Page:Pell v The Queen.pdf/18

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

The Court of Appeal's analysis

40 In their joint reasons, the Court of Appeal majority explained that they had approached the determination of the appeal "by trying to put ourselves in the closest possible position to that of the jury" by watching the recordings of A's evidence and that of a number of other witnesses, and by reading the transcript and attending a view of the Cathedral. Their Honours concluded, after viewing A's evidence, both before and after the hearing of the appeal, that he was a compelling witness because of the clarity and cogency of his answers and because of the absence of any indication of contrivance in the emotion he conveyed in giving his answers. A impressed their Honours as a witness "who was telling the truth" and whose answers appeared to be "entirely authentic". Their Honours proceeded to consider, in turn, whether each of a number of "solid obstacles" to acceptance of A's account was such as to compel the jury to have had a doubt.