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[1994] HCA 63
appellant. Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court against convictions be allowed and that the...
The High Court quashed a father's convictions for sexually assaulting his thirteen-year-old daughter on two access weekends. The daughter's evidence was the only direct evidence; it was uncorroborated, contained inconsistencies about what was on television, was medically inconsistent with complete penetration, and described acts occurring in improbable circumstances in a small house with other people nearby. Although the jury saw and heard the witnesses and convicted, the majority held that the shortcomings in the evidence created a significant possibility that an innocent man had been convicted. The verdicts were therefore unsafe and unsatisfactory and had to be set aside. Three justices would have dismissed the appeal, considering that the jury's advantage in assessing credibility meant the verdicts could stand.
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The appellant, referred to throughout the reasons as "M", was convicted in the District Court of Sydney on two counts of indecent assault and three counts of sexual intercourse with his thirteen-year-old daughter from his first marriage. The offences were alleged to have taken place on two separate fortnightly access weekends in September 1990. On the weekend of 8 and 9 September 1990 the complainant said the appellant entered the bathroom while she was bathing, commented on her pubic hair, and later, after the rest of the household had gone to bed, sat with her on a lounge watching a video or movie, kissed her with his tongue, and touched and squeezed her breasts. She complained to a school friend, Nicole, the following Monday and to her twin sister Sarah a few days later.
On the weekend of 22 and 23 September 1990 the complainant again stayed at the appellant's home, this time with her twin sister and older brother Daniel. She said she agreed to sleep in her half-brother Jonathon's room at the back of the house. She alleged that the appellant entered the room after the household had retired, kissed her, fondled and sucked her breasts, left briefly (possibly because the telephone rang), returned after having a shower wearing only a towel, told her to remove her pants, inserted his finger and tongue into her vagina, placed her legs over his shoulders and attempted penile penetration while repeatedly instructing her to lift her hips so it would not hurt. He also asked whether she had had sex with a former boyfriend. Later he returned to kiss her again. The next morning she denied to Sarah that anything had happened, participated normally in a family barbecue to watch the rugby league grand final, and only told Nicole the following day that "he did it again" and that she did not think she was a virgin any more. She did not tell her mother until approximately a month later after speaking to a school counsellor.
The prosecution called two medical practitioners. One found the hymen "of normal character, a little redundant and intact" and said the findings were inconsistent with "forced vaginal penetration". The second said there was "no physical evidence one way or the other". The complainant had earlier, in 1988, complained to a psychiatric registrar that her eight-year-old half-sister had been touching her genital area aggressively; that complaint led to a departmental interview but was not suggested at trial to be false.
The appellant cooperated fully with police, consistently denied the allegations in a record of interview, and gave sworn evidence at trial denying them. His evidence was not discredited in cross-examination. He called good-character evidence, including from witnesses who, with knowledge of the allegations, continued to allow their children to stay overnight at his home. The trial judge gave a Longman direction drawing attention to the absence of corroboration and the danger of convicting on the uncorroborated evidence of the complainant.
The jury convicted on all counts after a lengthy retirement and a redirection on the meaning of "reasonable doubt". The appellant appealed to the Court of Criminal Appeal of New South Wales on the ground, among others, that the verdicts were unsafe and unsatisfactory. That Court dismissed the appeal. Sully J., delivering the leading judgment, said that were it permissible to apply the United Kingdom "lurking doubt" test he would have allowed the appeal because he harboured subjective anxiety and discomfort about the verdicts, but that Australian authority required an independent assessment of the evidence while bearing in mind the jury's advantage. Cripps J.A. and Finlay J. concurred in dismissing the appeal but dissociated themselves from Sully J.'s expression of anxiety.
By special leave the appellant appealed to the High Court. A majority (Mason C.J., Deane, Dawson and Toohey JJ.) allowed the appeal at the conclusion of oral argument and later published reasons. The Court set aside the order of the Court of Criminal Appeal, allowed the appeal to that Court, quashed the convictions and entered verdicts of acquittal. Brennan, Gaudron and McHugh JJ. would have dismissed the appeal.
The joint judgment of Mason C.J., Deane, Dawson and Toohey JJ. began by noting that although the words "unsafe or unsatisfactory" do not appear in s. 6(1) of the Criminal Appeal Act 1912 (N.S.W.), Australian courts of criminal appeal have long set aside verdicts on that basis as amounting to a miscarriage of justice. The section requires the Court to allow an appeal if it is of opinion that the verdict is unreasonable or cannot be supported having regard to the evidence, or that on any other ground there was a miscarriage of justice. The majority emphasised that the question is one of fact requiring the appellate court to make its own independent assessment of the evidence. The court does not ask simply whether there is evidence to support the verdict (that is a question of law) but whether, notwithstanding such evidence, "it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
The majority expressly adopted and synthesised propositions from earlier decisions of the Court. They stated that the ultimate question is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the court must not disregard the jury's primary responsibility or its advantage in seeing and hearing the witnesses. Nevertheless, if the evidence upon the record contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the jury's advantages, there is a significant possibility that an innocent person has been convicted, the court is bound to set the verdict aside. The majority noted that in most cases an appellate doubt will be one a reasonable jury ought also to have entertained. Only where the jury's advantage is capable of resolving the doubt may the court conclude that no miscarriage of justice occurred.
Applying that test, the majority held that Sully J.'s anxiety and discomfort must have reflected a doubt about the appellant's guilt that was engendered by shortcomings in the evidence not met by the jury's advantage. Those shortcomings included the discrepancies between the complainant's evidence and the actual television programming on 8 September 1990, the inconsistency between her account and the appellant's wife's evidence about activities on the night of 22 September 1990, the complete absence of corroboration, the medical evidence that the hymen was intact and inconsistent with the complainant's description of complete penetration, the delayed complaint to her mother, her apparently normal participation in the barbecue the day after the second incident, and above all the inherent improbability that the appellant would have engaged in the alleged acts on a squeaky wire-based bed in an unlocked room within hearing distance of his wife's bedroom in a small, fully occupied house. The majority accepted that an innocent man could have done no more than the appellant did to defend himself. Even making full allowance for the jury's advantage, the matters casting doubt on the prosecution case remained unanswered. Accordingly the verdicts were unsafe and unsatisfactory and had to be quashed.
Brennan J., in dissent, emphasised that the test is not whether the appellate court itself entertains a reasonable doubt but whether a reasonable jury, acting reasonably and appreciating the burden and standard of proof and having seen and heard the witnesses, must have entertained such a doubt. He considered that the evidence, although containing matters that might have caused an appellate court to acquit, did not contain any feature that required the jury to have a reasonable doubt. He noted the detailed nature of the complainant's account, the absence of any apparent motive to lie, the prompt complaint to her friend Nicole, and the jury's lengthy deliberation and request for a redirection on reasonable doubt. In his view the jury's composite experience of life entitled it to accept the complainant's honesty notwithstanding the "cold print of the appeal book".
Gaudron J. agreed with the majority's statement of principle but would have set aside only the convictions for sexual intercourse. She considered that the medical evidence left the question of penetration (required in its strict anatomical sense under the then s. 61A of the Crimes Act 1900 (N.S.W.)) inconclusive and that the jury should have entertained a doubt on that element. However, she regarded the remainder of the prosecution case as coherent and concise and not brought into doubt by the earlier complaint about the half-sister, the absence of immediate complaint to the mother, the normal demeanour at the barbecue, or the inherent improbability arguments. She would have ordered a new trial on lesser charges.
McHugh J. also dissented. He accepted that the evidence was uncorroborated and contained inconsistencies but considered that none of them, even cumulatively, required the jury to have a reasonable doubt. He emphasised the detailed circumstantial account given by the complainant, her prompt complaint to Nicole, the medical evidence that an intact hymen was not inconsistent with penetration, the absence of any plausible motive to lie, and the jury's unique advantage in assessing credibility. He observed that honest witnesses are frequently mistaken about details and that the jury was entitled to regard the discrepancies as insignificant once satisfied of the complainant's honesty.
The majority's conclusion therefore turned on their assessment that the cumulative weaknesses in the evidence created a significant possibility of innocence that the jury's advantage could not resolve.
Before M v The Queen the law on unsafe or unsatisfactory verdicts was expressed in a series of High Court decisions but had not been authoritatively synthesised in a single set of propositions. Davies and Cody v The King (1937) 57 C.L.R. 170 had spoken of setting aside convictions where it appeared unjust or unsafe to allow the verdict to stand because some failure had occurred in the conditions essential to a satisfactory trial or because there was a substantial possibility the jury had been mistaken or misled. Ratten v The Queen (1974) 131 C.L.R. 510 had emphasised that the doubt in the mind of the court is the operative factor. Whitehorn v The Queen (1983) 152 C.L.R. 657 and Chamberlain v The Queen [No. 2] (1984) 153 C.L.R. 521 had stressed the need to give full regard to the jury's advantage while still requiring the appellate court to make its own independent assessment. Morris v The Queen (1987) 163 C.L.R. 454 and Chidiac v The Queen (1991) 171 C.L.R. 432 had reiterated that the question is whether it was open to the jury to be satisfied beyond reasonable doubt.
The joint judgment in M took the various expressions of principle, put aside differences in expression, and stated them in an authoritative form intended to provide guidance to courts of criminal appeal. It clarified that the "significant possibility that an innocent person has been convicted" test is the touchstone, that appellate doubt will usually be a doubt a reasonable jury ought to have had, and that the jury's advantage is relevant but not decisive where the deficiencies appear on the record itself. The judgment also confirmed that a verdict may be unsafe for reasons outside the "unreasonable or cannot be supported having regard to the evidence" formula and that such unsafety constitutes a miscarriage of justice.
After M the test set out in the joint judgment has become the standard reference point for Australian appellate review of jury verdicts on factual grounds. The decision reinforced that Australian law does not permit a purely subjective "lurking doubt" approach of the kind then applied in the United Kingdom under s. 2(1) of the Criminal Appeal Act 1968 (U.K.). It maintained the constitutional primacy of the jury while preserving a robust appellate role where the evidence itself raises a significant possibility of miscarriage. The distinction drawn between the functions of jury and appellate court, and the insistence that the ultimate question remains whether it was open to the jury to be satisfied beyond reasonable doubt, has continued to govern the exercise of the s. 6(1) jurisdiction.
The joint judgment contains several passages that have become canonical. One key passage reads:
"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."
In plain English this means that if the written record of the trial shows real problems with the evidence (gaps, contradictions, or weaknesses) that are not cured by the fact the jury saw the witnesses, and those problems leave a real chance an innocent person was convicted, the appeal court must step in and quash the conviction. The court is not allowed to hide behind the jury's advantage when the record itself screams doubt.
Another central statement is:
"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."
Plain-English translation: the appeal judges must decide for themselves whether a reasonable jury could have been sure of guilt on all the evidence. They cannot ignore that the jury saw the live evidence and is primarily responsible for the verdict, but they still have to make their own call on whether the evidence as a whole could safely support a guilty finding.
A further important observation appears in the discussion of earlier authority:
"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."
In everyday language this says that if the doubt comes from things visible on the page (inconsistencies, improbabilities) rather than from how a witness spoke or looked, then the appeal court's doubt is one the jury should have had too. The jury's opportunity to watch the witness cannot magically fix problems that are obvious in the transcript.
These passages collectively define the boundary between proper deference to the jury and the appellate court's duty to prevent miscarriages of justice.
The principles in M v The Queen are triggered whenever a convicted person appeals on the ground that the verdict is unsafe or unsatisfactory, particularly in cases that turn on the uncorroborated evidence of a single complainant. The precedent is especially apt where the evidence displays discrepancies or inadequacies on the face of the record that are not obviously cured by the jury's advantage in seeing and hearing the witnesses. Typical triggers include delayed complaint, inconsistent accounts of surrounding circumstances (such as what was on television or who was doing what in the house), medical or forensic evidence inconsistent with the complainant's description of events, inherent improbability arising from the physical layout of premises or the presence of other persons who heard nothing, normal post-incident behaviour by the complainant that appears inconsistent with the alleged trauma, and the complete absence of corroboration coupled with strong good-character evidence for the accused.
The decision is not limited to sexual offences but has particular resonance there because of the frequency of uncorroborated word-against-word cases and the historical requirement for corroboration warnings (modified by statutes such as s. 405C of the Crimes Act 1900 (N.S.W.)). It applies whenever the appellate court, after independent assessment, concludes there is a significant possibility of innocence notwithstanding that there is some evidence capable of supporting conviction. It does not apply where the doubt is purely speculative or intuitive; there must be concrete features of the evidence that create that possibility.
The joint judgment's synthesis of principle has been treated as authoritative guidance. The Court itself referred to and reconciled earlier decisions in Whitehorn, Chamberlain [No. 2], Morris, Chidiac and Ratten, presenting them as consistent once differences in expression are put aside. Subsequent courts have cited the "significant possibility that an innocent person has been convicted" formulation as the definitive statement of when an appellate court must intervene. The judgment's insistence that the jury's advantage cannot resolve doubts arising from the record itself has been applied to quash convictions where inconsistencies or improbabilities appear on the transcript.
The decision has been used to emphasise that the miscarriage-of-justice ground in s. 6(1) is not limited to the "unreasonable verdict" limb but extends to any feature raising a substantial possibility that the jury has been mistaken. Courts have continued to distinguish the Australian test from the broader United Kingdom "lurking doubt" approach cited from Reg. v. Cooper (Sean) and Stafford v. Director of Public Prosecutions. The majority's application to a sexual-offence case turning on a child's evidence has guided appellate review in similar "word against word" prosecutions, particularly where medical evidence is neutral or contradictory and surrounding circumstances are improbable.
The dissenting views of Brennan, Gaudron and McHugh JJ. have also been cited for the proposition that the test is whether a reasonable jury must have had a doubt, and that appellate courts must be wary of substituting their own view of credibility for the jury's. Later authority has therefore treated M as confirming a balanced but robust appellate role that respects jury primacy while preserving the safeguard against unsafe convictions.
The judgment leaves open the precise weight to be given to a complainant's apparently normal behaviour immediately after an alleged sexual offence. The majority noted the complainant's participation in the barbecue the day after the second incident as a matter casting doubt on the prosecution case, yet did not lay down a general rule about how such demeanour evidence should be approached. Whether expert evidence on trauma responses can illuminate that issue remains unresolved on the face of the reasons.
The interaction between the M test and statutory provisions that abolish or modify corroboration warnings (such as s. 405C of the Crimes Act) is not fully explored. The trial judge gave a Longman warning, but the majority did not decide whether the absence of such a warning in future cases could itself render a verdict unsafe.
The judgment does not definitively resolve the tension between the "open to the jury" formulation and the "must have had a reasonable doubt" formulation used in some earlier cases. Although the majority sought to reconcile them, the precise boundary between appellate restraint and intervention in borderline cases continues to require case-by-case evaluation.
Finally, the decision leaves open how the test applies when some counts are supported by stronger evidence than others. Gaudron J. would have distinguished between the sexual-intercourse counts and the indecent-assault counts on the penetration issue; the majority's global approach to all counts suggests that where the same body of evidence underpins all charges, pervasive weaknesses may taint the entire verdict, but the limits of that principle are not spelled out. These questions illustrate that while M provides authoritative guidance, its application in marginal cases still demands close analysis of the particular evidentiary record.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. M v The Queen [1994] HCA 63
ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court against convictions be allowed and that the appellant's convictions be quashed and verdicts of acquittal entered. Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court against convictions be allowed and that the appellant's convictions be quashed and verdicts of acquittal entered.
A majority of the Court has reached the firm conclusion that the appeal should be allowed. The Court proposes to make an order allowing the appeal and to publish its reasons later.
The following written reasons for judgment were published: -
Dec. 13 Mason C.J., Deane, Dawson and Toohey JJ.
The appellant was convicted in the District Court in Sydney upon two counts of indecently assaulting one of his daughters who was, at the time, thirteen years of age. He was also convicted upon three counts of sexual intercourse with the same daughter. The offences were alleged to have been committed between 8 September 1990 and 23 September 1990. There were discrepancies in the evidence of the daughter, to which it will be necessary to refer later. Her evidence was uncorroborated. The appellant denied the offences both in an interview with the police and in evidence which he gave on oath at his trial.
The appellant appealed to the Court of Criminal Appeal upon the ground, amongst others, that the verdicts were unsafe and unsatisfactory. His appeal was dismissed. Sully J., who delivered the leading judgment in the Court of Criminal Appeal, said of this ground of appeal:
For my own part, I would say at once that, were it permissible 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.
Cripps J.A. and Finlay J., who were the other members of the Court of Criminal Appeal, concurred with Sully J. in dismissing the appeal, but dissociated themselves from any feeling of anxiety or discomfort in doing so.
The approach in the United Kingdom to which Sully J. referred is, it seems, that which has been adopted under s. 2(1) of the Criminal Appeal Act 1968 (U.K.) which allows the Court of Appeal to set aside a conviction on the ground that in all the circumstances of the case it is unsafe or unsatisfactory. In Reg. v. Cooper (Sean) Widgery L.J. said of this provision [24] :
However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it. That passage was cited with approval in Stafford v. Director of Public Prosecutions [1] where Viscount Dilhorne said that it "is not to be doubted" that this is the effect of the legislation. In Whitehorn v. The Queen [2] the view was expressed in this Court that this interpretation extends the power of the Court of Appeal in England beyond that of courts of criminal appeal in Australia [3] . It was said that [4] : Wide as the powers of an Australian court of criminal appeal are, they do not, under the legislation which prevails in this country, empower a court to set aside a verdict upon any speculative or intuitive basis. 1. [1969] 1 Q.B. 267, at p. 271. 2. [1974] A.C. 878, at p. 892. 3. (1983) 152 C.L.R. 657, at pp. 688-689. 4. See also Ratten v. The Queen (1974), 131 C.L.R. 510, at pp. 515-516; Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R. 521, at p. 533. 5. (1983) 152 C.L.R., at p. 689.
Nevertheless, the criminal appeal provisions which are in common form in this country allow a verdict that is unsafe or unsatisfactory to be set aside, notwithstanding that those words do not appear in the legislation. Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.), which is the relevant provision for present purposes, provides that the Court of Criminal Appeal must allow an appeal against conviction if the Court is:
of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice provided that the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe" [5] , or "dangerous or unsafe" [6] . In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict [7] . Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence [8] 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" [9] . But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King, Isaacs J. said [10] :
If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance. And as the Court observed in Davies and Cody v. The King [11] , the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers: not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. 1. See Davies and Cody v. The King (1937), 57 C.L.R. 170, at p. 180. 2. See Ratten v. The Queen (1974), 131 C.L.R., at p. 515. 3. See Raspor v. The Queen (1958), 99 C.L.R. 346, at pp. 350-351; Plomp v. The Queen (1963), 110 C.L.R. 234, at pp. 246, 250. 4. Morris v. The Queen (1987), 163 C.L.R. 454. 5. See Hayes v. The Queen (1973), 47 A.L.J.R. 603, at p. 604. 6. (1919) 27 C.L.R. 13, at p. 23. 7. (1937) 57 C.L.R., at p. 180.
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 [12] . 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 [13] .
It was with those considerations in mind that some members of this Court [14] have thought it necessary to qualify the statement by Barwick C.J. in Ratten v. The Queen [15] that: "It is the reasonable doubt in the mind of the court which is the operative factor." Barwick C.J. went on to say:
It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration. The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot. 1. See Whitehorn v. The Queen (1983), 152 C.L.R., at pp. 660, 687; Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R., at pp. 532-534. 2. (1974) 131 C.L.R., at p. 516.
But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [16] . In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [17] . Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
In this case the anxiety and discomfort experienced by Sully J. must necessarily have been caused by a doubt he held about the guilt of the appellant. That doubt appears to have been engendered by shortcomings in the evidence which are not met by reference to the jury's advantage in seeing and hearing the witnesses. Sully J. was, therefore, in error in concluding that the appeal should be dismissed. Applying the principles to which we have referred, we consider the jury should have had a reasonable doubt in relation to the charges against the appellant and accordingly are of the view that the verdicts against the appellant ought not be allowed to stand. In reaching that conclusion we are not to be taken as sharing all the reasons expressed by Sully J. for his anxiety and discomfort.
The daughter, who is the complainant, is a child of the first marriage of the appellant. There are three other children of that marriage: two older boys, Jason and Daniel, and Sarah who is the complainant's twin sister. The first marriage was dissolved amicably and the appellant remarried. There are two children of the second marriage, Jacqueline and Jonathon. Fortnightly the children of the first marriage spent the weekend with the appellant, his wife and the two children of the second marriage. The house occupied by the appellant was not large and the complainant and her twin sister ordinarily slept on a mattress in the lounge room.
In 1988, some two years before the events in question, the complainant had complained of headaches and had been referred by her local doctor to a psychiatric registrar. She complained that her half-sister, Jacqueline, who was then eight years old, had been sexually attacking her and had touched her genital area in an aggressive fashion. She had not complained either to her parents or to Jacqueline's mother about these incidents. The psychiatric registrar reported the matter to the Department of Family and Community Services which resulted in the family being required to attend an interview with a social worker. The complainant also informed the psychiatric registrar that another girl at school had been sexually attacked by a male relative who had come into her room and that this had been the subject of discussion at school.
The charges against the appellant involved incidents which were alleged to have occurred on two separate weekends: the weekend of 8 and 9 September 1990 and the weekend of 22 and 23 September 1990.
On Saturday, 8 September 1990, the complainant went to the appellant's house on an ordinary fortnightly visit. On this occasion she was not accompanied by her twin sister or her two older brothers. According to the complainant, the appellant came into the bathroom when she was having a bath to tell her that she was wanted on the telephone and, before helping her to dry herself, commented on her growth of pubic hair. The complainant gave evidence that later in the evening after the rest of the family had gone to bed, she and the appellant sat on a lounge "watching this video on the tele". She said that the appellant kissed her placing his tongue in her mouth and played with her breasts, squeezing her nipple. Subsequently, according to the complainant, the appellant told her to go to bed, which she did after giving the appellant a goodnight kiss.
The complainant said that she did not speak to anyone about these events until Monday, 10 September 1990, when she told a friend at school named Nicole. She said that she also spoke to her twin sister, Sarah, a few days later. It is these events which are the subject of the first count of committing an act of indecency upon which the appellant was convicted.
On the weekend of 22 September 1990 the complainant again stayed at the appellant's house. This time she was accompanied by Sarah and her older brother Daniel. Daniel shared a detached room at the back of the house with a friend. The complainant gave evidence that during the evening of Saturday, 22 September she played cards with the appellant and some of the other children. According to the complainant, her half brother Jonathon said that he wanted to sleep on the mattress in the lounge which the complainant and Sarah usually shared. The complainant says she agreed with Sarah to sleep in Jonathon's room which was at the back of the house and was separated from the bedroom occupied by the appellant and his wife by a bathroom. There was access to a laundry and a toilet through Jonathon's room.
The events which were alleged to have followed were the subject of the remaining counts of acts of indecency and sexual intercourse of which the appellant was convicted.
The complainant says that she went to bed in Jonathon's room and shut the door. She gave evidence that the appellant entered the room, sat down on the bed, kissed her with his tongue, played with her breasts and sucked them. The complainant said the appellant then left. She thought that this was because the telephone rang and the appellant's wife called him. She said that the appellant then had a shower and returned to the room and sat down on the bed. She gave evidence that he kissed her, played with her breasts and sucked them and told her to take her pants down. She said that the appellant then went into the laundry to get a beer and that when he returned she complied with his request that she take her pants right off. The complainant gave evidence of a number of acts of indecency which followed. She also said that the appellant inquired whether she had sex with one of her ex-boyfriends, Mark. Her evidence continued:
I said, "Dad, we didn't go all the way" or something like that. And Dad just went, "Right". Then he got on top of me and he started to push his penis into my vagina, and he kept saying "Lift your hips up and it won't hurt as much". So I lifted my hips up because I didn't want it to hurt, and he just kept trying and he kept saying, "Lift your hips up" and all this stuff. And then he finally like took it out. Then he said to me, "Hold me". And I thought he meant a cuddle, so I sat up and put my arms around him. And then he said, "No". Then he took my left arm and put it on his penis He stood up, and he was standing in front of me, because he had no towel on, you know, he was just naked. I just looked at him, and he goes, "That's a penis" and I just looked at it and just went, "Yeah". And then he left the room I think. The complainant said that the appellant returned to the room after some time, kissed her with his tongue, sucked on her breasts and then left.
The complainant gave evidence that upon waking up in the morning, Sarah asked her if anything had happened that night. She said that she was too upset and did not want to talk about it so she said "no". That day was the day of the rugby league grand final and the family held a barbecue to which a number of friends were invited. The complainant participated normally in the events of the day. She said she rang Nicole to get her to come over but Nicole was unable to come. During the day Sarah broke her ankle and their mother and the appellant's wife took her to the doctor. The complainant agreed to stay at the appellant's house to look after Jacqueline and Jonathon. The complainant said that on the Monday she rang Nicole and told her "He did it again". When Nicole asked her what she meant, she replied "Well put it this way, I don't think I'm a virgin any more." The complainant said that she did not mention the matter to Sarah until "later on" and did not tell her mother until after she saw the school counsellor about a month later.
In cross-examination the complainant said that the appellant put his penis in her vagina whilst her legs were over his shoulders and it felt as if the appellant made complete penetration. She agreed that he probably worked in and out a number of times and that it amounted to rape.
The prosecution called two medical practitioners who examined the complainant. The first found the complainant's hymen to be "of normal character, a little redundant and intact". She said that what she found was inconsistent with rape. She added that her understanding of "rape" was "forced vaginal penetration". The second medical practitioner said that there was no evidence of physical penetration of the complainant, "no physical evidence one way or the other".
In cross-examination the complainant admitted that she told a policewoman who interviewed her that in the evening of Saturday, 8 September 1990 when she watched television with the appellant, the late night movie was on and it was "a cowboy and Indian movie, a country and western movie". When challenged with the suggestion that the reason that she had said in her evidence in chief that they were watching a video was because no cowboy and Indian movie was programmed for that evening, the complainant said she had meant that they were watching a movie not a video. She could not remember whether the movie was in black and white or in colour but maintained that it was about cowboys and Indians.
The complainant gave evidence that Jonathon suggested he sleep on the mattress in the lounge room on the night of Saturday, 23 September 1990, but Sarah gave evidence that "Johnno was getting tired so he went and fell asleep on the mattress in the lounge room, and we didn't worry about waking him up, and Dad just said, "Well one of you girls can sleep in Johnno's room" and [the complainant] said, "I will then" and I said "Yes, okay." " When it was put to the complainant in cross-examination that, notwithstanding the events which she alleged had taken place on 8 September, she separated herself from Sarah to sleep in Jonathon's room, which had no lock, she said "Well Johnno often asked to sleep in that room".
In cross-examination the complainant said that at the time the appellant was raping her, the appellant's wife was watching tennis on the television in her bedroom. When it was put to her that there was no tennis on television on the evening of 23 September 1990, she said that "it sounded like she was watching the tennis" and that she could hear it clearly from Jonathon's bedroom. The appellant's wife gave evidence that on the night in question she had been cleaning the kitchen in preparation for the barbecue. She said that she did not recall watching tennis on television on that night and that the last thing she remembered doing was cleaning the kitchen floor. She said that her bedroom was within hearing distance of Jonathon's bedroom and that the bed in Jonathon's bedroom had a wire base and was very squeaky. The complainant in cross-examination agreed that the bed was very squeaky and "must have squeaked an awful lot when [her] father was attacking [her]".
The appellant co-operated fully with the police investigating the complaint and consistently denied the allegations against him. He gave evidence on oath, again denying the allegations. His evidence does not appear to have been discredited in any way by cross-examination. A number of witnesses gave character evidence on the appellant's behalf, some of whom had, with full knowledge of the allegations made by the complainant, permitted children of their own to remain overnight at the appellant's home.
The trial judge, although he was, by reason of s. 405C(1) of the Crimes Act 1900 (N.S.W.), not required to give a direction to the jury as to corroboration, in fact did so in accordance with the views expressed by this Court in Longman v. The Queen [18] . He said:
The accused's counsel has pointed out there is no evidence to corroborate the evidence of [the complainant]. And let me tell you, that as a matter of law there does not have to be evidence to corroborate her. As a matter of law, if you did choose to accept her evidence, over and above that of the accused, then it is open to you to find the accused guilty, notwithstanding the lack of corroboration. But of course it would be a very dangerous thing to do, possibly you may think. That is a matter for your judgment, depending on what you think of the witnesses themselves. 1. (1989) 168 C.L.R. 79.
Not only was there no corroboration of the complainant's evidence, but the evidence of one of the medical practitioners called by the prosecution was inconsistent with the complainant's account of sexual intercourse on the night of 22 September. The lack of complaint to the appellant's wife or to her own mother until a month after the events of 22 September and the apparent equanimity with which the complainant conducted herself during the barbecue on 23 September suggested the need for careful scrutiny of the allegations which she made against the appellant. In that regard evidence of her previous behaviour revealed a capacity on the part of the complainant to make a complaint of a sexual nature to a person in authority about a member of her family.
There was a discrepancy in the complainant's evidence between what she had told the policewoman was showing on television on the night of 8 September and what she said in court. There was an inconsistency between the evidence given by the complainant and the evidence given by the appellant's wife about the appellant's wife watching television on the night of 22 September. But more important than any individual matter was the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing on that night, namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant's wife, in a fully occupied, small house.
On the other hand, an innocent man could have done no more than the accused did in conducting himself as he did during his interview with the police or in giving evidence on oath at his trial. No doubt the jury believed the complainant and disbelieved the appellant and did so having seen and heard them both. But even making full allowance for the manner in which both gave their evidence, the matters which cast doubt upon the prosecution case, to which we have referred, remain unanswered. In those circumstances, in the absence of any corroboration of the complainant's allegations, it would, in our view, be unsafe and unsatisfactory to allow the verdicts to stand.
It is for these reasons that we joined in the order of the Court, pronounced at the conclusion of argument, that the appeal be allowed.
This was an appeal from the Court of Criminal Appeal in New South Wales which dismissed the appellant's appeal against his conviction on two counts of indecent assault on his daughter and on three counts of sexual intercourse with her. The indecent assaults allegedly occurred on 8 and 9 September 1990 (the first incident); the acts of sexual intercourse allegedly occurred between 22 and 23 September 1990 (the second incident). The daughter was aged thirteen at the relevant time.
The only evidence of the acts alleged was given by the daughter, who was one of four children of the appellant's first marriage. That marriage had been dissolved in what he described as harmonious circumstances and his first wife described as amiable. He had remarried and two children were born of the second marriage to R.M. The children of the first marriage visited their father from time to time and stayed overnight in the home of his second family where the offences allegedly occurred. The only ground of appeal which was pursued in this Court, and the chief ground of appeal argued before the Court of Criminal Appeal, was that the verdict was unsafe and unsatisfactory.
Different expressions of view can be found in the cases as to the test to be applied by a Court of Criminal Appeal exercising jurisdiction under the common form State statutes which create the criminal appeal jurisdiction. In Chidiac v. The Queen [19] , Dawson J. said:
It is clearly established by authority that, in determining whether the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence - whether it is unsafe or unsatisfactory - the test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty: Whitehorn v. The Queen [20] ; Chamberlain v. The Queen [No. 2] [21] ; Morris v. The Queen [22] ; Carr v. The Queen [23] . If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory
The test is not whether the court itself entertains a reasonable doubt, although that will very often amount to the same thing, but whether a reasonable jury was bound to do so. The difference is significant, because a court of criminal appeal must act upon that view of the facts which the jury was entitled to take, having seen and heard the witnesses. As Brennan J. said in Carr [24] : "An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make."
The question whether a jury, acting reasonably, must have entertained a reasonable doubt about guilt remits to the appellate court an inquiry into all the evidentiary aspects of the case. But the jury have advantages in the finding of facts which are denied to an appellate court. As Dawson J. pointed out in Whitehorn [28] :
In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. Moreover, in making its evaluation of the case against an accused, the appellate court must acknowledge that the primary responsibility for finding the facts rests with the jury, not with the appellate court. As Mason C.J. said in Chidiac [29] : The constitutional responsibility of the jury to decide upon the verdict and the advantage which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses impose some restraints upon the exercise of an appellate court's power to pronounce that a verdict is unsafe. And so, for both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict. 1. (1983) 152 C.L.R. 657, at p. 687. 2. (1991) 171 C.L.R., at p. 443; see also Chamberlain v. The Queen [No. 1] (1983), 153 C.L.R. 514, at pp. 519-520; Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R. 521, at p. 608.
A broader function for an appellate court has been suggested, namely, to determine whether "there is some feature of the evidence which raises a substantial possibility that the jury may have been mistaken or misled" [30] . In Carr v. The Queen [31] I attempted to explain that that proposition, which owes its origin to a phrase in the judgment of the Court in Davies and Cody v. The King [32] , cannot authorize the setting aside of a verdict as unsafe and unsatisfactory when the verdict is supported by evidence on which a jury, acting reasonably, could have convicted and when there is no blemish in the conduct of the trial. Of course, where evidence that is inherently but not manifestly suspect is placed before a jury without a warning about its suspect nature - for example, identification evidence as in Davies and Cody v. The King - an appellate court may well conclude that the verdict is unsafe and unsatisfactory [33] . But that is because of the absence of the warning: if an adequate warning be given and the jury nevertheless convict, the appellate court has no warrant to interfere with the verdict. In cases of the present kind, it used to be the practice - a practice on which appellate courts insisted - to warn juries of the danger of acting on the uncorroborated testimony of a prosecutrix in a trial for a sexual offence. That practice was abrogated in New South Wales by s. 405C of the Crimes Act 1900.
The passage in Davies and Cody v. The King [34] on which the suggested broader function for an appellate court is based supports the view that an appellate court's duty to quash a conviction covers -
not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. This is the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner. Leaving aside the express statutory grounds for allowing an appeal - unreasonable verdict, no evidence to support and error of law - their Honours were addressing the residual ground of "miscarriage of justice" [35] . They referred first to the cases where there is a failure to observe the essential conditions of a satisfactory trial. These are the cases which were described in Wilde v. The Queen [36] as cases of departure from the essential requirements of the law that go to the root of the proceedings. Then their Honours described in general terms the other categories of cases in which an appellate court might hold that a miscarriage of justice has occurred. In my respectful opinion, the description was too wide in one respect unless it is understood as confined by the context. 1. (1937) 57 C.L.R., at p. 180. 2. Criminal Appeal Act 1912 (N.S.W.), s. 6. 3. (1988) 164 C.L.R. 365, at p. 373.
Clearly, an event which produces a substantial possibility that the jury were misled is a ground for intervention, for a jury should not be misled in the performance of its functions. Their Honours' example of the identification cases illustrates the unsatisfactory nature of a conviction without the giving of a needed warning. But it would be a mistake to regard any case in which there is a "substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken" to be a case calling for the quashing of the conviction. If that were so, the appellate court would be bound to quash verdicts of conviction in any trial in which the ultimate finding of facts could be vitiated by the jury's human fallibility. The "substantial possibility" of which their Honours spoke is one which is caused by "some feature of the case". It is the "feature" which constitutes the blemish in the trial, the "substantial possibility" being the consequence. Though it is not more particularly described, I venture to suggest that their Honours were not contemplating a case where the appellate court took a view of the circumstances different from the view taken by the jury. Rather, their Honours contemplated events which denied the jury the opportunity of reaching a proper verdict; for example, a prosecutor's failure either to call an apparently credible exculpatory witness or to make the witness available to the defence [37] .
In my opinion, when an appellate court is faced with an appeal against conviction in which no more appears than a conflict between evidence that is sufficient in law to support the conviction and evidence tending to show that the appellant is not guilty, that court has but one function to perform. That function is to determine whether a jury, acting reasonably and appreciating the burden and standard of proof, could have convicted on the evidence available to support the conviction. That is the question which, in my view, the Court of Criminal Appeal was bound to address and to answer in this case.
The indecent assaults allegedly occurred in the lounge room of the appellant's house when the complainant daughter (K.), who was visiting on an access weekend, was sitting beside her father on a lounge. There was nobody else in the room at the time, the appellant's wife (R.M.) and others in the household having retired for the evening. It was on the following access weekend (they were at fortnightly intervals) that the acts of sexual intercourse allegedly took place when K. was occupying a bedroom next to a bathroom that was next to another bedroom occupied by R.M. R.M. had been working in the kitchen that night, preparing for a barbecue and cleaning the floor. Then she went to bed.
K.'s room was not locked and her wire-based bed was squeaky. There were five children other than K. in the house. Nevertheless, R.M. knew nothing of the alleged acts of intercourse between M. and K. in K.'s room. The next morning, K. made no complaint to R.M. nor to her mother who attended the barbecue held that day. In fact she did not tell her mother of the alleged events for about a month, after she had told a school counsellor. She had avoided the access weekend following 22-23 September and, when the next access weekend was approaching, K. told the counsellor that she had been "raped" "so that he wouldn't touch me again". When K. was medically examined on 9 November 1990, her hymen appeared to be intact. K.'s evidence of the events of the evening of 22-23 September was uncorroborated.
The appellant was interviewed by the police. He firmly denied K.'s allegation. He gave sworn evidence at his trial and, so far as the transcript shows, he was not shaken in cross-examination. He was supported by substantial evidence as to his good character. The arguments on his behalf to this Court properly focused on these facts and on inconsistencies between the circumstances surrounding the alleged acts as deposed to by K. and the actual circumstances. For example, she did not correctly identify the television programmes being broadcast at the time of the first alleged incident. On the other hand, K.'s evidence of the manner and circumstances in which her father committed the acts alleged was quite detailed. Her version of what was said by her father and her responses during the second alleged incident does not read as a confabulation. She complained first to her school friend Nicole about the acts of indecency and subsequently about having had sexual intercourse with her father. She made the first complaint on the Monday after the weekend of 8-9 September. It was quite detailed. On Sunday 23 September, the day following the second incident, she tried unsuccessfully to ring Nicole. The next day she told Nicole what had occurred. She also tried to tell her sister S. at a later time. Nothing in the family history appeared which might have motivated K. to make false allegations against her father. She was closely cross-examined, particularly with reference to her description of her father's alleged penetration of her. Penetration was said to be inconsistent with the revealed condition of her hymen and her omission to complain to her mother.
Her description of the events of 22-23 September included her father's penile penetration of her while her legs were over his shoulders and he was moving in and out. Her cross-examination included the following:
Q. Now how many times did he work in and out while he was doing that?
Q. And you've told us that he put his finger in quite a number of times?
If this evidence is taken on its face value it might be thought to be inconsistent with the state of her hymen, but there was evidence from one medical practitioner that there was no such inconsistency. Moreover, whether what felt like complete penetration was in fact complete penetration must surely be a matter for speculation. Further, when these answers were given, the cross-examination had been proceeding for some time and the jury may have thought that K. was giving an exaggerated response to questions which she found annoying because they required answers repetitive of evidence she had already given. On this aspect of the case, the jury were entitled to accept that there was a degree of penile and digital penetration sufficient to satisfy the requirements of s. 61A of the Crimes Act 1900 (N.S.W.). When she was cross-examined as to why she had not told her mother of these events shortly after they happened, she replied: "I was just scared of telling her. I didn't know how she'd react, and I don't think Mum is very good at handling it." That was followed by -
Q. You see, the obvious person to tell if you didn't want to go to your father's place was your mother, wasn't it?
The experience of a jury might find an explanation of this kind completely satisfying. The mother, though divorced from the father, had a good relationship with the father's second family and the father was paying the mortgage on the house occupied by the mother and the first family. The mother had happily allowed the children to go to their father on visits. It is understandable that she might not have been "very good at handling it" and, for a child of thirteen, to complain to her mother about the sexual attacks of the father might well have been "too hard". So far as it is material, the mother said in cross-examination: "I have no reason to disbelieve my daughter."
These are matters rightly to be assessed by a jury. I would respectfully agree that on the cold print of the appeal book the allegations are so serious that, as their supporting evidence is without corroboration, I might well have acquitted had I been a member of the jury. And an acquittal would sit comfortably with the response which the appellant made when he was taken for a record of interview and by the evidence that he gave at his trial buttressed by character evidence that was called. Yet I am unable to say that the jury who have had the advantage not only of seeing and hearing K. and the appellant but of observing the way in which they gave their evidence and their reaction to cross-examination were not entitled to bring in an adverse verdict.
The evidence in the trial reveals no feature on which a court's assessment should prevail over the assessment made by the jury. It is the jury's composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution's "weak point" is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.
In this case, the jury did not come lightly to a verdict. They retired to consider their verdict at about 4 o'clock one afternoon, were sent home for the evening, returned at 9.15 a.m. the next day and finally returned a verdict at 5.40 p.m. that afternoon after seeking a redirection on the meaning of "reasonable doubt". On a matter as difficult as child sexual abuse where the focus of the trial must be on the veracity of the child and where both child and alleged aggressor give evidence, an assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries. When, as in this case, a finding of guilt or innocence depends on nothing but a contest between a child and her father as to what happened between them in the absence of others, I am unable to substitute any view that I might form for the view formed by the jury. Indeed, I echo the frequent observation of trial judges that the responsibility rests with the jury and not with me.
For these reasons I was unable to join in the order allowing the appeal.
The question in this case in which an order has already been made allowing the appeal is whether the appellant's convictions for sexual offences involving his thirteen year old daughter are unsafe or unsatisfactory in the sense that, although there was no error in his trial or in the trial process, they involve a miscarriage of justice within s. 6(1) of the Criminal Appeal Act 1912 (N.S.W.) [38] . There are five convictions in question, two for indecent assault and three for sexual intercourse.
I agree with what is written in the joint judgment of Mason C.J., Deane, Dawson and Toohey JJ. as to the nature of the inquiry involved when it is said that a verdict should be set aside as unsafe or unsatisfactory. In my view, that inquiry leads to the conclusion that, in this case, the jury should have entertained a doubt as to penetration and, thus, should have entertained a doubt as to the appellant's guilt on the charges of sexual intercourse. However, I do not think that the prosecution case is brought into doubt in any other respect.
As already indicated, the complainant was thirteen years old when, according to her evidence, the offences took place. She was fifteen when she gave evidence at the trial. Her evidence was that the offences occurred on the weekends of 8-9 September and 22-23 September 1990 during access visits to her father's home. Her father was divorced from her mother and lived with his second wife and the two children of his second marriage. The evidence is to the effect that the complainant got on well with her father and his new family notwithstanding some earlier difficulty with, or involving, her younger half-sister. It will be necessary to refer to this difficulty in some detail in due course.
The complainant's evidence as to the first charge was that she visited her father on the weekend of 8-9 September and, after everyone else had gone to bed on Saturday night, her father was sitting on a lounge watching a video or, perhaps, a movie. She said that she sat down with him and that he massaged her shoulders and asked her to give him a kiss. She said, further, that she gave him a little kiss on the cheek and that "then he started to run his finger down the side of my body, like from my armpit to just about my waist maybe a bit lower". According to her evidence, he asked her to kiss him again "and this time he put his tongue in my mouth". She gave further details involving kissing and the fondling of her breasts. Her evidence of these events was coherent and concise, lacking precision only with respect to what her father was watching on the television.
The complainant's evidence with respect to the acts constituting the offences which were said to have been committed on the weekend of 22-23 September was also coherent and concise. She gave evidence that, on that Saturday night, she volunteered to sleep in her half-brother's bedroom, towards the back of the house, and that she then retired, closed the door and went to bed. Some little time later, she said, her father entered the room and began kissing her and fondling her breasts. She said that he left the room (she thinks he was called to the phone by his wife), had a shower and then returned with a towel wrapped around his waist. Her evidence was that he again kissed her and fondled her breasts, eventually telling her to take her pants off. She said that he then proceeded to insert his finger in her vagina, then his tongue and finally his penis. Her evidence of this last matter was as follows:
Then he got on top of me and he started to push his penis into my vagina, and he kept saying "Lift your hips up and it won't hurt as much". So I lifted my hips up because I didn't want it to hurt, and he just kept trying and he kept saying "Lift your hips up" and all this stuff. And then he finally like took it out.
It may be noted at this stage that the complainant's evidence-in-chief as to the matter last referred to stopped short of an express assertion of penile penetration. However, the complainant said in cross-examination that the appellant put her legs over his shoulders and that it felt as though there had been complete penetration. She also said in cross-examination that her stepmother was watching tennis on television when these events occurred, explaining that she believed this to be so because of what she could hear from the bedroom and because she thought her stepmother had said that she was going to bed to watch the tennis. She also acknowledged in cross-examination that the bed on which she was lying was very squeaky.
Given the nature of the case, the verdicts can only be held to be unsafe and unsatisfactory if the complainant's evidence is brought into doubt. Her evidence is uncorroborated. This, of itself, is of no importance, but where evidence is wholly uncorroborated, discrepancies and inconsistencies may assume greater significance than would otherwise be the case. Even so, corroboration or lack thereof is only one of many considerations which bear on the evaluation of evidence. And in this case the fact that the complainant's evidence was coherent and concise is a consideration which weighs in favour of its acceptance.
There are three aspects to the argument for the appellant: the first concerns the complainant and her evidence; the second concerns the defence case; and the third concerns the medical evidence led in the prosecution case. It is convenient to deal first with the medical evidence. That evidence bears directly on proof of penetration, a matter which, in my view, was not established to the degree necessary to sustain verdicts of guilty on the charges of sexual intercourse.
The charges of sexual intercourse were brought under s. 61A of the Crimes Act 1900 (N.S.W.) as it stood before its amendment by the Criminal Legislation (Amendment) Act 1992 (N.S.W.) ("the Crimes Amendment Act"). When the trial took place in April 1992, s. 61A(a)(i) of the Crimes Act relevantly defined "sexual intercourse" as "sexual connection occasioned by the penetration of the vagina of any person by any part of the body of another person". It was held by this Court in Holland v. The Queen [39] that in that definition "vagina" was to be understood in its "technically correct sense of meaning the female organ consisting of the membranous passage or channel leading from the uterus to the vulva" and not as referring generally to the female genitalia.
The Crimes Amendment Act, which came into force on 3 May 1992, contains a curious provision [40] which purports to declare that, as from 14 July 1981 [41] , an act was an act of sexual intercourse for the purposes of the Crimes Act if it constituted sexual intercourse as defined in s. 61H, the latter provision being one that was inserted into the Crimes Act in 1992 by the Crimes Amendment Act. Whatever its effect in other cases, that declaration can have no application in this case for the trial was concluded before the Crimes Amendment Act came into force [42] . Accordingly, this matter must be approached on the basis that it was necessary for the prosecution to prove penetration of the vagina in its strict anatomical sense.
The complainant was seen by a number of medical practitioners, including Dr. Holloway and Dr. Fleming who both gave evidence that her hymen was intact. Dr. Holloway expressed the view that the unruptured state of the complainant's hymen did not in any way contradict her statement of sexual interference. However, she acknowledged in cross-examination that it was inconsistent with rape which she understood to involve "forced vaginal penetration". On the other hand, Dr. Fleming was firm in her view that there was no inconsistency with the account given in evidence by the complainant, pointing out that "[t]here are women who rupture their hymen for the first time during childbirth." She conceded, however, that "there [was] no physical evidence one way or another" on the question of sexual intercourse.
Overall, the evidence as to penetration must be regarded as inconclusive. In all probability, the complainant did not use the word "vagina" in its strict anatomical sense but, instead, as referring to her genitalia. Her evidence with respect to the episode in which she alleged penile penetration did not go beyond an assertion that it felt as though there had been complete penetration. And the medical evidence did not advance the prosecution case. In these circumstances, the jury should have entertained a doubt whether there was penetration as required by s. 61A of the Crimes Act. The convictions for sexual intercourse are, thus, unsafe and unsatisfactory. However, the matters which occasion doubt as to penetration do not carry over into any other aspect of the prosecution case. Hence, unless some other matter brings the complainant's evidence into question, it was open to the jury to find sexual interference as alleged, so long as they stopped short of a finding of penetration.
The matters pertaining to the complainant which were used to attack her credit were these: (i) her earlier difficulties with her younger half-sister; (ii) her failure to make early complaint to her mother or her stepmother; (iii) her conduct and demeanour after the events of which she gave evidence; and (iv) certain aspects of her evidence which were said to be unsatisfactory. The aspects of the defence case on which the argument relied were: (i) the appellant's good character; (ii) his inability to do more than he did to establish his innocence; and (iii) the improbability of his having acted as alleged, given the squeaky bed, the size of the house and the presence in the house of other members of the family. It is necessary to refer in some detail to the evidence which bears on these matters.
In 1988, a little over two years before the events in question, the complainant was referred to the psychiatric registrar of a large hospital because of recurring headaches. She told the registrar, Dr. Mason, that her half-sister had been tormenting her on access visits to her father's home by touching her genital area in an aggressive manner. Her half-sister, who was then eight, was some two years younger than the complainant and much smaller. Dr. Mason reported the matter to the Department of Family and Community Services (F.A.C.S.), considering that she was legally obliged to do so. As a result, the half-sister and her parents were interviewed by departmental officers.
During her cross-examination, Dr. Mason indicated that she had elicited from the complainant that a girl at her school had discussed some incident involving sexual assault with her classmates. However, she was not asked whether there was anything to indicate that the complainant might have made a "copy-cat" complaint. Nor did her cross-examination or, indeed, anything else in the case indicate that the complaint with respect to her half-sister was false. This notwithstanding, the argument proceeded in this Court on the basis that there was no truth in that complaint and, if there was, it ought to have been dealt with by the older girl slapping or pushing the younger one away and, by extension, that the complainant was or ought to be seen as a person prone to making untrue or unnecessary allegations of sexual assault.
In my view, the argument made by reference to the complainant's difficulties with her half-sister tends to overlook the fact that she did not complain of her half-sister's behaviour until referred to Dr. Mason who, presumably, questioned her to ascertain whether there was anything which might explain her headaches. It also tends to overlook the fact that it was Dr. Mason who brought the matter to the notice of F.A.C.S. And, perhaps of more importance, it tends to overlook the fact that there may be good reason why a young child would not wish to engage in conflict with her half-sister in the half-sister's home. But in any event, there does not seem to me to be any evidentiary basis for thinking that the complainant lied about her half-sister or over-reacted in that regard or, by extension, that she lied about the events on the weekends in question.
The arguments made by reference to the absence of complaint and the complainant's conduct and demeanour on the weekends in question can be dealt with together. So far as concerns the offence which was alleged to have been committed on the first weekend, it seems that the complainant behaved quite normally on the Sunday. And the evidence is that she did not make immediate complaint to her mother, her stepmother or any other adult. However, she did speak of the matter to her school friend on the following Monday and to her twin sister a few days later.
On the Sunday of the second weekend, the appellant held a barbecue to mark the occasion of the rugby league grand final. Again the complainant behaved normally, making no complaint to her mother or her stepmother. As before, she spoke to her school friend the next day and told her what had happened. She spoke to her twin sister a little later. About a month later and at the urging of her school friend, she spoke to the school counsellor. She then spoke to her mother.
One other matter should be recorded with respect to the second weekend. The complainant's twin sister broke her ankle playing football at the barbecue. Arrangements were made for her to receive medical treatment the next day, Monday, in circumstances requiring the attendance of her mother and her stepmother. As part of these arrangements, the complainant agreed to go, and in fact went, to her father's house to mind her half-sister and half-brother. She made no protest about this arrangement.
Complaint is a matter of some significance in sexual offences. The general rule is that, save where there is a claim of recent invention, evidence is not admissible to prove prior consistent statements. However, in the case of sexual offences, evidence of early complaint is admissible to negative any effect "the alleged victim's silence might have on her credibility" [43] . It is admissible whether the victim is male or female, but, more often than not, the principle has been stated with respect to women and girls, as has its rationale. Thus, for example, it was said in Hawkins' Pleas of the Crown [44] , in a passage referred to by Barwick C.J. in Kilby v. The Queen [45] , that "[i]t is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact".
The presumption discussed in Hawkins' Pleas of the Crown is not a presumption of law but an assumption of fact [46] . And it is an assumption which has embedded in it a questionable suggestion, namely, that people are more likely to lie about sexual offences than about other matters. And of course - though this need hardly be said - there is no basis for thinking that females are less reliable in these matters than males [47] . As well, the presumption is no longer generally seen as conclusive. This last matter is conveniently illustrated by the requirement in s. 405B(2) of the Crimes Act that, where a question is raised as to failure to complain, a direction is to be given to the jury to the effect that the absence of complaint does not necessarily indicate that the allegation is false and that there may be good reasons why no complaint was made. Even so, the assumption is still accorded considerable respect and it was held by the Court of Criminal Appeal of the Supreme Court of New South Wales in Reg. v. Davies [48] that, notwithstanding s. 405B(2), a trial judge should, at least as a general rule, direct the jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant. However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind [49] .
Because complaint continues to have significance in relation to sexual offences, it is important for the assumption which justifies that significance to be formulated in terms which indicate that it is neither sex-specific nor of general application, as for example in the statement that the true victim of a sexual offence will, under normal circumstances, complain at the first reasonable opportunity [50] . However, circumstances vary greatly and there may be different views as to what is normal and, also, as to what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms but which, clearly, cannot hold good in all cases.
There is one class of case which cannot be approached on the basis of an assumption of the kind discussed in Hawkins' Pleas of the Crown, namely, cases of sexual assault on a child by a person who has the child's trust and confidence. In cases of that kind, the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain. As well, a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender. In my view, the present matter should be approached with those considerations in mind. And if approached on that basis, the argument with respect to the absence of complaint and with respect to the complainant's apparently normal conduct on the weekends in question loses all force. And that is so whether those matters are considered separately, together or in combination with the other arguments raised on behalf of the appellant.
The argument with respect to the complainant's evidence or, more precisely, those aspects which were said to be unsatisfactory focussed on her inability to give details of the movie her father was watching on the first weekend in question and on an apparent inconsistency between her description of it as "a cowboys and Indians" movie and the movies actually shown on television that night. As well, attention was directed to the fact that she told police it was a movie, whereas she said in her evidence-in-chief that it was a video. These matters must be assessed in the light of her evidence overall, the effect of which was that it was her father who was watching the movie and that he began touching her almost as soon as she sat down near him and concluded his assault by sending her to bed. In such circumstances, imprecision and even, inconsistency, is readily understood.
The appellant's argument extended to two other aspects of the complainant's evidence. First, it seems that there was no tennis on television on the second weekend in question. This, in my view, is almost entirely irrelevant: the complainant did not claim to have watched the tennis, only that she thought her stepmother was watching it; and she gave credible explanations for her belief in that regard. The other aspect was the discrepancy or, more precisely, the fact that there was not a complete correspondence between the history taken by Dr. Fleming and the account given in evidence by the complainant. On this aspect of the argument, it is unnecessary to do more than repeat what Dr. Fleming said, namely, that her history-taking was brief.
Leaving aside the question of penetration, the arguments for the appellant do not cast doubt on the case presented by the prosecution. Rather, an analysis of the evidence reveals a substantial case without significant weakness. That is important when it comes to evaluate the arguments made by reference to the defence case, particularly the argument based on the improbability of the accused having acted as alleged. In truth, that is no more than an argument that the prosecution case was inherently flawed, a proposition which runs counter to my evaluation of the case as one lacking significant weakness. And so far as good character and the fact that an accused person has done all that he could to defend himself are concerned, these are matters properly to be weighed in the balance in a weak prosecution case but they cannot bring a jury s verdict into issue in a case which has no significant weakness.
In my view, the proper disposition of this appeal required that the verdicts on the charges of sexual intercourse be set aside and an order made that there be a new trial on such lesser charges as the prosecution considered appropriate but, otherwise, that the appeal be dismissed.
The question for determination in this appeal was whether, on the evidence, the convictions of the appellant on five charges of indecency or sexual intercourse with his daughter were unsafe or unsatisfactory. At the conclusion of the argument, I was not convinced that the convictions of the appellant were unsafe or unsatisfactory. Accordingly, I was unable to join in the order of the Court that set aside the convictions of the appellant. Further examination of the evidence has confirmed my tentative opinion that the appeal should have been dismissed.
It is true that the only evidence against the appellant ("M.") consisted of the uncorroborated evidence of his daughter and that at all times he denied her allegations. She also claimed that full sexual intercourse had occurred. The medical evidence proved, however, that her hymen was intact and that there was no evidence of sexual abuse. In addition, M. was said to weigh about 114.5 kg (18 stone) and the acts of sexual intercourse were alleged to have occurred without the consent of the complainant on a "squeaky" bed in a room not far from other rooms where family members including M.'s second wife were present. Yet no one heard anything that suggested that M. was engaged in sexual activity with the complainant. Furthermore, although the complainant had ample opportunity to complain to her mother and stepmother about the offences, she did not complain to her mother for some weeks and did not complain at all to her stepmother. Discrepancies in the various accounts that she gave and other matters of less significance were also relied on as making the convictions unsafe or unsatisfactory.
Despite the foregoing matters, I do not think that the jury had to have a reasonable doubt about M.'s guilt. The jury had the incomparable advantage of seeing the witnesses, including M., give evidence. The complainant gave a detailed account of what had occurred and, unless she was a consummate liar with a vivid imagination, the circumstantial detail of her evidence made it ring true. Although the complainant's evidence was uncorroborated, she informed a close friend about what had occurred on each occasion as soon as she reasonably could. She also complained to her sister, although in less detail and more reluctantly, about what had occurred. Both the friend and the sister gave evidence confirming the making of the complaints. The jury also had medical evidence before it to the effect that an intact hymen in a woman is not inconsistent with her having had sexual intercourse. The complainant was also thoroughly cross-examined by one of the most experienced counsel in the country. Nothing emerged from the cross-examination that necessarily required the jury to have a doubt about the complainant's evidence. No plausible motive for the complainant making a false complaint was suggested although it was asserted in argument in this Court that it might have been a "copycat" complaint because a schoolmate had been sexually abused. In cases such as the present where the parents are divorced or separated, it is sometimes suggested that the complainant has a motive to make a false complaint because of the relationship between her and the accused or the accused and his wife or ex-wife. But that was not alleged in this case. Although the complainant's parents were divorced and her father had re-married, the two families were close.
The jury is the tribunal that has the responsibility of deciding the guilt of persons indicted for criminal offences. Like all human institutions, the institution of the jury has its faults. In particular, juries are likely to be affected by the prejudices and even the hysterias that from time to time are found in the community. The composition of the average jury, drawn as it is at random from the community, makes it likely that the collective experience of the jury will reflect the prevailing opinions, values and prejudices of the community. But, although it has become increasingly accepted that sexual abuse is widespread throughout the community, there is no evidence nor reason to suppose that juries in sexual abuse cases do not evaluate the evidence in those cases as impartially as they evaluate the evidence in other criminal cases that come before the courts.
In my view, the convictions were not unsafe or unsatisfactory. Accordingly, the appeal should have been dismissed.
M. divorced his first wife in 1983. They had four children, one of whom was the complainant ("K."), who was thirteen at the time of the alleged incidents. M. remarried. He has two children, Jacqueline and Jonathon, from his second marriage.
The principal evidence for the prosecution was given by K. She said that, on the weekend of 8 and 9 September 1990, she went to M.'s house on an "access visit". During the evening of 8 September, M. entered the bathroom while she was bathing and made remarks about her body. Later that evening while she was sitting with M. on a "three-seater lounge", he started to massage her back. He then kissed her. She said that M. then put his hand inside her pyjama top and played with her breasts. He kissed her a few times, then sent her to bed.
K. said that on the Monday she asked her friend, Nicole: "Is it normal for your dad to kiss you with his tongue Because dad did." K. said that she told her sister, Sarah, about the incident "a couple of days later".
K. also gave evidence that, on the weekend of 22 and 23 September 1990, she went to M.'s house on another access visit. On Saturday night, M. entered the bedroom where she was. He kissed her and sucked her breasts. He left the room for a period after being called to the telephone. He returned with a towel wrapped around his waist. He then kissed her and again sucked her breasts. He told her to take her pants off, which she did. M. then rubbed and inserted his finger into her vagina. After that, he placed her legs over his shoulders and put his tongue into her vagina. He then had penile sexual intercourse with her. Further sexual activity took place before he left the bedroom. Much later he came back to the room, kissed her, and told her that he loved her.
K. said in evidence that she did not know what to do after this incident. She thought of telling her brother Daniel who was also at M.'s home. But she could see M.'s head in the loungeroom and was afraid that he would see her if she went to her brother's room. She was upset and cried before falling asleep.
K. said that on the morning after the second incident her sister came into her room. K. said:
She asked me if anything happened last night, and I didn't want to talk about it, and I was too upset, and I didn't know what she'd say or was thinking, so I said, "No" and she seemed really relieved and she just went, "That's good". And she just said, "Are you sure?" and I said, "Yes."
K. said that she tried to contact Nicole on the Sunday but was unable to do so until the Monday. She said:
A: I said to her, "He did it again." And Nicole just went, "What did you do this time?" Like she knew what I was talking about but she just wanted to know what he'd done. We had this thing, because her sister's boyfriend used to call - like her sister is Lee, and he used to call Lee's like boobs and that, he used to call them heaven, and I said, "Well he played with heaven."
Q: That was a sort of code that you used with Nicole was
A: Yeah. We hadn't actually come up with a code for your vagina or anything, and I just thought, you know, heaven and I thought you know maybe I'll call it hell and she'll understand what I mean. And I said, "And hell" and she just went, "What?" and she didn't understand what I was talking about. So I said, "Well put it this way, I don't think I'm a virgin anymore" or something like that. And Nicole just went silent for a bit and she asked me if I was all right, and we were having a chat on the phone.
K.'s sister, Sarah, gave evidence that after the first incident K. had "told me that dad had played with her breast and he kept asking her to kiss him, and then he'd put his tongue in her mouth".
Although K. was not asked in her evidence-in-chief as to when her sister was told about the second incident, in cross-examination when asked about the matter, she said "I can't remember when I told her. I just remember telling her later on." Counsel for M. wrongly insisted that she had said in examination-in-chief that she had told her sister on the Monday. K. said: "Well I must have then." However, Sarah said in evidence that she thought that K. told her about the second incident a month or a couple of weeks after she had broken her ankle. That had happened on the Sunday after the second incident. Sarah said:
A: She said something like, how would you feel, and I said, "I know how you feel." She goes, "No, you don't." And I said, "Why not?" and she goes, "Cause you didn't have anything happen near as bad happen to you as what I have." And I said, "What happened?" And she just told me that dad tried to have sex with her.
Q: Do you remember any of the detail that she told you, or just that he tried to have sex with her?
A: After that I just blocked everything out. I didn't want to hear it.
Nicole's evidence confirmed K.'s evidence that she had complained to Nicole about what had occurred on each occasion. Nicole said that she had told K. to tell her sister and her mother and had convinced her to tell a school counsellor.
K. said that she told the school counsellor about the matter so that she would not have to go on access visits to the appellant's house. She denied that she wanted to get her father into trouble. She said that she did not tell her mother about what had occurred on either occasion until about one month after the second incident occurred. The reason was because:
I didn't know how she'd react, and I don't think mum is very good at handling it.
K.'s mother said that K. had told her about the incidents when they were going to meet with the Department of Family and Community Services who had asked to see the mother. Later, however, her mother said that she was unsure whether someone from the Department told her first or whether K. had.
Dr. Margaret Holloway gave evidence that on 9 November 1990 she examined K. and found that she was "a young girl of post-pubertal stages". Her hymen appeared to be of "normal character, a little redundant and intact". She stated that her findings on examination were inconsistent with forced vaginal penetration, but not inconsistent with digital penetration or penetration by the tongue.
Dr. Susan Fleming gave evidence that, on 28 November 1990, after obtaining a history from K., she examined her. She said that K.'s "hymen was stretchy, there was no obvious defect in the hymen". Dr. Fleming said that there was no direct physical evidence of sexual abuse but that her findings were consistent with the history given by K. She said that, for an adolescent with this particular type of hymen, "it is possible to have a finger or even a penis pass through the hymen without there being any residual physical evidence of this". Dr. Fleming said: "There are women who rupture their hymen for the first time during childbirth."
The prosecution also tendered a record of interview with M. in which he strenuously denied K.'s allegations. It is fair to say that his answers read as the indignant answers of a man against whom false allegations are made. However, he did concede that he had asked K. and her sister "whether they were still "intacto" ". He did so because "they were going out with boys two to three years older than they were". He also suggested to the interviewing officer that the first priority should be to find out whether K. was still a virgin.
M. swore that K.'s allegations were untrue. Nothing emerged in cross-examination that undermined his denials. M. also swore that a good relationship had existed between the families of his two marriages. Apart from an incident between K. and her half-sister in June 1988 when K. had alleged that her half-sister had "sexually attacked" her by placing her hand down K.'s pants, the families had got on well together. Indeed, it was common ground that M.'s first wife had attended a barbecue at his home on the day after the second incident. Members of both families including K. were present. M. called a number of witnesses to prove that he was a person of good character and reputation.
Raellen, M.'s present wife, said that she had no specific memory of the weekend of 8 and 9 September 1990. She said that, on Saturday night 22 September 1990, she went to bed at about 11.30 p.m. and did not recall when M. went to bed. She said that she did not remember watching the tennis on television that night, as K. had said in evidence. She also said that the bed in the room where K. slept was "very squeaky", a fact that K. had conceded in her evidence.
After a lengthy retirement, the jury convicted M. of all charges.
M. appealed to the Court of Criminal Appeal (Cripps J.A., Finlay and Sully JJ.) which unanimously rejected his appeal. The principal ground of appeal was that the verdict was unsafe or unsatisfactory. Sully J. said that he would have allowed the appeal but for the decision of this Court in Whitehorn v. The Queen [51] "because, broadly speaking, I have in purely subjective terms a feeling of anxiety and discomfort about the verdicts of guilty that were returned against the present appellant". Sully J. said:
Unfortunately for the present appellant, it is not possible to approach the matter upon the subjective basis of which I have been speaking. It is necessary, rather, to make an independent assessment of the whole of the available evidence, but to do so bearing carefully in mind the limitations upon that exercise which are enjoined by the principle stated in Whitehorn . 1. (1983) 152 C.L.R. 657.
Because the trial judge had given a "corroboration warning" that was "very favourable", Sully J. thought that the convictions could be set aside only if there was "something so destructive of the credibility of [the complainant's] version as to permit of a conclusion, not that the jury acting reasonably might very well have had a reasonable doubt about the guilt of the appellant, but that the jury acting reasonably must have had such a doubt".
The matters which I have earlier summarized when dealing with the appellant's challenges to the credibility of the complainant's allegations, even when looked at in their totality rather than merely as disconnected individual items, do not seem to me to have been so destructive of the complainant's credibility as to entail that any reasonable jury must either have rejected her outright, or have been left with an unresolved reasonable doubt overall. The case is one, as I think, where that special advantage of the jury, not enjoyed by this Court, of seeing and hearing, among others, the complainant, the appellant, and the other witnesses as to recent and consistent complaint, cannot be lightly disregarded by this Court.
In the end, therefore, I am not persuaded that a reasonable jury, instructed as carefully and as fully as was done in the present case, must have been left with a reasonable doubt as to the guilt of the accused.
Cripps J.A. concluded that the "discrepancies" in K.'s evidence "were matters for the jury to evaluate and resolve". Finlay J. agreed with Cripps J.A.
The jurisdiction of the Court of Criminal Appeal to set aside an unsafe or unsatisfactory verdict
Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.) ("the Act") empowers the Court of Criminal Appeal to set aside a conviction if it is:
of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice. Mr. Holman, the Attorney-General and Minister of Justice, in the course of the second reading speech on the Bill which became the Act said: The powers of the court to remedy any miscarriage of justice are, I believe, as wide as can be conceived. The court has full power to take up any case where leave is once given, because it is alleged that there has been an error of fact. [52] In Hargan v. The King [53] , Isaacs J. said: But the essence of the matter here is that s. 6 of the Criminal Appeal Act states three grounds on which an appeal "shall" prima facie be allowed, viz: (1) verdict unreasonable or not supportable on the evidence; (2) error in law; (3) miscarriage of justice on any other ground It is, therefore, not an answer to the appellant to say that what he complains of is not an error in strict law. If he can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance. 1. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 5 July 1911, p. 1293. 2. (1919) 27 C.L.R. 13, at p. 23.
The test for determining whether a verdict is unsafe or unsatisfactory
Many errors that occur in the course of a criminal trial and bring about a miscarriage of justice are errors of law: insufficiency of evidence, misdirection or failure to direct on relevant matters of law and evidence improperly admitted or excluded are examples. When no error of law has occurred, the power to set aside the conviction depends on whether the verdict was unreasonable or was a miscarriage of justice.
There will be a miscarriage of justice whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Davies and Cody v. The King [54] , the Court said of the comparable jurisdiction of the English Court of Criminal Appeal that:
it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. [55] 1. (1937) 57 C.L.R. 170, at p. 180. 2. A similar comment had been made in the earlier case of McKay v. The King (1935), 54 C.L.R. 1 in which the High Court had not found a miscarriage of justice. Dixon J. said at p. 10: "Even if confessional evidence might appear sufficient to submit to a jury, yet a conviction would doubtless be quashed if it appeared that the jury had been allowed or encouraged to act upon views of it which are unsafe."
Thus, evidence, although legally admissible, may be so prejudicial that it ought to have been rejected in the exercise of the trial judge's discretion to exclude prejudicial evidence. Or, a direction may not be wrong in law but may be so erroneous in fact or so one sided that the conviction can be seen as a miscarriage of justice. Similarly, the failure by a trial judge to direct the jury in relation to identification evidence [56] or the refusal to grant separate trials despite the possibility of an unfair trial because of prejudicial material [57] may make the conviction unsatisfactory. If the jury could not have rationally rejected the possibility that a shot was fired without an intent to kill [58] , a conviction for murder will be a miscarriage of justice. Some have seen the case of a conviction on unsatisfactory evidence as another example of a miscarriage of justice, but it seems better to treat such cases as ones where the verdict "should be set aside on the ground that it is unreasonable".
The judges of this Court have used different terminology to describe the appropriate test for determining whether a conviction is unsafe or unsatisfactory. Some have said that the test is whether a reasonable jury would have, or should have or must have had a reasonable doubt about the accused's guilt [59] . Others have said that the test is whether, having regard to the probative value of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt [60] . Although some judges have seen the two formulations as interchangeable [61] , I do not think that they necessarily mean the same thing. The second formulation of the test seems to me to be capable of being understood as giving the jury a wider discretion to evaluate the evidence. In Morris v. The Queen [62] , for example, Dawson J. thought that once an admission was properly in evidence, it was for the jury to evaluate the medical evidence which placed doubt on the veracity of the admission.
In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused's guilt. To ask whether it was open to the jury to be satisfied of the accused's guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused. To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused's guilt would be an unwarranted intrusion into the jury's right to determine the facts in a criminal trial. The court must make an independent assessment of the evidence [63] and consider the sufficiency, quality and nature of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused's guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial. If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict [64] .
The matters that are alleged to make the convictions unsafe
Mr. Collins Q.C., who appeared for M. in this Court but not at the trial, put forward a number of matters which, he submitted, made the convictions unsafe.
(i) The complainant was a thirteen-year-old child and her evidence was completely uncorroborated.
Section 405C of the Crimes Act 1900 (N.S.W.) enacts that there is no rule of law or practice which requires the trial judge to warn a jury of the danger of convicting on the uncorroborated evidence of a complainant. There is however a duty on the judge to warn the jury of the dangers of convicting on the evidence if the circumstances of the case indicate that it is appropriate [65] . The trial judge in this case warned the jury twice of the need to consider the evidence closely because it was uncorroborated. Lack of corroboration of K.'s evidence is insufficient to establish any reasonable doubt about M.'s guilt.
(ii) The hymen of the complainant was completely intact.
K. said that M. put his finger and his penis in her vagina. In cross-examination, she was asked:
Q: I thought - see you told us that he first put his finger in, right?
A: He put his tongue inside my mouth - I mean inside my vagina.
Q: And then what was - the next thing he put his penis in?
Q: And how many times did he work in and out while he was doing that?
Q: And you've told us that he put his finger in quite a number of times?
Dr. Holloway's evidence was that the hymen was of "virginal nature". In cross-examination, she was asked:
Q: Were you given a history by this girl that she had been raped?
Q: Would you agree with me that what you found was quite inconsistent with rape?
Q: Doctor, when you say, inconsistent with rape, was it inconsistent with digital penetration?
A: No it's not inconsistent with digital penetration. Perhaps I'm not answering correctly or my understanding of the word, rape, may be different from what is intended.
A: Well my understanding of the word, rape, is that there's forced vaginal penetration.
Dr. Fleming said "that there was no direct physical evidence of sexual abuse, but I felt that the examination findings would certainly be totally consistent with the history that K. had given me, that is, consistent with a finger penetration of her vagina and even with some degree of penile penetration".
Later Dr. Fleming said that in "an adolescent who has this particular type of hymen, and that is a relatively stretchy hymen, it is possible to have a finger or even a penis pass through the hymen without there being any residual physical evidence of this".
Q: The examination of a child's vagina would normally confirm a serious sexual assault, wouldn't it?
A: I would have to disagree. In a woman who is post-pubertal it is quite possible to have had vaginal intercourse and for it to be impossible for a medical practitioner with experience in this area to say with confidence that vaginal intercourse had occurred.
A: That is a term that is used widely by non-medical people. It is a nonsense term and totally unhelpful in this situation.
Counsel then put to Dr. Fleming the evidence given by K. and asked:
Q: If she'd told you that story wouldn't you say then that the hymen as you found it was inconsistent with that type of intercourse?
Although Dr. Holloway thought that the state of the hymen was inconsistent with forced sexual intercourse, K. did not suggest that force was involved. Her evidence was that, after M. told her to lift up her hips, she did so "because I didn't want it to hurt". Furthermore, although K. said that it "felt like" complete penetration, the jury might reasonably have thought that what might have seemed like complete penetration to her was in fact only partial penetration. It was open to the jury to conclude that, because of her fear and inexperience, she thought that the attempts of M. had achieved "complete penetration". In that respect, the jury might have thought M.'s statement to the police that "I would suggest as far as the allegations are concerned that our first priority would be to find out whether in fact K. is still a virgin" indicated that he knew that she had not been completely penetrated. As appears below, it is not necessary for there to be complete penetration of the vagina before the offence occurs. In any event, it was open to the jury to prefer the evidence of Dr. Fleming to that of Dr. Holloway.
(iii) The apparent equanimity of the complainant in the immediate aftermath of the second incident.
K. said that she helped her stepmother prepare for a barbecue on the day after the second incident. She also agreed that she played "normally with other children" at the barbecue. In cross-examination, K.'s mother gave evidence that, although K. had been quite quiet early in the day, she had later participated in the children's games.
Mr. Collins submitted that a thirteen-year-old girl who was assaulted in the way that K. alleged could not be supposed to have so quickly recovered from her ordeal as to behave as she did at the barbecue. But, in the absence of expert evidence as to how a young woman of K.'s age and background would react and interact with people including her assaulter after the events of the kind that K. described, I do not think that it is open to this Court to set aside the convictions of M. because K. did not act in accordance with some perceived stereotype of a victim of sexual assault. The jury, drawn from the community, and with the great advantage of having seen and heard K. give evidence, is in a far better position than the judges of an appellate court to determine whether her conduct was inconsistent with her complaints. Quite apart from the advantage of seeing and hearing the complainant, the collective experience of the jury is more likely to fit them for the task of evaluating the evidence and conduct of a thirteen-year-old complainant with K.'s background than is the experience of appellate judges. Attitudes towards sexual matters and the behaviour of young people have changed so much in recent years that in many instances the views of appellate judges about how teenagers behave, derived from their own past contact with teenagers, may well be out of date.
(iv) The conduct of M. during the record of interview with police.
Mr. Collins relied on three matters concerning M.'s conduct when interviewed by the police. The first was that he had not wanted a solicitor present. The second was a comment that K. should be medically examined "as previously she made allegations against my youngest daughter Jacqueline". The third was the outright denials made by M. in the course of the interview. None of these matters assist M. Denials are not evidence of the falsity of the allegations nor inconsistent with guilt. Further, as I have indicated, M. was much more likely than K. to know whether full penetration had occurred.
(v) The absence of complaint to the complainant's mother or stepmother.
It is undisputed that K. did not complain to her mother until some time after the incident and did not complain at all to her stepmother. But she gave a credible explanation for her failure to complain to her mother. Moreover, she complained promptly to her close friend, Nicole, and also to her sister. The jury may have found it not surprising that in the circumstances she did not complain to her stepmother.
Mr. Collins submitted that it "must have raised a concern in the mind of the jury" that "a thirteen-year-old girl" had "been treated by a psychiatrist for reasons which did not have any organic explanation" and that "she should have chosen on two important occasions to discuss sexual complaints" with her.
In 1988, K. had been referred to a psychiatric registrar, Dr. Mason, in an attempt to establish a non-organic reason for recurring headaches. Dr. Mason gave evidence that K. had said that her half-sister had "on several occasions touched K.'s genital area in an aggressive fashion". Dr. Mason reported the incident to the welfare authorities. In cross-examination, K. agreed that a welfare worker came around to talk to her half-sister after that. In cross-examination, M. said that he had spoken to K.'s half-sister about it but not to K. and that the two girls had got on well after the incident. In his record of interview, M., when asked if he had any idea why K. would make the allegations against him, said:
None whatsoever. Unless I've let her down in some way either as a father or a friend. But I would suggest as far as the allegations are concerned that our first priority would be to find out whether in fact [K.] still is a virgin as previously she made allegations against my youngest daughter, Jacqueline which involved the family welfare community, whatever it is.
Q: One other matter, do you remember hearing back in 1988, that your daughter Jackie was supposed to have attacked [K.] sexually?
A: Yes that's not exactly how it was sort of put to me.
Q: Well who put it to you, who first told you about it?
A: rang me and said that [K.] had been having - had been seeing the psychologist about her headaches and they decided that part of the reason that she was getting these headaches was because Jackie was interfering with her in some way or other, and you know, going into the bathroom when she was in the bathroom and that type of thing, and could I please contact Dr. Mason in regard to it, which I did. Dr. Mason told me that I'd need to take Jackie to see I thought it was a psychologist but it turned out to be a social worker, and John, myself, Jackie and [Jonathon] made an appointment and went and saw this social worker and the outcome that she described to me was that what we were talking about was normal sibling behaviour.
A: Yes between - yes. And that is really as far as it went.
Although Mr. Collins suggested that K. went to Dr. Mason because of the incident with Jacqueline, this suggestion seems incorrect. The reason that K. saw Dr. Mason was that she was suffering from headaches which could not be traced to an organic source. The incident with Jacqueline was not the motivation for K. seeing Dr. Mason.
Mr. Collins also insisted this event indicated an "unhealthy preoccupation with the subject matter". However, K.'s stepmother gave evidence that the social worker that she had seen about Jacqueline's behaviour had said that the conduct was "normal sibling behaviour". In all likelihood, the jury considered that such behaviour among young children and K.'s concern about it did not evidence the "unhealthy preoccupation" that Mr. Collins alleged.
During the 1988 consultations with Dr. Mason, K. mentioned that another girl from her school had been sexually assaulted by a male relation. In evidence, Dr. Mason was unable to recall any significant details about the matter. In cross-examination, counsel asked K. whether the girl received sympathy and extra attention as a result of the assault. She answered: "No, not really, they just wondered why she was crying."
Mr. Collins also argued that the likelihood of K. having had a conversation in the playground about a classmate being the victim of sexual assault and then herself being a victim was one in a million. There is no substance in this submission. As Gaudron J. pointed out during the argument, both the public campaigns concerning sexual assault and the incidence of sexual assault in the community make it unsurprising that such a conversation could take place.
(vii) M. gave evidence under oath which was not discredited.
Mr. Collins relied on Sully J.'s conclusion that "I cannot see that the sworn evidence given by the appellant was obviously discredited by cross-examination". I agree that nothing in the printed pages of M.'s evidence undermined his denials. But that does not mean that the jury had to have a reasonable doubt about his guilt. They saw and heard M. and K. give evidence and had the opportunity, which is denied to this Court, of comparing their demeanours. M. also called impressive evidence of good character. However, the commission of sexual assault, especially within family units, is certainly not restricted to those people who would be considered to be of "bad character".
If the evidence for the prosecution in this case cannot be classed as unsatisfactory evidence of guilt, nothing in the evidence for the defence was so cogent that it required the jury to have a reasonable doubt about M.'s guilt.
On the night that the second incident occurred, at least eight people were in the house or in a room outside the house [66] . K.'s sister and their half-brother, Jonathon, were in the loungeroom. Their half-sister was also in the house. M.'s present wife was in her bedroom. K.'s older brother and a friend were in a back room, outside the house. K. was in Jonathon's bedroom which did not have a lock on the door. It was separated from the bedroom of M. and his wife by a bathroom and hallway. Another bathroom was located through a sliding door in the laundry on the other side of Jonathon's room. Access to outside could be gained from the laundry and the family room [67] .
Mr. Collins argued that it would have been impossible, given the layout of the house, and the number of people inside the house, for the second incident to occur undetected. Moreover, the evidence of K. proved that it was easy to hear things happening in other parts of the house. She gave evidence, for example, that the telephone had rung and her stepmother had called out to M. while he was in the bedroom with her. K. also said that she could hear the television and that it sounded like the tennis was on. She was asked:
Q: Of course, I think we've agreed that the bedroom where Raellen was on the night that you were raped, and at the time you were raped, was within hearing distance of your room?
A: It would have been really hard to hear with the tele on.
A: Not clearly, you could hear it but, you could hear the noise.
Q: I see, well when he came back if you'd called out, don't or something like that, Raellen would have had to hear, wouldn't she?
It was also common ground that the bed in the room occupied by K. was squeaky.
Mr. Collins submitted that on this evidence the jury had to ask itself: "Could that really have happened in the way she described in that house? Would someone have been that crazy to do it?" But the jury might well have thought that, because of the intensity of his desire for sexual gratification with his daughter, fear of the consequences or of getting caught were not matters to which M. paid much, if any, attention. It is not without significance that on K.'s account M. came perilously close to being caught when his present wife called him to the telephone; yet he returned in a short period to resume what he had started. When asked by the police officer about his wife calling out to him while he was in K.'s room, M. said, "I'm not denying on that night that my wife Raellen called out "John" but I'm saying that what went on before that was a whole pack of lies. Christ she's my daughter." The jury might well have regarded this curious answer as an implied admission that he was in K.'s room that night and that his wife called out to him even though later in the interview he said: "I wasn't in her room."
Moreover, neither the layout of the house nor the presence of the other persons necessarily raises a reasonable doubt about K.'s evidence. That the second incident could occur with other people in the house not hearing it is far from an impossibility. All members of the household except for M.'s wife were some distance from the bedroom, either in the loungeroom or outside the house altogether. Between the bedroom where K. was and her stepmother's bedroom was a bathroom. Although the television could be heard from K.'s bedroom, this does not mean that her stepmother could hear what was occurring in the bedroom, given the fact that the television was on in her room.
In her statement to the police, K. had said that on the night of the first incident there had been on television a "cowboy and Indian movie a country and western type of movie". No such movie was shown on that night. At the time of the second incident, no game of tennis was being televised but K. was sure that "it sounded like [her stepmother] was watching tennis". However, when asked why she thought her stepmother was watching tennis, K. replied:
Well Rae always watched the tennis and I think she said, "I'm going to bed to watch the tennis" but I don't know, I could have been mistaken, but that's just what I heard.
There was also an inconsistency between K.'s evidence and her sister's evidence as to why Jonathon slept in the loungeroom and K. slept in his bedroom on the night of the second incident. K. said that Jonathon had expressed a wish to sleep in the loungeroom. Her sister said that he fell asleep.
Although K. had the opportunity to tell Dr. Fleming and Dr. Holloway all the details of the second incident she did not do so. Mr. Collins emphasized, for example, that Dr. Fleming was not told that K. put her legs over the shoulders of M. during the second incident. At the trial, counsel for M. told Dr. Fleming of evidence that her legs were over the shoulders of M. and asked:
A: No, there is a discrepancy between the history that I have.
However, Dr. Fleming said that she took a brief history. Dr. Holloway gave evidence that she had not been given a history that K. had been raped. Mr. Collins also drew attention to the evidence of K.'s sister who said that K. had said that "dad tried to have sex with her".
Although Mr. Collins submitted that these "discrepancies" were so grave that a reasonable jury must have had a reasonable doubt about M.'s guilt, I cannot agree that the "discrepancies" were such that a reasonable jury must have had such a doubt. K.'s mistakes as to what was on television on the two nights in question and as to why Jonathon slept where he did and the "discrepancies" in K.'s various accounts of the incidents are not a sufficient reason for concluding that the jury must have had a reasonable doubt about the appellant's guilt. Those matters say nothing about her honesty which was the principal issue at the trial. K.'s account was either substantially true or she invented it. This was not a case which turned on the degree of accuracy of the complainant's recollection.
It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.
In the present case, the jury would have undoubtedly thought that her accounts of her father's acts either were true or were wicked inventions. The jury might well have thought that the fact that she was mistaken in her recollection of what was on television or had failed to give Dr. Fleming or Dr. Holloway the exact account of the incidents that she gave in evidence was of little moment, if they believed that she was not inventing her evidence. And quite apart from her demeanour, there was much in the detail of her account that made her central allegations ring true. To take but two of many examples: K. said that, on the night of the first incident, M. had earlier come into the bathroom and said, "Hop out". K. said that, when she got out of the bathroom, M. was looking at her and was "just saying stuff like, "Wow, you've got hair down there", and he was making all jokes about me going through puberty and stuff". K. said that, during the second incident, the appellant was licking her vagina and then he looked up at her and said:
A: Mark had you didn't he? and Mark was one of my ex-boyfriends, and I thought he meant as a girlfriend, and I said, "yeah", and he said, "Where?". And he started saying like, Lake Congola, at home, here, and he was listing all these places, and I just went, "At home." And then he said, "How many times?". I said, "Once" because I'd only been out with him once. And then he said, "Why?". And then I knew what he was talking about.
Q: What did you understand at that point that he was talking about?
A: Then I understood that he meant had I had sex with Mark. So I said "Dad, we didn't go all the way" or something like that. And Dad just went, "Right". Then he got on top of me and he started to push his penis into my vagina, and he kept saying, "Lift your hips up and it won't hurt as much".
As Mr. Collins rightly insisted, a reasonable jury was bound to consider the cumulative effect of all the matters on which he relied. But even when that is done, I do not think that a reasonable jury must have had a reasonable doubt about M.'s guilt. The cumulative effect of the criticisms that Mr. Collins made of the prosecution evidence cannot be lightly dismissed even though, as I think, there was a reasonable answer to each criticism. But, as Sully J. said in the Court of Criminal Appeal, "even when looked at in their totality" they were not "so destructive of the complainant's credibility as to entail that any reasonable jury must either have rejected her outright, or have been left with an unresolved unreasonable doubt overall". Not only did the jury have the great advantage of seeing K. and M. give evidence but the jury might also have thought that it was improbable that K.'s evidence was invented.
If M. was innocent, then his thirteen-year-old daughter, for no known or plausible motive, decided to invent a story that her father had sexually assaulted her on two occasions. Having fixed a weekend visit as the scene of the first incident, she told her friend that her father had played with her breasts and kissed her with his tongue. She broke down and cried while doing so and, by chance, her sister saw her crying and later asked her why she was crying. She then repeated the allegation to her sister. She then waited until the next access visit and on the following Monday told her friend of even graver assaults. For some reason, she decided not to tell her sister of the further assaults that she had invented. Nor at this stage did she tell her mother about either incident. By chance, her friend suggested that she should tell the school counsellor. So she did. She then repeated her lies to the counsellor, to welfare and police officers, to doctors and to her own mother. Eighteen months later she completed the course of deception that she had embarked on in September 1990 by telling a jury of the sexual assaults that she had invented. She supported her allegations with a wealth of detail concerning statements and actions of her father that made her evidence sound true. So confident was she that her lies would be accepted that she even claimed that her father had had penile intercourse with her even though she knew that she was a virgin.
A reasonable jury might well think that it was unlikely that a thirteen-year-old girl, with no known or plausible motive, could tell such a detailed story of sexual assault and maintain it as well as she did unless the events which she related in evidence were substantially true. If she created a favourable impression in the witness box, as she obviously did, and if M.'s demeanour did not impress the jury, how can it be said that on all the evidence a reasonable jury must have had a doubt about his guilt?
One final matter needs to be mentioned. In cross-examination, K. said that it felt like complete penetration had occurred. I think that, having regard to Dr. Fleming's evidence, the jury were entitled to act on the basis that a reasonably full degree of penetration had occurred, notwithstanding the state of K.'s hymen or her statement to her sister that M. had "tried" to have intercourse with her. The jury were not bound to prefer K.'s sister's recollection of what was said to her in preference to K.'s evidence. Her sister made it plain in her evidence that she did not really want to hear the allegations against her father and that after she was told she "just blocked everything out".
But even if the jury concluded that "complete" penetration had not taken place, they were entitled to convict on the charges of sexual intercourse if they thought that some penetration of the vagina had occurred. At common law, the slightest degree of penetration of the female genitalia was sufficient to constitute rape [68] . It was not necessary on a charge of rape at common law to prove penetration of the vagina itself. In Holland v. The Queen [69] , however, a majority of this Court said that s. 61A of the Crimes Act which, at that time, defined "sexual intercourse" to mean "sexual connection occasioned by the penetration of the vagina of a person by any part of the body of another person", required penetration of "the female organ consisting of the membranous passage or channel leading from the uterus to the vulva". That decision is applicable in the present case because the appellant was charged with offences to which the then definition in s. 61A applied.
However, even if the jury thought that K.'s agreement in cross-examination that it felt like "complete penetration" was mistaken, they were reasonably entitled to conclude that some degree of penetration of her vaginal canal had occurred. She gave evidence-in-chief that "he started to push his penis into my vagina" and that he "finally like took it out". She also told Nicole that she didn't think that she was a virgin any more. Upon this evidence and that of Dr. Fleming, the jury were entitled to be satisfied that vaginal penetration had occurred even if they thought that K., in her inexperience, was in error in claiming that it felt like complete penetration. Moreover, the degree of penetration does not seem to have been an issue at the trial. In his summing up, the learned trial judge said:
The accused's counsel finally, I think, said that although different verdicts were possible, and I have dealt with this already, it is not likely in this case that you come to different verdicts; if you come to one verdict in respect of one matter, it is likely that you will, although you are obliged to consider each matter independently, it is likely that you will come to a verdict one way, in one count, because you have come to a certain conclusion about the reliability of the evidence of either the witness, [K.], or the accused; or the doubt that you have about the witness, [K.]. And if that is the case, you will likely do the same thing in respect of each matter. This passage indicates that the case was fought at trial level on an all or nothing basis. If the jury believed that M. had sucked the breasts of K. or licked her vagina or inserted his finger, then no doubt counsel for M. reasoned that the jury would also believe her account of the penile intercourse. Arguments concerning the degree of penetration were obviously seen as not worth putting particularly since such arguments were inconsistent with M.'s case that the allegations had no substance whatever. Moreover, only one of the five charges concerned penile sexual intercourse. Even if the intact state of K.'s hymen made it unsafe to convict M. of penile intercourse, it does not mean that the other two charges of sexual intercourse are unsafe. Those two charges arose out of K.'s evidence that M. had inserted his finger and his tongue into her vagina.
The appeal should have been dismissed in my opinion because an independent assessment of the evidence does not establish that a reasonable jury must have had a reasonable doubt about M.'s guilt.
Solicitors for the appellant, Back Schwartz Vaughan . Solicitor for the respondent, S. E. O'Connor , Solicitor for Public Prosecutions (N.S.W.) .
M
The Queen
Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court against convictions be allowed and that the appellant's convictions be quashed and verdicts of acquittal entered.