R v W

[1995] QCA 150

IN THE COURT OF APPEAL	[1995] QCA 150
SUPREME COURT OF QUEENSLAND
C.A. No. 405 of 1994
Brisbane
[R v. W]

THE QUEEN

v.

W

Appellant

Macrossan CJ
Pincus JA

Thomas J

Judgment delivered 28/04/1995

Joint reasons for judgment of the Chief Justice and Thomas J. Separate dissenting reasons of

P incus JA.

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS SET ASIDE WITH AN
ORDER FOR A NEW TRIAL.

CATCHWORDS:CRIMINAL LAW - APPEAL AND NEW TRIAL - FRESH EVIDENCE - Rape and indecent dealing - test for consideration of fresh evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - Whether verdict unsafe and

unsatisfactory.

Counsel:	Mr A. Rafter
Mrs L. Clare
Solicitors:	Legal Aid Office (Queensland) for the appellant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:31/01/1995 Judgment delivered 28/04/1995	JOINT REASONS FOR JUDGMENT - MACROSSAN CJ AND THOMAS J

This appeal is against conviction on two counts of indecent dealing and one of rape

committed upon a youthful complainant, the stepdaughter of the appellant. The appeal is

brought on two grounds, the claimed discovery of fresh evidence and the alleged unsafe and

unsatisfactory nature of the convictions. The notice of appeal specifies particular reasons why

the verdicts should be regarded as unsafe and unsatisfactory.

The complainant was born on 22 December 1977. The indictment charged the first count

of indecent dealing as occurring between 1 March 1992 and 31 December 1992 and the second

count as occurring between 1 May 1992 and 31 December 1992. The complainant would then

have been 14, or perhaps 15 years of age. The third count, that of rape, was charged as having

taken place between 25 December 1993 and 31 January 1994 when the complainant would have

been 16. The evidence led at the trial tended to confine somewhat the dates which had been

specified in the indictment.

It was alleged that at the times when the offences occurred the complainant had been

residing with her mother and the appellant and at other times she had lived either with her

father or independently at different addresses. When her mother and father had first separated

the complainant resided with her father. Only subsequently did she go to live with her mother

and the appellant in in a house on a property which at one stage at least was owned by a family

called N. Reference will be made later to a girl somewhat younger than the complainant, TN,

who gave certain evidence to this Court in support of the fresh evidence ground. The evidence at

the trial sufficiently established certain periods for the complainant's residence at Allora. For

the period between about February or March of 1992 and January of 1993, the complainant was

at Allora and she returned again on some date before her birthday in December 1993.

There was no corroboration of the complainant's version and no evidence of fresh

complaint. The complainant gave evidence at the trial and the appellant also gave evidence, he

categorically denying that the acts alleged by the complainant or any other sexual impropriety had taken place. At the time of the trial the appellant was continuing to live with the

complainant's mother.

The Allora house had two sets of stables, one wooden and one brick, close nearby. In

respect of the first count of indecent dealing, the complainant's allegation was that while she and

the appellant were engaged together in feeding some horses at the stables, he lifted up her shirt,

pulled down her bra and placed his mouth to her breast. She said that was the first time

anything like that had happened and because she was afraid of him, she did not tell him to stop.

Afterwards, the two returned to the house together.

Subsequently, but still in 1992 after the month of May, the complainant attended a disco.

When she left the dance after 11pm to return home, the appellant was waiting outside in the car

to drive her home. She said that on the way the appellant said, "I want a root". She made some

excuse about her periods and he then said she could give him a "head job" because her mother

never gave him one. She said that he then pulled her down so that her head was in position on

his lap and she took his penis in her mouth because she "didn't know what he would do if she

didn't". She could not remember if any other events of a similar nature took place between the

first two episodes, or later in 1992.

Around the beginning of 1993 the complainant went back to live with her father but did

not stay with him for long. She went away on her own, moving around to reside at various places.

She conceded that during this period she became heavily addicted to drugs. She returned to live

with her mother and the appellant at the end of 1993 and it is alleged that the rape the subject of

count 3 took place at this time.

The complainant, in her evidence, did not state the date of the rape precisely. She may at

one point have been disposed to nominate New Year's Eve or the early hours of the morning of

New Year's Day as the relevant time, but she did not tie herself to this and without claiming to be

too precise, said that it happened after Christmas of 1993, around New Year. It was clear that she

was alleging that the event occurred just after she, her mother, and the appellant, had returned

home in the early hours of the morning from a party at the house of a person called Madden. The appellant's evidence was that this party was held on New Year's Eve. Apart from the

allegation of rape, which he denied, he gave a description of the party and certain other

surrounding events which was not markedly different from hers. The precise date of this

occasion has significance because of the nature of the evidence available from TN on which the

appellant now seeks to rely.

The complainant's evidence was that after her group had driven home from the party at

Madden's place she and the appellant went down to feed the horses and while they were at the

brick stables, he put her down on the ground, held her hands behind her neck, pulled her trousers

and pants down, commenced to kiss her breasts and then placed his penis in her vagina. She said

that she was afraid to struggle because she thought that the appellant might hurt her. She

claimed that she called out for help and while she thought no-one had heard her, later, as the

episode continued, she said the appellant stopped when they heard her mother calling out to

them. The complainant said she could not remember if she had said anything to the appellant on

that occasion which indicated that she did not want him to do what he did.

The complainant's evidence was that shortly after the events charged in count 3 took

place, she went back to live with her father. After two weeks or so she quarrelled with him and

then moved first to Toowoomba and subsequently to other addresses. She said that in February

1994 while she was in Toowoomba, she received a telephone call from the appellant in which he

said that he was sorry, but also said to her that if she told anyone what had happened, he would

kill her. She subsequently took an overdose of pills and was admitted into the psychiatric ward of

a hospital.

Counsel for the appellant conceded that the matters relied on in the notice of appeal as

rendering the verdicts unsafe and unsatisfactory were not in a class much different from similar

cases where juries have to render a verdict where the evidence is essentially word against word of

a complainant and an accused.

Here there was no corroboration and no fresh complaint but the jury heard both from the appellant and his accuser, they providing the only direct testimony concerning the events charged. There was no medical evidence of the physical condition of the complainant discovered on

examination. However, anything which might have been discovered on physical examination

could not be expected to be significant because the complainant had been living with a young man

and any indications therefore of apparent loss of virginity would not have been of importance in

the resolution of the case.

In coming to a judgment on the acceptability of the complainant's testimony the jury

were not presented with a picture of her lifestyle indicating particular innocence or lack of

knowledge of the ways of the world. The complainant for significant periods had led an

independent life of her own with other young people in various locations. She indicated her

preference for the company of young men rather than of girls of her own age. The weight that

the jury would have been entitled to give to her version of the events charged has relevance when

the cogency of the fresh evidence falls to be assessed.

An examination of the record reveals that there were some inconsistencies in the

complainant's evidence which would have had to be allowed for. At committal she said that she

could not be sure that the phone call that she received in February of 1994 was from the appellant

but at the trial she asserted it was. Her complaint to the police was made on 24 February 1994.

An examination of the record reveals that her memory was not exact on some matters of detail

especially in fixing dates of events. Still, she appears to have told her story at the trial in a

straightforward manner and there is nothing inherently incredible in the version she gave so that

it would have been open to the jury to accept her.

The complainant admitted that she and her girlfriends at the Allora school discussed

events of a sexual character in which they had been involved. Some of the girls said they had

been raped by their stepfathers, others by their fathers, and others again by friends of their

families. Any effect which participation in discussions of this kind would have on the reliability

of her allegations is a matter which the jury could have allowed for. Overall, she readily enough

presented a picture of herself as one not disposed to accept discipline or direction. Her recurring

quarrelling with her father appeared to be due to the company she insisted on keeping and her rejection of his objections both to it and to the lifestyle that she pursued. Her addiction to hard

drugs was another matter to be taken into account. She moved around a good deal between

different addresses and her itinerant lifestyle might have been thought unusual in one so young.

She agreed that she was emotionally unstable.

One particular objection below was that the complainant's testimony did not support all

that the prosecutor's opening of the Crown case suggested would be forthcoming. The jury had

been told that the complainant would say that the appellant on the first occasion of indecent

dealing said to her, "Take your clothes off" and "Take your fucking clothes off", also that she had

"never had good sex until (she) had had sex with (him)", and also, in asserting the futility in her

reporting the matter, he said her mother would not believe her. She said none of this in her

evidence at the trial. Further, it had been opened that she would say that the appellant had on

other occasions grabbed her on the bottom and pinched her on the breasts and that this happened

all the time. Yet her evidence at the trial did not claim that this had happened. Somewhat

similarly after the second incident the jury had been told in the opening that the complainant

had been told by the appellant not to tell her mother that he "fucking did this". This, too, was not

supported by the complainant's testimony.

At the end of the Crown evidence, defence counsel made a submission that there was no

case for the defence to answer and alternatively that the jury should be discharged because of the

complainant's failure to give evidence conforming with the opening. The trial judge declined to

accede to these submissions. No complaint was made below or before us suggesting that the

directions given to the jury in the summing up, did not appropriately allow for these divergences

from the opening in the complainant's testimony. Another matter complained of was that when

the appellant in evidence denied all of the allegations, and was being cross-examined, he was

asked by prosecuting counsel about an allegation which the complainant was said to have made

about him to her mother not in his presence and at a time when the three of them were in

Victoria on holiday in January of 1993. The appellant responded to the prosecutor's questioning

by indicating that he was aware that after a quarrel with her mother, the complainant had said that the appellant had let her or made her give him a "head job". Defence counsel did not object

to this cross-examination at the time and made no issue about it until after both counsel had

addressed when he asked that the evidence be declared inadmissible. The trial judge ruled in his

favour on this point and directed the jury to disregard it in their deliberations. Following the

judge's summing-up, no objection was taken to the way in which the judge had dealt with the

matter. Accordingly, the attempt to raise some issue concerning it in the notice of appeal need not

be delayed over.

Apart from the fresh evidence point, none of the matters so far referred to would entitle

the appellant to succeed. It is now necessary to turn to that point.

It is said that not long after the trial was concluded, the appellant and his legal advisors

for the first time became aware that the complainant in the course of a conversation with TN

when she was living nearby in late 1993, had said that "if she wanted to she could put W up for

rape and he could not do anything about it". TN said that she believed this conversation took

place sometime during December 1993 and that she did not believe it took place on or after 1

January 1994. Having become aware that TN had some information of relevance to pass on, the

appellant's solicitor interviewed her on 16 September 1994 which was about a week after the trial

had finished and having obtained the information stated above, it was included in an affidavit

which the Court received on the hearing of the appeal. It can be accepted that this information,

when it came to the knowledge of the defence, was "fresh" within the meaning of the relevant

tests since although TN had previously said something to the appellant about having had a

conversation with the complainant, the terms of that intimation were not such as to convey to the

appellant that it could have relevance for the purposes of the defence at trial. It was only

subsequently that more was learned about the conversation giving it a relevant complexion.

It is obvious that the date of the conversation claimed to have occurred between the

complainant and TN and the relationship between that date and the date when the events, the

subject of count 3 are alleged to have occurred, is a significant matter. Although the

complainant, in her evidence, had been less than precise about the date on which the alleged rape occurred, the appellant had given evidence in which he stated definitely enough that the party at

Madden's house had been a New Year's Eve affair and the prosecutor had been content to proceed

upon the basis that that was the correct date. If the conversation between the complainant and

TN actually took place and it was in the terms that the latter claimed, then it would have

significance for the defence case only if it occurred before New Year's Eve because otherwise it

would simply be a complaint tending to confirm the complainant's account. If, however, it

occurred before, then, depending upon other matters, it could carry with it the implication that

the complainant was considering making a false complaint against the appellant and this would

have been of considerable moment for the jury in their consideration of the evidence. The

question for this Court would then be whether the fresh evidence was of such a character that, if

available to be led, it would have given rise to the significant possibility that it might have

resulted in an acquittal: see Gallagher v. The Queen (1986) 160 C.L.R. 392 at 399, 402 and 421.

In considering the effect of the fresh evidence in terms of this test, it is necessary to decide

whether the evidence possesses, to the necessary degree, qualities of credibility and cogency, see

Mickelberg v. The Queen (1989) 167 C.L.R. 259 at 301.

Apart from the important question of the date when the conversation with TN, if it

occurred at all, took place, another matter affecting its significance would be whether the

complainant in referring to a rape was sufficiently aware of the legal meaning of the term. It

would also be a matter of consequence whether she was meaning to say more than that two earlier

acts of sexual interference having occurred, she considered that the appellant had made himself

vulnerable to a charge, even one of rape if she should choose to make it, because he had

compromised himself and he was not in a position where he could defend it from a position of

complete innocence. It might be thought that the dimension of falsehood would be even greater if

no sexual contact at all between the complainant and the appellant had occurred.

If TN had given evidence at the trial, the questions of the date when the conversation

might have occurred and the meaning which the complainant might have been intending to

convey including her understanding of the term "rape" would have arisen. If the allegation that such a conversation occurred had been put to the complainant at the trial and she admitted it,

then these matters could have been explored. If she denied it then it would have been open to the

defence to call TN in an attempt to prove the making of a prior statement inconsistent with the

complainant's present testimony. This could have a substantial effect upon the complainant's

credit worthiness whenever the conversation might have occurred. Of course there could be an

even more direct effect upon the substance of her allegations if the jury were satisfied that the

conversation did occur and that it was on a date before the party at Madden's house.

On the hearing of the appeal TN was called as a witness and on her testimony was

subjected to cross-examination. She was a fifteen year old when she gave evidence, having been

born on 3 February 1980. No particular reason appeared in her testimony or from her

demeanour in giving it to raise doubts concerning her truthfulness. It should be recorded that we

were informed by counsel for the appellant and it was apparently accepted by counsel for the

respondent, that the complainant had been interviewed and supplied a statement in which she

denied that the conversation to which TN deposed had taken place at all. This aspect, however,

was not fully pursued before us.

TN said she was friendly with the complainant and they used to travel in the same school

bus to Allora. She was two school grades behind the complainant.

In her oral testimony before this Court, TN said she could remember the conversation to

which she deposed having taken place before New Year's Day and there were particular reasons

for her remembering that fact. Her own family had gone to the Gold Coast fairly early in

January on or about the fifth day of the month and this apparently helped her fix the date.

Further, she said that on New Year's Day the complainant had come over to see her at the Allora

property asserting that the night before, her mother and the appellant had let her have a couple

of drinks. TN said that she remembered the conversation in question as having taken place before

that. The further conversation which TN spoke of as having occurred on New Year's Day was

consistent with the attendance of the complainant at the Madden party the night before. TN said

that she did not see much of the complainant after that brief conversation on New Year's Day. In respect of the alleged conversation about rape, she could add very little except to say it was in a

context of the complainant's "bragging" to her about smoking dope while walking down the street

and smoking it in a police station and claiming that the police had come and raided the place

where she was living "and things like that".

In the evidence which she gave before this Court, TN provided a sufficiently firm basis

for her belief that the relevant conversation did take place before New Year's Day and for her

assertion that there was such a conversation between herself and the complainant. As things

were left at the conclusion of the appeal hearing, there was no reason to assume that the

complainant would not have been sufficiently aware of the meaning of the term "rape". Her

knowledge of this matter was not investigated. Substantial matters are therefore raised for

consideration by the fresh evidence. It should be concluded that the evidence has the necessary

degree of credibility and cogency to justify an order ensuring that it can be considered in this

case, which calls for resolution by weighing the word of the complainant against the word of the

appellant.

The appeal should be allowed and the convictions set aside with an order for a new trial.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 28/04/1995

As is explained in the joint reasons of the Chief Justice and Thomas J., the appellant complains of his conviction on two counts of indecent dealing and one of rape, the complainant being his step-daughter. Their Honours have dealt with the appellant's submission that the verdicts were unsafe in a way with which I am in substantial agreement. The Crown case was by no means free from defects and there was no evidence to corroborate the complainant. Nevertheless, the record is not one a perusal of which suggests that the complainant's story could not reasonably be accepted, and subject to the fresh evidence point, the appeal must fail. On that point I am in respectful disagreement with their Honours' conclusions; it does not appear to me that the evidence of the witness TN justifies the course of setting aside the convictions.

The basis upon which it is suggested that this should occur is that a witness has been found who attributes to the complainant a statement about the facts in issue which may possibly, but by no means must, throw doubt upon the complainant's veracity. If TN’s evidence was such as to give any ground for confidence that she well remembers what, if anything, the complainant said, the fresh evidence might have more weight; but the witness gave a version of the relevant part of the conversation, at the hearing in this Court, which is different from that in her affidavit.

The rape count in the indictment alleged the commission of the offence "on a date unknown between the 25th day of December 1993 and the 31st day of January 1994". The occasion was said by the complainant in her evidence to have been "somewhere around New Year's. I can't remember". When asked whether it happened in January 1994 she said "yes" and also said that it was after Christmas Day 1993. Starting from the proposition that the offence was alleged to have been committed in 1994, the appellant says that TN’s evidence is inconsistent with the complainant having already been raped at that time. In TN’s affidavit she says she had a conversation with the complainant late in 1993 during which the complainant "told me that if she wanted to she could put W up for rape and he could not do anything about it". In this Court the version given was "she said that if she wanted to she could put W up for rape". When asked whether the complainant said anything else about "that rape business" TN answered "no". The omission of the assertion that W could not do anything about it, which would perhaps carry the implication that the allegation would be a fabricated one, is striking. TN also gave evidence about a conversation with the appellant, who was a neighbour of TN and her family:

" Well, did you know that W had got into some trouble over C?-- Yeah, I mentioned to him once that I had heard a conversation with C, but he just like - he didn't do anything about it.

You told them about this conversation?-- Mmm.

Is that right?-- Yeah.

You told him-----?-- Well, no, I didn't tell him like - I just told him, 'Oh, I've been

talking to C about things' - like that.

And when did you say this to him?-- Oh, probably very early on when - like about

just when they said that he'd been put up on charges.

Did you know what the charges were?-- Yeah, I knew it was rape.

And did you know who it involved?-- Mmm.

And what is it that you said to W at that time? Can you remember what you told him about what you'd been saying-----?-- No, I can't recall. Oh, I think I just said something along the lines of like, 'I've talked to C about' - I'm not sure though. "

TN's evidence is, then, to the effect that, at a time when the appellant was to her knowledge charged with having raped the complainant, she told him about her conversation with the complainant about rape, but said no more than that she'd been "talking to C about things". TN seemed a confident and intelligent girl. This conversation with the appellant must have occurred not long after that which she claimed to have had with the complainant; the appellant was arrested in April 1994. It seems strange that she did not tell the appellant what the complainant had said about rape, and also fairly odd that she did not appear to remember what her conversation with the appellant was; perhaps she thought it to be disadvantageous to the appellant's chance of a new trial to say too much about her talk with the appellant, before trial. A conversation with an alleged rapist, relating to what has been said by the victim of the alleged rape about the subject, would surely lodge solidly in TN’s memory, if it occurred. Another point which emerged from TN’s oral evidence was that she had no precise idea of the date of the conversation with the complainant. She seemed at one point to think there was a gap of about a month or so between her conversation with the complainant and that with the appellant:

" MRS CLARE: Oh, well, when did you tell him about the earlier talk you'd had with C?-- Probably - probably just after he came over and told us that he'd been charged a few days after that.

What the same day?-- No, I did have a conversation with C the same day-----

No?-- No, I didn't have the conversation with C the same day. That was

probably - I'm not sure, a while ago before that.

Can you say how long it was after you had spoken to C that you spoke to her stepfather, W?-- Probably at least a month before (sic) I'd spoken to C, if not more. "

That evidence would place the conversation with the complainant well after the date of the alleged rape.

One could hardly expect a jury to find, on the basis of this evidence, that there was a conversation between the two girls at a date before the alleged rape in which the complainant made either the statement to which TN deposes in the affidavit or that sworn to before us. As has been pointed out, the evidence about the date of the conversation is unsatisfactory; if after the date of the rape of which the appellant was convicted, the complainant said she could put the appellant up for rape, that would hardly help his case. At best for the defence, the jury might think that before the appellant was charged with rape the possibility of his being charged was mentioned to TN by the complainant.

It has to be kept in mind, further, that one of the convictions of indecent dealing related to an incident in 1992 when the appellant was driving the complainant home, pulled his vehicle up and said he wanted a "root". The complainant, according to the evidence, made up an excuse and the appellant then said that she could "give him a head job because Mum never gave him one". She proceeded to comply with his demand. It was submitted for the respondent that if rape was mentioned between the two girls before the offence of rape in the proper sense occurred, the reference might have been to this incident, loosely or mistakenly called "rape". This contention, which appears to me to have force, resembles that accepted in M (Court of Appeal, 14 February 1994, unreported) by Davies J.A., with whom the other members of the Court agreed.

As has been pointed out, rather differently worded tests have been put forward in discussions of the weight of fresh evidence in criminal matters. In Ratten (1974) 131 C.L.R. 510 one finds:

"In the situation with which I am presently dealing, namely of fresh evidence not claimed to establish innocence, but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. ...but if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict a new trial will be ordered..." per Barwick C.J. with whom McTiernan, Stephen and Jacobs JJ agreed.

In my view the evidence of TN could not pass this test, unless we are to have new trials whenever there is a late discovery of evidence, uncertain as to content and date, of a conversation which arguably throws doubt on the complainant's credibility.

In Gallagher (1986) 160 C.L.R. 392 Gibbs C.J. favoured a statement of the position by Rich and Dixon JJ in Craig (1933) 49 C.L.R. 429 at 439, part of which reads as follows:

"It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance".

His Honour went on a little later to say:

"It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so." (399)

Gibbs C.J., it should be stressed, substantially agreed with the test that:

"...there is a significant possibility that the jury, acting reasonably, would have

acquitted the appellant if the new evidence had been before it at the trial".

That came from the judgment of Mason and Deane JJ, in whose joint judgment there is to be found also an approving reference to the views expressed in Craig. But the most recent consideration of the matter in the High Court, in Mickelberg (1989) 167 C.L.R. 259, suggests that although the "significant possibility" test is dominant, the word "significant" in it must be given a meaning which makes the test less favourable to an appellant than might have been thought. Mason C.J. (at 273) agreed with the views of Dawson J expressed in Gallagher (at 421) to the effect that the Court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant" which meant much the same as the "significant possibility" test. This makes it desirable to quote the views of Dawson J more fully:

"I do not think that it can now be accepted that a miscarriage of justice can only be shown to arise from the discovery of fresh evidence if it can be established to the satisfaction of an appeal court that the fresh evidence is likely to produce a different verdict. It will be sufficient if, upon the whole of the evidence consisting of the evidence at the previous trial together with the fresh evidence, a court of criminal appeal reaches the conclusion that a jury might entertain a reasonable doubt about the guilt of the appellant. A court will not, of course, reach such a conclusion lightly and will bear in mind that the evidence led at the previous trial was sufficient in the opinion of the jury to establish the guilt of the appellant beyond reasonable doubt. For this reason a verdict will not be disturbed unless the fresh evidence is relevant, cogent and plausible."

Toohey and Gaudron JJ in Mickelberg referred to Gallagher, Craig and Ratten and went

on:
"In essence, the fresh evidence must be such that, when viewed in combination

with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it...or, if there be a practical difference, that there is a 'significant possibility that the jury, acting reasonably, would have acquitted the [accused]'...If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it..." (301, 302)

There is a possibility that if TN’s evidence were adduced at a new trial it might, contrary to the view I hold of it, be treated by a jury as requiring that the complainant's evidence be rejected; but that is, in my view, unlikely. The evidence lacks cogency and the adoption of a practice of treating evidence of this quality as justifying the setting aside of a jury verdict would, as it seems to me, make verdicts excessively vulnerable. It is not unheard of, in this Court, for rather vague evidence of this kind, said to throw doubt on the credibility of a complainant in a sexual abuse case, to turn up after the verdict. A vigorous hunt for such evidence by convicted persons may become, if not routine, at least a procedure which will sometimes be adopted by those represented by active lawyers, conscious of the "significant possibility" test.

If a new trial is granted, there is no obligation on the appellant to call TN; depending on the date of the alleged conversation, it could conceivably enhance the credibility of the complainant's evidence that she was raped, rather than diminish it. But a new trial would give the appellant a second chance of acquittal and that, as it seems to me, rather than any weight perceived to be added to his case by TN, is the real point of the application for a new trial. Evidence of this sort is more potentially useful, perhaps, if discovered after rather than before trial.

I would dismiss the appeal.