Bail Act 1982 (WA), Sch 1, Pt A, cl 4(d) and Sch 1, Pt C, cl 4

Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Mullally v The Queen [2000] WASCA 26

R v Kane [2001] VSCA 153; (2001) 3 VR 542

1 ROBERTS-SMITH J: This is an application for bail pending appeal to the Court of Criminal Appeal against both conviction and sentence. It accordingly falls as an exercise of the jurisdiction of the Court of Criminal Appeal by a single Judge under Sch 1 Pt A cl 4(d) of the Bail Act 1982 (WA) and s 702 of the Criminal Code (WA).

2 The applicant was tried before McKechnie J and a jury at Fremantle between 12 and 18 November 2002 on an indictment charging five counts of indecent dealing and one count of rape. The offences were all alleged to have occurred between 1 January 1974 and 31 December 1985. The complainant was born in September 1970 and so was from about 4 years of age to about 15 years of age at the time of the offences charged.

3 The applicant was acquitted of the five indecent dealing counts but was convicted on the rape. On 22 November 2002 he was sentenced to 4 years' imprisonment with effect from 16 November. An order was made that he be eligible for parole.

4 Notice of appeal against conviction and an application for leave to appeal against sentence were filed on 5 December 2002 and the application for bail was filed on 13 December. The application is supported by an affidavit of the applicant's solicitor, Robert Anthony Mazza, filed on 17 December to which is annexed a copy of the trial transcript ("the solicitor's affidavit") and is further supported by an affidavit of the applicant dated 13 December.

5 In his affidavit the applicant asserts that on the basis of the legal advice he has received from his lawyers he believes there is a high probability that his appeals will succeed and on the assumption that that advice is correct, it would be unjust for him to remain in custody until the hearing of his appeals. He is informed, and it has been put to me from the bar table, that the appeals may not be heard until March or April 2003.

6 In addition to the submission that the appeals are said to enjoy a high probability of success the applicant also seeks to have particular account taken of the effect which his incarceration will have upon his family business, Stalker Pumps, and its employees. That was a matter which was put to the learned trial judge on 18 November 2002. His Honour made some specific observation about that, noting in particular that the applicant's conviction and any imprisonment would imperil the business and may put at worse risk the lives of more than 40 people. His Honour, however, went on to point out that what has in fact imperilled the business is not the prospect of imprisonment but the crime committed so long ago as the jury had found.

7 The grounds of appeal against conviction are annexed to the notice of appeal. There are four grounds supported by extensive particulars. The first ground is that the learned trial judge erred in law in that he failed adequately to warn the jury of the danger of convicting the applicant because of the long delay between the date of the alleged offence and the complaint and because of the failure of the complainant to state with any degree of particularity the date of the alleged offence.

8 The second ground is that his Honour erred in law in failing to warn the jury that they should exercise great caution before accepting the evidence that the appellant had arrived at and left the complainant's house in a "ute" separately from the other members of his family. The ground then sets out certain features about which it is said the learned trial judge should have warned the jury.

9 The third ground is that the learned trial judge erred in law in failing to instruct the jury that alternative verdicts were open to them on the evidence. This was said to arise out of the fact that the complainant in her evidence did not specifically state that she had been penetrated with the applicant's penis but gave a description simply of penetration of her vagina. The contention then being that unless the jury could have been satisfied that it was the applicant's penis then the alternative verdict of indecent dealing should have been left to them.

10 However, at the hearing of the appeal before me yesterday Mr McCusker QC, senior counsel for the applicant, conceded that ground could not be sustained as indecent dealing was not an alternative open because of the lapse of time. In the circumstances that ground was accordingly not pursued.

11 The fourth ground was that the applicant's conviction was unsafe and unsatisfactory, again supported as I have indicated, by extensive particulars. I shall return to those at least to some degree later.

12 The last of them, however, particular (11) in support of the fourth ground, was that his Honour should have upheld a submission of no case to answer made by the defence at the conclusion of the Crown case as the prosecution evidence taken at its highest was not capable of excluding beyond a reasonable doubt the inference that the complainant had not been penetrated by a penis and it was unfair and an abuse of process for the trial to be allowed to continue. Again Mr McCusker QC properly conceded yesterday that a ground or a particular formulated in that way is not a proper ground or particular and indicated that the applicant would not be pursuing it. The reason for that, of course, is that where a complaint is made that a submission of no case should have been upheld the ground of appeal is whether the verdict is unsafe or unsatisfactory and that will turn upon the whole of the evidence given in the case.

13 The proposed ground of appeal against sentence is in substance that the learned trial judge should have imposed a suspended sentence of imprisonment.

14 The application for bail is to be dealt with in accordance with cl 4 of Pt C of Sch 1 of the Bail Act which provides as follows:

"In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether -

(a) in the case of a defendant waiting to be sentenced, there is a strong likelihood that he will impose a non-custodial sentence; or

(b) in either case, there are exceptional reasons why the defendant should not be kept in custody,

and shall only grant bail to him if he is satisfied that -

(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant, the reason mentioned in paragraph (b) exists; and

(d) he may properly do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3."

15 Clauses 1 and 3 are provisions which apply to any application for bail.

16 In reality the only basis upon which it is asserted in this case that there are exceptional reasons sufficient to justify the grant of bail following conviction and pending appeal is what is said to be a high probability the appeal will succeed combined with the particular effect on third parties, notably the applicant's family business and its more than 40 employees, of the applicant's continuing incarceration.

17 I should say at once that I would not consider the second limb of that to be capable of constituting exceptional reasons by itself. If there is such a high prospect of success as to constitute an exceptional reason for the purposes of cl 4 then the fact that the applicant's imprisonment would occasion hardship to others would add nothing. If there is not that high a prospect of success but nonetheless one perhaps approaching that degree then the fact that others would be seriously adversely affected by the applicant remaining in prison might together be sufficient to constitute exceptional circumstances, but in my view the primary determinant in such a case must be the degree of the prospect of success and I consider that to be the essential aspect of this application.

18 A further consideration was advanced on behalf of the applicant, namely that his non-parole term is 16 months' imprisonment and that if the appeal is not heard before April 2003 he will have served at least one-quarter of that by then. While the fact that an applicant may have served all or most of his term before the hearing of his appeal may constitute or go to exceptional reasons, to my mind the present is not such a case.

19 As Miller J pointed out in Caratti v The Queen [1999] WASCA 91 in par 9, the general principles in respect of grants of bail pending appeal were explained by Brennan J in Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 519 to 520. He referred to that passage from his Honour's judgment which regarded a grant of bail in such circumstances as derogating from the effect of the jury's verdict, a view which was subsequently doubted by Callinan J in Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265.

20 In Chamberlain (No 1) Brennan J accepted the High Court had inherent power to grant bail pending appeal in exceptional cases, notwithstanding that at common law a court of general jurisdiction has no inherent jurisdiction to grant bail pending appeal to a person serving a sentence following conviction. The power of the High Court to grant bail rests upon its inherent power to preserve from futility the exercise of the court's discretion to grant special leave to appeal and to allow an appeal, but such power would be exercised only in exceptional cases.

21 Different considerations apply where a court is exercising a statutory power which will necessarily be conditioned by the terms of the relevant statute but the release of an applicant to bail from a sentence of imprisonment on conviction pending appeal will always be exceptional, if for no other reason than at the very least the presumption of innocence before trial no longer applies. In Chamberlain (No 1) Brennan J said at page 519:

"In England, where the Court of Appeal is vested with a statutory power to grant bail pending an appeal from the Crown Court, the modern practice is to grant bail pending an appeal only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard (Watton (1978) 68 Cr App R 293 at 296, 297). In Australia, in the various States where a statutory power to grant bail pending an appeal exists, the circumstances in which the power will be exercised have been described in general terms as 'very exceptional' (Re Kulari [1978] VicRp 29; [1978] VR 276), 'exceptional' (R v Ryan [1930] SASR 125; R v Patmoy (1944) 62 WN (NSW) 1; Reg v Lawrence (1978) 22 ALR 573; Reg v Wood [1970] QWN 3), 'exceptional or unusual' (R v Byrne [1937] QWN 30), or 'special' (R v Salon [1952] ALR (CN 7), at p 1054; Reg v Southgate (1960) 78 WN (NSW) 44)."

22 However the test may be formulated, his Honour continued:

"... in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending. That is because the cases in which special leave to appeal is sought are usually cases in which an intermediate court of appeal has found neither an appealable error occasioning a substantial miscarriage of justice in the trial nor an error of law affecting the sentence. This is not such a case."

23 His Honour further continued to say that the court's findings upon the merits so far as they went weighed against that application. His Honour then added (on the same page):

"But there is another factor of more general and more fundamental significance which militates against the granting of bail. Mrs Chamberlain challenges the verdict upon which her conviction and sentence are founded: if the verdict were to be set aside, the formal conviction and the sentence would be quashed; if the verdict stands, so must the conviction and sentence. To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. In a serious case, where the prisoner's custodial sentence depends upon a jury's verdict (as it does when there is a conviction for murder and there is no discretion as to sentence) an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict. To grant bail in such a case is to whittle away the finality of the jury's finding and to treat the verdict merely as a step in the process of appeal. The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.

In the present case, the verdict of the jury has survived an attack upon it in the Federal Court. It cannot be said that the verdict is likely to be set aside."

24 It will be apparent from his Honour's analysis of the position in the High Court that different considerations apply in respect of the statutory rights of appeal pending appeal to intermediate courts. In Robinson v The Queen (1991) 65 ALJR 519 Gaudron J noted that since the introduction of new procedures with respect to the grant of special leave to appeal in criminal cases it may be that the considerations to be taken into account by the High Court were not so restricted as might be seen from what Brennan J said in Chamberlain (No 1). However, her Honour also pointed out at 519:

"The circumstances which might properly be described as exceptional and sufficiently exceptional as to justify the grant of bail pending appeal must, in my view, relate to the proceedings to be conducted and their relationship with the sentence being served."

25 In Marotta, to which I have already referred, Callinan J acknowledged (at [19]) that a grant of special leave alone would certainly not constitute exceptional circumstances to warrant a grant of bail although such a grant of special leave in combination with a range of matters and the facts in that case, did do so.

26 As I have said, the jurisdiction of this court to grant bail pending appeal has a statutory basis. The legislation indicates clearly enough that there is a presumption against granting bail. Many appeals, (by which expression I include applications for leave to appeal), would be at least reasonably arguable. That would therefore not seem to me to be capable of constituting an exceptional reason.

27 Of course, as Miller J pointed out in Caratti at [10] in relation to the assessment of the applicant's prospects of success on appeal, only a tentative or prima facie view can be formed by a single Judge sitting on a bail application. It is neither possible nor appropriate for such a Judge to sit as a preliminary court of appeal, as it were, a point made by the New South Wales Court of Criminal Appeal in the case of W (1994) 73 A Crim R 532.

28 Miller J said at [11] in Caratti that in Bond v The Queen, unreported; SCt of WA; Library 920322 12 June 1992, Franklyn J expressed the view that an exceptional case had to be made out before bail would be granted and exceptional grounds would only exist if the Judge was convinced that the arguments would almost certainly succeed before the Court of Appeal and that in R v Walser (1994) 73 A Crim R 154 at 159 White J pointed out, that statement may go too far.

29 I notice that White J was in fact there referring to the concession made by counsel for the applicant in that case that exceptional grounds would only exist if the Judge were to be convinced that the arguments would almost certainly succeed before the Court of Appeal. In fact, in respect of the appeal against conviction in Bond, Franklyn J concluded at 8 and 9:

"The applicant had demonstrated an arguable case that the indictment disclosed no course of action. That of course is not to say that it is of such strength that leave to appeal must be given. That is a matter for the Full Court dealing with the application."

"In any event I am not persuaded that the case is of such strength as to demonstrate such a possibility of success as to amount to an exceptional reason for granting bail."

30 In respect of the application for leave to appeal against sentence, Franklyn J again said (at 12) that the strength of the arguments as presented to him was not sufficient to amount to an exceptional reason justifying bail. His Honour said:

"They do not necessarily lead to the conclusion of a strong probability that the result will be either no custodial term or one of such duration that the period necessarily to be spent in custody will have expired before the appeal is determined."

31 In the event the test applied by Miller J in Caratti was expressed as (at [11]):

"Whether there are strongly arguable grounds of appeal which have strong prospects of success."

32 That test was adopted and applied by Wheeler J in Hickey v The Queen [2002] WASCA 221.

33 In Qui Duc Nguyen [2001] WASCA 137; (2001) 118 A Crim R 533 Scott J declined to adopt the test as formulated by Walsh J in Madden v The Queen, unreported; CCA SCt of WA Library 930292, 20 May 1993, which was whether the applicant had a reasonably arguable case that the appeal would succeed and instead expressed his agreement with the test applied by Franklyn J in Bond.

34 In W, to which I have already referred, the relevant statutory provision (which was s 30AA of the Bail Act 1978 (NSW), stipulated that bail shall not be granted pending appeal to that court unless "special or exceptional circumstances" were demonstrated to exist. That provision was therefore in substance and effect similar to the statutory provision which applies to the present case.

35 President Kirby, as his Honour then was, and with whom Sheller JA agreed, pointed out at 536 in W, it is important that on an application of this kind the court should not prejudge the arguments which the applicant intends to advance before the Court of Criminal Appeal.

36 In relation to the need for a powerful case of error in the trial to support the application of bail his Honour referred to the argument sought to be advanced and made these observations:

"However, it is enough for me to say that I think it falls short of the special or exceptional circumstances that are required. In Waters (1990) 9 Petty SR 4016, Badgery-Parker J expressed the opinion that in an application for bail, where a person after conviction stands for sentence, it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.

The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances."

37 At 537 his Honour concluded that the most arguable point there sought to be advanced was not one which could be described as "very likely to succeed" and consequently did not reach the level of demonstrating special or exceptional circumstances.

38 Hunt CJ at CL also agreed and also referred to what Badgery-Parker J said in Waters (1990) 9 Petty SR 4016. At 538 his Honour referred to what Brennan J had said in Chamberlain (No 1) that to grant bail pending an appeal from a conviction is to whittle away the finality of the jury's verdict and to invest it with a provisional quality thus attacking the central feature in the administration of criminal justice. His Honour said that it was for those reasons that the common law required an appellant to demonstrate special or exceptional circumstances in order to obtain bail pending his appeal and it is that requirement which was now enshrined in the legislation.

39 His Honour referred to the case of R v Smith, unreported; CCA SCt of NSW; 18 May 1993 and Southgate [1960] NSWR 477 as indicating that there would have to be an extraordinarily high prospect of success before a ground of appeal could even be considered on a bail application. His Honour went on to say that where the prospects of success on the appeal are put forward as a special circumstance, what must be established is a ground of appeal which is certain to succeed and one which can be seen without detailed argument to be certain to succeed:

"It is not sufficient to show a merely arguable ground of appeal or even one which has a reasonable prospect of success."

and he pointed out that other judges of that court had agreed with his expression of those views.

40 There is no distinction in substance, effect nor principle between the relevant statutory provision in W and that which is relevant here. In my opinion the reasoning of the New South Wales Court of Criminal Appeal in W is persuasive. In light of that and the general trend of single Judge decisions in this jurisdiction, I consider that something more than an arguable ground of appeal must be shown in order to establish exceptional circumstances for the purposes of cl 4 of Pt C of Sch 1 to the Bail Act. It must be shown, without detailed argument, that the appeal is most likely to succeed. That is the sense in which I would construe the phrase "strong prospects of success."

41 That brings me to the facts and circumstances of the present application. The first point to note in that regard is that at the conclusion of the learned trial Judge's summing up counsel were asked whether they had anything to raise. Neither counsel did. When considering whether there had been any miscarriage of justice an appeal court would be entitled to take into account the fact that no further direction nor any redirection was sought by experienced counsel for the applicant at trial.

42 I deal now specifically with ground 1. This might be described as a requirement for a direction of the kind required by the High Court in Longman [1989] HCA 60; (1989) 168 CLR 79. This, and ground 2, seem to be largely founded on acceptance of the proposition that in any trial of a sexual offence involving delay between the alleged offence and a complaint, a trial judge must necessarily give directions strictly in accordance with the directions articulated by Sully J in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241.

43 Those directions and the detailed requirements pertaining to them were said by Sully J to be those to be discerned from the reasons of the High Court in Longman itself, in Crampton v The Queen (2000) 206 CLR 161 and in Doggett v The Queen [2001] HCA 46; (2001) 75 ALJR 1290. Whether his Honour's analysis is a correct summary of what is to be discerned as binding from those High Court authorities and, if so, whether the directions his Honour sets out in detail must necessarily be applied in every case, have yet to be determined by the Court of Criminal Appeal in this State.

44 The submissions advanced on behalf of the applicant in respect of this ground essentially come to this: not only must a Longman warning, if I can use that term, be given by a trial Judge, but for it to be a proper warning in accordance with the authorities it must descend to considerable particularity.

45 It is said that the allegations here were uncorroborated. That seems clearly to be so. It is further said that they concerned a wide time period exceeding one year. These circumstances together called, it is said, for the specific warning set out in the particulars of this ground. It was insufficient, it is said, for the learned trial judge to have stated, as he did, that the lack of specificity in the indictment placed the applicant at a distinct disadvantage due to the delay involved. The applicant was also disadvantaged due to the width of the period, or the extent of the period, during which it is said the alleged offence occurred irrespective of whether there had been delay in complaint.

46 The argument was further put that particular warnings ought to have been given as to each of the evidentiary steps which had to be established by the prosecution. Thus, express warnings relating specifically to the identification of the alleged offender and as to whether the complainant was penetrated with a penis or something else were called for. A general direction was necessary in terms of particular (4).

47 Particular (4) asserts that the learned trial Judge erred in law by telling the jury that the warning which he gave them was both commonsense but also a legal direction. It is contended that his Honour should have given a warning with the unmistakable imprint of the Court's own authority and should have directed the jury that the foundation of the warning was the accumulated experience of the courts in dealing with cases where there has been substantial delay in the making of complaint about alleged sexual offences. It is said that the reference to both commonsense but also a legal direction detracted from the strength of the required warning. The Crown on the other hand says that the directions given by the learned trial Judge in this regard were impeccable.

48 It is, of course, necessary therefore to look specifically at what his Honour did say to the jury. At 286 of the solicitor's affidavit his Honour said:

"I come to a specific warning and direction which I give you which has been talked about extensively by both counsel. They have talked about it but this is a direction which you must apply at law. The evidence in respect of all the counts comes entirely from [the complainant]. There is no other evidence. There is some evidence which may or may not, depending on your view of it, go some way to confirming aspects of what she says about the possibility that the accused may have been at the Willetton house, for example, but the only evidence of each of the sexual offences alleged comes from [the complainant]."

"The first matter is said to have occurred some 28 years ago and the last matter some 17 years ago. Her evidence about the particular events is not confirmed, as I have just said, by any other person. A great deal of time has passed since the last of the offences, let alone since the first one, and experience has shown courts that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, and of course the likelihood of error increases with delay."

"You will note that in relation to the first count she was a very young girl and she was woken up. That was the same situation in respect of the last count, although of course by that age she was about 14. She made no complaint to anyone at any relevant time. Of course absence of a complaint does not necessarily mean that the allegation is false. There may be very good reasons why a young person, a victim in an offence like this, might hesitate or refrain entirely from making a complaint to someone about what happened.

Much depends on the circumstances."

49 His Honour went on and then a little later said:

"In looking at the reliability of her evidence you should bear in mind that the longer the delay between the happening of an event and the reporting of it to authorities, the greater the possibility of inaccuracy and error in recollection. That is both commonsense, but it is also a legal direction I give you when considering the evidence.

The lack of complaint gives rise to another issue which you might consider. There is a real risk that the accused has been disadvantaged by the length of time which has passed from the alleged events to today. ..."

50 His Honour went on specifically to remind the members of the jury of what had been said earlier about the "danger" (which was the word specifically used). His Honour then continued on the same page:

"... with the passage of time it's inevitable that the accused has been hampered in making any sort of answer to these cases. He has been, as a consequence, unable to adequately test [the complainant's] evidence. Of course there is no independent evidence and it would be difficult for an accused person, any accused, to produce independent evidence to rebut or refute or reject the allegations that have been made, partly because of the very lack of specificity that has been given to them. That long delay puts him at a distinct disadvantage in raising matters for your consideration."

51 Then again a little later at 288 his Honour said:

"Now I come to the specific warning. I warn you that it is dangerous to convict Mr Stalker on any of the accounts before him on [the complainant's] evidence alone. You are entitled to act on her evidence alone if you are satisfied of its truth and accuracy, but you cannot be satisfied unless you have scrutinised that evidence with great care."

52 His Honour then went on to talk about how, in carrying out that scrutiny, the jury would need to have regard to inconsistencies in the accounts which had been given by the complainant both to the members of the jury and with statements that she had made previously. He pointed out that there were difficulties with the dates in relation to the last count. He drew attention to her age at the various relevant times.

53 He pointed out that in relation to some of them her parents were said to be in close proximity and on other occasions, or on another occasion, if the event occurred, it occurred when her parents were on a visit. The third count, he pointed out, occurred when the complainant said she was in her own bed in her own home with her parents asleep somewhere else in the house. At 289 his Honour returned to his directions and warnings in relation to the complainant's testimony. He said:

"You are able to convict on that testimony alone. Ms Forrester is quite right about that. There's nothing which can stop you as the jury convicting on any of the counts if they are satisfied beyond reasonable doubt of [the complainant's] evidence, but it is dangerous to do so and you may only do so after you have scrutinised her evidence with great care and borne in mind the warnings I have given you about recollection and delay, and only after you have taken those into account, scrutinised her evidence in great care, borne in mind my warning that it is dangerous to convict. If you are still then satisfied beyond reasonable doubt, then you may convict."

54 The applicant, as the Crown points out on this application, was able to give evidence that he had never been to the complainant's house nor stayed there since certain extensions had been done to it. I refer to 227 of the appeal book. His evidence was that the last time he saw the complainant was in 1980. The extensions and renovations were done in 1983 or 1984 and the complainant's parents referred to that in the context of them opening a new business at about that time - I think in 1984.

55 The applicant's wife also testified that the family did not go to the house, that is to say the complainant's house, after 1982 and she never saw any extensions at that house. At 250 she said that the family had gone to the complainant's house which she then described. She was asked did she ever become aware of extensions done to it. She said she did not and that she had never seen any and, as far as she was aware, she never visited the house after any extensions had been done.

56 The point was clarified (at 251) in cross-examination. She was asked whether she was saying that she simply did not recall going after 1982 or that she did not go, to which she responded that she was saying she did not go there.

57 So far as identification is concerned, that being one of the specific particulars raised on behalf of the applicant, in respect of ground 1 the Crown's submission I think may well be accepted. That was that this was not a case of a stranger said to have been committing the offence. The complainant had known the applicant most of her life.

58 Furthermore, there were only two males allegedly in the house at the time, namely the complainant's father and the applicant. This went to particular (2)(b) to ground 1 where it is asserted that the only evidence to identify the applicant as the alleged offender was the complainant's evidence that she saw his profile for a brief period in the dawn light after the offence was allegedly committed and as he was leaving her room and then for a brief period afterwards when he allegedly returned to her bedroom and asked if she knew where his keys were.

59 A particular again in support of ground 1 is one which asserts that the learned trial Judge should have warned the jury that in considering whether the applicant had penetrated the complainant with his penis, the jury must take serious account of the danger of convicting the applicant on the uncorroborated evidence of the complainant - who did not state that she was penetrated by a penis.

60 I have already referred to his Honour's general directions as to the lack of corroboration and the warning given by him as to the danger of convicting on the uncorroborated evidence generally of the complainant. I will return to this aspect of the evidence as to the penis later insofar as the evidentiary aspect of it is raised by ground 4. So far as ground 1 is concerned though, the point was referred to by his Honour and the Court of Criminal Appeal would not necessarily hold that anything more was necessarily required in the Longman sense than what his Honour said.

61 Likewise, the complaint in support of this ground, that his Honour should have specifically directed the jury to subject the complainant's evidence to great scrutiny at every stage of their consideration, seems to me to fall within the scope of what I have already said. So far as the complaint in particular (5) to ground 1 is concerned, that the learned trial judge erred in law by referring to the warning as being both commonsense but also a legal direction, it seems to me to be clearly arguable that his Honour was giving the imprimatur of the court to the direction or warning given by him.

62 His Honour, in the portions to which I have already referred, at several stages specifically emphasised that what he was giving the jury was a legal direction. Furthermore, at 287 of the solicitor's affidavit he specifically and expressly referred to the fact that experience has shown courts that there are reasons why particular caution has to be exercised in relation to the assessment of evidence of this kind and that it is dangerous to convict where such evidence is uncorroborated. Likewise, in that same portion his Honour specifically referred to the prospect of distortion as well as likelihood of error increasing with delay, amongst other considerations.

63 As I say, it is not for me to make any final determination in any way as to the adequacy or otherwise of the directions, nor of the substance of the grounds of appeal other than to the extent necessary for me to perform the exercise I am required to perform of assessing the likely prospects of success on an application of this kind.

64 Senior counsel for the applicant relied upon Dawe v The Queen [2001] WASCA 306 where convictions on three counts of indecent dealing with a girl under 13 and seven counts of rape were quashed in what was described as an extraordinary lapse of time of some 40 years between the alleged offences and the complaints. The circumstances there were both strange and unusual as, indeed, they often are in cases of this kind. They included the fact that the complainant there said she was also sexually assaulted by her own father from the time she was first able to remember things until she was 14 years of age. The father was deceased by the time of trial and furthermore, although denying indecent dealing, or the rape of the complainant, the appellant there admitted he had sexual intercourse with her on a number of occasions but said that it was consensual and when she was at least 14 and a half years old.

65 In that case Steytler J, with whom Malcolm CJ and Burchett AUJ agreed, said (at [44] to [47]) that what had been said in that case by the learned trial judge fell short of what was required and that perhaps the most important shortcoming was that no mention was made of the possibility of distortion in the complainant's memory. I have already mentioned or drawn attention to that part of the transcript here where his Honour expressly referred to the possibility of distortion.

66 Furthermore, in Dawe at [47] Steytler J expressed the view that what was said by the trial judge amounted more to a caution than to a warning of danger, although neither he nor the Chief Justice were prepared to go so far as to say that a trial Judge must use the word "danger" in such cases. I have already referred to some of the portions of the directions of the learned trial Judge here in which his Honour in fact used exactly that word.

67 Likewise, in Dawe at [48] Steytler J observed that having chosen to say that the warning was one which he was required by law to give, the trial Judge in that case should have said why that was so, telling the jury that it derived from the special experience of the courts. He should not have said that the warning was one which should not surprise the jury thereby diminishing its importance.

68 In this case his Honour here did make specific reference to the warning being seen as required because of the experience of the courts. In any event I think Dawe really just illustrates the extent to which the adequacy of directions of this kind turns upon the specific evidence and circumstances of the particular case. While it affords an illustration of the relevant legal principles it does not do so in a way which would lead me to a view that ground 1 has such a high prospect of success as to constitute an exceptional reason justifying a grant of bail.

69 Suffice to say it is certainly arguable that the directions given by the learned trial Judge in this case were accurate and sufficient. I express no particular view about them beyond that. Whether they were or were not deficient will be a matter for the Court of Criminal Appeal in due course. For present purposes though it cannot be said this ground has such a strong prospect of success as to constitute an exceptional reason such as to justify a grant of bail pending appeal.

70 Ground 2 is the ground which refers to the evidence about the utility. The submission put in support of this ground was that it was integral to the Crown case to establish that the applicant had arrived at and left the complainant's home independently of the rest of his family. The submission then goes on to assert it was therefore essential to establish that the applicant had access to a second car at the time of the alleged offence - and that one of the main planks of the defence case was that the applicant's family did not have a second car until after the date of the alleged offence and therefore could not have arrived separately from his family.

71 It was submitted that given the grave lack of particularity in relation to the date of the alleged offence this was one of the few means to the applicant to mount a positive defence, yet the prosecutor entirely failed to challenge the uncontradicted evidence of the applicant and his wife that the applicant's family only had one car.

72 It was pointed out that the prosecutor also failed to cross-examine the applicant as to whether he had access to another vehicle. Instead, the prosecutor attempted to elicit evidence that the applicant may have had access to a utility, by cross-examining the applicant's wife.

73 Senior counsel submitted that it is a well established rule that if, on a crucial part of the case, the prosecution intends to ask the jury to disbelieve the evidence of a witness, it is right and proper that the witness should be challenged in the witness box, or at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted. That proposition was drawn from Hart (1932) 23 Cr App Rep 202 at 207.

74 Finally, the submission went on to argue that the jury should at least have been warned to exercise great caution before rejecting the applicant's evidence which was to the effect that he could not have arrived at the complainant's home separately from his family during the period of the alleged offence as his family only had one car. Rather, the learned trial judge simply noted, at 293 and 294 of the solicitor's affidavit, without explanation, that the applicant had not been cross-examined on the point.

75 Once again it is necessary to have regard to the evidence actually given. At 40 all the complainant said about it was that the applicant and his family had come over the night before to the complainant's house in Willetton. She says at the bottom of that page:

"And they had stayed and for some reason they had two cars. Auntie Carol had a car and Uncle Barry had a car as well."

76 She was asked, "Do you know what sort of cars they had?" and she said, "No idea." Then at the following page she was asked whether she went back to sleep. As far as she was aware they and "Uncle Barry" had left as well and she just went to sleep as she normally would. She then said that she was woken up in the morning and then she described the rape of which the applicant was convicted. She was terrified:

"Because there was kind of like that dawn light coming through the window. It wasn't dark, it was the early part of the morning and I was woken up with an excruciating sharp pain ..."

and she described what happened thereafter. I shall come back to that shortly. So far as the vehicles are concerned, however, that is all the complainant said.

77 The complainant's mother gave more particular evidence but it is perhaps significant also to note that in the Crown opening at 12 there was no suggestion that the complainant would say anything more specifically about the car. At page 12 the Crown Prosecutor said:

"Count 6 is the final charge on the indictment and is over the page. In 1985, the year that [the complainant] turned 15 years of age but prior to her birthday, so she was 14, [the complainant] was asleep in her own bedroom at the ... family home in Willetton. The Stalkers came over to visit one night when the children had school the next day. The accused for some reason stayed the night at the house but his wife and two children left to go home."

She then described the rape charged and the events relating to that.

78 I come now to the evidence of the complainant's mother who said that the renovations were done to the house in 1983 and that the Stalker family came for barbecues afterwards. At 91 she said that she saw them a few times and this was one time they came for a barbecue and there was a particular occasion after which they did not see the Stalkers for some time. At 92 she was asked about that particular occasion and she said they came over for a barbecue, that when they arrived Carol arrived with the two girls and Barry, the applicant, was not with her.

79 She said it was about 1984 onwards because they were at the steakhouse at the time, that being their other business. She reiterated that Carol and the girls arrived and Barry Stalker was not with her. She was asked how Carol and the girls arrived and she said, "By their car." She went on to say that she, that is Carol, said:

"... Barry most probably wouldn't be there because he'd been out fishing that day and everything, which was fine, and the kids had a swim in the pool and everything and we were starting the barbecue when Barry arrived.

How did he arrive?--- He was in a ute, his ute that he used to drive around in. We had a barbecue and the boys had a few drinks."

"Very rarely did Carol or I drink. We did have an occasional drink but it was very little and both Barrys had had quite a few drinks. Carol went home with the two girls and Barry stayed."

"Where did he stay?---He was asleep in - went to sleep in - we had an extension which had a games room on it and he was down there."

80 She was asked what happened in relation to Mr Stalker's keys, if anything and she said she would not know. She was asked, "Do you recall why it was that he stayed the night?" The answer was, "Because he'd had too much to drink and he really shouldn't have been driving home." She said she did not see him in the morning.

81 Mr McCusker rightly submitted there was, in the end, no evidence specifically about the keys other than the complainant's evidence that the applicant asked her if she knew where they were. That really, I think, does not take the matter any further either way. For the Court of Criminal Appeal the central issue might realistically be that the applicant was said to have come in a vehicle separate from his family. That was what the complainant said in her evidence and the evidence of her parents tended to support that. I have already made some reference to the evidence given as to the extensions and the dates. Other references are at 95, 96 and 98 of the solicitor's affidavit.

82 The complainant's father was again broadly consistent. He said that the Stalker family came over after the renovations and that the applicant arrived separately (106). He said that the keys were removed although he did not know who removed them (107). He said that the applicant was asleep on the sofa in the extension room (108).

83 The fundamental plank in the applicant's submission here, I think, is that it was essential for the Crown to establish the applicant arrived at the complainant's home and left separately from his family and that he had access to a second car. The proposition then was that the family only owned one car. That might have been persuasive evidence for the jury but the case was not opened nor put that way. It was never the Crown case, either expressly or otherwise that I can perceive, that the applicant's family owned more than one car.

84 That brings me to the point by Mr McCusker that the prosecution failed to challenge the uncontradicted evidence of the applicant and his wife that he and his family had only one car and that he had no access to another vehicle. I have already mentioned that Mr McCusker in this regard relied upon Hart.

85 In that case the circumstances were entirely different. That was a case in which the appellant was alleged to have seriously assaulted a person and had given alibi evidence at his trial. He called two other witnesses to give evidence to similar effect. None of them were cross-examined. If their evidence was correct it would have been impossible for the appellant to have committed the offence. It was explained this way by Lord Hewart LCJ:

"The remarkable feature of the case was that three of the witnesses for the defence - Dearing, Bishop and the appellant's wife - were not cross-examined. If the jury accepted their evidence, it appears to be physically impossible that the appellant could have been at the spot in Trinity Road, Wandsworth, at the time of the assault on the warder. In other words, none of the witnesses was given the opportunity of dealing with any objections by the prosecution to their evidence-in-chief. Nevertheless, when the trial approached its close, the jury were invited by the prosecution to disbelieve these witnesses. Without disbelieving them the jury could not have found that the appellant was present at and took part in the assault."

Then at 207 follows the passage to which I have already referred above and having stated that, the court came to the conclusion that the conviction was unsatisfactory and could not stand.

86 In that case evidence of alibi was crucial. There can be no disagreement about the proposition at law but the position here, I think, is different. As I have said, the critical evidence was that the applicant and his wife had arrived separately. That was known to be part of the Crown case from the outset. There was no surprise about that. The defence was well aware that was in issue. At the same time, of course, the defence was there had been no such visit by the applicant's family at all. In these circumstances while the point is arguable, it does not to my mind carry that degree of likely success as a ground of appeal and demonstrate a miscarriage of justice such as to constitute exceptional circumstances.

87 In my view the observations I have made in respect of ground 1 apply to this also. Additionally, though, I note the learned trial Judge did direct the jury to scrutinise the complainant's evidence with great care and expressly referred to the evidence in respect of the utility. How far such a direction should have gone is a matter for argument. It is certainly not something which stands out with any degree of starkness as constituting a basis upon which the appeal would most likely succeed.

88 Ground 3 has been abandoned and I therefore move to ground 4. This is essentially a combination of most of the grounds and particulars already put. They refer to the lengthy delay between the time of the alleged offence and the complaint, coupled with a lack of any specific date and the difficulty confronted by the applicant in a trial confronted by such broad allegations. There is reference to the fact that there was no independent corroboration. There is reference to the complainant's evidence being the only evidence identifying the applicant, and being that when she woke up she kept her eyes closed and then only subsequently saw his profile briefly, and then returned and asked where his keys were. It points out that the complainant did not testify that she had been penetrated with a penis, and that there was no explanation given for the lengthy delay between the time of the alleged offence and the complaint. There is reference to the complainant's father's evidence that on the occasion when the offence allegedly occurred, which the complainant said was in 1985, the applicant's wife had arrived at the complainant's house in a "limey-green" station wagon whereas "the uncontradicted and verified evidence of the applicant, his wife and daughter was that that car had been sold by them in 1982". There is reference to the evidence of the applicant arriving and leaving in the utility separate from his family, the complaint about the prosecution not cross-examining the applicant about that and the fact that the evidence of the complainant's father as to what occurred on the night before the alleged offence was evidence about events some 17 years previously when he had, it is put, a significant amount of alcohol to drink; and, finally, it is complained that the jury's verdict was, in the circumstances, inconsistent with its verdict of not guilty of the other charges, the subject of the allegations by the complainant.

89 The appropriate test of whether a verdict is unsafe or unsatisfactory is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 and MFA v The Queen [2002] HCA 53; [2002] 193 ALR 184 at [25] and [59].

90 As to the delay and the associated matters it would, I think, be open for the Court of Criminal Appeal to conclude that the directions were adequate. As to the fact there is no corroboration that, of course, is common ground but the law clearly is that a conviction can stand nonetheless in these circumstances provided the appropriate warnings were given.

91 So far as the identification of the applicant is concerned, the complainant said more than once that she was 100 per cent certain it was the applicant and so far as the issue as to the complainant's evidence not identifying that she had been penetrated by a penis is concerned, the Crown submits that that had never been part of the Crown case. The evidence as to that was circumstantial.

92 Again it is helpful, I think, to look to the directions actually given by his Honour in regard to these matters. At 283 and 284 of the solicitor's affidavit his Honour, having pointed out that the real point at issue seemed to be whether the acts occurred at all, then turned to the count of rape and explained, first, that there had to be penetration of a penis into the vagina of a woman. He emphasised that it must be penetration by a penis. This, of course, was the law at the time of these alleged acts although the law has changed since then (as his Honour pointed out). At 283 his Honour said:

"... the law has changed and these days other forms of penetration may be acceptable, acceptable in the sense that they may constitute sexual assault, but on the indictment as laid and on the law as then existing, only penile penetration is sufficient. You will have to be satisfied beyond reasonable doubt in order to convict in relation to this element that the accused's penis entered [the complainant's], then a girl's vagina, even if just for a short time - before you could convict.

For example, if there was a reasonable possibility that it was a finger or something else - and that's a question for you, but if there was that reasonable possibility, then you could not be satisfied as to penile penetration. That is all important. That is the first element in rape."

93 His Honour then explained some other aspects of the charge and further down the same page said this:

"Another issue in relation to this to which I will turn shortly when I talk about the evidence is whether or not you could be satisfied that there was penile penetration. That is because there is no direct evidence of it. [The complainant] doesn't say, 'Yes, I felt a penis, I saw a penis, it was a penis.' She gives the description she has given, which you have had read to you and I will remind you of, and the Crown asks you to infer from all the circumstances that the only object that it could have been was a penis."

94 At 290 his Honour again said, speaking about circumstantial evidence and inferences:

"... if you could reasonably draw an inference that it was not a finger (sic) that entered her, ..."

"... even if you were satisfied that it was the accused, then you could not convict of the count of rape."

"It's a matter entirely for you but if there is a reasonable hypothesis open consistent with innocence, then you cannot be satisfied beyond reasonable doubt. As I say, the Crown would ask you to accept those facts as satisfying you that the only reasonable inference available was that the accused entered her with his penis on that occasion."

95 That was after his Honour had referred to the evidence actually given. Mr Urquhart yesterday referred to the evidence given by the complainant herself. His Honour referred to it in two places; first of all at 289 describing the evidence relied upon by the Crown he said that the complainant was asleep in her bed. She woke up. Then:

"She had a weight on her, a terrible pain in her vagina, a presence - she didn't open her eyes but a presence close to her face, smell of alcohol. When she sat up a short time later, within a half a minute, she opened her eyes, she saw the accused.

Those are the circumstances, as I say. She doesn't say directly, 'Yes, the accused put his penis inside me,' but the Crown asks you to draw from those facts - I don't think there are any more, but there may be; that's a matter for you - to be satisfied beyond reasonable doubt that the accused did enter her with his penis."

96 His Honour returned to the actual evidence and quoted from the evidence of the complainant (292):

"It was the early part of the morning, and I was woken up with an excruciating sharp pain, and I was only kind of semi-awake and so I thought that maybe I was dreaming it and just tried to make it go away, but it didn't it got worse, and I felt like I was getting ripped apart, and I had a weight on top of me and there was a smell of alcohol, like, near my face. It seemed like that went on for ever."

His Honour made some observations about that and then turned to the complainant's description of what occurred on top of her when she said:

"It was on top of me and I guess the sharp pain was from something being thrusted in and out of me.

Was the body actually moving at all that you could feel?---Yeah, it was moving backwards and forwards."

97 As a matter of circumstantial evidence it would, on the face of it, seem the Court of Criminal Appeal could conclude it was reasonable and properly open to the jury to have been satisfied on that evidence that it was the applicant and it was his penis that was being thrust in and out of her in the way she described.

98 As to the lack of explanation for the lengthy delay, the fact that there was such a delay was emphasised by his Honour. So far as the colour of the station wagon is concerned, the complainant's father's recollection was that he thought it was a green station wagon. The Crown submission in that regard on this application is that it was not a critical issue in any event. The critical issue was that the applicant arrived in one car and his family arrived in another. I have already addressed aspects of the particulars going to the lack of cross-examination about the utility and the evidence generally in relation to that.

99 So far as the question of inconsistency (that is, inconsistency between verdicts) is concerned, the High Court has recently pointed out with some emphasis that where inconsistency between verdicts is said to depend upon factual issues rather than legal inconsistency, the position has to be assessed in respect of the evidence given in each particular case.

100 In MFA v The Queen to which I have already referred Gleeson CJ, Hayne and Callinan JJ in a joint judgment said at [34]:

"In the case of sexual offences, of which there may be no objective evidence, some or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt."

"A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."

"It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski (2001) 52 NSWLR 92 at 96-99 that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons."

McHugh, Gummow and Kirby JJ in their joint judgment expressed similar views, particularly at [85] and [86].

101 In the present case the not guilty verdicts were returned in respect of counts 1 and 4, the not guilty verdicts on the other counts being directed verdicts in accordance with the directions given by the learned trial Judge, he having upheld a submission of no case to answer in respect of them.

102 In relation to count 1 the complainant was 3 or 4 years of age at the time. There was also significant internal inconsistency in her evidence about those counts. The description she gave of the applicant's house at the time, as counsel for the respondent points out, was clearly incorrect. They did not own the house she described at that time - see p 49 of the solicitor's affidavit.

103 In respect of count 4 the complainant was 10 or 11 years of age. Again there were internal inconsistencies with her evidence in relation to her description of a shed and a fence which were relevant to the commission of the alleged offence she described. The offences were also said to have been committed just some short distance from where there were adults.

104 By contrast, count 6, the rape conviction, was the most recent having occurred, it was said, in 1985. The complainant was then 14 or 15 years of age and there was some support on peripheral matters from her mother and father. Some of this has already been referred to.

105 Notwithstanding that there were some arguable discrepancies as to time and circumstance, nonetheless, there was some degree of broad support for the circumstances in relation to that count. It seems to me that having regard to the principles articulated by the High Court in MFA it would be perhaps difficult to demonstrate inconsistency between the acquittals on counts 1 and 4 and the conviction on count 6. In any event, that is something the applicant will have to demonstrate on the appeal.

106 My conclusion then is that ground 4 again is arguable, and in some respects perhaps strongly so, but not to such an extent that one could say there is a strong or likely prospect that the appeal would succeed on this ground. It does not, to my mind, constitute such an exceptional reason as to justify a grant of bail pending appeal.

107 That brings me to the appeal against sentence. The contention is that the sentence should have been suspended. There is no question that was an option which not only had to be considered by the learned trial judge but was a very real sentencing option in the circumstances. There was no suggestion made on behalf of the applicant that his Honour did not in fact consider that possibility. Clearly he did.

108 To succeed on the appeal the applicant would have to show either identifiable error or satisfy the Court of Criminal Appeal that a term of immediate imprisonment was so disproportionate to the seriousness of the offence and the circumstances of the applicant that there must necessarily have been a miscarriage of the sentencing discretion.

109 Senior counsel for the applicant submitted, first, that the learned trial judge had taken relevant mitigatory factors into account initially in determining the sentence of imprisonment but failed to give the same factors separate consideration again in deciding whether or not the sentence could be suspended in accordance with the approach required by the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 348 and 349.

110 However, what his Honour said in terms seems to convey otherwise. At page 661 of the transcript his Honour said:

"I have reflected both last weekend and during the course of the week as to whether I should suspend the sentence due to matters of mitigation which I have accepted and other matters urged on your behalf. I have reached the conclusion that I will not."

The matters of mitigation were those which his Honour had canvassed previously at some length.

111 It is therefore, at the very least, well arguable that his Honour there was expressly saying he had considered all of those matters again. In my view the applicant's argument on this point is unlikely to succeed on appeal.

112 It is then said that in the circumstances, and particularly having regard to what were recognised by his Honour as mitigating factors, a sentence of 4 years' immediate imprisonment is so disproportionate as to show the exercise of the sentencing discretion must have miscarried. What his Honour said in that regard at 662 of the transcript is:

"The rape of a 14-year-old girl in the particular circumstances is so serious that only a sentence of imprisonment will suffice."

113 That, it seems to me, was a view which the Court of Criminal Appeal might well hold was well open to his Honour. It is not enough that individual members of the Court of Criminal Appeal might or would come to a different result even if that be the view reached. Once again, although the proposed appeal against sentence is arguable it is not one which necessarily has such a high prospect of success as to constitute an exceptional reason justifying a grant of bail pending appeal. For the foregoing reasons the application for bail pending appeal must be refused.