Taking all those matters into account, I consider that this is an appropriate case in which to substitute a verdict of acquittal rather than to order a retrial.

Accordingly, I would allow the appeal, set aside the convictions recorded in the District Court and substitute for those convictions an acquittal on count one and count two.

I have had the advantage of reading in draft the reasons of Doyle CJ and Bleby J. Whilst I agree with Bleby J that it could not be said a properly directed jury was unlikely to convict or that it would probably acquit there are particular circumstances in this case that make it inappropriate to order a retrial and appropriate to substitute a verdict of acquittal. Those circumstances are identified in the reasons of Doyle CJ. The appellant would lose significant forensic benefits which were available to him on the trial of all four counts but would not be available to him on a retrial of counts one and two. In a matter which depends so much on the assessment of the credibility of the complainant those forensic advantages ought not to be underrated.

I agree with the reasons and the orders proposed by Doyle CJ.

For reasons given by the Chief Justice I agree that the appeal should be allowed and the two verdicts of guilty set aside. However, I have the misfortune to disagree that acquittals should be substituted on Counts 1 and 2. In my opinion, a retrial should be ordered on those counts.

The grounds on which I agree that the convictions should be set aside are that the jury was inadequately directed as to the effect on the credibility of the complainant of delay in the making of the complaint, the circumstances of the making of the complaint and inconsistencies led by the prosecution. The convictions are not set aside by virtue of their being unsafe and unsatisfactory because the evidence was insufficient to support the two verdicts of guilty. As the Chief Justice has observed, the evidence presented by the prosecution suffered from no significant inherent flaws, and was evidence upon which a reasonable jury could convict. The convictions are not set aside as being unsafe and unsatisfactory because there was insufficient evidence to support the two verdicts of guilty in the light of the acquittals on Counts 3 and 4. In that respect, the situation in R v Dolan [1992] SASC 3638; (1992) 58 SASR 501 is to be distinguished. The two counts of unlawful sexual intercourse on which the appellant in that case was found guilty involved vaginal penetration by the finger. The two counts on which he was found not guilty involved penetration by a dildo in one count and by the penis in another. Particulars which had been given of the counts were rudimentary, to say the least, and there was evidence of a course of conduct of multiple incidents of each type of unlawful sexual intercourse with which he was charged. The Court of Appeal considered that in the circumstances of that case and the way it was presented, if the complainant's credibility was in doubt on two of the counts, it was impossible to feel any confidence about the truth of the other charges. That in itself was an important reason why the verdicts of acquittal were substituted. It was also held, that as the evidence on a retrial could not reasonably include any of the incidents relating to dildo or penile penetration, and as the lack of particularity necessarily required some reference to a course of conduct, it would be a "fundamentally different story" from that in the first trial.

This case does not suffer from those difficulties. The acquittal on Counts 3 and 4 is referrable to doubt in the jury's mind either as to whether the incidents concerning the video occurred at all, or factors giving rise to doubt as a result of the complainant's acknowledged confusion about whether the video was linked with Count 3 or Count 4. That in itself does not necessarily render inherently unreliable the complainant's evidence in relation to Counts 1 and 2, being incidents of a quite different type from the unique incidents the subject of Counts 3 and 4, and which, if the complainant is believed, arose under quite different and identifiable circumstances.

This is therefore not a case where a verdict is set aside on the ground that the evidence was insufficient to justify conviction by a reasonable jury properly instructed, and where, if there were a retrial, the prosecution would have a second chance to make good any evidentiary deficiencies. In such cases a verdict of acquittal is properly substituted: Reid v R [1980] AC 343; Andrews v R [1968] HCA 84; (1968) 126 CLR 198; Gerakiteys v R [1984] HCA 8; (1983) 153 CLR 317.

If there is evidence on which a properly instructed jury could convict, the general rule seems to be that a new trial may be granted to enable the faulty direction to be remedied. That general rule was stated by the majority of the High Court in Peacock v R [1911] HCA 66; (1911) 13 CLR 619 at 674-675 as follows:

"After carefully reading the decisions in those cases, I have been unable to gather that the Victorian Supreme Court has laid down any general principles on which it will exercise its discretion to grant a new trial in a criminal case. Perhaps it is as well that no exhaustive or rigid definition of principles should be attempted. The Court must, however, exercise a legal discretion, that is to say, must act upon some legal principle. It appears to me that one principle at least may be laid down. Where the facts proved a first trial would have been sufficient to support the conviction, if the jury had been properly directed, it seems to me that in general a new trial may be granted to enable the faulty direction to be remedied. In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused. In this case there was, as I have pointed out, ample evidence to justify a verdict of guilty, if the jury thought fit to come to that finding on the evidence. If it were not for the misdirection as to the prisoner's statement, the verdict of the jury could not in my opinion have been disturbed. I think it is now in the interests of the administration of justice, and not unjust to the prisoner, that a new trial should be granted to enable the evidence to be again submitted to another jury with a proper direction as to the prisoner's statement." 79. That principle was adopted by this Court in R v Leak [1969] SASR 172 at 175. See also DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630. However, the Court in Leak's case comprising Bray CJ, Hogarth and Walters JJ went on to say, at p176, having held that there was not a strong body of evidence against the appellant:

"We think this is a case where, to adopt with respect the words of Barton J. in Hargan's Case [1919] HCA 45; (1919) 27 CLR 13, a jury properly directed would probably acquit. If anything said in Bailey's Case (1956) SASR 153 can be construed as meaning that a new trial ought not to be ordered unless the appellate court can say that a jury properly directed not only could but ought to convict then that probably goes too far. We think that if there is evidence on which such a jury could reasonably convict and might not improbably convict, the interests of the administration of justice will generally demand a new trial unless in the particular circumstances that would be unjust to the accused: but that where the case is as weak as we think the present case is and a jury properly directed would probably acquit, as we think it would, then the considerations mentioned in Bailey's Case (1956) SASR 153, and particularly the hardship on the appellant of having to bear the costs of two trials and an appeal, can assume a weight which they might not otherwise bear, and incline the court in its discretion to refuse to order a new trial." 80. That passage was approved by this Court in R v Slobodian (1982) 30 SASR 161.

81. I do not think it can be said in this case that a properly directed jury is unlikely to convict or that it would probably acquit. The interests of the administration of justice, in my opinion, require that there should be a new trial. I am not persuaded that other factors require the substitution of an acquittal. Contrary to what was put to us at the hearing, it appears that the appellant has served approximately two and a half months of a two year imprisonment term with a 10 month non-parole period. That commenced on the date of his being sentenced, 13 September 1996, and was perhaps longer than necessary because of a late Notice of Appeal (filed on 23 October 1996) and two adjournments of his Application for Leave to Appeal at the request of the appellant for a period of three weeks in total. It appears that those delays may not have been entirely of the appellant's own making, but I am not persuaded that in the circumstances the length of the sentence served, either alone or in combination with any other factors, requires substitution of an acquittal.

82. The evidence at a retrial will, of necessity, be different from that led in the trial already conducted, and the appellant will lose the benefit of the conflict of evidence in relation to the video cassette recorder. He may also lose some benefit which he would have had at the first trial from an adequate direction about the possible significance for the complainant's credibility of the difficulties of the prosecution case relating to Counts 3 and 4, but that relates again principally to the existence or non-existence of the video cassette recorder. There were many other conflicts surrounding Counts 1 and 2 and the course of conduct associated with them which the appellant will be able to exploit if similar evidence is led. If the prosecution had proceeded initially only on Counts 1 and 2, the appellant would not have had any benefit from the one significant conflict which emerged in relation to Counts 3 and 4 anyway.

83. I would therefore allow the appeal, set aside the convictions recorded in the District Court and direct a retrial on Counts 1 and 2.