1 BRYSON JA: An account of the facts and of the trial of the appellant has been given by Hoeben J. By subs.6(1) of the Criminal Appeal Act 1912 the Court of Criminal Appeal is empowered to set aside the verdict of the jury "…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 …" This power is considerably wider than a power to decide whether there was evidence upon which reasonable people could find the verdict which was found; the power of the Court extends to setting aside the verdict on a basis referred to, briefly, as that the verdict is unsafe or unsatisfactory. The expression "unsafe or unsatisfactory" appears to have been drawn from English legislation in different terms to subs.6(1), and does not accurately or completely refer to the test applied in Australia. The test is to be understood from M v. Regina (1994) 181 CLR 487, and approval expressed in Jones v. Regina (1997) 191 CLR 439 at 450 to 452 by the majority (Gaudron, McHugh and Gummow JJ) of passages in M v. Regina, particularly in the judgment of Mason CJ, Deane, Dawson and Toohey JJ at 493-494. In my opinion it is authoritatively established by the majority judgment in Jones that the appropriate test for determining whether a verdict should be set aside is as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
2 The test in Jones cannot be applied with complete precision, and sometimes leads to differences of judicial opinion on appeal; Jones itself is an example, as is M v. Regina. Notwithstanding observations of Brennan CJ in Jones at 441, it is my understanding that the test is not identical with the exposition given in Ratten v. Regina (1974) 131 CLR 510 at 516 by Barwick CJ which included the statement "If the Court has a doubt, a reasonable jury should be of a like mind." The test in Jones significantly qualifies this statement and requires regard to be paid to the jury's advantage in seeing and hearing the evidence.
3 In the present case, some circumstances and some aspects of the evidence make it seem disquieting to me that the jury convicted the appellant. The first and most prominent source of my disquiet is that the complainant did not make any complaint, and did not tell anyone at all that the offence had been committed, until there had been a delay of almost seven weeks, or perhaps almost eight weeks. It is not possible to ascertain the length of the delay because the complainant was unable to state the date of the offence: the complaint she made to the police left a wide margin, narrowed down by her evidence at the trial to four possible days. There were people readily to hand to whom she could complain, including Simon Scott her de facto partner, who returned to the house later on the evening of the offence, and Catherine Scott, Mr Scott's mother, who was in the house at the time of the offence. No legal rule imposes a time limit on such a complaint and no legal rule disables a jury from coming to a conclusion about whether it is true. To my mind it is a considerable difficulty for believing her evidence that, although she said she was the victim of an outrageous sexual assault, she did not tell people who were readily to hand and were members of the same household as she; nor did she complain to the police; until a long interval had passed.
4 The complainant explained that she did not make a complaint to Simon Scott or to Catherine Scott because she was scared. She said in evidence: "I was scared too because of what he had done to me, scared that something was going to happen." The complainant's explanation never became more full or clear than saying that she was scared, and she said to this effect a number of times. She said that at the time of the offence she did not look around for help, and that she did not call out or yell, because she was scared and did not think of it. She explained that she did not ring the police, although there was a telephone in the house, as she was scared. The complainant did not see her doctor after the offence, and when challenged to explain why again said that she was too scared. The complainant did not give any clear evidence of what it was that she was frightened might happen, or of any threat, although her evidence was that the appellant said to her, after committing the offence "Don't say [anything], I know people."
5 To my mind ordinary human motivations and behaviour mean that a person who had suffered such an outrage would probably complain, and would do so at the first or at an early opportunity, and would be motivated to do so by a wish to have protection, as well as by a wish to seek redress. It would be plain to a reasonable person in the complainant's position that prompt complaint to police would improve the prospects of effectual redress by enabling investigations to begin early; and would also improve the prospects of her being protected in an effectual way against the offender.
6 There are other circumstances which have given me disquiet. The circumstances of time and place as given by the complainant are improbable; the rear yard of an occupied house, near another house from which observation might conceivably be made, in circumstances where it would be plainly likely to an offender that the complainant might call out and get help. It was the complainant's evidence that the appellant's voice was louder than normal when he spoke to her. These circumstances seem to make it unlikely that an offence took place.
7 Another source of disquiet is that recurring and undue attention was given during the trial to the appellant's having stayed away for some weeks from the house where the complainant lived with Mr Scott, although he had earlier attended there often. Witnesses spoke of the appellant's changing an earlier pattern of attending at the house, but to different effects about when and for how long this happened. It is not possible to attribute significance to the suggestion that the appellant stayed away from the house. Times and lengths of this absence cannot be established. There are a number of different interpretations available on the evidence of the complainant and Mr Scott, while Mrs Scott put the period of absence at a different time, after the complainant had complained to the police. There were various references in the evidence to the complainant's attitude when he did come around: "When he reappeared he was talking to Simon, he was not talking to me" and the appellant spoke of "bad vibes" from the complainant, in a context which, so far as it can be understood, suggests that the complainant might have resented the appellant taking Mr Scott away to go fishing.