Application by Brian Wayne Coles pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

1. [1]

   Brian Wayne Coles (the applicant) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction in relation to two counts of sexual intercourse without consent. The convictions were confirmed by the Court of Criminal Appeal and an application for special leave to appeal was refused by the High Court. The case is very old. The conviction was recorded in 1992 and Mr Coles has long since served the whole of his sentence. The very fact that this application is made so many years after the conviction suggests that Mr Coles maintains his innocence and harbours a grievance about his conviction.

2. [2]

   The bare facts of the offences were summarised by McDevitt DCJ in R v Brian Wayne Coles (District Court (NSW), 26 November 1992, unrep):

3. [3]

   The applicant’s case at trial was that the complainant consented to having sex with him. The applicant gave the following account in a signed record of interview with Detective Senior Constable R.A Patmore on 5 March 1991:

4. [4]

   In the Court of Criminal Appeal, Wood J (as his Honour then was) outlined the offences and the prosecution case:

HISTORY OF THE MATTER

1. [5]

   On 26 November 1992, the applicant was convicted by Judge McDevitt of two counts of having sexual intercourse without consent pursuant to s 61D(1) of the Crimes Act 1900 (NSW). The trial took place in the District Court sitting in Broken Hill. Mr Coles was sentenced in relation to each count to a full time gaol sentence comprising a minimum term of 2 ½ years and an additional term of 10 months to commence from the date of his conviction.

2. [6]

   On 16 September 1993, the Court of Criminal Appeal heard the applicant’s appeal against conviction and sentence. The applicant raised the following 14 grounds of appeal:

3. [7]

   A supplementary ground of appeal was also raised in respect of the applicant’s election of a trial by Judge alone.

4. [8]

   Many of the grounds raised by the applicant in the Court of Criminal Appeal related to specific aspects of the reasoning of the trial Judge and were concerned primarily with the submission that the verdict was “unsafe or unsatisfactory”. Since the applicant’s case was decided, the High Court has been critical of, and discouraged, the use of the expression “unsafe and unsatisfactory”: see, for example, Gipp v R [1998] HCA 21; (1998) 72 ALJR 1012 at 1016 (Gaudron J) and 1035-1037 (Kirby J). The Court has indicated that “close attention must be paid to the language of s 6(1) of the Criminal Appeal Act”: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [12].

5. [9]

   Since Fleming, a ground or grounds asserting that it was not “open” to the tribunal of fact to reach a guilty verdict has generally been cast in the language of the statute; that is, that the verdict was unreasonable or unable to be supported having regard to the evidence. Most of the argument in the Court of Criminal Appeal in 1993 was directed to such a ground, however described. The language in which it was formulated is not important. What is important is the extent to which the present application covers the same, or similar, ground.

6. [10]

   The appeal against conviction and sentence was dismissed by the Court of Criminal Appeal. On 4 March 1994, an application for special leave to the High Court was refused: Brian Wayne Coles v R [1994] HCA Trans (Brennan, Dawson and Toohey JJ).

STATUTORY FRAMEWORK FOR APPLICATIONS UNDER S 78 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001 (NSW)

1. [11]

   The undated petition in the present matter was lodged in 2018. It is brought pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). The application is to be determined in accordance with ss 78 – 79 of the Crimes (Appeal and Review) Act, which are in the following terms:

2. [12]

   The jurisdiction of this Court in exercising these powers is of an administrative (rather than judicial) nature: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 (at pp. 48-50); Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2009] NSWSC 251.

3. [13]

   I have previously considered the operation of s 78 in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291 at [18] – [22]:

4. [14]

   The Attorney General (or respondent) in this case submitted that the requisite sense of “unease or disquiet” described in those earlier cases has been criticized in the context of the language of the test provided in the statute, specifically in s 79(2). In particular, the respondent relied on the decision of the Court of Appeal in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [65]:

5. [15]

   The respondent also referred to the decision of the Court of Appeal in GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 which considered the operation of s 79(2) and held at [137]-[139] that:

6. [16]

   In light of the authorities [3] , it is appropriate to refer to the statutory language of s 79(2) in determining whether it appears that there is a doubt or question as to the applicant’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. This is a relatively low threshold and mere appearance of a doubt or question is sufficient to enliven the power conferred by the provision. As Johnson J held in Further Application by Gil Bum Yun Pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825 at [40]:

CONCURRENT APPLICATION UNDER PART 7 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001

1. [17]

   This is one of two related, if not identical, applications being pursued by the applicant pursuant to Part 7 of the Crimes (Appeal and Review) Act. The applicant has also made a petition for review or the exercise of the Governor’s pardoning power under s 76 in respect of his conviction.

CONSIDERATION

1. [18]

   In considering the present application, I have taken into account the material provided by both the applicant and respondent, and that which formed the basis of the original trial and appeal proceedings. While the applicant’s submissions were difficult to follow in some respects, five main issues emerged for consideration and determination:

   1. (1)

      Whether the verdicts were unsafe or unsatisfactory (that is, unreasonable or unable to be supported) given the following matters attending the evidence:

   2. (2)

      Whether the trial Judge failed to direct himself in accordance with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW):

   3. (3)

      Whether the circumstances surrounding the election for a trial by Judge alone constitute a “grave irregularity” and were fully considered by the Court of Criminal Appeal or the High Court.

   4. (4)

      The circumstances surrounding the applicant’s decision not to provide sworn evidence.

   5. (5)

      Whether the applicant’s unusual or atypical personal characteristics should be considered in relation to any or all of the above matters.

Whether the verdicts were unsafe or unsatisfactory (that is, unreasonable and unable to be supported) given various matters attending the evidence

1. [19]

   It should immediately be noted that the question is not, on this application, whether the verdict is unreasonable or unable to be supported. Rather, the question is the statutory one. This is set out and explained above. If the matter was referred to the Court of Criminal Appeal, the ground may be couched in those terms. However, the applicant’s submissions employ the language of an unsafe and unsatisfactory verdict.

2. [20]

   The applicant submitted that many aspects of the evidence adduced at the trial (identified above) were:

3. [21]

   Most, if not all, of the matters raised by the applicant were dealt with by the Court of Criminal Appeal in the September 1993 proceedings and relate to whether or not the verdicts were unreasonable or unable to be supported having regard to the evidence. In determining the matter, the Court of Criminal Appeal reasoned that:

4. [22]

   It will readily be seen that the function described by the Court is very different to that with which the Court is presently engaged. On the other hand, the Court of Criminal Appeal also pointed out that:

5. [23]

   However, the applicant submits that the Court was proceeding on the basis of “the primary judge’s flawed examination” and did not fully deal with the matter. The applicant further submits that the Court of Criminal Appeal only “briefly looked at the nature of the charges and the issues which arose for determination”.

6. [24]

   As the respondent pointed out, it appears from the transcript of the High Court special leave application that the proposed grounds of appeal mirrored those in the Court of Criminal Appeal. In relation to those grounds, Brennan J concluded that:

7. [25]

   It will be seen that many of the matters raised by the applicant may enliven the discretion in s 79(3)(a)(i) to refuse to consider the application because the issues raised have been “fully dealt with” in the earlier proceedings. However, for the most part, I propose to deal with the matter on its merits. I will determine, pursuant to s 79(2), whether or not each aspect of the evidence, or the overall impact of all of the matters considered together, gives rise to the requisite appearance of doubt or question as to the applicant’s guilt, under s 79(2). As the material must be considered as a whole in any event, I do not propose to exercise the power to refuse to entertain the application on the basis that many of the arguments were fully dealt with at the time of the original appeal proceedings.

8. [26]

   The Court of Criminal Appeal considered the evidence of Julie Cini’s complaint to her friend, Karen Ferrett. Although the information was induced by Ms Ferrett’s questions and not supplied by the complainant spontaneously, and, Wood J, with whom Finlay and Grove JJ agreed, held that:

9. [27]

   This matter was dealt with in the appeal proceedings and it is unnecessary to explore it in any great detail.

10. [28]

    Despite the fact that Karen Ferrett did not mention Julie Cini’s complaint in her original statement to police, this does not raise the appearance of doubt or any question as to the applicant’s guilt so as to enliven s 79(2). The complaint was raised in Ms Ferrett’s statement of 15 January 1992 and was the subject of examination and cross examination at the trial. [8]

11. [29]

    The Court of Criminal Appeal also considered the applicant’s submission that the trial Judge erred in connecting the applicant to fluid samples taken from the vagina and underwear of the complainant. The Court of Criminal Appeal found that the “DNA evidence was inconclusive”, “there was nothing to connect the accused with it” but that “the DNA testing did not necessarily exonerate him” and it did not “attract any degree of doubt” in relation to the applicant’s conviction. [9] Similarly, the evidence of Forensic Pathologist, Stephen Jan Gutowski which was attached to the present application stated:

12. [30]

    The Court of Criminal Appeal addressed the efficacy and effect of the DNA evidence and its relevance to the prosecution case against the applicant. Having considered the matter afresh, in the context of all of the evidence, I do not consider this raises a question concerning the applicant’s guilt. I am satisfied that, while the DNA does not advance the prosecution case in any meaningful way, nor does that evidence give rise to the appearance of doubt or raise a question concerning the applicant’s conviction so as to enliven s 79(2).

13. [31]

    The Court of Criminal Appeal considered the actual and purported inconsistencies in the complainant’s evidence. In particular, the Court considered the complainant’s recount of her initial identification of a ‘Brian’ to Karen Ferrett, whether or not a struggle took place, and the version of events she gave at the Broken Hill Hospital.

14. [32]

    In relation to the complainant’s identification of a ‘Brian’, the Court of Criminal Appeal held that:

15. [33]

    The Court of Criminal Appeal said of the history taken at the hospital:

16. [34]

    The Court found that none of the above inconsistencies raised by the applicant “attract any degree of doubt” (Wood J, Finlay and Grove JJ agreeing). [12] Thus, the issues surrounding the inconsistencies in the complainant’s evidence, raised by the applicant in the current proceedings, has been fully dealt with on appeal pursuant to s 79(3)(a)(i) and I will not consider it further.

17. [35]

    Moreover, in the High Court special leave application, Toohey J concluded that:

18. [36]

    The inconsistencies in the complainant’s evidence do not create any appearance of doubt or question surrounding the applicant’s conviction as required by s 79(2). The complainant was subject to examination, cross examination, and re-examination at the trial in respect of her recollection of the events and her credibility. The trial Judge saw and heard her evidence and was in a far better position to make an assessment of her credibility than a Court reading the papers.

19. [37]

    The Court of Criminal Appeal considered the neighbour’s recollection of hearing a woman screaming at around the time of the alleged offence. Wood J stated that:

20. [38]

    The neighbours, Judith Manuel and Kenneth Hobbs, were examined and cross examined on their recollection of events in the initial proceedings. The complainant was also examined and cross examined on the nature and the content of her screams during the trial. [15] She acknowledged that she does not remember screaming and claimed that she was “too scared to remember everything”. [16] For the reasons given by the Court of Criminal Appeal, this was important evidence. It does not give rise to the appearance of doubt or raise a question as to the applicant’s conviction under s 79(2). The evidence may have been capable of an alternative, innocent, explanation but it was to be considered as part of the whole of the evidence including, critically, the evidence of the complainant.

21. [39]

    The relevance of the screams was also considered by the High Court in the context of the case, legal principles and warnings.

22. [40]

    The Court of Criminal Appeal considered the complainant’s intoxication and her recollection of the travel route taken, concluding that:

23. [41]

    The applicant submits that the Court of Criminal Appeal erred in concluding that the complainant was not intoxicated to any significant degree. However, there is no substantive evidence before this Court, other than the complainant’s recollection of drinking three glasses of ouzo, the observations of Lena Harty and a brief record in the Broken Hill Hospital Notes to suggest otherwise. That evidence was before the trial Court and the Court of Criminal Appeal. The Broken Hill Hospital Notes make reference to the complainant’s appearance and mood as “intoxicated, calm” with no indication of the level of her intoxication. Similarly, the evidence of Ms Harty at the trial was that she ‘didn’t feel’ the complainant was sober but did not provide an opinion (insofar as she may have been qualified to do so) as to the level of intoxication or insobriety. [18] The trial Judge took the view that the complainant was intoxicated but this is somewhat of a two edged sword. It does not necessarily diminish the complainant’s credibility, particularly given the evidence capable of supporting her account. On the other hand, it potentially made her more vulnerable to the attack, a matter which seemed to be inherent in the trial Judge’s findings. The evidence does not give rise to the appearance of doubt under s 79(2).

24. [42]

    The Court of Criminal Appeal considered the issue of whether the damage to the complainant’s underwear was occasioned by the applicant. The Court determined that:

25. [43]

    There did not appear to be sufficient evidence to substantiate any finding that the applicant caused the damage to underwear. The expert evidence suggested that although there was some damage to the underwear, it did not establish with any degree of certainty that the damage was caused by the applicant.

26. [44]

    Although this issue was not dealt with in great detail in the appeal proceedings, the trial transcript suggests that it formed the basis of extensive examination and cross examination of the complainant. Expert witnesses, Dr Sander and Mr Rudolph Weigner, were also examined on the issue. It is clear from Mr Weigner’s evidence that there was some damage to the ‘elastic trim’ on the complainant’s underwear. Although the ‘degree of force’ was uncertain, it remained a relevant factor for the trial Judge’s consideration.

27. [45]

    The damage to the complainant’s underwear was one part of a body of evidence capable of supporting the inference that the sexual encounter was not consensual. It was not the most cogent piece of evidence in itself, but it formed part of a case that included the screaming heard by neighbours, the abrasions on the complainant’s back and the distress exhibited by the complainant shortly after her encounter with the applicant. The weakness in this particular item of evidence does not give rise to the appearance of doubt, or raise a question as to the conviction.

28. [46]

    The verdict judgment indicates that the trial Judge drew an inference that:

29. [47]

    The evidence of Dr Sander at trial indicated that the abrasions on the complainant’s back may be consistent with a number of different scenarios. These included consensual intercourse on rough ground, a fall to the ground or scraping one’s back against an aluminium fence. However, the scenarios raised in cross examination did not displace the possibility that the injury was obtained during non-consensual sexual intercourse or the dragging of the complainant across the ground.

30. [48]

    In the Court of Criminal Appeal, Wood J considered this issue and held that:

31. [49]

    The evidence of scratches to the back was relevant to the complainant’s allegation of non-consensual intercourse. The alternative (innocent) scenarios were ventilated at the trial (and on appeal) and do not create an appearance of doubt or question as to the applicant’s conviction under s 79(2).

32. [50]

    It is true that the applicant has consistently maintained his innocence and that he told police that the complainant consented very soon after he was arrested. His version of events (given to the police) was before both the trial Judge and the Court of Criminal Appeal and was taken into account. His election not to give sworn evidence will be considered separately. The fact that the applicant maintains his innocence is relevant to the inquiry, but it cannot of itself be determinative of an application such as the present.

Whether the trial Judge failed to direct himself in accordance with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW)

1. [51]

   The applicant submitted that McDevitt DCJ failed to comply with the requirements of s 33 (now s 133) of the Criminal Procedure Act 1986 (NSW):

2. [52]

   This submission was the subject of consideration in both the Court of Criminal Appeal and the High Court.

3. [53]

   In a case resting on circumstantial evidence, it is well established that the principles of law should be clearly identified and the jury should be directed that it is only permitted to draw the ultimate inference of guilt if it is the only reasonable inference available. I suppose this could be considered to be a “warning”, although it is more properly categorised as a direction of law. Even so, this was not a case where the prosecution’s case was solely reliant on circumstantial evidence. In fact, it was largely a direct evidence case based on the evidence of the complainant. The prosecution relied on the complainant’s direct evidence of what happened to her and a variety of surrounding circumstances (such as the injuries, the complaint and the fact that people nearby heard noises like screaming). Such a case would not ordinarily attract a warning as such.

4. [54]

   As to a similar argument advanced in the original appeal proceedings, the Court of Criminal Appeal held that:

5. [55]

   Counsel for the applicant also raised this issue in the High Court special leave application on the basis that:

6. [56]

   The High Court (Brennan, Dawson and Toohey JJ) concluded that it was open to McDevitt DCJ to infer that the screams emanated from the complainant at the time the offences were committed. In particular, the Court considered that the trial Judge did not contravene s 133(3) and Dawson J stated:

7. [57]

   In the High Court, his Honour Toohey J also considered that:

8. [58]

   It is clear from the verdict judgment that McDevitt DCJ drew the inference that the evidence supported the complainant’s credibility:

9. [59]

   A perusal of the verdict judgment shows that there was little express reference to many (if any) of the relevant principles of law. The applicant raised this issue and drew attention to a number of authorities (decided after the present case) which informed the operation of s 33(2) (now 133(2)). In Fleming, the High Court held at [28] that:

10. [60]

    However, the High Court went on to say that it was permissible for a judgment, by implication, to show that a principle of law has been applied to the findings of fact at [30]:

11. [61]

    In Filippou v R (2015) 256 CLR 47; [2015] HCA 29 the High Court also analysed the operation of s 133 (the current provision in New South Wales relating to verdicts by judge alone). The High Court emphasised that relief requires the breach to amount to a miscarriage of justice at [13]:

12. [62]

    In relation to similar Western Australian legislation, the High Court said it was necessary for a trial Judge sitting in a trial without a jury to engage to some degree with arguments made by counsel: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8; at [16]-[17].

13. [63]

    I have considered the authorities that post-date the decisions of the Court of Criminal Appeal and the High Court in the applicant’s case. It must be said that the reasons provided by Judge McDevitt were not a model of judicial thoroughness. However, where his Honour failed expressly to identify the principles of law and particular facts upon which he relied, the reasoning was at least implicit in the judgment. Although the judgment was pithy and slight, it focused on the facts of the case in circumstances where the issues to be determined were straightforward. Those issues were whether the prosecution had established beyond reasonable doubt that (i) the complainant did not consent and (ii) the accused knew that she did not consent. Putting aside any criticism that might be levelled at the judgment in the light of subsequent decisions such as Fleming, AK and Filippou, this is an issue that was squarely raised in the appeal proceedings in 1993.

14. [64]

    The applicant’s submission regarding the lack of warnings and inadequacy of the judgment was fully dealt with in the Court of Criminal Appeal and High Court proceedings. While it might be thought that the judgment of McDevitt DCJ did not outline the principles of law and findings of fact upon which his decision was based, or at least not thoroughly or by way of necessary implication, this was a matter that was considered in the appellate decisions that followed the trial. It is also not a ground of appeal that should be entertained again, decades later. Even if this constituted a breach of s 33, it would not amount to a miscarriage of justice such that relief would be required. What the Judge did was to set out his factual findings and the evidence he accepted. Once those findings were articulated, the verdict was inevitable. In any event, the deficiencies in the judgment, considered in the light of subsequent authorities, do not lead me to conclude that there is a doubt or question surrounding the applicant’s conviction.

Whether the circumstances surrounding the election for trial by judge alone constitute a “grave irregularity” and were not fully considered by the Court of Criminal Appeal or the High Court

1. [65]

   The applicant submits that he ‘very reluctantly’ and ‘under pressure’ elected to be tried by Judge alone. This election took place following an adjournment on the first day that the trial was due to commence. In the materials provided with this application, a memorandum by trial counsel for the applicant was referred to which stated:

2. [66]

   I accept that the receipt of the impugned statements alleging sexual misconduct would have placed the applicant in a difficult position on the morning of his trial. However, there is no substantive material which suggests that the applicant did not make an informed decision or that trial counsel in any way acted improperly in his provision of advice. In fact, trial counsel (Mr Foord) appears to have considered the options available to the applicant and took the view that the election seemed ‘the only reasonable alternative available’. This does not invoke s 79(2). It does not give rise to an appearance of doubt or raise a question surrounding the applicant’s conviction.

3. [67]

   The Court of Criminal Appeal also considered the operation of s 32 (now s 132), albeit from a more practical perspective, and distinguished the instant facts from those in R v Perry (1993) 29 NSWLR 589. Given that the jury was dispensed with following the election for trial by judge alone on 23 November, and the date for the trial was fixed for the next day, s 32 (requiring the election to be filed before the trial date) was not contravened. The Court ultimately held that McDevitt DCJ had jurisdiction to hear the trial and that:

4. [68]

   The High Court also held that the election to proceed with a trial by Judge alone was not a matter sufficient to justify the granting of special leave. His Honour Toohey J considered that s 32 operated such that:

5. [69]

   This aspect of the case does not raise the appearance of doubt or question surrounding the applicant’s conviction.

The circumstances surrounding the applicant’s decision not to provide sworn evidence

1. [70]

   The applicant submits that he was advised not to give sworn evidence and that he “did not understand or comprehend that he enjoyed any real choice in such a decision”. It is difficult to accept this assertion at face value. The applicant was represented by counsel at the trial. The fact that he did not give sworn evidence was not raised in the appeal proceedings, at which he was represented by different counsel and during which other aspects of the conduct of the trial were raised. The applicant provided police with an exculpatory version of events shortly after he was arrested. That version is reproduced in paragraph [3] of this judgment.

2. [71]

   The fact that the Court of Criminal Appeal considered that version to be “somewhat extraordinary” cuts both ways in terms of the decision to give (or not to give) evidence at the trial. [29] Had the accused given evidence, he had two options in terms of the account he gave to police. First, he could have resiled from the version he gave to police and would then have been cross-examined on the inconsistency. Alternatively, he could have stuck with the version given to police and been subjected to cross-examination on the “somewhat extraordinary” version. Whichever course he took, exposing himself to cross-examination was unlikely to have assisted his prospects at trial.

3. [72]

   The applicant’s trial was conducted before the abolition of the dock statement. In other words, the accused (applicant) had the opportunity to make a statement to the Judge without exposing himself to cross-examination. This was an opportunity frequently taken in criminal trials during that period and was considered to be a relatively risk free procedure.

4. [73]

   There is no evidence from trial counsel or the applicant’s solicitor to support the assertion that the applicant was unaware of the choices he had. Further, it was a forensic choice that was often left to the experience and instinct of the lawyers. No doubt it was a question considered by those lawyers and subject of advice to the applicant. As it turns out the applicant made the following statement from the dock:

5. [74]

   The statement to which the applicant referred (that is, his signed interview with police) clearly put in issue both the precise facts of what happened as well as making it clear that anything that occurred was consensual conduct.

6. [75]

   The fact that the applicant did not give evidence was not an irregularity in the trial and does not give rise to the appearance of doubt or question as to the applicant’s conviction.

The unusual or atypical attributes of the applicant

1. [76]

   The applicant submitted that the Court should take into account his personal attributes. In particular, it was put that the applicant presents as:

2. [77]

   There is insufficient material presented in this application to draw any conclusions regarding the applicant’s unusual or atypical attributes. In particular, there is insufficient evidence to draw a conclusion that he did not understand the decision not to give evidence or to make the election to be tried by Judge alone. Similarly, it could not be held that his personal attributes placed him at any other relevant disadvantage in the trial proceedings.

3. [78]

   Accordingly, there is no basis, on this ground, for a doubt or question as to the applicant’s conviction pursuant to s 79(2).

CONCLUSION

1. [79]

   Having considered the material presented on the application, and giving full weight to the fact that the applicant maintains his innocence decades after serving his sentence, I do not propose to direct an inquiry into the conviction or refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

2. [80]

   From this distance, the case presented by the prosecution appeared to be a reasonably strong one. The complainant knew the applicant and there was no dispute as to identification. The complainant made a relatively immediate complaint and exhibited signs of significant distress very shortly after the incident. The neighbours’ evidence of screaming and the evidence of injuries tended to support her account. There was some evidence of semen being present on examination of the complainant but that evidence was complicated and I put it aside for present purposes. There was no conclusive corroborative evidence but there rarely is in cases of this kind. However, there was a body of evidence that tended to support the complainant’s account that the sexual encounter – which was not disputed – was not consensual. There were inconsistencies in the things the applicant said to police.

3. [81]

   On all of the evidence, it does not appear that there is a doubt or question as to the applicant’s guilt. In reaching that conclusion, I have considered the question whether there is an appearance of doubt, rather than attempting to discern whether there is a doubt. Without supplanting the statutory formulation, but to adopt the language in some of the older cases, the material does not leave me with a sense of disquiet or unease regarding the applicant’s conviction.

4. [82]

   While the vast majority of matters raised were fully dealt with in the original proceedings, and it would have been open to refuse to consider aspects of the application (or perhaps all of it), I have considered the case afresh and on its merits.

5. [83]

   The application is refused.