW), s 38.

[44] Applying R v Birks (1990) 19 NSWLR 677.

[45] [1994] HCA 63; (1994) 181 CLR 487; see also Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 and R v McKnoulty (1995) 77 A Crim R 333.

[46] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 36 per Sully J (emphasis in original).

[47] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 2 per Priestley JA.

[48] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 2 per Priestley JA.

[49] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 1, 2, 8 per Mahoney ACJ.

[50] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 9 per Mahoney ACJ.

[51] cf Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 325; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 at 330; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86; Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 at 586, 605.

[52] Relying on Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

[53] Relying on Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[54] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 515 per Gaudron J; R v Seaboyer (1991) 83 DLR (4th) 193 at 206; but see R v G [1994] 1 Qd R 540. See also Cull, "Sexual Abuse Prosecutions - Complainant Delay" [1997] New Zealand Law Journal 273 where New Zealand cases are collected and explained; Cashmere, "The Prosecution of Child Sexual Assault: A Survey of NSW DPP Solicitors" (1995) 28 Australian New Zealand Journal of Criminology at 32, 34; Bates, "Child sexual abuse and the fact-finding process - some thoughts on recent developments" (1994) 1 Canberra Law Review 181; Brown and Finkelhor, "The Impact of Child Sexual Abuse: A Review of the Research" (1986) Psychological Bulletin 66; Mullis, "Compounding the Abuse? The House of Lords, Childhood Sexual Abuse and Limitation Periods" (1997) 5 Medical Law Review 22 at 24-29 ("The Psychological Effects of Child Sexual Abuse)".

[55] Palmer, "Child Sexual Abuse Prosecutions and the Presentation of The Child's Story" [1997] MonashULawRw 10; (1997) 23 Monash University Law Review 171; cf Australian Law Reform Commission, "A matter of priority - Children and the legal process" DRP 3 (1997) at 37-38.

[56] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 433-434.

[57] [1989] HCA 60; (1989) 168 CLR 79 at 83, 91.

[58] Evidence Act 1995 (NSW), s 164; cf Evidence Act 1995 (Cth), s 164; Crimes Act 1958 (Vic) s 51; Evidence Act 1929 (SA) s 12a; Evidence Act 1906 (WA), s 106D; Criminal Code 1924 (Tas) s 136; Evidence Act 1939 (NT), s 9C.

[59] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 8 per Mahoney ACJ.

[60] [1994] HCA 63; (1994) 181 CLR 487 at 494.

[61] Wellborn, "Demeanor" 76 Cornell Law Review 1075 (1991).

[62] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; cf Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 at 255.

[63] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 687; Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 608; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443; M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 502; Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498 at 511-513.

[64] Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211.

[65] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 508 per Brennan J; R v Francois [1994] 2 SCR 827 at 842-843 per McLachlin J.

[66] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

[67] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 501-504 per Brennan J.

[68] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 524-525 per McHugh J.

[69] See Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462 cited by the majority in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 495; see also Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 686, 688; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 472-473.

[70] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 3.

[71] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 34, 35, 36.

[72] R v VRJ unreported, Court of Criminal Appeal of New South Wales, 22 November 1996 at 2.

[73] cf R v Kirkman (1987) 44 SASR 591 at 593.

[74] MacKenzie v The Queen (1996) 71 ALJR 91 at 102-103; [1996] HCA 35; 141 ALR 70 at 85.