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Court of Criminal Appeal 21 March 2005

Regina v Manton

[2005] NSWCCA 58

Sexual offences
CRIMINAL LAW APPEAL VERDICT UNSAFE OR UNSATISFACTORY BY MAJORITY, APPEAL DISMISSED.

Citation: Regina v Manton [2005] NSWCCA 58
Court: New South Wales Court of Criminal Appeal
Date: 21 March 2005
Judge(s): Bryson JA; Barr J; Hoeben J

Background

The appellant was convicted in the District Court of sexual assault following a trial before Knight DCJ. The complainant alleged the assault occurred in the rear yard of a residential property that she shared with her de facto partner and his mother, both of whom were either in or near the house at the time.

A central difficulty running throughout the case was the complainant's inability to specify when the offence occurred. Her evidence narrowed the date to one of four possible days, and she had delayed reporting the offence to police by approximately seven to eight weeks. During that period she had not told her de facto partner, her partner's mother, her doctor, or anyone else what had allegedly happened.

The appellant denied committing the offence and gave evidence at trial. By majority, the Court of Criminal Appeal dismissed the appeal, though Hoeben J dissented and would have allowed it.

  • Whether the jury's verdict of guilty was unsafe or unsatisfactory under section 6(1) of the Criminal Appeal Act 1912
  • How the test for an unsafe or unsatisfactory verdict, as formulated in M v The Queen (1994) and approved in Jones v The Queen (1997), applies where a complainant's evidence contains internal improbabilities
  • Whether the jury's advantage of seeing and hearing the witnesses was capable of resolving doubts arising from the evidence as it appeared on the record

Decision

The majority (Bryson JA and Barr J) dismissed the appeal, finding that the case was one where the jury's advantage in observing the witnesses could, in principle, resolve the doubts apparent from the written record. Although Bryson JA expressed genuine disquiet about the verdict, particularly regarding the prolonged delay in complaint and the circumstances of the alleged offence, he ultimately concluded that those concerns could not override the jury's position as the primary finder of fact.

Barr J agreed with the dismissal, accepting that the evidence was such that the jury was entitled to accept the complainant's account. The majority applied the test from M v The Queen and confirmed in Jones v The Queen: a court of criminal appeal must ask whether, even making full allowance for the jury's advantages, there is a significant possibility that an innocent person has been convicted. The majority did not reach that threshold.

Hoeben J dissented. He identified several inherent improbabilities in the complainant's evidence, including the lengthy unexplained delay in reporting, the implausibility of the location of the alleged offence, and the complainant's post-offence conduct. Hoeben J concluded that those improbabilities were not of a kind that could be explained by the manner in which the evidence was given, meaning the jury's advantage was insufficient to cure the doubt he experienced.

The dissent reasoned that this was not simply a credibility contest between two witnesses; even accepting the complainant's evidence at face value, the surrounding improbabilities were such that no reasonable jury ought to have been satisfied of guilt beyond reasonable doubt.

Orders Made

The majority ordered:
- Appeal dismissed

Hoeben J (dissenting) proposed:
- Appeal allowed
- Conviction quashed
- Verdict of acquittal entered in substitution

Key Takeaways

  • The test for an unsafe or unsatisfactory verdict, as confirmed in Jones v The Queen (1997) 191 CLR 439, requires an appellate court to determine whether, making full allowance for the jury's advantage in seeing and hearing witnesses, there remains a significant possibility that an innocent person has been convicted.
  • A jury's advantage in observing witnesses is only capable of resolving appellate doubt where the credibility issues arise from the manner in which evidence was given; where evidence lacks probative force for reasons apparent on the record itself, that advantage does not apply.
  • Delayed complaint is not a legal bar to conviction, and no rule of law prevents a jury from convicting where a complainant has waited weeks before reporting an alleged offence, but the delay may contribute to the overall assessment of whether the verdict is safe.
  • In dismissing the appeal, the majority and dissent applied the same legal test but reached different conclusions on whether the improbabilities in the evidence were of a kind that the jury's advantage could resolve, illustrating that the Jones test does not always produce a single clear answer.
  • The Court of Criminal Appeal's power under section 6(1) of the Criminal Appeal Act 1912 extends beyond asking whether there was evidence capable of supporting the verdict; it encompasses the broader inquiry into whether the verdict is unreasonable or cannot be supported having regard to the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Edwards v The Queen (1993) 178 CLR 193
- Ratten v The Queen (1974) 131 CLR 510