Shane Craig Brusnahan v R No. 4246 Judgment No. SCCRM 93/147 Number of Pages 11 Criminal Law and Procedure Appeal and New Trial

[1993] SASC 4246

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DUGGAN(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - appeal and new trial - pardon and enquiry subsequent to conviction - Application to call fresh evidence - claimed that co-accused subsequently admitted lying at trial - evidence of co-accused alleged to be incriminatory of appellant - discussion as to approach to be taken by appellate court - R v Geesing (1985) 38 SASR 226; R v Poulter (1978) l9 SASR 370 and Davies and Cody v The King (1937) 57 CLR 170 referred to. Apparent that evidence of co-accused rejected by jury - application to call fresh evidence refused.
Criminal law and procedure - evidence - evidentiary matters relating to witnesses and accused persons, their character and credibility. Evidence of previous assaults by appellant on complainant led so as to prove previous relationship between the parties - evidence held admissible in order to explain the occurrence of relevant events. Consideration of instructions to jury on this topic. Harriman v The Queen (1989) CLR 590 at 630; R v Garrett
(1988) 50 SASR 392 at 401; Wilson v The Queen (1970) 123 CLR 334 at 339 and R v Hissey (1973) 6 SASR 280 at 288 referred to.

HRNG ADELAIDE, 24 September 1993 #DATE 5:11:1993
Counsel for appellant:     Mr C Kourakis
Solicitors for appellant:    Caldicott and Co
Counsel for respondent:     Ms W Abraham
Solicitors for respondent: Caldicott and Co (sic)

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant was convicted of false imprisonment, causing grievous bodily harm with intent to do grievous bodily harm, two counts of rape and a count of threatening life. It was alleged at the trial that the offences were committed against Susan Butler, a 37 year old woman with whom the appellant had lived from time to time. According to the Crown case the offences took place in a vehicle after the victim had been abducted from the house in which she was living at Mount Gambier. Two co-accused, the appellant's sister Jaqueline Brusnahan and a man named Lynch were charged jointly with the appellant. The appellant has appealed against the convictions. 2. The appellant formed a relationship with Miss Butler in the early part of 1991. They moved from Adelaide to Mount Gambier shortly afterwards and shared a house with Jaqueline Brusnahan and Lynch. According to Miss Butler the appellant regularly used violence against her and on two occasions while they were living at Mount Gambier she moved into a women's shelter. In late October 1991 Miss Butler moved into a flat which she shared with three men. She was living there at the time of the alleged offences. Miss Butler gave evidence that on one of the occasions when she was staying at the women's shelter she told some police officers who called at the shelter that Jaqueline Brusnahan and Lynch were growing marijuana at their house and selling it. The clear inference to be drawn from Miss Butler's evidence is that the offences were committed by way of retaliation for her disclosure of this information to the police. 3. Miss Butler gave evidence that Jaqueline Brusnahan came to the door of the house in which the witness was residing at about 10.30 pm on Friday 1st November, 1991. She asked for Miss Butler and was told by one of the occupants of the house that Miss Butler was not there. Miss Butler said that Jaqueline Brusnahan returned shortly before 1.00 am and knocked on the door. After a time Miss Butler went to the door and Jaqueline Brusnahan asked her "Why did you lag on us to the Jacks?" She then said, "If you don't come out, I'm coming in." Miss Butler said that she went outside where she was grabbed by Jaqueline Brusnahan and the appellant who hit her and dragged her to a vehicle. She said she was placed on the rear seat of the vehicle and the appellant sat next to her. Jaqueline Brusnahan sat in the front passenger's seat and Lynch was seated in the driver's seat. 4. Lynch drove the vehicle out of Mount Gambier and on to a dirt road. According to Miss Butler's evidence she was continuously assaulted by the other two passengers while she was being driven to the deserted location at which the car eventually stopped. Further assaults took place at that location. In particular she said that the appellant burnt her with a car cigarette lighter, placed the lighter in her vagina and forced his fingers into her vagina. The latter incidents formed the basis of the two counts of rape. She said that her clothes were removed in the course of the various assaults and that at one stage the appellant threatened to kill her. The witness said that the lighter was passed over to the appellant by Jaqueline Brusnahan after the appellant asked for it. 5. Eventually Miss Butler was allowed out of the vehicle. She was naked and she ran into the bushland. At about 7.45 am that morning she sought assistance at a farmhouse. She was found to be in a distressed condition and suffering from various injuries including burns to her body. 6. The appellant gave evidence. He stated that on the night in question he wanted to speak to Miss Butler about some of her belongings which were in the flat which they had occupied. He also wanted to speak to her about some things she had been saying about him around the town. He was concerned about the attitude towards him of the men she was staying with and so he asked Jaqueline to knock on the door. Miss Butler did not come out on the first occasion but did so after Jaqueline knocked on the door on the second occasion. The appellant claimed that Miss Butler was affected by alcohol and drugs but she agreed to speak to him after he told her why he had come. He said she agreed to get inside the vehicle in order to talk. 7. The appellant stated in evidence that as they drove along Miss Butler abused him for going out with other women. She also started to climb over him and hit him with her hand. This went on for some time and eventually she was let out of the car. The appellant denied that any force was used to get her into the vehicle. He also denied the allegations of violence including the infliction of burns and the placing of an object into the woman's vagina. He said she was fully clothed when they left her and there was no sign of any injury to her body. One of the grounds of appeal makes it necessary to refer briefly to the versions given by the appellant's co-accused in the course of their evidence at the trial. Jaqueline Brusnahan told of how she knocked on the door of the house on the first occasion and was told that Miss Butler was not at home. She returned to the vehicle and drove off with the appellant and Lynch. The appellant then said that he should have gone to the door himself and he asked to be taken back to the house. The appellant went to the door and Jaqueline Brusnahan said that she and Lynch followed him out of the car. Shortly afterwards she saw the appellant walking towards the car and Miss Butler was holding his arm. They got into the vehicle and the group drove off. After a time the appellant and Miss Butler started arguing and both Jaqueline Brusnahan and Lynch told them to be quiet. At one point Miss Butler called out "Shane (the appellant) you burned me". Jaqueline Brusnahan said she saw a glow on the floor of the car. At a later stage she said she saw the appellant and Miss Butler cuddling each other in the back seat of the car. Eventually the car stopped and Miss Butler and the appellant got out. The appellant returned to the car but Miss Butler did not. Jaqueline Brusnahan said that on the following Saturday the appellant said to her "I put the lighter in her vagina". 8. She said this information made her feel violently ill. Jaqueline Brusnahan stressed that Miss Butler got in the car quite voluntarily. She denied touching the lighter and she denied taking part in any violence against the alleged victim. Lynch gave a similar version. He said he heard Miss Butler claim that the appellant had burnt her and he pulled the appellant out of the car when that statement was made. He said the appellant apologised for this and said he had not meant to do it. According to this accused there was some arguing in the back of the car but nothing serious at first. Then there was "a full-on fight" between the appellant and Miss Butler. He said the appellant and Miss Butler left the car while it was stationary on the dirt track. Later they picked up the appellant but Miss Butler was not there. Lynch said he heard the appellant say to Jaqueline Brusnahan on the subsequent occasion that he put the cigarette lighter into Miss Butler's vagina. 9. At the hearing of the appeal the appellant applied to call what was claimed to be fresh evidence. The application was refused and it is now necessary to give reasons as to why, in my view, the application could not succeed. The appellant claimed in an affidavit filed before the hearing of the appeal that after he had been convicted and on or about 23rd April, 1993 he was being transported from the Mount Gambier Gaol to the Adelaide Remand Centre in the rear of a van. Lynch was being transported in the same van. Lynch is alleged to have said to him that he (Lynch) and Jaqueline lied about hearing the alleged victim say that the appellant had burnt her and they also lied about the appellant telling them both on the following day that he had placed the cigarette lighter in her vagina. According to the appellant, Lynch said that they lied to protect themselves and he made similar statements to the appellant a few days later in the Adelaide Remand Centre. An affidavit from Dana Norman Pool, the appellant's half brother, was also placed before the court. The deponent stated that he also was a prisoner in the Adelaide Remand Centre at the time the appellant was in custody there and he was present when Lynch stated that he and Jaqueline Brusnahan had lied about the appellant during their evidence in order to protect themselves. Lynch had later said he had spoken to Jaqueline Brusnahan and neither were prepared to admit at the hearing of the appeal that they had lied. Another prisoner named White also claimed in an affidavit that he had heard this conversation between the appellant and Lynch. 10. In R v Geesing (1985) 38 SASR 226 at 230 it was pointed out that evidence which is sought to be tendered on appeal disclosing a change of story by a witness who gave evidence at the trial, is treated as a species of fresh evidence. (See also R v Poulter (1978) 19 SASR 370.) However the usual rules relating to fresh evidence cannot be applied without qualification to such evidence. The enquiry as to whether the evidence might, with reasonable diligence, have been available at the trial is inappropriate in such cases. The court is not presented with evidence which could have been led at the trial and so the function of the appellate court in most fresh evidence cases of deciding whether a miscarriage of justice has taken place because evidence now available was not led at the trial has no application. Instead the focus of attention is on evidence which was led at the trial and which is subsequently sought to be impugned by reason of some doubt as to its cogency which has arisen since the trial. In these circumstances the appellate court is required to examine not only the nature and reliability of the evidence proffered to cast doubt on the impugned evidence, but also the extent to which the impugned evidence might have influenced the finding of guilt. 11. This appears to have been the approach taken by the High Court in Davies and Cody v The King (1937) 57 CLR 170 where the prosecution, in addition to tendering challenged identification evidence called a witness named Stevens who claimed that the two accused had made admissions to him which implicated them in the offence of murder. After the trial Stevens made a statutory declaration in which he stated that the evidence given by him at the trial was totally untrue. Later he made a further statutory declaration stating that the evidence was true and that the previous statutory declaration was false. 12. In the joint judgment of the members of the High Court their Honours said (p.183):
    "A declaration by a witness that he has committed perjury
    cannot possibly be accepted as a ground in itself for setting
    aside the result of a trial in which the witness has given
    evidence. If the contrary were held, the whole administration
    of both civil and criminal justice would be undermined. The
    subsequent discovery that some evidence (as in this case) is
    said by the witness who gave it to be false, or is actually
    proved to be false, cannot, as a general rule, be allowed as a
    ground in itself for setting aside a verdict or judgment. But
    if the verdict is open to objection upon a ground affected by
    such evidence, the case is different. It would not be wise to
    attempt to frame a universal rule even for such cases. As the
    Full Court indicates in its judgment, the subsequent statement
    that the original evidence is false may be explainable by
    pressure brought to bear upon a witness or by the operation of
    any one of an indefinite number of motives. Each case should be
    treated in relation to its own facts. In this case the evidence
    of Stevens, if believed by the jury, was conclusive of the guilt
    of the accused persons. The Supreme Court took the view that
    Stevens' recantation and his subsequent withdrawal of his
    recantation threw no further light on the credit to be attached
    to his evidence. Mann CJ said:- 'In our opinion the material
    submitted to us throws no new light of any importance upon that
    problem. It was relevant for the jury to consider the
    temptations, the hopes and fears affecting such a man in the
    circumstances existing up to the time he gave his evidence. It
    would be only indirectly relevant and might well be misleading
    to consider his subsequent words and acts spoken and done in
    altered circumstances and in the presence of other influences.'
    (1937) VLR, at p.158. We respectfully think that this does
    not sufficiently take into account the not remote possibility of
    the jury's having given some definite weight to the fact that
    Stevens, however criminal in instincts, was prepared to give
    evidence against the prisoners, with whom, he swore, he had
    associated. We know that his Honour the Chief Justice, when he
    presided at an earlier trial, expressed the view that no effect
    at all should be given to Stevens' evidence, and if this view
    had again been strongly commended to the jury which convicted
    the prisoners, there might be much to be said for the view that
    Stevens' recantation could not have much importance. But it
    must be remembered that the Crown chose to rely upon the man's
    evidence and press its probative value, and the judge's charge
    does not advise the jury to reject his testimony. It is now
    known that it is completely untrustworthy, and ought not to be
    allowed to enter into the reasons for any verdict of guilty.
    Whether the jury believed his evidence or gave any weight to it
    in fact cannot be known, but all the other evidence implicating
    the accused depended upon evidence of identity, and, in this
    case, the jury was not, as we have already said, adequately
    instructed with respect to the matters which they should
    consider in determining the value of that evidence. In these
    particular circumstances, the facts relating to Stevens'
    evidence are sufficient, in our view, to entitle the accused to
a new trial." 13. In the present case the material which is said to cast doubt on the reliability of the original evidence does not come directly from the witnesses who gave the evidence but from persons who deposed to the post trial statements on one of those witnesses. However, even if the statements were made by Lynch subsequent to the trial, there is every reason why Lynch, who was a fellow prisoner with the appellant at the time of the alleged statements, might seek to retract the incriminating statements when speaking to the appellant. 14. But there is another and more pertinent consideration to take into account. At the trial Jaqueline Brusnahan and Lynch claimed that Miss Butler entered the car quite willingly. They also claimed that they played no part whatsoever in any violence which might have been inflicted on the alleged victim. Jaqueline Brusnahan asserted that she had nothing to do with assisting the appellant in placing the cigarette lighter in the victim's vagina. Nevertheless the jury must have rejected these assertions. All accused were found guilty of false imprisonment and, although Jaqueline Brusnahan was found not guilty of causing grievous bodily harm with intent to do grievous bodily harm, Lynch was found guilty of that offence and Jaqueline Brusnahan was found guilty of aiding and abetting the appellant in the rape committed by the insertion of the cigarette lighter into the woman's vagina. The suggestion by Jaqueline Brusnahan in evidence that the glow on the floor of the car was the only knowledge which she had of the possible use of a cigarette lighter was clearly rejected by the jury. So also was the suggestion inherent in her evidence that the first knowledge she had of a lighter being inserted in the victim's vagina was when the appellant told her about it and she became violently ill. 15. In my view the jury's rejection of the versions given by these two accused is an effective answer to the argument that those aspects of their evidence which sought to place the blame on the appellant might have been of some significance in the process of reasoning which led the jury to convict him. I should also add that the prosecution, for obvious reasons, did not seek to rely on this evidence and the learned trial judge cautioned the jury as to its use. 16. For these reasons the material in the affidavits could not support the argument that there had been a miscarriage of justice and there was no point in admitting the "fresh evidence" so that it could be considered further. 17. Next it was argued that the learned trial judge erred in admitting evidence of acts of violence allegedly committed by the appellant on Miss Butler on various occasions while they were living together. Miss Butler was permitted to give evidence that the appellant had on occasions burnt her with cigarettes, placed objects in her vagina against her will and committed other acts of violence upon her from time to time. 18. It is well established that, in certain circumstances, evidence of the nature of the relationship between an accused person and the alleged victim may be admissible despite the fact that it reveals criminal conduct. (See Harriman v The Queen (1989) CLR 590 at 630; R v Garrett (1988) 50 SASR 392 at 401). Such relations "so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on trial". (R v Bond (1906) 2 KB 389 at 401.) Evidence of this nature may be used to prove motive, intent, or the fact that the crime was committed. (Wilson v The Queen (1970) 123 CLR 334 at 339; R v Hissey
(1973) 6 SASR 280 at 288.) In the present case Miss Butler gave evidence that she was terrified when she heard the appellant's voice outside the house in which she was living on the night of the incident. She said that the only reason she went outside was because she did not wish to involve the people with whom she resided. She then gave evidence of a violent abduction during which she was placed in the vehicle and driven away against her will. As I have said the appellant claimed that he wanted to do no more than discuss some matters with Miss Butler. According to the appellant, Miss Butler walked to the car quite willingly and held his arm as she did so. She got into the car willingly and agreed to go for a drive. The only violence in the course of the car journey was when she climbed on the appellant and hit him. 19. In my view it was clearly appropriate for the jury to consider these versions in the light of the previous relationship between the parties. I think it was relevant to explain the occurrence of the relevant events and "to assist the choice between the two explanations of the occurrence". (Wilson v The Queen supra per Barwick CJ at 339.) I do not agree with the submission that the prejudicial effect of the evidence outweighed its probative value. In my view the learned trial judge rightly refused to exercise his discretion to exclude the evidence. It would have been quite artificial to expect the jury to consider the events in the vacuum which the appellant argued was appropriate. 20. Complaint is also made of what are said to be inadequate directions to the jury on this aspect of the evidence. His Honour said:,

    "Evidence was given by Susan Butler of assaults upon her
    by Shane Brusnahan and other ill-treatment and abuse earlier
    than the night in question. That evidence was not admitted to
    show that he was of bad character, or had a tendency to
    violence, but to show the relationship existing between them.
    It was relevant for you to know the general terms on which the
    parties were living. It was admitted for that basis alone." 21. In my opinion it would have been preferable for the learned trial judge to have given a more extensive direction to the jury on this topic. Although the jury were directed on the requirement of proof beyond reasonable doubt in traditional terms I think it would have been appropriate to remind the jurors that evidence of these particular facts could not be used unless they were proved to the required degree of satisfaction. Furthermore it would have been helpful to explain in more detail the relevance of the relationship between the parties to the facts in issue. However it is important in this respect to take into account the conduct of the trial. After reading the relevant parts of counsel's addresses I am confident that the jury would have understood his Honour's references to the relationship between the parties and its relevance to the case in such a way as to lead to a proper approach to the evidence. Although it is not conclusive, the fact that the learned trial judge was not asked to give further directions on this topic confirms my view as to the significance of the context of the trial as a whole. After considering the directions along with the evidence on this issue and its relationship to the evidence as a whole, I am satisfied that there was no miscarriage of justice arising from any failure to give more extensive directions on the topic. Then it was contended that the learned trial judge erred in admitting the evidence that Miss Butler had informed the police that Lynch and Jaqueline Brusnahan were growing marijuana at their house and selling it. Evidence was given that the police raided the premises after receiving this information and Lynch was charged with cultivating Indian Hemp following the discovery of that drug at the house. According to the argument this evidence was not admissible against the appellant. 22. This is an unreasonably narrow view of the evidence. Jaqueline Brusnahan was the appellant's sister and the appellant and Miss Butler had lived in her home. The Crown contended that the appellant was angry with Miss Butler for passing the information on to the police and the appellant and the other accused had decided to confront her over the matter. According to Miss Butler the first thing said by Jaqueline Brusnahan at the door was "Why did you lag on us to the jacks?" On Miss Butler's version the reason for their visit was made perfectly clear throughout the journey in the car. All of this evidence was relevant to the prosecution case against each accused on the important issue of motive and was properly admitted for this purpose. 23. The next ground of appeal complains of the learned trial judge's failure to discharge the jury on the application of counsel for both the appellant and Jaqueline Brusnahan after his Honour had asked some questions of the accused Lynch. The trial judge asked Lynch about his assertion that the appellant and Miss Butler were dropped off at a point along the dirt track. After questioning Lynch about the location at which this took place the trial judge asked: "Q. If you are right, that that was the place where they were dropped, that means the clothing was thrown out (of) the car before they were dropped, doesn't it?" 24. The three accused had denied that Miss Butler's clothing was thrown out of the car and the basis for the application to discharge the jury was that his Honour had indicated by his question that he had formed a view adverse to the accused on this aspect. 25. I have no hesitation in rejecting the submission that the jury should have been discharged. Immediately after the trial judge asked the question counsel for Lynch objected and pointed out that the assumption inherent in the question was disputed by the accused. His Honour acknowledged the point of the objection by remarking, "All right I take your point". 26. The jury were present during this exchange and his Honour said in the course of his summing-up:
    "During the course of the trial, I may have asked
    questions which appeared to indicate that I had taken a certain
    view of the facts, and there may be things I say in the summing
    up upon which I appear to hold an opinion of my own. It would
    be impossible for me to sit through this long trial without
    having some opinions about the facts. You will, I know, listen
    carefully to what I have to say, but you must bear in mind, I
    repeat, that it is your view of the facts, and not mine, that it
    is your verdict and not mine, that matters. Whilst you will
    listen to all I say, you may accept nothing I say unless it
    commends itself to you as commonsense and in accordance with the
    evidence." 27. In the circumstances there was no danger in the jury being overawed by his Honour's questioning. 28. Then it was argued that the learned trial judge erred in allowing evidence by way of re-examination of Constable Merget, a woman police officer who assisted in the investigation into this matter and took a statement from Miss Butler. According to this officer's evidence she returned with Miss Butler to the house at which the alleged victim had been living at the time of this incident. She said that David Costello, one of the three men who had been living in the house at the time, was there when she visited the premises. Costello was not called as a witness. During the cross-examination of Constable Merget by counsel for the appellant the following exchange took place:
     "Q. I think you said that at that stage Mr Costello was
    at the flat, was he?
     A. Is that Dave?
     Q. Yes.
     A. Yes.
     Q. Would you agree that he appeared aggressive or angry?
     A. He was a bit defensive toward me not knowing who I was, or
    what I did for a job; wanted to know who I was, speaking mainly
    to Sue. She said that I was a police officer and I introduced
    myself. Yes, he was upset about something.
     Q. He seemed to know about Shane Brusnahan, did he?
     A. I can't recall that he mentioned the name.
     Q. He seemed to know about the previous de facto, Shane
    Brusnahan, of Miss Butler?
     A. Yes, that's right.
     Q. Did it appear from his demeanour that he obviously, or he
    made it clear to you that he wasn't very happy at Shane
    Brusnahan?
     A. He wasn't very happy at what had happened.
     Q. He wasn't very happy at the ex-de facto of Miss Butler?
     A. Yes, that's right." 29. It was explained to this court that these questions were asked because of the instructions of the appellant that one of the reasons why he had gone around to the house was because he had heard that Miss Butler had been making allegations against him. Presumably counsel wanted to elicit evidence which confirmed this assertion. Although not asking for specific conversation counsel extracted from the witness that Costello "made it clear" that he was not happy with the appellant. In the light of this cross-examination it was open for the prosecution to ask the witness what, in fact, was said by Costello and in the course of re-examination it became apparent that Costello was upset with the appellant because of the incident on the previous evening. Constable Merget said in re-examination:
    "He said 'What are you going to do about it?' I said
    'About what?' and he then said 'About what they did to Sue last
    night' and I said 'What do you mean "they"' and he said 'About
    them taking her away. About the way they took her away.'" 30. The appellant complains of prejudice arising out of a hearsay statement about the events which took place at the time of the alleged abduction. It is not clear whether Costello actually saw the events to which he was referring and so there was little room for the jury to use the evidence in an improper manner. But what is more significant is that the prosecution were entitled to establish the real reason for the witness's unfavourable disposition towards the appellant, a topic which had been opened up and but inadequately explained in cross-examination. In my view the trial judge was correct in permitting re-examination and the appellant did not suffer any improper prejudice by reason of the answers. The trial judge's directions on motive were criticised by the appellant. His Honour had this to say on the topic:
    "In the course of this trial some reference has been made
    by counsel to the existence or absence of motive on the part of
    an accused. Motive, as such, is never an essential part of a
    case which the Crown has to prove. Indeed, in some instances it
    is impossible clearly to discern what the true motive of an
    offender may be. So it is that absence of proof of any motive
    is not of itself fatal to the Crown case. Having said that, it
    remains a matter of commonsense that whether or not a person is
    shown to have a specific motive may assist in determining the
    intentions of that person. If it could be shown an accused had
    a motive for the commission of a crime with which he is charged,
    then that very situation may lead you more readily to accept the
    Crown evidence that it was he who committed it, provided there
    is evidence that establishes he did so beyond reasonable doubt.
    The existence of a relevant motive is not direct evidence of a
    fact of guilt, but it may lend colour to other direct evidence
    capable of leading to a conclusion that the accused is guilty of
a crime charged." 31. These directions cannot be criticised as far as they went, but the appellant's counsel has argued that the learned trial judge should have gone further and stated that absence of motive is capable of leading to a doubt as to guilt. In my view such a direction was unnecessary. There was no dispute that Miss Butler had supplied the police with information about the marijuana plants. This was evidence capable of providing a motive. The real dispute was whether this was the reason for the conduct alleged against the appellant and his co-accused. That issue was clearly before the jury and required no elaboration. In the circumstances of the case I do not think it was necessary for the learned trial judge to direct the jury on the significance of the Crown not establishing a motive. Finally it was argued that the verdict was unsafe in that Miss Butler was a most unreliable witness. It is true that initially she told the police a false story concerning her abduction and that there were a number of discrepancies in her evidence. However there was other evidence, in particular her injuries, which provided considerable support for her version. In my view her evidence was far from being so unsatisfactory that it could not be relied upon. After considering the evidence in accordance with the duty of an appellate court when this ground of appeal is raised (see Morris v The Queen (1987) 163 CLR 454) I have reached the view that the appellant's argument must fail. 32. For the reasons which I have given I am of the view that the appeal should be dismissed.

JUDGE2 BOLLEN J I think that the appeal should be dismissed. I agree with the reasons of Duggan J.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by Duggan J.