New South Wales Court of Criminal Appeal CITATION: Regina v Manton [2005] NSWCCA 58 HEARING DATE(S): 18/02/2005 JUDGMENT DATE: 21 March 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 17; Hoeben J at 28 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal - verdict unsafe or unsatisfactory - verdict of guilty of sexual assault where complaint was delayed 7 or 8 weeks - evidence of time of offence indicated four possible dates and appellant denied offence in evidence - application of test approved in Jones 191 CLR 439 at 451 - review of facts and consideration of advantages of jury - by majority, appeal dismissed. Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Edwards v The Queen (1993) 178 CLR 193 Jones v The Queen (1997) 191 CLR 439 CASES CITED: M v The Queen (1994) 181 CLR 487 Ratten v The Queen (1974) 131 CLR 510 Mark Anthony Manton - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2004/2590 A Haesler SC - Applicant COUNSEL: D Arnott - Crown S O'Connor, Legal Aid Commission of NSW - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/41/0183 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2590 BRYSON JA BARR J HOEBEN J Monday, 21 March, 2005 REGINA v Mark Anthony MANTON JUDGMENT 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. 8 This inconsequential subject received an unfortunate amount of recurring attention during the hearing. The appellant's simply not visiting the house for some time, although he had visited there before, could not rationally have any probative force in support of guilt. However I do not see any sign that counsel for the Crown adopted any wrong course, or sought to make much of this essentially neutral circumstance, and the summing up contained no error on this subject; nor, so far as I can observe, on any subject; and no error was contended for. The last word the jury heard was the Trial Judge reminding them that defence counsel had pointed out that it was rather flimsy material to support the allegation. 9 The reasons for the disquiet I have expressed fall into two parts. First, I see grounds upon which reasonable people deciding the facts could very well lack confidence in the complainant's evidence. Secondly, it seems procedurally unfair that the appellant was not given the advantages which a fresh complaint would have given him in explaining and establishing by evidence when and where he was at the time of the alleged offence. The delay in making the complaint must have produced some unfairness to the appellant, as on the assumption, which must be made for the purpose of testing fairness, that he was innocent, he was deprived of opportunities to recall the facts, and to prove the facts, possibly with the aid of evidence of persons other than himself, which he would have had if he had been told promptly of what was alleged against him, with details of time, place and circumstances. It is possible that he might have been able to explain in a clear way with circumstances that he was at some place where it was not possible for him to have committed the offence; he might have been able to call witnesses to establish that this was so, as well as to rely on his own evidence, or he might have been at a location not inconsistent with his having committed the offence, yet still have been innocent. After a delay of some weeks, and with a range of possible times of the offence, narrowed at the time of the trial to four different days, but in terms of the complainant's first complaint to police considerably wider, the opportunity to give a full and clear account of his whereabouts was greatly diminished, and the possibility of inaccuracy in the account he gave was increased. I cannot see any more that the appellant could have done to present his case to the jury than actually was done. 10 The Trial Judge pointed out to the jury, carefully and fully, adverse implications against accepting the prosecution case which flowed from the delay in making the complaint. His Honour gave the jury a careful and clear warning of the danger of relying on the complainant's evidence in the circumstances, and careful and to my mind complete instructions about the significance of delay in making a complaint. His Honour reminded the jury of the line of reasoning that delay was conduct inconsistent with the conduct of a truthful person when such an offence occurred, and also pointed out that delay in making a complaint did not necessarily indicate that the evidence of the complainant was false; that there might be good reasons to hesitate in making a complaint. His Honour referred the jury to the complainant's evidence that she was scared. His Honour further pointed out, quite fully, the difficulties for the appellant arising from delay and the effects of delay on the appellant's ability to defend himself, and on the opportunity of police to make investigations. His Honour told the jury Now you think about that. You think and appreciate the difficulties which this delay and the vagueness and imprecision about the dates creates for the accused in this case. These are not possible problems, these are real problems. There could have been no misunderstanding about the importance of this matter and about the need for the jury to consider it carefully. 11 The Trial Judge also directed the jury on the significance of their decision's turning on word against word, and pointed out fully and clearly the need to be satisfied of the offence charged beyond reasonable doubt upon the complainant's evidence, in terms which should have dispelled any idea that it was a simple matter of deciding which person's evidence was preferred. His Honour gave the jury a careful warning about the danger of convicting on the evidence of the complainant alone, accompanied by an explanation of the jury's entitlement to do so if they found it was right. 12 The task of finding the facts in a criminal prosecution, never I suppose easy, was acutely difficult in the present case; it was the duty of the jury to resolve these acute difficulties. None of the matters mentioned in the test approved in Jones as overcoming the jury's advantages of seeing and hearing the evidence appears to me to apply. The grounds on which I think that the complainant's evidence may lack credibility must have been sufficiently explained, to the thinking of the jurors who heard the evidence given and saw the manner in which it was given. To my mind the evidence displays some inadequacy, but it should not be said that it contained significant discrepancies or was tainted, or that for that or any other reason it lacked probative force in such a way as to lead me to the view that there is a significant possibility that an innocent person has been convicted, when I make allowance for the advantages which the jury had. There is no objectively discernible reason why the complainant's evidence lacked probative force. 13 It appears to me that the advantages which the jury had in finding the facts were enhanced by the circumstance that the appellant as well as the complainant gave evidence. Such a complete conflict of testimony could only be satisfactorily resolved by a jury. Unless the jury fully believed and accepted the claimant's evidence they must have had a reasonable doubt, in view of the appellant's evidence and sworn denial. From the verdict it must be understood that the jury disbelieved and rejected the appellant's evidence of denial. This situation, recurring in litigation, of completely contradictory testimony about whether an event happened, from two sources both of whom must know what in truth happened, must in criminal cases be left to a jury to resolve, except where the test in Jones authorises intervention. Evidence which is not overwhelmingly strong, or is firmly contradicted, may yet base a verdict which the Court is not empowered to set aside. 14 With the benefit of the summing up by the Trial Judge the jury should not have misunderstood their task, what they were called on to decide if they were to accept the prosecution case and the possibility of error and injustice. The Trial Judge explained in a clear way how much the prosecution depended on accepting the complainant's evidence, and his Honour's directions should have dispelled any misconception that what was involved for the jury was the simple apposition of one witness' evidence with another. The transcript of evidence which I have read has left me with the feeling that if the task had been mine I might very well have come to the conclusion that there was a reasonable doubt about the guilt of the appellant. The appellant gave evidence which distinctly denied the offence, he was challenged in cross-examination, and adhered to his position. The verdict of guilty seems to carry the implication that the jury did not regard his evidence as carrying any weight, for otherwise they could not, it seems to me, have reached any other conclusion than that there was a reasonable doubt about guilt. 15 The jury's advantages over myself are very considerable. The jury, sitting in Bega and hearing evidence about events which occurred in Eden, and seeing and hearing the complainant and the appellant in Court giving their evidence, were far better able to place the complainant's explanations and the facts generally in the context of the demeanour and the personal physique of the complainant and the appellant, and in a context of community life and social behaviour; very little of this is accessible to me, deciding the case on the papers. The jury were in a better position than I am to appraise and understand what significance should be given to realities of human interaction and the force of what, to me and at this distance, seem rather obscure references to the complainant's being scared, her evidence that the appellant said "I know people" and the effect which deeply veiled threats and obscure statements might produce on the behaviour of the complainant. The jury also had the benefit of seeing and hearing the appellant giving evidence, and were able, in accordance with the directions given to them by the Trial Judge, to bring that advantage to bear on their deliberations and their verdict; and so too, with the rest of the evidence. They had a full opportunity to consider the bearing of circumstances of time and place, the significance of the absence of a prompt complaint and the explanation which the complainant gave for there not being a prompt complaint. It is plain to me that with those advantages all the disquiets I have expressed may have been completely dispelled. What appears to me to be a sworn denial with a fair claim to be considered as raising a reasonable doubt obviously appeared altogether differently to the jury; there must have had a reason, and I see no ground, within the test stated in Jones for overriding the jury's decision. 16 After the consideration I have given I continue to see that it is possible that the appellant might have been convicted although innocent, but my perception does not survive the test that I must make full allowance for the advantages enjoyed by the jury in coming to a conclusion. In my opinion the Court of Criminal Appeal should not set aside the verdict, but should dismiss the appeal. 17 BARR J: I have had the advantage of reading in draft the judgment of Hoeben J. I agree with his Honour's summary of the facts, save for the reference to the evidence of Mrs Scott. In her evidence-in-chief she said that the complainant and her husband had moved from Victoria to live in her house at the beginning of 2003 and that other relatives of hers used to visit the house. Her evidence continued - Q Anyone in particular? A Mark, Mark would come in and visit and go fishing and – with Simon. HIS HONOUR: Q I'm sorry I didn't hear that. You say Mark came in did he? A Yeah Mark would come and visit and go fishing and – with Simon and that. CROWN PROSECUTOR: Q How regularly would Mark visit? A He'd come up all the time mainly. You know. Q Did Simon, your son and Mark get on well? A Yes I think. Q Now do you recall, was there any change in those visits by Mark Manton? A There was a bit there after Simon and Diane told me what happened. He stopped coming around for a little while, but I was wondering why, but – yeah. Q You recall that was when? A After Simon said – I mean Diane said that she got raped. Q Approximately how long was it that Mark was not coming around? A About a few weeks there, but he'd come now and then you know in between, that's about it. 18 In cross examination there was this evidence - Q You said that he stopped coming around for a period, do you remember saying that? A Yeah. Q That period wasn't very long was it? A No it wasn't. Q How long would you estimate it was? A Well about one or two weeks, not long. … Q Now, this period when you say he stopped coming, you said, in your evidence was "a few weeks"? A Yeah. Q Do you remember making a statement to the police about this on 21 May last year? A Yeah. Q You said " I remember" – this is paragraph 5, "that there was a period of time when Mark stopped coming around. This only lasted a week and a half or so and I didn't think anything of it". That's what you said to the police? A Yeah. Q Was that correct? A Yeah that was correct, but I didn't know about the rape and that at the time too. Q You didn't – first of all you told the police it was only a week and a half or so? A Yeah, Yeah. Q Was that accurate? A Yeah, around about that. I'm not quite you know, straight on. Q It's about a week and a half, that's what you're telling the police? A Yeah. Q Is that right? A Yes. Q A the time, it didn't seem unusual or strange? A Well not really. You know he'd come and go. Mark used to live with me a long time ago. Q You're his aunt? A Yeah or first cousin. Q You told the police you didn't think anything of this, that is you didn't think anything of him not coming around for about a week and a half? A Yeah. 19 I do not think that Mrs Scott would have wondered why the appellant stopped coming to the house after the complainant broke her silence. If the complainant was telling the truth, it would have been obvious to Mrs Scott why the appellant had stopped visiting. Her answers in cross-examination show, I think, that she was saying that the appellant stayed away during a period of time before the complainant told Mrs Scott that he had raped her. That construction better explains her answers in chief - But I was wondering why. And in cross examination - But I didn't know about the rape at the time. 20 The appellant did not disagree with a suggestion in cross-examination that he did not go to the house for a period anywhere between a few weeks and a couple of months. He explained it, however, because he said that he fished with his Uncle Warren at those times rather than with the complainant's husband. There was also this question and answer - Q There was a period of anywhere up to a couple of months where you didn't go fishing with Simon? A Sort of on and off. 21 The complainant's evidence about the rape was basic, but sufficient, if believed, to justify a finding of guilt. The evidence of the complainant was supported by her own evidence as well as that of her husband and Mrs Scott and, to the extent that I have summarised, the appellant, that the appellant stayed away from the house for a significant time. Circumstances that might have tended to raise a reasonable doubt about the reliability of the complainant's account were that she said that the rape took place at a place and a time when the incident might have been seen by strangers. The complainant was unable to fix the time of the event. She did not complain straight away but waited several weeks before telling anybody. 22 The impression the complainant made on the jury was critical. This appeal illustrates the difficulty which an intermediate appellate court has in assessing evidence without the opportunity to see and hear the witness. 23 The evidence shows that the complainant was of aboriginal descent. She and her husband had lived in Victoria for some indeterminate period and in Eden, New South Wales, some few weeks before the event complained of. A reading of her evidence suggests that she was usually able to understand the meaning of the question she was asked. She failed to answer some questions, but that may have been because she was distressed by the process of examination. It is not possible, however, to say that that accounts for every failure of hers to answer questions. 24 The complainant told the jury that she did not tell anyone about the matter because she was scared. That was a statement the jury had to consider in deciding whether to accept her evidence. The reason why she was scared, she said, was that the appellant told her that he "knew people". Whether that explanation for her silence was plausible depended very much on an assessment of the personality of the complainant. An experienced, worldly woman might have difficulty convincing a jury that she could be silenced by such a vague statement. What, then, was the complainant like? Was she strong-minded, timid, diffident? The jury knew, but this Court can gain very little idea. Her background does not suggest any degree of sophistication. She may have been cowed by the vague threat. 25 The same remarks may be made about the complainant's failure to identify the precise evening on which the attack took place. Failure of memory about such matters is not unusual in cases of this kind. The complainant was obviously not very good at remembering dates. The fact that she could not remember a date, however, did not point more to the falsity of her story than to its truth. If she had made up the story, she had made a poor fist of her lie. If she was telling the truth, she had made a poor fist of describing something that really happened. 26 The event central to the Crown case was not something the complainant could have been mistaken about. Either it happened or she was lying. The jury were required to assess her honesty. In my opinion the demeanour of the complainant as she gave evidence must have given the jury a much more reliable indication of her honesty than can be obtained by a reading of the cold word on the page. The weaknesses in her evidence were capable of explanation and the jury accepted the explanation. There was some support independently of the complainant's evidence of the truth of what she said. I have assessed the evidence, as I must, and I have acknowledged the superior position in which the jury were, as I must. It has not been made to appear to me that the verdict is unreasonable or cannot be supported having regard to the evidence. 27 I would dismiss the appeal. 28 HOEBEN J: Offence and sentence Mark Anthony Manton, the appellant, came for trial before Judge Knight and a jury at Bega between 23 and 26 February 2004. The indictment charged that the appellant, between 28 February 2003 and 31 March 2003 at Eden had sexual intercourse with Diane Carol Howden without her consent and knowing she was not consenting, in breach of s61I of the Crimes Act NSW 1900. On 26 February the jury returned a verdict of guilty. 29 On 5 April 2004 Judge Knight sentenced the appellant to a period of imprisonment of 5 years with a non-parole period of 3 years and 6 months, such non-parole period to commence on 26 February 2004 and expire on 25 August 2007. The parole period was to commence on 26 August 2007 and expire on 25 February 2009. 30 The appellant has appealed against his conviction on the basis that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence. It is not contended that his Honour Judge Knight erred in his conduct of the trial, or in his directions to the jury. The evidence 31 Diane Carol Howden, the complainant, gave evidence that she had moved to Eden with her de facto husband, Simon Scott, and four children two months before the incident, ie late January 2003. The family lived with Simon's mother, Catherine Scott, at Rodd Street, Eden. A regular visitor to Rodd Street was the appellant, who was Simon's cousin. He and Simon would often go fishing. 32 The complainant said that on a Thursday or Friday evening between 9 and 10 pm she went into the backyard to retrieve some washing from a line. The four children and Mrs Scott were in bed. Simon had gone out, taking his car. In the yard she heard someone say "Oi". It was the appellant. He asked for sex. The complainant refused. The appellant's eyes were red and glassy and his voice was louder than normal. He grabbed the complainant and pushed her to the ground. He said that "He knows people". The complainant was scared and thought she might be hurt. 33 The complainant said that he removed her tracksuit trousers and knickers and put his penis in her vagina. The act of intercourse took five to ten minutes. When he stopped he said "Don't say nothing, I know people". This made the complainant feel scared. She ran inside, locked the door and had a shower. She then went to her room and cried. She did not say anything to Catherine Scott that night. She did not say anything to Simon Scott that night. She did not do so because she was scared. "I was scared too because of what he'd done to me, scared that something was going to happen." (T.25.1) 34 The complainant did not tell anyone about the incident until a day or so before she made her statement to the police on 9 May 2003. The first person she told was Simon Scott. The complainant estimated that the incident had occurred on 13 or 14 or on 20 or 21 March 2003. She was able to say this because she knew the incident occurred on either a Thursday or a Friday night and because "it happened more at the end of the month and the last week of the month I got my period". (T.26.12) The complainant had had two periods between the date of the incident and when she made her statement to the police. Her menstrual cycle was regular and normally occurred in the last week of every month. 35 The complainant could not remember anything about the clothing which the appellant was wearing. She did not scream out because she was scared. She was scared that she was going to be hurt. She said that after this incident she did not see the appellant for a couple of months because he stayed away. After a couple of months he came back and started going to the house again. The complainant broke down and wept on at least two occasions while giving her evidence in chief. 36 The complainant was cross-examined. She agreed that she had told the police in her statement on 9 May 2003 that the incident happened in March or April. The complainant agreed that in that same statement she had told the police that she did not know the date when the incident happened "but it was before the Easter school holidays and a couple of months after we moved to Cathy's place". It was common ground that the Easter school holidays commenced on 18 April 2003. She now realised the incident could not have taken place in April. She said that when she made the police statement, she could not think properly. She was too stressed to give an accurate date. 37 The complainant gave evidence at committal proceedings on 17 October 2003. In those proceedings this exchange occurred: "Q. You said in your statement as well that it happened before Easter. Did you have any idea roughly how long it was before Easter or? A. I knew it wasn't too far. Q. Would you say a week or two weeks before Easter? A. I'm not sure". The complainant said that she gave that answer because she could not think properly. She agreed that the incident could not have occurred a week or two before Easter (T.35). 38 The complainant thought she had last seen the appellant either on the day of the incident, or the day before. The appellant had quit his job before the incident (T.37.33). The complainant was adamant that the appellant stayed away for a period longer than a week, and it seemed like two months. In her statement to the police the complainant had referred to the appellant staying away for "a month or more". Thereafter the appellant resumed visiting the house, but not as regularly as before, going for drives with Simon and going into the bush with him looking for plants (T.38.40). 39 Despite sharing a room, she did not tell Simon of the incident that night. She did not tell his mother Cathy of the incident, either that night or the next day. She did not cry in front of either one of them the next day. She did not appear upset in front of them the next day. She could not think of any behaviour on her part in the weeks following the incident which might have indicated that she had been sexually assaulted. She told no one during that time. 40 She did not see a doctor because she did not feel as though she had been injured. She was too scared to go to the doctor. This was despite the fact that she was planning to have another child. She did not tell the police until 9 May. She was too scared. She kept the clothes she was wearing, but had washed them. She did not think to keep the clothes unwashed so that they could be tested by the police. 41 The backyard where the attack took place was well lit. It was overlooked by two buildings one of which gave a good view into the backyard. The neighbours were close enough to have heard the complainant if she had screamed. She did not do so. She did not look around to see if there was anyone about. She was too scared to think. She did not yell out for help because she was too scared. There was a phone in the house that night, but she did not use it. The complainant said that she did not know when she thought she might get hurt, but was scared that the appellant was going to hurt her if she rang the police or told anyone. The complainant broke down and wept on at least one occasion during cross-examination. 42 Simon Scott gave evidence that there was a period when the appellant had stopped coming around, that he thought he had offended him in some way and that the complainant was different with the appellant after the incident, but he did not know the dates. 43 Mrs Scott gave evidence that the appellant had stopped coming around for one or two weeks after the complainant had told Mrs Scott what had happened. Mrs Scott had not noticed anything unusual or strange about the appellant or the complainant. 44 The appellant gave evidence and was cross-examined. He denied that he had sexually assaulted the complainant. He was a little vague about whether he had reduced the number of visits to Rodd Street. He agreed that for a period he had not gone fishing with Mr Scott as often as before. It was his custom to visit Rodd Street on weekends and sometimes during the week. He thought the complainant did not like him taking Simon away to go fishing. He had not found out about the allegation by the complainant until an occasion when he borrowed some videos from Mrs Scott and he mentioned it to Simon the next day when he returned the videos. 45 Warren Russell, Mr Scott's uncle, gave evidence. He and the appellant had both worked on an oyster farm until 30 March 2003. The appellant would work during the week and get a lift into Eden and stay with him on weekends. Deficiencies in Crown case 46 The complainant's evidence was entirely uncorroborated. The Crown case was totally dependent upon her evidence. There was no scientific or medical support for the claimed sexual assault. There was no complaint at the time or for a considerable period thereafter (six or seven weeks on the complainant's testimony). 47 The appellant's suggested cessation of visits to Rodd Street did not corroborate the complainant. There was a factual issue as to whether such a cessation of visits had taken place and if so, for what period of time. The complainant was unclear as to length of time, varying between one month, two months, and more than a week which felt like two months. Mr Scott said a month and a half – two months. Mrs Scott said there was a period of one or two weeks after the complainant had reported the incident. The appellant said there was a period when he stopped fishing with Mr Scott but still visited every weekend. 48 There was a legal issue as to how that evidence was to be used. In address the Crown sought to use the evidence of the complainant and Mr Scott on that issue to challenge the credit of the appellant. In cross-examination, however, it had been put to the appellant that the reason he stopped coming around was because he had raped the complainant, ie consciousness of guilt (T84.54). No direction in accordance with Edwards v R (1993) 178 CLR 193 at 211 was sought or given on that issue. 49 It is difficult to see what use could or should have been made of that evidence by a reasonable jury. The evidence itself was contradicted and contradictory. It was not corroborative and was open to a number of innocent explanations. There was a real risk that the emphasis given to that evidence by the Crown may have misled the jury. It is difficult to see how that evidence supported the Crown case. 50 The complainant's cross-examination demonstrated inconsistencies in her identification of when the assault had taken place. In the police statement of 9 May 2003 and in the committal proceedings on 17 October 2003, she had referred to the incident taking place shortly before Easter (the Easter school holidays commenced 18 April). Her evidence at trial identified four possible dates in March. She agreed that the incident could not and did not occur in April. Her explanation was that she was too stressed and could not think properly on those occasions when she referred to April. It was clear from her evidence that the dates nominated at trial were a reconstruction by her based on the occurrence of her periods since the incident and that she had no actual recollection of the date. 51 The delay in complaint raised considerations of inherent improbability. Once the door of the house was locked against any intruder, there was ample opportunity to either complain to Mrs Scott, to Mr Scott when he returned home, or to telephone the police. That opportunity continued for the whole period of the delay until a day or two before 9 May 2003. The explanation of being scared was, in the circumstances, unsatisfactory. No actual violence had been used during the assault, nor any specific violence threatened. The expression "I know people" was vague and non-specific. 52 The delay in complaint created major problems for the appellant in defending himself. If innocent, his ability to recall events which took place at the time of the incident was impeded, particularly when the date was so non-specific. It had the effect of relegating the appellant from giving an account of what actually happened to "what must have happened". 53 The appellant's opportunity to obtain evidence refuting the circumstances of the offence was significantly reduced. The appellant's and the complainant's movements on the day of the alleged incident were material facts. Proof of them would have gone far to support one or other of the opposing cases. The situation for the appellant as to whether the incident took place on a Thursday or a Friday may have been significant given the evidence that he worked at the oyster farm during the week and went to Eden on the weekends. 54 If complaint had been made promptly and the appellant was innocent as he claimed to be, he may have been able to obtain DNA or other scientific evidence which exculpated him. This was not only rendered impossible by the delay but also because the complainant had washed the clothes she was wearing at the time of the incident and she was unable to remember and therefore identify the clothes which the appellant was allegedly wearing at the time. 55 Apart from those matters, there were other problems in the Crown case. The complainant did not look to the neighbouring houses for assistance despite one of them overlooking the backyard which was well lit. She did not yell out, despite there being no actual threat of immediate harm. Although intending to have another child, she did not consult a doctor. In the circumstances of the assault as described, one would have expected the complainant to have had a justified fear of infection. Finally, there was nothing in her behaviour or demeanour, immediately following the incident and in the weeks thereafter, to indicate that it had occurred. 56 The appellant was not shaken in cross-examination. He made appropriate concessions. Given the vagueness of the time frame of the allegation against him, calling Mr Warren to establish that he worked at the oyster farm at Pambula during the week and spent his weekends fishing, was the best that could be done to mount a defence. The appellant's sworn evidence denying the allegation must be properly taken into account. Power of this Court 57 Under s6(1) of the Criminal Appeal Act 1912 this Court is required to set aside a conviction if it is: "Of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law or that on any other ground whatsoever there was a miscarriage of justice." 58 In M v The Queen (1994) 181 CLR 487 at 492, the majority said that although the phrase "unsafe or unsatisfactory" did not appear in s6, it allowed a verdict to be set aside when the verdict was unreasonable or not supportable on the evidence. In the same case, McHugh J said (p 523) that a "miscarriage of justice" arose whenever the accused had not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raised a real doubt as to whether the conviction could be regarded as a safe or just conviction. Having regard to the statements in M, there can be no doubt that "a miscarriage of justice" also occurs when the finding or verdict of the jury raises a real doubt as to whether a conviction is safe or just. 59 In M, Mason CJ, Deane, Dawson and Toohey JJ said (p 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open" to the jury to be satisfied beyond reasonable doubt that the accused was guilty. This decision was reached, however, not merely by examining the transcript of evidence and the exhibits. "In answering the question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (p 493) 60 The majority explained the application of the test 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." (p 494) See also Jones v The Queen (1997) 191 CLR 439 at 451. Conclusion 61 This was not a case which depended upon which of two witnesses the jury preferred. Even if the jury preferred the evidence of the complainant it still had to be satisfied as to the commission of the offence beyond a reasonable doubt. There was nothing inherently improbable in the account given by the appellant which could have led a jury to reject his version of events. There were, on the other hand, a number of inherent improbabilities in the complainant's evidence relating to her failure to complain, her post accident conduct and her inability to particularise when the incident occurred. I am of the opinion that the implausibility of the complainant's evidence was such that it could not be overcome by the advantage which the jury had of seeing and hearing the witnesses. 62 In my opinion, the proper application of the test formulated by the majority of the High Court in M and which was specifically approved in Jones v The Queen requires that the conviction of the appellant be set aside on the basis that it was unsafe and unsatisfactory. 63 The orders which I propose are: (i) Appeal allowed. (ii) The conviction is quashed and in lieu thereof, a verdict of acquittal is to be entered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.