Behan v The Queen [2000] WASCA 204

"D" v R [2000] WASCA 137

Deriz v R [1999] WASCA 267

M v The Queen (1998) 104 A Crim R 154

Melbourne v The Queen [1999] HCA 32; (1999) 73 ALJR 1097

Nestorov v R [1999] WASCA 303

Osland v R [1998] HCA 75; (1998) 73 ALJR 173

R v Podirsky (1989) 43 A Crim R 404

Ugle v R [1989] HCA 55; (1989) 167 CLR 647

Wedd v The Queen [2000] WASCA 273

1 WALLWORK J: I have read the reasons for judgment of Justice Miller.

2 I agree with his Honour that the relevance of complaint evidence is in relation to the credibility of the complainant and that the failure of a trial Judge to give the correct direction in that regard will generally result in a conclusion that the appellant may have lost a chance of acquittal fairly open to him.

3 I also agree with his Honour's conclusions concerning the directions in this case as to the alleged lie told by the applicant in relation to the question of penetration. The applicant had attempted to explain to the interviewing officer what the true situation had been. I agree with Justice Miller that the first and foremost consideration for the jury would have been to determine whether or not the applicant had in fact lied when interviewed by the police as contended for by the prosecution.

4 I further agree with Justice Miller that there was a need in this case for the learned trial Judge to direct the jury in connection with the difference between the evidence of the complainant that she had told her husband that "he raped me" and her husband's evidence that the words initially used by the complainant had been "I think I've been raped".

5 In Leary v The Queen [1975] WAR 133 at 137, Jackson CJ said:

"It is probably true that not each matter raised in the grounds of appeal would call for the conviction to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial, as a whole, has miscarried: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331; (1970) ALR 727."

6 In this case I think that these words of Jackson CJ apply to the errors to which I have referred and that the conviction in this case should be set aside.

7 I agree with Justice Miller that the appropriate orders are to allow the appeal against conviction, quash the conviction and order that the applicant be re-tried in the District Court at Perth on the third count in the indictment.

8 MURRAY J: In this matter I have had the considerable advantage of reading in draft the reasons for judgment to be published by Miller J. They enable me to reduce in length what I would otherwise have written.

9 As to the ground of appeal against conviction concerned with the direction given by the trial Judge about the onus and burden of proof, I wish to add some observations. The ground complains that the direction given by the trial Judge was not in the terms envisaged by Brennan J, as he then was, in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515. Miller J has set out the relevant passage. For the Crown it was put, on the contrary, that the directions given by his Honour did satisfy those requirements and for that reason the ground should not be upheld. Whilst senior counsel reserved for a future occasion an argument that there was no requirement of law to give such a direction, no such argument was presented on this occasion.

10 Liberato is certainly not a happy vehicle from which to distil any refinement of legal principle in respect of the directions to be given in a criminal case about the onus and standard of proof. The majority, Mason ACJ, Wilson and Dawson JJ, did not deal with any such issue. Their Honours confined themselves to the proposition, for which the case is authority, that the High Court is not to be regarded as a final Court of Criminal Appeal and it will not grant special leave to appeal in criminal cases unless some point of general importance is involved which, if wrongly decided, might interfere with the administration of criminal justice. It may be that in that regard later statements by the court would require that proposition, put broadly in those terms, to be qualified, but that is not to the point.

11 Brennan and Deane JJ, the other members of the court, would have granted special leave to appeal. Their Honours noted that in that case, on a number of occasions, the trial Judge in his directions to the jury had effectively reversed the onus of proof. Their Honours regarded that to be, as undoubtedly it is, an error of a fundamental kind effectively vitiating the trial process and preventing the application by a Court of Criminal Appeal of the proviso that, despite there being found a point which would cause an appeal to be allowed, the appeal will be dismissed if no substantial miscarriage of justice is thought to have occurred.

12 In discussing that question, Brennan J referred to the directions of the trial Judge which discussed the opposing stories of prosecution and defence witnesses and effectively invited the choice between the opposing stories rather than causing the jury to concentrate on the question whether the Crown had proved its case beyond reasonable doubt. In that context it was clearly important, as Brennan J remarked, that the jury should be directed that if they did not believe the defence evidence, but preferred to accept that given by witnesses favourable to the prosecution, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they did accept. Further, if the jury did not positively disbelieve the evidence consistent with innocence, then although that evidence was not positively accepted, it might still give rise to a reasonable doubt.

13 In the judgment of Deane J, the error made by the trial Judge was embodied in the observations which effectively reversed the onus of proof. In the end his Honour concluded, at 519 - 520, that although it might well be the case that the orthodox directions given by the trial Judge in respect of the onus and burden of proof would have prevailed, the jury might have been confused into taking the view that their task was essentially one to choose between the evidence which supported a verdict of guilty and the evidence which was consistent with a verdict of not guilty.

14 In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof.

15 Latham v The Queen [2000] WASCA 57; 1 December 1999, was a case not unlike Liberato where the Crown conceded that remarks comparing conflicting testimony were wrong in law because they suggested that the evidence of the accused could not be accepted unless the jury were satisfied beyond reasonable doubt of his credibility and reliability. The error thus involved is patent and it was in that context that the remarks of Malcolm CJ, to which Miller J refers, were made. The error of the trial Judge was in the confusion potentially engendered in the minds of the jury by the later remarks which might have had the effect of qualifying in an erroneous way the otherwise correct directions given. In my view, again, his Honour was not, in reliance upon Liberato, laying down any particular mode of direction to be followed in all cases.

16 Finally, Middleton v The Queen [2000] WASCA 200; 2 August 2000 was again a similar case where it was seen that the trial Judge had made positive errors in his directions on the onus and burden of proof, inviting the jury to consider whether the defence case was that the complainant and another prosecution witness had perjured themselves, thereby adversely affecting the direction that the jury must be satisfied of guilt beyond reasonable doubt upon the whole of the evidence which they accepted. Again the existence of the error was conceded by the Crown and in the course of his Honour's judgment, with which Kennedy ACJ and Wallwork J agreed, Miller J referred to Liberato and the judgment of Malcolm CJ in Latham.

17 In my respectful opinion the nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by prosecution and defence, and the way in which that evidence is discussed, if at all, and commented upon by the trial Judge. The essential feature of the direction must of course be that the jury are given to understand that the Crown bears the onus of proof beyond reasonable doubt of all those facts essential to be established if a verdict of guilty is to be returned. That may be all that is required, together with an identification of those essential facts. In a circumstantial evidence case, there must clearly be a gloss upon the direction which adverts to the drawing of an inference of guilt, and that in its turn may require elaboration by reference to intermediate facts which should not be found by the jury to be established unless no other inference is reasonably open but that those facts exist: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. Again the precise content of the direction will depend upon the particular circumstances of the case and the way in which the trial Judge develops the matter in the directions given to the jury.

18 This, as counsel for the applicant put it, was substantially a case of oath against oath. While the evidence of Dr Lincoln was capable of supporting the conclusion that there had been digital or penile penetration of the complainant's vagina, there appears to have been little in her evidence capable of supporting a conclusion that such penetration occurred without the complainant's consent. Upon the whole of the evidence it was clearly open to find that there were two acts of penetration and, as the indictment charged the offences, the act of digital penetration conceded by the applicant preceded the act of penile penetration. The issue was clearly one of consent, although upon the complainant's evidence, there might, at least to the point where upon her evidence she commenced to scream "no" and cry, have been a further issue (which was left to the jury), whether the applicant was established beyond reasonable doubt not to have had an honest and reasonable, although mistaken, belief that the complainant consented, even though in fact her consent was found not to have been given.

19 The trial Judge at an early stage of his directions gave a direction about the onus and standard of proof about which there is, and could be, no complaint. The remarks of which complaint is made, quoted by Miller J, occur later in the charge when the evidence of the complainant and the applicant was reviewed. To my mind, what the trial Judge said at that point involves no positive error of law and was not capable of confusing the jury about the onus or standard of proof by detracting from the directions previously given clearly and correctly.

20 In the light of the evidence given, it was clear that the two stories could not stand together. If the evidence of the applicant was positively accepted, then it followed that the complainant's evidence must be rejected and acquittal of all charges must follow because non-consent could not be established and mistake could not be negated. If the jury were left undecided whether to accept as a truthful and accurate account what the applicant had said in relation to all or any of the charges before the court, again it would follow that the jury must be left with a reasonable doubt upon the issue of non-consent or honest and reasonable belief in consent. On the other hand, if the jury rejected the evidence of the applicant in respect of all or any of the charges before the court, it would be open to them to consider with respect to that charge whether the complainant's evidence was both truthful and accurate, and whether, upon that evidence, if the jury accepted it, they were satisfied of non-consent and that the accused did not have an honest and reasonable, but mistaken, belief in consent.

21 In my opinion, bearing in mind the directions given earlier by the trial Judge and that his Honour then told the jury that when he spoke of them being satisfied about any fact, he meant satisfied beyond reasonable doubt, that was the effect of the remarks of which complaint is now made. With respect to the contrary view, I would not uphold this ground of appeal.

22 I respectfully agree with what Miller J has written about the grounds concerned with the directions in respect of the evidence of recent complaint. It is, of course, clear that such evidence is exceptionally admissible only with respect to the question of the credibility of the complainant: Reppas v The Queen (1998) 20 WAR 178. This was a case which turned almost entirely upon the resolution of issues of credibility. When the trial Judge told the jury that the evidence went to the consistency of the conduct of the complainant with her evidence in the witness box, they may have understood that the purpose of considering that question related to the complainant's credibility, but that is speculative and the jury may simply have been confused, considering the question of consistency of conduct without understanding where that might lead in terms of their overall judgment about the facts of the case.

23 The potential difficulty is, to my mind, highlighted by the fact that the evidence of the complainant and her husband as to what was said to him by way of complaint was different. We were told that when the husband gave evidence, what he said took defence counsel by surprise and so it had not been put to the complainant that what she said to her husband was that she thought she had been raped, rather than that she complained immediately and initially that she had been raped. The issue was not confined to the question of penetration, which was conceded by the applicant. It related to the clarity of the complainant's perception of what had occurred and the accuracy of her recollection as given in evidence.

24 In the circumstances I agree that this was a matter about which the jury should have been reminded in the course of the directions given about the evidence of recent complaint. In my opinion the fact that the direction was incomplete in this regard, together with the fact that the direction did not highlight the relevance of the evidence of recent complaint to the issue of the complainant's credibility, has the result that the applicant may have been deprived of the opportunity to have the effect of this evidence upon the complainant's credibility fully considered. He thereby lost a chance of acquittal and I would uphold these grounds.

25 I turn now to the ground concerning the direction of the trial Judge with respect to the evidentiary value of a lie said by the Crown to have been told by the applicant when interviewed by the police. Miller J has set out the relevant portion of the direction given by the trial Judge. I agree, with respect, with what Miller J has written on this issue. To my mind, although the trial Judge gave a direction which was clearly based upon, and included the elements required by, the decision in Edwards v R [1993] HCA 63; (1993) 178 CLR 193, and although his Honour at times said that it was the contention of the prosecution that the applicant had told a lie that there had been no penile penetration of the complainant's vagina, the crucial point of difficulty arises out of the observation by the trial Judge that:

"To be capable of being evidence which can be used as tending to support an inference of guilt you would have to be satisfied that the untruth was a deliberate untruth. The accused person of course gave explanations in the witness box as to why his account to the police officers was inconsistent with his evidence."

His Honour, the trial Judge, went on to refer to the applicant's evidence at trial in respect of this issue. Miller J has set out the exchange between the investigating police officer and the applicant and the cross-examination of the applicant with respect to it.

26 His Honour the trial Judge does not appear to have put to the jury that they needed first to be satisfied that the statement relied upon by the Crown was made and was an untrue statement. That seems to have been assumed and then in my view, his Honour increased the difficulty because although he put to the jury that they would need to be satisfied that the untrue statement was a deliberate lie, ie, that the applicant knew it was untrue when the statement was made, his Honour immediately moved to the question of what explanation consistent with innocence there might be for the telling of that obviously material and important lie, if such it was.

27 By speaking of the applicant's explanation in the witness box for the inconsistency between his evidence and the prior out of court statement, there was a danger, in my opinion, in the way that was done that the jury may have been unwittingly led to the view that there was no real issue about the making of the statement, and that it was a deliberate lie, the real question being whether it might be relied upon in support of the complainant's evidence as revealing a consciousness of guilt in relation to the offence of which the applicant was convicted, or whether there might be some explanation for the lie which would be consistent with the applicant's innocence of that offence.

28 In addition to those matters, however, I would wish to make a further point. It would seem to me that the statement in question was incapable of supporting a direction of the kind expounded by the High Court in Edwards. As can be seen from the questions and answers which Miller J has set out, the police officer first asks whether the applicant had sexual intercourse with the complainant. He denies that he did so. It is to be borne in mind that at trial the applicant's evidence was of a degree of penetration of the most transitory kind. He said that as soon as penetration occurred he immediately removed his penis because he did not have a condom and he felt uncomfortable at the notion of unprotected sexual intercourse.

29 His evidence was that while he was content to accept and participate in sexual activity, he never proposed to have sexual intercourse with the complainant in the full sense of that term. Immediately following the questions and answers set out by Miller J, the applicant is seen to be asked about ejaculation onto the complainant's stomach. He told the police that he did not think he had ejaculated, but he readily agreed that inserted his finger into her vagina. He referred to the complainant as being an active participant in sexual activity, but told the police when asked about digital penetration of her vagina that, "we were just fondling, but I didn't want sexual intercourse."

30 As can be seen from the applicant's answers under cross-examination, the applicant insisted that the police had asked him "about sexual intercourse" with the complainant and he repeated, "I did not have sexual intercourse with her." He said that was how he understood the question about penile penetration and indeed it was a double barrelled question, "Is it the case that you did penetrate [the complainant's] vagina with your penis and had sexual intercourse with her while she was laying on the couch almost asleep?" To that question he answered, both while it was being asked and immediately afterwards, "No. Definitely not."

31 In my opinion, on this evidence it was not open to assert that the applicant had made the statement to the police that he did not penetrate the complainant's vagina with his penis. His denial may equally well have been, as he himself said, that he had sexual intercourse with her. That he did not volunteer that he had in the circumstances described in his evidence, upon his account, briefly penetrated the complainant's vagina with his penis, did not establish that he made the statement relied upon by the prosecution, let alone that it was a deliberate lie. That is not to say that the prosecution could not invite the jury's attention to the content of the video interview to support comments upon the credibility of the applicant, but to my mind the material had not the clarity and cogency required to support a direction by the trial Judge based on Edwards.

32 I accept that where the evidence is capable of raising the issue of the evidentiary value of a lie told by the accused out of court or in evidence, it should be left and the trial Judge should give the appropriate direction based on Edwards: cf Van Den Hoek [1986] HCA 76; (1986) 161 CLR 158. Whether that was done or not would depend upon whether the evidence was capable of raising the matter, not upon whether the prosecution relied upon such a contention. But it follows that where the evidence is not capable of raising a lie which may amount to corroboration of the complainant's evidence, the matter should not be left: Edwards per Deane, Dawson and Gaudron JJ at 213. As was the view of the majority in that case, this was to my mind a case where it was not possible to regard the impugned statement as involving a deliberate lie which could be precisely identified.

33 For those reasons I consider that the third ground of the application should be upheld. In my opinion the trial Judge erred in leaving to the jury the issue of the evidentiary value of a lie told out of court by the applicant as being corroborative of the complainant's evidence.

34 The question whether the verdict of the jury convicting the applicant of the third count on the indictment, the penile penetration of the complainant without her consent, was unsafe or unsatisfactory, is essentially an argument about inconsistency of that verdict with the acquittal on the first count and the inability to reach a verdict on the second count. I agree with Miller J that, having regard to the accepted tests to which his Honour has referred, there is no basis upon which this Court might reach the conclusion that the conviction should be quashed upon such a ground. Nor do I think there is merit in the complaint that there was a misdirection by the trial Judge in the way his Honour corrected his original observations about the evidence of Dr Lincoln. I have nothing to add to the reasons of Miller J in those respects.

35 Finally, although I would grant leave to appeal and allow the appeal, quashing the conviction, I too would order a new trial of the third count in the indictment. As the case was conducted below, the issue presented to the jury as central to their determination of the case was very much the proof of non-consent or the negation of an honest and reasonable, but mistaken, belief in consent. The resolution of those questions revolved around the decision of the jury upon the credibility of the complainant. The errors in the directions of the trial Judge which I have identified, were concerned particularly with the complainant's credibility as well, incidentally, as with the issue of the credibility of the applicant once he elected to give evidence. Such questions being very much within the province of the jury, it seems to me to be only just that they be again placed before a jury and I think to order a new trial involves no injustice to the applicant. If the complainant is accepted to be a credible witness, there is no doubt that her evidence is capable of establishing the lack of consent to the penile penetration and the absence of a mistaken belief in consent.

36 It is argued for the applicant that a new trial should not be ordered because, although no question of a directed verdict of acquittal was raised at the first trial, the complainant's evidence, although capable of establishing two separate acts of penetration of her vagina, was not capable of establishing whether they were acts of penetration by a finger, penis, one of each, or some such object, and the evidence of Dr Lincoln was certainly incapable of resolving the uncertainty. The argument begs

the question whether it is open to prove an offence of sexual penetration by proving penetration of the vagina in a manner which must fall within par (a) of the definition of sexual penetration contained in the Criminal Code, s 319(1), although it is not possible to say precisely what part of the body of the accused or what object manipulated by the accused was used to achieve the penetration. To my mind it would be open to prove sexual penetration in that way and that was what occurred on the prosecution evidence in this case, but I think it is unnecessary to finally resolve the question for present purposes.

37 As I have said, the applicant went into evidence at the first trial and conceded acts of digital and penile penetration of the complainant's vagina in that order. It would be open to the prosecution at a new trial to prove those admissions as part of its case. In my opinion, to do so, in the circumstances, would not constitute a process involving unfairness to the applicant by permitting the prosecution at a new trial to repair a crucial omission in the presentation of its case at the first trial. For those reasons I agree that a new trial should be ordered.

38 It follows that it is unnecessary to address the issues raised in the application for leave to appeal against sentence and in my opinion, it is undesirable that the court should offer any obiter comment upon the sentence passed. That application for leave to appeal should simply be dismissed.

39 MILLER J: The applicant was tried before a Judge and jury in the District Court of Perth on 5 July 2000 on an indictment which alleged three counts. The first was an allegation that on 16 April 1998 at Lockridge he unlawfully and indecently assaulted the complainant touching her breasts; the second, an allegation that on the same date and at the same place he sexually penetrated the complainant without her consent by penetrating her vagina with his fingers; the third, that on the same date and at the same place he sexually penetrated the complainant without her consent by penetrating her vagina with his penis. On 10 July 2000, the jury convicted the applicant on the third count on the indictment but acquitted him on the first and was unable to reach a verdict in relation to the second. The applicant was sentenced to imprisonment for 5 years in respect of the conviction recorded on the third count.

40 The applicant seeks leave before this Court to appeal against conviction and sentence. The grounds of appeal against conviction are numerous, but, in essence, contend that (1) the learned trial Judge erred in failing to give to the jury a "Liberato direction"; (2) the learned trial Judge

erred in his direction to the jury as to the use to be made of complaint; (3) the learned trial Judge erred as a matter of fact in a direction given as to the import of the evidence of Dr Lincoln; (4) the learned trial Judge erred in law in failing to adequately direct the jury in relation to the use to be made of alleged out-of-court lies on the part of the applicant; (5) the verdict of conviction on the third count of the indictment was unsafe and unsatisfactory because the verdicts in relation to the first two counts on the indictment demonstrated that the jury "had not accepted the complainant as a credible or reliable witness; there were inconsistencies in relation to the testimony of the complainant; and the complainant had at trial given no evidence whatever of penile penetration".

41 The grounds of appeal against sentence contend that the sentence was excessive having regard to sentences customarily imposed for offences of a similar nature; the circumstances of the offence put the conduct in question at the bottom end of the scale of offences of this type; and by reason of the antecedents of the applicant. At the hearing of the appeal, the application for leave to appeal against sentence was adjourned pending the determination by this Court of the appeal against conviction.

42 The complainant was a 26-year-old woman who resided in Lockridge and who was separated from her husband. Through a telephone introductory service known as Introline, the complainant made contact with the applicant during April 1998. There was considerable conversation between them on the telephone before arrangements were made for the applicant to visit the complainant on the night of 16 April 1998. The applicant arrived at the complainant's residence with a quantity of alcohol and other goods. They drank bourbon and watched "X Files" on television. They also discussed various aspects of their lives, but according to the complainant, she did not find the applicant attractive. There was discussion about massage and the applicant offered to massage the complainant's back which had been a source of trouble to her in recent times. At the applicant's suggestion, the complainant went to her bedroom and removed her underwear. This was to facilitate the proposed massage. When she returned, she claimed to have sat on a single chair whilst the applicant was seated on another and the next thing she remembered was pain in her vagina. She was then lying on a couch in the lounge room but had no idea how she had got onto that couch. She claimed that the applicant was over the top of her, stroking her breast and penetrating her with something which caused her pain. She did not know whether it was his hand which was penetrating her. In fact she did not know what it was. She claimed that she had never given any indication that she wanted the applicant to have any physical contact with her and, more specifically, did not wish him to touch her on the breast or penetrate her vagina. She contended that she was screaming "no" and crying but the applicant did not desist. She said that the pain in her vagina stopped for a short time, then recommenced and then stopped. She did not know what had caused the pain in her vagina and said it could have been anything. More particularly, it could have been the applicant's penis or it could have been his hand. Shortly afterwards, the applicant ejaculated onto her stomach and she removed herself from the couch and went to her room where she lay on the bed next to her children and went to sleep. When she eventually woke up, she was sick. She showered, dressed and then rang her husband. When her husband arrived, she told him that the applicant had raped her and although she did not personally want the police involved, her husband called the police.

43 The complainant's husband testified that when he arrived at his wife's house, it was about 1.15 am. His wife was sitting in the carport on a stack of paving stones and was curled up upset and traumatised. His wife told him that she "thought she had been raped" and when asked to clarify the matter eventually said that she had in fact been raped by a person called Simon. Police who attended the scene testified as to the complainant's appearance and as to the complaints she made about what had occurred. There was medical evidence from a Dr Catherine Lincoln who, at about 5.30 am on 16 April 1998, examined the complainant. Relevantly she had a recent scratch on one buttock and increased reddening of the inner aspects of the labia majora and minora (the inner and outer lips of the vagina). There was also increased reddening of the posterior fourchette (the area just behind the vaginal opening) and a red mark on the upper left side of the posterior vaginal wall. There were clear whitish secretions in the high vagina. The mark in the posterior vaginal wall was considered by the doctor to be suggestive of a bruise in that area which could be the result of blunt trauma caused by either digital or penile penetration.

44 The applicant testified in his defence. He stated that after meeting the complainant via the Introline service, he arrived at her house on the night in question where he found the complainant to be receptive. They drank a quantity of bourbon and watched television, but according to him there was no invitation to a massage and no suggestion that the complainant should remove her underwear for that purpose. The applicant did, however, say that at one stage of the evening the complainant came into the room in circumstances where he became aware that she was wearing no underwear. It was she who suggested that the applicant should give her a massage and, according to his evidence, she sat on the higher part of the single chair in which the applicant was seated and thereafter they began kissing and touching each other. He said that he put his hand on the complainant's breasts which "excited her" and that she was rubbing his penis from outside his pants. According to him, at no time did the complainant tell him to stop. He put his hand under the complainant's skirt, rubbed her vagina and noticed she had no underwear. He thereafter put part of his hand in her vagina in response to which he claimed she said, "You can do what you please with me." He contended that she had left the room and come back totally naked whereupon she lay on the three-seater lounge and invited him to "do what he liked". He stated that he had again penetrated her vagina with his fingers and when she sat on him, he felt his penis penetrate her vagina following which he removed it immediately because he did not have a condom and because he felt "very uncomfortable". He claimed the complainant was sexually aggressive. Thereafter, the applicant stated that he had left the room and when he returned, the complainant behaved strangely, getting up from the settee and walking straight out of the room. He found her in a bedroom but she appeared to be sleeping and he left the house.

45 In Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, Brennan J (at 515) said:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commmonp1ace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknow1edging that the question whom to believe is "a gross simplification".

46 Deane J agreed with the reasons for judgment of Brennan J, and can be taken to have agreed with the passage quoted. Mason ACJ, Wilson & Dawson JJ refused special leave in the case, whilst acknowledging that there were defects in the summing up by the trial Judge. Their Honours were not prepared to interfere with the view of the Court of Criminal Appeal that despite the inadequacies of the summing up, there had been no miscarriage of justice.

47 The direction proposed by Brennan J in Liberato v The Queen has been accepted in this Court as a necessary direction in a case which turns on the conflict between the evidence of a prosecution witness and that of a defence witness. In Latham v The Queen [2000] WASCA 57, Malcolm CJ [at 11] pointed out that no specific direction had been given in the particular case that even if the jury positively disbelieved the accused, they still could not convict him unless the Crown had satisfied them of the appellant's guilt beyond a reasonable doubt. His Honour repeated this at [13]. In fact, the statement of "Liberato direction" by Malcolm CJ is somewhat stronger than that which was formulated by Brennan J in that case. What Brennan J said was that the jury must be told "even if they do not positively believe the evidence for the defence" they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt as to that issue. It may be that in the end not a great deal turns on the distinction.

48 In Middleton v The Queen [2000] WASCA 200, I pointed out that in the particular case under review, the learned trial Judge had in a case of conflict between the evidence of a complainant and accused failed to direct the jury in accordance with the approach "so clearly put by Brennan J in Liberato v The Queen", such failure constituting a fundamental error in the trial process.

49 It can therefore be taken that it will be necessary in cases which turn on a conflict between the evidence of a prosecution witness and that of a defence witness to tell the jury that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt as to that issue. This was just such a case. The evidence of the complainant was diametrically opposed to that of the applicant in relation to the events which occurred in the lounge room at her home. Because the applicant had testified that he had penetrated the vagina of the complainant first with his hand and later (albeit shortly) with his penis in circumstances where she was a willing participant, it was particularly important that the jury be told that even if they did not positively believe the evidence of the applicant, they could not find against him on the issue of consent if the evidence of the applicant gave rise to a reasonable doubt on that issue.

50 Although the learned trial Judge dealt with the manner in which the jury might consider the evidence of the complainant on the one hand and the evidence of the applicant on the other, his Honour's directions fell short of the requisite Liberato direction. What his Honour said was:

"Now, as I have said to you, members of the jury, in the circumstances it's not necessary for me to canvass the evidence in any more detail. What I must say is that plainly you need to appreciate that your decision involves more than simply deciding whether you believe the complainant or the accused person. Obviously in the first place, if you believe the accused person, it would follow that he would be entitled to be acquitted.

Secondly, if you were left with a reasonable doubt as to whether or not the accused person was telling the truth in relation to the evidence given by him from the witness box then once again it would follow, I think, that he would be entitled to be acquitted in relation to each of the three charges because it would follow that the crown had not satisfied you beyond reasonable doubt in relation to that particular charge.

The third situation, members of the jury, is before you would be in a position to find the accused person guilty of a particular charge you would need to be satisfied not only that the complainant was a truthful evidence - in the sense that you believed what she told you but you would need to be satisfied in relevant respects about the accuracy and, hence, the reliability of the complainant s evidence.

It would follow from that, of course, that if you were satisfied that the complainant's evidence was reliable, that she was touched or penetrated without her consent in relation to a particular count, it would follow that you would have to be satisfied that the accused person's explanation in evidence was untruthful, and you would then need to consider whether or not the crown had satisfied you as to each of the elements and had satisfied you that the accused person did not have any honest and reasonable but mistaken belief."

51 The second proposition put by the learned trial Judge is as close as his Honour got to the requisite direction, but it was clearly inadequate. The third proposition put by his Honour actually ignores the content of the Liberato direction, as it mistakenly suggests that if the jury was satisfied that the complainant was truthful and reliable, it would follow that they would be satisfied that the accused person's explanation in evidence was untruthful and (unless the Crown had satisfied the jury that honest and reasonable but mistaken belief was not made out), the accused person would necessarily be convicted. What is wrong with this direction is that it overlooks the possibility that the jury may have considered the complainant generally truthful and reliable and may not have positively believed the account of the accused person but, nevertheless, been left with a reasonable doubt on the central issue of consent. It is precisely because of this possibility that the Liberato direction is so important. I am therefore of the view that the learned trial Judge's failure to give the necessary direction caused a fundamental irregularity in the trial process.

52 Counsel for the applicant argued that when the learned trial Judge directed the jury on the question of honest and reasonable but mistaken belief, there should also have been a separate direction that even if the jury did not positively believe the evidence of the accused, they could not find that there was no honest and reasonable mistake by him if that evidence gave rise to a reasonable doubt in their minds on that issue. Whether such an additional direction was required, it is unnecessary to decide. A proper direction in accordance with Liberato may well have been sufficient, but as it was not given, the trial has, in my view, fundamentally miscarried.

53 The evidence at trial in relation to complaint made by the complainant immediately after the event was that given by her husband and by two police officers, Georgi and Post. What his Honour said about that evidence was:

"... the law looks at what was said or alleged to be said by a complainant within a reasonable time of what was alleged to have been a sexual offence to see what was said, if anything. That is not evidence of the facts contained in any statement but it is evidence that could be looked at to see what consistency of conduct there is between what was said about the time, shortly after the time of the alleged offences, and the account given by the complainant in the witness box. That is the sole purpose for which the evidence is led and the sole purpose for which you can use that evidence. The evidence of the complainant's husband, Mr Gilbert, was led by the Crown for that purpose and you can look at that evidence for that purpose."

54 After reviewing the evidence given by the three witnesses, his Honour added:

"So the purpose of the evidence, as I say, members of the jury, is simply to enable you to compare the consistency of the conduct of the complainant shortly after the alleged events with her evidence in the witness box but it is not evidence of any facts contained in the statement."

55 The true basis upon which evidence of complaint is received in a trial of an accused of a sexual assault was stated in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 where (at 466 and 472) Barwick CJ said:

"Evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as a matter going to her credit (see Reg v Lillyman, per Hawkins J.(1); Sparks v The Queen (2).

...

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

56 It will be seen that emphasis is placed upon the importance of complaint evidence in relation to the credit of the complainant. In Reppas v The Queen (1998) 20 WAR 178, Murray J (at 184) underlined the importance of evidence of complaint in sexual cases to the credibility of the complainant:

"In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 513-514 Gaudron J said:

'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". 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, in a passage referred to by Barwick CJ in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 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".'

In such a case it is incumbent upon the trial judge to explain to the jury the limited use to which the evidence of complaint may be put: that the fact of the complaint and the particulars of the complaint are only exceptionally admissible, not as proof of the facts complained of, but as evidence relevant to the credibility of the complainant as bearing upon the consistency of that witness's conduct with the account given in evidence, including, if it be relevant, evidence of non-consent. Failure to give a proper direction or the giving of a misdirection will generally, indeed almost inevitably, result in the conclusion that the appellant may have lost a chance of acquittal fairly open in the sense in which that phrase is used in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 resulting in the conclusion that there has been a miscarriage of justice and at the same time denying the capacity to uphold the conviction upon the ground that there has been no substantial miscarriage of justice: see Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427; Jones v The Queen [1997] HCA 12; (1997) 71 ALJR 538."

57 In the present case, the learned trial Judge made no reference to the issue of credibility of the complainant. His Honour referred only to the "consistency of conduct" of the complainant, stating that this was the sole purpose for which the evidence was led. In my view, the error was fundamental and the absence of reference to the importance of complaint evidence in the context of credibility of the complainant was a fatal error in the trial process.

Directions in Relation to the Medical Evidence

58 When the learned trial Judge directed the jury in relation to the evidence of Dr Lincoln, he told them that Dr Lincoln had testified that a substance which appeared to be semen was found in the high part of the complainant's vagina. In fact, Dr Lincoln had said that there were "clear whitish secretions in the high vagina" without making any reference to semen. When this was raised with the learned trial Judge at the conclusion of his charge to the jury, it was corrected. His Honour told the jury that Dr Lincoln had identified only "whitish secretions in the higher vagina" and had not expressed any view as to the nature of those secretions. He invited the jury to disregard what he had previously told them. Although counsel for the applicant argued that the learned trial Judge should have directed the jury that they could draw no inference as to what the white secretions were, it seems to me that his Honour did all that was required of him and I can find no substance in this ground of appeal.

59 Because the Crown relied upon lies told by the applicant to investigating police officers as an indication of his consciousness of guilt, it was necessary for the learned trial Judge to give what is commonly termed an Edwards direction. That is, a direction in accordance with Edwards v R [1993] HCA 63; (1993) 178 CLR 193. What his Honour said was as follows:

"In relation to untruths told by an accused person out of court, members of the jury, obviously that would be something that would be relevant to the consideration of the evidence of an accused person as something you would consider when you came to consider the reliability of any explanation, either given out of court or given in court. In the context of a criminal trial a deliberate untruth told out of court can have an additional quality as evidence and can be evidence that can be put in the scales with other evidence tending to support an inference of guilt.

Before an untruth can have that additional quality it is necessary for you to be satisfied as to particular things, however. The particular matter which, as I understand the Crown case, is relied on is the question of what the accused person said to the police officers about his penis being in the vagina of the complainant. As I understand the crown case it is said that that was a deliberate untruth that the accused person told, that he has acknowledged in evidence that in face he did sexually penetrate the complainant albeit for a short period and albeit not deliberately but that he in effect denied to the police officers that that had occurred and that that was a deliberate untruth and that you ought consider that deliberate untruth when you consider the evidence against him.

To be capable of evidence which can be used as tending to support an inference of guilt you wou1d have to be satisfied that the untruth was a deliberate untruth. The accused person of course gave explanations in the witness box as to why his account to the police officers was inconsistent with his evidence. You will recall that he said that he had never been in that situation, that he was scared that his memory was coming and going during the questioning and that he didn't tell a lie, he simply didn't remember exactly what had occurred. Also that the question that was asked that what had occurred didn't appear to relate to the events of that particular night and that he wasn't asked particularly about this issue.

So you have to be satisfied the lie was a deliberate lie."

60 Thereafter, the learned trial Judge directed the jury in accordance with the standard Edwards direction. What is complained, however, is that the learned trial Judge assumed the fact of the applicant having told lies in relation to the question of penetration of the complainant when in fact that was an issue to be determined by the jury. In other words, the learned trial Judge should have invited the jury to determine first whether the accused person had told a lie at all before instructing them as to the need to be satisfied that a lie, if told, was a deliberate lie: Edwards v The Queen (supra) per Deane, Dawson and Gaudron JJ at 208.

61 During the course of a video-recorded interview between investigating police and the applicant, the following exchanges took place:

"Question: 'Did you have sexual intercourse with her?'

Answer: 'No.' ...

Question: 'Okay. Is it the case that you did penetrate Caroline's vagina with your penis and had sexual intercourse with her while she was ...?'

Answer: 'No.'

Question: '... laying on the couch almost asleep?'

Answer: 'No. Definitely not'."

62 When cross-examined about the answers given in the record of interview, the applicant vehemently denied that he had lied to police:

"You were telling the truth to the police, weren't you?---Yes, I was.

The whole truth?---Yes.

You didn't leave anything out?---As far to my recollection, no.

You forgot about the penis in the vagina, though, didn't you, when you were talking to the police?---I was extremely scared. I have never been a situation like that where I have been interviewed and asked all these questions. My memory was coming and going. It's just too hard to remember.

Well, you told us just a few minutes ago that that was a very significant event for you during this evening; didn't you?---Yes.

So why did you forget about it? Do you know?---I was very scared over the situation.

So you lied, did you, to the police?---I didn't lie. It just didn't come to my memory at the time.

You were asked, weren't you?---I wasn't asked.

What, whether you put your penis into her?---No. I was asked about sexual intercourse with her.

But you didn't think at that stage, 'But I think I should mention that in fact, yes, my penis did go into her vagina'?---I got asked if I had sexual intercourse. I did not have sexual intercourse with her.

So you being asked about sexual intercourse in this sort of scenario you thought, 'Well, they're not asking me just whether my penis went in'?---The question that I understood was, 'Did you have sexual intercourse' and I didn't have sexual intercourse.

So you weren't lying?---No."

63 It will be seen from this passage that the applicant did not concede the alleged lie relied upon by the prosecution. To the contrary, he contested the issue. It follows that, in my view, the learned trial Judge was obliged to put to the jury that the first and foremost consideration was to determine whether or not the accused person had in fact lied when interviewed by police as contended for by the prosecution. Unless and until the jury were satisfied that the accused man had lied, the next step (that in relation to which the jury were directed) could not be taken. That is, the jury was not called upon to consider whether or not the lie was a deliberate lie unless and until the fact of the lie was established. This, in my view, is the third fundamental error in the direction given by the learned trial Judge to the jury and, in my opinion, caused a substantial miscarriage of justice.

Whether the Verdict was Unsafe and Unsatisfactory

64 The principles upon which the Court is to consider whether or not the verdict was unsafe and unsatisfactory are clearly set out in M v R [1994] HCA 63; (1994) 181 CLR 487, particularly per Mason CJ, Deane, Dawson and Toohey JJ at 493-494. The test there formulated was restated as authoritative in Jones v R (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 452. It is unnecessary to repeat those passages.

65 Although it was argued in this case that the jury's conviction of the applicant on the third count on the indictment was inconsistent with the verdict of acquittal on the first count and the inability to reach a verdict on the second count, the question is whether the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion in question. If there is a proper way by which this Court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion must be accepted. If there is some evidence to support that the verdicts are said to be inconsistent, it is not the role of this Court, upon this ground, to substitute its own opinion of the facts for one which was open to the jury: MacKenzie v R (1996) 190 CLR 348 per Gaudron, Gummow and Kirby JJ at 366-367.

66 In my view, the evidence was such that the jury could easily have considered that the evidence on the third count was much more cogent than it was in relation to the earlier counts. The essence of the complainant's testimony in chief was as follows:

"Where was the accused, Simon?---He was over the top of me.

What was he doing?---He was stroking my breast and penetrating me with something.

What did it feel like?---Hurt.

Are you able to say what you were being penetrated by?---It could have been his hand. I don't know.

How were you feeling at that stage?---Hurting, pain.

Up to that point had you given the accused any indication that you wanted him to have physical contact with you in that way?---No.

Touching your breast?---No.

Penetrating your vagina?---No.

Did you want him to do that?---No.

Did you do anything?---No.

Did you say anything?---No. I was screaming, 'No,' and crying. Then I said, 'No," again. It wouldn't stop hurting."

"When he was touching your breast you didn't say anything? Correct?---No, I didn't.

You didn't tell him - - -?---I don't know why.

You didn't tell him to stop?---No, I was scared.

You didn't try and get up?---I couldn't move.

Did you try?---Of course I tried.

Did you tell the police you tried?---I don't know."

68 It will be seen immediately that the effect of the cross-examination was such that the jury could well have been left with a reasonable doubt as to whether or not the complainant had in fact objected in any way to being touched on the breast. This would account for the verdict of acquittal in relation to the first count.

69 As to the second count, the evidence-in-chief of the complainant was somewhat uncertain as to what it was that penetrated her vagina. She said:

"Can you just describe what was happening at that stage?---Simon was over the top of me.

Was that position different to the position that he had been in to begin with?---I don't know.

What was happening?---Just pain.

Whereabouts?---In my vagina.

Are you able to tell the jury what was causing that pain on that occasion?---I don't know what it was. His hand. It could have been anything. It could have been his penis, it could have been his hand.

How long did that second lot of pain go on for?---I don't know.

What were you doing?---I was lying there crying and saying no. Then I said I wanted my babies.

Where were you when you said that?---Still on the couch.

Where was he?---Still on top of me.

What happened then?---Then he finished.

What do you mean by that?---He came onto my stomach."

70 There was no cross-examination which went directly to the question of vaginal penetration. In fact it will be seen that the complainant's evidence was quite equivocal: she was unable to say what was happening in relation to her vagina. She did not know whether she had been penetrated by the accused man's hand or by his penis. In these circumstances there was no direct evidence from her that she had suffered penile penetration at all. Nor was there any evidence that she had been penetrated with his hand.

71 When the applicant gave evidence, he conceded penetration of the vagina with his hand (although claiming it to have been consensual) and also conceded that he had penetrated the complainant's vagina with his penis, albeit for only a very brief period of time and without intent to do so. What he said was:

"You had better explain what happened. What did she do? She was lying across you; then what did she do?---After she told me she didn't have much sex with her ex she - we started kissing again and she virtually just put her legs over the top of me on the lounge.

Facing you or - - -?---Facing me. I actually felt my penis penetrating her vagina at that stage and I pulled out immediately.

What do you mean pulled out immediately?---I didn't have a condom. I pulled out - - -

What did you mean you pulled out?---I pulled my penis out of her vagina immediately.

Did you say anything to her?---I just told her I felt very uncomfortable."

72 The appellant's confirmation of penile penetration meant there was evidence from which the jury could conclude that the complainant had been penetrated with the applicant's penis. If the jury accepted beyond reasonable doubt the testimony of the complainant as to non-consent, it was open to the jury in these circumstances to convict the applicant, notwithstanding that the complainant herself had failed to give any evidence that she had been penetrated with the applicant's penis.

73 The case is very different from that of Jones v The Queen (supra), a case in which the complainant contended that she had been sexually assaulted on three separate occasions in almost identical circumstances. They involved alleged untoward massaging by a coach of his gymnastics student who was requested to lie on a mat whilst he first rubbed her down and then inserted his penis in her vagina. Gaudron, McHugh and Gummow JJ (at 453) said:

"The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms (37) of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

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

74 In the present case, there was a good deal of confusion in the complainant's testimony, but the applicant made good any deficiency in the complainant's testimony in relation to penile penetration. The jury was entitled to be satisfied beyond reasonable doubt that he had in fact penetrated her and was entitled on the evidence to find beyond reasonable doubt that such penetration was without consent. The acquittal on the first count is explicable and the inability to reach a verdict on the second is by no means surprising in the light of the complainant's inability to say whether she was penetrated with a hand or a penis and, if so, at what point of time. The jury may have been left with a reasonable doubt as to whether if the applicant's admitted penetration of the vagina with his hand was non-consensual. I can therefore find nothing inconsistent in the verdicts reached by the jury.

75 The other complaints made by the applicant relate primarily to inconsistencies in the testimony of the complainant herself and inconsistencies between what the complainant claimed she said to her husband by way of complaint and what her husband actually testified she said. Without detailing the learned trial Judge's charge to the jury on these issues, it is sufficient to say that the general inconsistencies in testimony between the complainant and the accused were sufficiently identified. Whatever inconsistencies there may have been, the fact remains that in relation to the third count on the indictment, the applicant conceded penile penetration albeit unintentionally and briefly. The complainant's testimony was that she had at no time consented to any penetration of a vagina whether it be with hand or penis, and in those circumstances the jury was entitled to conclude beyond reasonable doubt that there had been penile penetration and that it had been non-consensual. The learned trial Judge identified to the jury the essence of the defence case, which contended for various inconsistencies in the testimony of the complainant, and it cannot be thought that the jury overlooked consideration of such inconsistencies in the verdict it reached.

Failure to Direct on Inconsistency in Relation to Complaint

76 The final ground of appeal relies upon a very clear inconsistency between the evidence of the complainant and the evidence of her husband in relation to what complaint she made to him upon his arrival at her home. In her examination-in-chief the complainant said that when her husband arrived, she told him that "he raped me". When the complainant's husband gave evidence, he said that the words she used were, "I think I've been raped". What the complainant's husband said was as follows:

"She to1d me that she thought she had been raped. I sort of said to her that, you know, 'You have got to be a bit more clear,' and sort of tried to get her to clarify it. Eventually she told me that she had been raped that night.

Did she say who did it?---A person called Simon.

Did she describe him?---He was a disc jockey, he had a very expensive mobile phone of some sort, and that's about it.

How long did you speak to Caroline for?---15, 20 minutes to half an hour.

Do you recall what else she said to you during that time?---I don't recall the total conversation because it's pretty - pretty jumbled. She was upset, but eventually she sort of got her composure and explained to me that she had been raped by this person.

What did you do?---Well, I suggested to ring the police ... "

77 Counsel for the applicant informed the Court that the evidence of the complainant's husband was unexpected. It did not accord with his deposition. For this reason, the complainant had not been cross-examined about what it was precisely that she had said to her husband. In these circumstances, it seems to me that it was incumbent upon the learned trial Judge to have directed the jury that there was a difference between what the complainant said she told her husband and what her husband said his wife had told him. The learned trial Judge may have informed the jury that for reasons they need not be concerned with, the complainant was unable to be cross-examined about it, but the fact remains that there was a distinct difference between the two accounts of the complaint given, and it was something which, in my view, the jury should have been directed about. It did go to the question of the complainant's credibility and, as I have already indicated, the learned trial Judge failed to impress upon the jury the fact that evidence of complaint is relevant to credit of the witness who has complained. This, in my view, was another fundamental irregularity in the trial process.

78 For the reasons I have set out, there were, in my view, a number of errors of law and/or misdirections made or given by the learned trial Judge. Those errors and/or inadequate directions resulted, in my view, in the applicant losing a chance of acquittal which was fairly open to him: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 (at 514). The result is that there was a miscarriage of justice.

79 Counsel for the applicant in a supplementary written submission urged the Court that in the event of the appeal being allowed, there should be no order for a retrial. Reliance was placed upon the principles set out in King v The Queen [1986] HCA 59; (1986) 161 CLR 423, but this submission rested primarily upon the contention that there was insufficient evidence at trial to sustain the verdict of guilty because of the absence of evidence from the complainant about penile penetration. This, however, I have already dealt with.

80 In my view, the appropriate orders are to allow the appeal and direct that the applicant be retried on the third count on the indictment. The Crown would, of course, be able to retry the applicant on the second count on the indictment if it wished. In Middleton v The Queen (supra), I set out in some detail the circumstances in which the Court might exercise its discretion to direct a judgment and verdict of acquittal rather than to order a retrial. I there referred to Rabey v R [1980] WAR 84 where Wickham J (at 95-96) set out the applicable principles. Reference was also made to Parker v The Queen [1997] HCA 15; (1996) 186 CLR 494 where Dawson, Toohey and McHugh JJ (at 520) indicated why it might be inappropriate to order a retrial. I then, however, added at [21 - 23]:

"More recently, the High Court has shown some reluctance to enter a verdict of acquittal where in truth the matters for determination rest more with the Director of Public Prosecutions than with the court. In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, Toohey, Gaudron, Gummow and Kirby JJ directed that a new trial be held although saying (at 452):

'The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman:

"In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide." '

In Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 Callinan J (with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed on this point) said at [47]:

'I would uphold the appeal, quash the verdicts of guilty and order a new trial. Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions.'

In Bull v The Queen [2000] HCA 24, McHugh, Gummow and Hayne JJ declined to enter verdicts of acquittal saying (at [131]):

'The appeals must be allowed, the convictions of the appellants quashed and a new trial ordered. The Crown stated that, if the convictions were quashed, it would not seek a new trial of the appellants. However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re-tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly.'

In this Court, in David v The Queen, unreported; CCA SCt of WA; Library No 970135; 8 April 1997, reference was made by the Court to the difficulties of video recorded evidence being used on a re-trial and the need for the Crown to determine whether in those circumstances a new trial should proceed."

81 In my view, it is for the Director of Public Prosecutions to decide in this case whether or not the interests of justice are best served by a retrial of the applicant. The shortcomings in the complainant's testimony about penetration will no doubt be taken into account by the Director in making that decision.

82 I would therefore allow the appeal against conviction, quash the conviction, and order that the applicant be retried in the District Court at Perth on the third count on the indictment.