Bates v The King - [2023] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BATES v THE KING
[2023] SASCA 65
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
15 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
This is an appeal against conviction.

Following a trial by jury, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The particulars alleged that between 24 December 2010 and 30 November 2015, the appellant maintained an unlawful sexual relationship with the complainant by engaging in two or more sexual acts with her when she was between the age of five and 10 years old. At the time of the charged offence, the complainant was the daughter of the appellant’s former de-facto partner and was living at the appellant’s farmhouse with her mother, older stepsister, and younger brother.
At trial, the only issue in dispute was whether the prosecution had proved that two or more of the alleged sexual acts had occurred.
The prosecution also relied on evidence of an uncharged act which involved the appellant calling the complainant into the kitchen while he stood at the kitchen table with his erect penis exposed and the tip covered in icing (‘the uncharged act’). At trial, it was common ground that the uncharged act constituted evidence of discreditable conduct such that ss 34P and 34R of the Evidence Act 1929 (SA) (‘the Evidence Act’) were engaged. The prosecution sought to rely on the evidence of the uncharged act for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act to provide the context in which the particularised sexual acts were alleged to have occurred.
The prosecution case relied almost entirely on the evidence of the complainant. On the defence case, the complainant’s evidence could not be accepted on three premises: first, her demeanour and manner of giving evidence was ‘monotonal’; secondly, the inconsistencies in her own account of events and the fact that her evidence was without any material support; and thirdly, there were aspects of her account that were implausible. The defence case also emphasised the appellant’s denials in his interview with police on 25 November 2020 which, it was submitted, reflected his innocence.
The appellant now seeks permission to appeal against his conviction on four grounds of appeal, namely that the trial Judge’s directions as to forensic disadvantage were inadequate and therefore resulted in a miscarriage of justice (Ground 1); the trial Judge erred in admitting discreditable conduct evidence or, alternatively, by failing to give appropriate directions concerning the permissible use of the evidence (Ground 2); the trial Judge failed to properly summarise the defence case and evidence to the jury (Ground 3); and the verdict is unreasonable and cannot be supported having regard to the evidence (Ground 4).
Held, per the Court, granting permission to appeal on Grounds 1 to 4, and allowing the appeal on Ground 1.
1.As to Ground 1, the trial Judge’s forensic disadvantage directions did not adequately discharge the obligations under s 34CB of the Evidence Act and were productive of a miscarriage of justice. The case being one dependent upon the jury’s assessment of the credibility and reliability of the complainant, it is not appropriate to apply the proviso. The conviction must be set aside, and the matter remitted to the District Court of South Australia for retrial.
2.As to Ground 2, the probative value of the evidence of discreditable conduct outweighed its prejudicial effect and was admissible for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act. The trial Judge’s directions as to the discreditable conduct evidence complied with s 34R of the Evidence Act such that there was no error of law.
3.As to Ground 3, the trial Judge’s summing up was not unbalanced and adequately summarised the evidence and issues at trial, including the defence case.
4.As to Ground 4, the difficulties with the complainant’s evidence were not such that a jury ought to have experienced a reasonable doubt as to the appellant’s guilt. The verdict was not unreasonable.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(12), 58; Evidence Act 1929 (SA) ss 34CB, 34CB(2), 34CB(2)(a), 34CB(3), 34P, 34P(2)(a), 34P(4), 34R, 34R(1), referred to.
M v The Queen (1994) 181 CLR 487; Patterson (A Pseudonym) v The Queen [2022] SASCA 57; Roberts v The Queen [2022] SASCA 36; R v Cassebohm (2011) 109 SASR 465; R v GVV (2008) 20 VR 395; R v Maiolo (No 2) (2013) 117 SASR 1; R v Perks (1986) 43 SASR 112; R v Pringle [2017] SASCFC 9; R v Singh [2019] SASCFC 51, discussed.
Dansie v The Queen (2022) 96 ALJR 728; DES v The Queen [2020] SASCFC 32; Domican v The Queen (1992) 173 CLR 555; Healey v The Queen [2006] NSWCCA 235; Libke v The Queen (2007) 230 CLR 559; Longman v The Queen (1989) 168 CLR 79; Parker v The Queen [2022] SASCA 89; Pell v The Queen (2020) 268 CLR 123; R v C, G (2013) 117 SASR 162; R v Folli [2001] NSWCCA 531; R v Jones (2018) 131 SASR 532; R v MWL (2002) 137 A Crim R 282; R v Roberts [2022] SASCA 36; R v S [2015] SASCFC 179; R v Taylor (No 2) (2008) 18 VR 613; R v W, PK [2016] SASCFC 5; R v Web (2003) 7 VR 200; Weiss v The Queen (2005) 224 CLR 300, considered.

BATES v THE KING
[2023] SASCA 65
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: Following a trial by jury, the appellant was found guilty and convicted of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The particulars alleged that between 24 December 2010 and 30 November 2015 at Verran, the appellant maintained an unlawful sexual relationship with the complainant (MS), a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, namely:
·touching the complainant’s vagina on more than one occasion;
·inserting an object, namely a led pencil, into the complainant’s vagina on one occasion;
·causing the complainant to touch his penis on more than one occasion; and
·rubbing his genital area against the complainant’s genital area on one occasion.
The complainant, MS, was the daughter of the appellant’s former de-facto partner. She was aged between five and 10 years at the time of the charged offence. The unlawful sexual acts were alleged to have occurred in the appellant’s farmhouse where she was living with the appellant, her mother, her older stepsister, PS, and her younger brother, DS.
The appellant appeals against his conviction on the following (summarised) grounds:
1.The trial Judge erred in law with respect to the forensic disadvantage direction resulting in a miscarriage of justice.
2.The trial Judge erred in law in admitting evidence of an uncharged act pursuant to s 34P of the Evidence Act 1929 (SA) (‘the Evidence Act’) (Ground 2.1); and the trial Judge’s directions concerning the use of the evidence did not comply with s 34R of the Evidence Act (Ground 2.2).
3.The trial Judge, in her summing up, failed to fairly put the substance of the defence case resulting in a miscarriage of justice.
4.The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
Permission to appeal was granted in respect of Ground 4. The question of permission to appeal with respect to Grounds 1, 2 and 3 were referred to this Court for consideration.
The evidence
In order to properly consider the appeal grounds, it is necessary to outline in some detail the evidence at trial.
In December 2010, MS commenced living at the appellant’s farm in Verran with her mother, younger brother, DS, and older stepsister, PS. Between 24 December 2010 and 30 November 2015, MS alleged that nine unlawful sexual incidents occurred at the appellant’s farm; eight were particularised as part of the charged offence, and a further incident was alleged as an uncharged act. MS could not specify when each incident took place, nor the complete chronological order in which they occurred. Outside of the nine unlawful sexual acts, MS gave no evidence of any other uncharged offending having occurred.
MS could only narrow the dates over which the alleged offending occurred by reference to her older stepsister PS, who moved out in 2011 or 2012. MS said that all of the unlawful sexual acts took place after PS left home.
The appellant worked on the farm whilst AS ran a hairdressing salon in Cleve. MS and her brother DS caught the bus to school most days and would arrive home at about 4:00pm, whereas their mother, AS, would arrive home from work at about 5:30pm or 6:00pm. The appellant would generally commence working before AS left for work and return after she got home from work, although sometimes the appellant would be in the office when MS and DS returned from school. There were also other occasions when their mother was out, such as a sewing class on Wednesday night, or if she had to work on Saturday, and they would be alone with the appellant.
Particularised unlawful sexual acts
MS was asked about the first instance of inappropriate touching by the appellant. She described an incident which occurred while she was watching television in the lounge room. MS said she was sitting on the appellant’s lap when he put his hands down her pants and rubbed the outside of her vagina (‘the first incident’). MS pushed the appellant’s arm away, but it had no effect. She could not recall how old she was at the time, during what year this occurred, or what year of school she was attending. MS agreed that in her police statement she did not identify this incident as being the first occasion of inappropriate touching.
Next, MS described another incident in the lounge room which she said occurred in the same manner as the first incident, except on this occasion the appellant inserted the end of a lead pencil into her vagina (‘the pencil incident’). She said it felt cold but not painful. She said there was a pencil pot positioned on a table next to the recliner from where the appellant retrieved the pencil. Her mother, AS, also gave evidence that there was a pencil pot in that location. MS said this incident occurred after the first incident but could not specify how long later in terms of days, weeks or months. Nor could MS recall how she came to be sitting on the appellant’s lap or whether he pulled her pants down or pushed them to the side. She said it occurred during an afternoon but could not recall if her mother or younger brother were home.
MS described a third incident in the lounge room. She said this occurred when she and her brother, DS, were playfighting on the floor. The appellant was not in the room initially, but after entering he stood over MS, who was lying on her back on the ground. DS then mounted the appellant’s back playfully, and he encouraged DS to press further into his back so that the appellant was pressing his genital area against MS’ genital area (‘the playfighting incident’). MS said she tried to get out from beneath the appellant, but it was too difficult. However, she agreed that in her police statement she said, ‘I managed to crawl out from underneath them’. MS clarified that her earlier evidence, that she had managed to get out from beneath the appellant, was correct. MS could not recall when this incident occurred in relation to the first lounge room incident and the pencil incident.
MS described a fourth incident in the lounge room. She said that she was sitting on the appellant’s lap in the lounge room one evening when he spat on his fingers and began rubbing the outside of her vagina (‘the lounge room spitting incident’). There was no penetration. MS could not recall how she came to be sitting on the appellant’s lap or how the incident came to an end, nor could she recall anyone else being around at the time.
Next, MS described an incident which occurred in her bedroom at about 7:30pm. On this occasion, MS said she was lying on her back on her bed when the appellant came into her room and laid next to her. She gave evidence that the only light source was the television which was coming from the lounge room. MS said the appellant put his hands down her pants and began rubbing her vagina with his fingers. She then got up to go to the bathroom. She said that after she left the bedroom, she did not say anything to her mother (who was home, and in her bedroom) because she was frightened of how the appellant would react. MS said that after she returned to her bedroom, the appellant resumed touching her on the vagina (‘the bedroom incident’). MS could not recall how long this incident lasted.
MS said that there were also two incidents that occurred in the master bedroom (used by the appellant and her mother). On the first occasion, MS said she had been watching television when the appellant called her into the room. He asked her to lay down on the bed and put a pillow over her face, which she did. He then rubbed the outside of her vagina with his finger and spat directly on her vagina (‘the pillow incident’). She said DS would have been home at the time, and she recalled the door to the bedroom being open.
MS agreed that in her police statement she said the ‘[t]he rubbing of my vagina normally always happened in the lounge room on his chair. The only other place was the time on my bed, which I explained in my first statement.’ She agreed that her evidence differed to what she told police and clarified that her police statement was incorrect in this regard.
MS also described a second incident in the master bedroom. She said the appellant called her into the ensuite, after he had showered, and asked her to touch his penis. She said he grabbed her hand and put it on his penis and asked her to rub it until he urinated a little bit. She then pulled her hand away (‘the shower incident’). MS agreed that in her police statement she said this incident occurred before the appellant had showered; and that she had only touched the appellant’s penis before pulling her hand away (rather than having rubbed it until he urinated a little bit). MS clarified that her police statement was incorrect in that regard.
MS also gave evidence about an uncharged act which occurred in the kitchen. She said the appellant called her into the kitchen, where he had been making biscuits, and after walking in, she observed him standing by the kitchen table with his pants pulled down a little bit so that she could see his penis (‘the uncharged act’). She said his penis was ‘erect and it had icing on the tip of it.’ She said that when she saw the appellant’s erect penis, she ‘turned and walked out’. MS agreed that in her police statement she said, ‘I saw that his penis was visible, it was erect, and it was covered in icing which would normally go on biscuits’. MS clarified that her evidence that the icing was only on the tip of the penis was correct.
Finally, MS described an incident which occurred in the appellant’s home office, where he was working late at night. She said her brother would have been home but could not recall whether her mother was home at the time. She said that the appellant called her into the office and grabbed her hand and put it down his pants so that it touched his penis. After a few seconds, she pulled her hand back and walked out (‘the office incident’). MS agreed that in her police statement, she did not mention an occasion where she was called into the office by the appellant. She agreed that she was generally not permitted in the appellant’s office.
MS gave evidence that the office incident occurred before the uncharged act but after the other sexual incidents. However, she could not specify which of the sexual incidents (including the uncharged act) was the last occasion, nor whether it occurred before or after her tenth birthday. MS agreed that at the time of all alleged sexual incidents her brother, DS, would have been ‘around the house somewhere’. As to the incidents which occurred in the lounge room, MS agreed that the interior of the lounge room was visible from the hallway, and the only barrier between the master bedroom and the loungeroom was the door to the master bedroom, which could be opened at any time.
Complaint evidence
MS gave evidence that the first person she told about the inappropriate touching was her friend, LP. She said this occurred on Australia Day in either 2014 or 2015 when they were ‘down at the creek at one of the farms.’ When asked to recount the conversation she said:
A:I can’t remember the exact conversation but I told her that [the appellant] had touched me and she’d asked me to – told me I should have told her big sister, Grace because she’d know what to do but I refused and just brushed it off.
Q: When you say you brushed it off, what do you mean by that.
A: I told her not to worry about it and just ignored it.
Q: Why did you refuse to tell [LP’s] older sister.
A: I guess after I told [LP] I just kind of panicked, I didn’t really want anybody to find out and decided not to say anything else.
LP gave evidence that MS told her that the appellant ‘used to get into her bed’ but when LP asked her if she was being serious, MS said she was ‘just joking’. As for MS’ demeanour during this conversation, LP described her as being ‘very serious’ and straight faced when she told her about the allegations, but then she started smiling and laughing after she told LP it was just a joke.
In November 2015, MS spoke to her mother in relation to the allegations. The prosecution did not lead evidence of the content of this conversation. Subsequently, MS’ mother took her to see Dr Monique Kanters in Whyalla. As to any disclosure that took place during this appointment, MS said:
A: I didn’t say anything to the doctor, I had introduced myself and then I sat in the room next to mum and refused to say anything because I didn’t want to be there.
Q: Why did you not want to be there.
A:I’m not sure, I just felt uncomfortable.
Q:Can you remember what your doctor said to you.
A: No.
Q: Can you remember what your mother said while you were in the doctor’s room.
A: No. I remember the doctor had eventually asked me to leave the room so that she could speak with mum but that’s all I remember her saying.
By contrast, Dr Kanters gave evidence that MS disclosed to her that the appellant came into her room when her mother was not home and touched her ‘private parts’ indicating her lower abdomen between her legs and her chest. She said that the appellant touched her with his fingers and on her private parts without any penetration. Dr Kanters gave evidence that MS said the inappropriate touching occurred on more than one occasion, when her mother was not home, and that he told her not to tell anyone. Dr Kanters said that MS told her the touching had stopped several months earlier.

Dr Kanters recalled MS was ‘calm’ and ‘reasonable’ and did not exhibit any degree of stress. She said MS appeared uncomfortable discussing the allegations but was able to come forward with information without much prompting.
AS described MS’ disclosures to Dr Kanters differently. She said MS complained that the appellant ‘touches me’ and ‘does to me what he does to mummy.’ AS explained that she was ‘quite hysterical’ during the appointment and AS said she ‘didn’t know what to believe’.
After the appointment with Dr Kanters, AS said that she took MS to her oldest son’s house in Whyalla and returned alone to the farm. She did so because she was concerned about the appellant’s health and wellbeing having texted him about the allegations, which he denied. She said he was ‘panicked, nervous, scared. I found him in the bedroom. He was a shaking mess, vomited. He was very angry and very loud.’ She described his reaction as one of ‘disbelief’.
AS and MS returned to continue living with the appellant at his farm. It was AS’ evidence that she did so because she was scared, and because MS had asked to return home. MS said that she agreed to return because she felt overwhelmed and did not want to ruin her mother’s relationship with the appellant. She said that she ‘didn’t really want anything to change’ because they had lived with the appellant for several years by that point and ‘it was easier just to go back’. MS said there were no further incidents of sexual touching after she returned.
Dr Kanters submitted a mandated report to police about the disclosure. However, the police did not contact AS until September 2017 due to an ‘administration error.’ When contacted by police, AS agreed that it was possible that she told police that MS had made up the allegations. It was her evidence that she said this because ‘[t]he house was calm at the time. I thought that the threat had passed.’
Appellant’s record of interview
The appellant and AS ended their relationship in July 2018. In May 2020, MS reported the allegations to police. The police interviewed the appellant on 25 November 2020. An audio-visual recording and transcript of that interview were tendered at trial.[1] During the interview, the appellant denied the allegations.
[1] Trial Exhibits P2 and MFI-P3, respectively.
Defence case
The appellant did not give evidence. As part of the defence case, his daughter Amber Bates gave evidence of having lived in a caravan in the front yard of his home from March 2013 to August 2013 with her partner and his brother. Her partner stayed living in the caravan until about December 2013. Ms Bates gave evidence as to her observations of family dynamics and the appellant’s relationship with MS. She said that her father treated MS in the same manner as he treated her. Ms Bates said she never saw her father sexually abuse MS, nor did she see any sort of behaviour that caused her any concern that something untoward might be going on.
The closing addresses
In support of their case, the prosecution relied almost entirely on the evidence of MS. There was some support for her evidence in that the appellant conceded there were opportunities for him to commit the unlawful sexual acts; and, in relation to the pencil incident, AS gave evidence that there was a pot of pencils and pens in the position nominated by MS (although Ms Bates could not recall it.)
The prosecutor, in his closing address, submitted that MS was a credible and reliable witness and invited the jury to accept that any inconsistencies in her evidence were explained by her young age at the time of the alleged offending and the passage of time that had lapsed between the alleged offending and the trial. Further, the prosecutor submitted that MS’ account of events was not implausible and had a ‘ring of truth’ due to the ‘strange’ nature of the alleged offending.
Defence counsel submitted that MS’ evidence should not be accepted on three premises: first, her demeanour and manner of giving evidence was ‘monotonal’; secondly, the inconsistencies in her own account of events and the fact that her evidence was without any material support; and thirdly, there were aspects of her account that were implausible. These matters form the basis of the appellant’s ground of appeal that the verdict was unreasonable analysed later in these reasons.
The defence case also emphasised the appellant’s denials in his interview with police on 25 November 2020, and submitted that his responses were genuine and reflected his innocence.
It is also to be noted that this was a short trial lasting three days with the only issue in dispute being whether the prosecution had proved that two or more of the alleged sexual acts occurred.
With that background in mind, we turn to consider the grounds of appeal.
Ground 1 – Forensic disadvantage
The appellant complains the trial Judge’s directions with respect to forensic disadvantage were erroneous. Specifically, the appellant contends that the directions suggested (or, alternatively, tended to proceed on the premise) that the lack of detail or specificity in MS’ evidence was the result of the passage of time, and that this was ‘understandable’, when the defence case was that the allegations were simply untrue, thus tending to undermine the defence criticisms of the credibility and reliability of her evidence. Further, the appellant submits that the direction tended to excuse weaknesses in MS’ evidence and therefore diluted the force of the forensic disadvantage direction.
To that end, and bearing in mind that the defence case was predicated upon the jury’s assessment of the credibility and reliability of MS, the appellant contends that the impugned directions gave rise to a miscarriage of justice.
Section 34CB(2) of the Evidence Act provides:
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
The direction must be specific to the circumstances of the particular case but should not take the form of a warning and must not include the phrase ‘dangerous or unsafe to convict’ or similar words or phrases.[2]
[2] Evidence Act 1929 (SA) s 34CB(3).
Defence counsel, in answer to the trial Judge’s inquiry as to whether any specific directions were required, sought a forensic disadvantage direction:
Forensic disadvantage is one that comes to mind, particularly given the vagaries of the dates and sequence in the complainant’s evidence …
… It’s the inability to when confronted by only a broad date range rather than specific dates. So it’s the inability to properly test and challenge the evidence, not the sort of loss of DNA or loss of other evidence, but its more that in circumstances where much time has passed and an account is given without any dates, whether specific or even a narrow date range given, an inability for a person to be able to defend themselves by saying what they were doing on any given day or any given week or any given month.
Noting that the appellant did not give evidence, it can be seen that the request for a forensic disadvantage direction was premised on the appellant’s inability to properly test and challenge the evidence given the lengthy period over which the alleged offending occurred, and the complainant’s inability to narrow that time period, or provide a complete sequence to the unlawful sexual acts. The prosecution did not object to a forensic disadvantage direction and the trial Judge formed the opinion that it was required.
There was no submission before this Court that a forensic disadvantage direction should not have been given. Rather, the issue on appeal was whether the directions were adequate in the circumstances of the case. Whilst not going so far as to contend that the direction should not have been given, the respondent submits that a specific and significant disadvantage was difficult to discern in this case, and therefore inherently difficult to tie into the direction. According to the respondent, that was so given the delay was not in the order of decades; the charge of maintaining an unlawful sexual relationship with a child allows for dates and details to be unspecific; his opportunity to commit the offence was not denied; the appellant had been confronted with the allegations in 2015 (noting there was no evidence that the detail of the allegations was made known to the appellant in 2015); and there was a blanket denial by the appellant then, and at trial.
Notwithstanding those matters, given the seven to 12 year delay between the offending and the matter proceeding to trial, and the lack of specificity in the evidence, we consider it was appropriate for the trial Judge to form the opinion that a forensic disadvantage direction was required.
The trial Judge instructed the jury in the following terms:
As you are aware, ladies and gentlemen, this trial concerns events that are said to have occurred between 24 December 2010 and 30 November 2015. That is the time from when [MS] and her family moved into Mr Bates’ farmhouse to the day that [MS’] mother took her to see Dr Kanters in Whyalla. That means that you are looking at events that occurred seven to 12 years ago and delay has meant that a number of witnesses who gave evidence here have difficulty remembering relevant events. That is quite understandable, you might think, but the delay has had a significant impact on Mr Bates’ ability to respond to the allegations and to test the case against him.
Due to the passage of time, witnesses do not have a good memory for detail. In particular, [MS] was unable to tell you when these events that she described occurred during that extended period of just under five years. She could not tell you in what order the events occurred nor could she tell you the lapse of time between the events that she described.
So this delay has impeded the ability of defence to challenge witnesses on matters of detail or to expose where a witness might be inconsistent or even wrong. We cannot know what evidence Mr Bates might have been able to call had this charge been laid against him earlier and you should not speculate about what that evidence may or may not have shown, but you must take these disadvantages into account when you are scrutinising the evidence from all of the prosecution witnesses.
(emphasis added)
The operation of s 34CB has been considered in a number of decisions of this Court.[3] The rationale for a direction under s 34CB is to warn the jury of the forensic disadvantage suffered by the defendant attributable to the passage of time between the alleged offending and the trial. The direction is intended to operate as a safeguard against a wrongful conviction of the defendant.[4]
[3] See R v Cassebohm (2011) 109 SASR 465 at [14]-[32] per Doyle CJ (with whom White and Peek JJ agreed); R v Maiolo (No 2) (2013) 117 SASR 1 at [172]-[201] per Peek J (with whom Kourakis CJ and Stanley J agreed); R v S [2015] SASCFC 179 at [62]-[88] per Blue J (with whom Stanley and Kelly JJ agreed); R v W, PK [2016] SASCFC 5 at [34]-[47] per Kourakis CJ (with whom Kelly and Nicholson JJ agreed); Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [43]-[51] per Livesey P and Lovell JA; [174]-[190] per Doyle JA; Parker v The Queen [2022] SASCA 89 at [78]-[82] per Livesey P, Lovell and Doyle JJA.
[4] R v Maiolo (No 2) (2013) 117 SASR 1 at [187], [192]-[201] per Peek J (with whom Kourakis CJ and Stanley J agreed).
In R v Maiolo(No 2)[5] it was emphasised that the Longman direction[6] (which has been replaced by s 34CB of the Evidence Act) was ‘a direction in favour of the defendant and was never a direction that was thought necessary or desirable to somehow bolster a prosecution case.’[7] In that matter, the trial Judge asked the jury to assume ‘just for the moment’ that the witnesses were doing their best to tell the truth (when the whole crux of the defence case was to the contrary) and noted the difficulties for the prosecution witnesses caused by the delay in the allegations proceeding to trial. That the direction referred to the impact of delay upon the complainants’ memories was considered ‘an unnecessary tangential development’[8] which had the effect of excusing significant inconsistencies in the complainants’ evidence, and of suggesting ‘that insofar as the defendant has suffered a significant forensic disadvantage it is no worse than that suffered by the complainants.’[9]
[5] (2013) 117 SASR 1.
[6]     See Longman v The Queen (1989) 168 CLR 79.
[7]     R v Maiolo (No 2) (2013) 117 SASR 1 at [173] per Peek J (with whom Kourakis CJ and Stanley J agreed).
[8]     R v Maiolo (No 2) (2013) 117 SASR 1 at [182] per Peek J (with whom Kourakis CJ and Stanley J agreed).
[9]     R v Maiolo (No 2) (2013) 117 SASR 1 at [183] per Peek J (with whom Kourakis CJ and Stanley J agreed).
Recent authorities of this Court have reiterated that any reference to the impact of delay upon the prosecution case or prosecution witnesses, in the context of a forensic disadvantage direction, may result in it becoming ‘skewed and inadequate’ or otherwise productive of a miscarriage of justice.[10] As Lasry AJA explained in R v GVV[11] (in the context of a Longman warning), the direction must be unequivocally favourable to an accused, and it provides no occasion for balance between the parties.[12]
[10] R v Maiolo (No 2) (2013) 117 SASR 1 at [201] per Peek J (with whom Kourakis CJ and Stanley J agreed) referring to a number of Victorian cases concerning the Longman warning: R v MWL (2002) 137 A Crim R 282; R v WEB (2003) 7 VR 200; R v Taylor(No 2) (2008) 18 VR 613; R v GVV (2008) 20 VR 395. See also R v Folli [2001] NSWCCA 531; Healey v The Queen [2006] NSWCCA 235; Patterson v The Queen [2022] SASCA 57 at [179] per Doyle JA.
[11] (2008) 20 VR 395.
[12] R v GVV (2008) 20 VR 395 at [65] per Lasry AJA.
Relevantly, in Patterson (A Pseudonym) v The Queen,[13] Livesey P and Lovell JA observed:[14]
As Peek J warned in R v Maiolo (No 2), when directing a jury the trial judge must be careful not to suggest that inconsistences within a complainant’s evidence, apparently caused by the deterioration of memory brought about by delay, results in both an accused and the prosecution suffering a forensic disadvantage. To put that proposition another way, though the jury should understand that delay may explain errors or inconsistencies in a complainant’s evidence, when scrutinising the evidence the jury must take into account that it is only the accused who has suffered a relevant forensic disadvantage caused by delay which is recognised by s 34CB.
[13] [2022] SASCA 57.
[14] Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [50] per Livesey P and Lovell JA.
Ultimately, what is required upon application of s 34CB is a direction that explains to the jury the meaning and nature of the forensic disadvantage attributable to the passage of time which is tailored to the facts and circumstances of the particular case.[15] It necessitates more than a general explanation of the difficulties occasioned by delay and faced by an accused in defending allegations of criminal conduct.[16] The Judge should direct the jury that they must take the accused’s forensic disadvantage into account when scrutinising the evidence.
[15] R v W, PK [2016] SASCFC 5 at [42] per Kourakis CJ (with whom Kelly and Nicholson JJ agreed).
[16] Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [178] per Doyle JA.
The need for specificity in a direction pursuant to s 34CB was emphasised by Doyle CJ in R v Cassebohm.[17] His Honour said:[18]
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[17] (2011) 109 SASR 465.
[18] R v Cassebohm (2011) 109 SASR 465 at [32] per Doyle CJ (with whom White and Peek JJ agreed); see also R v W, PK [2016] SASCFC 5 at [35]-[36] per Kourakis CJ (with whom Kelly and Nicholson JJ agreed).
In the present case, the trial Judge told the jury that the trial involved events that occurred seven to 12 years ago. Her Honour went on to say that the delay meant that a number of witnesses who gave evidence may have difficulty remembering relevant events, and that was ‘understandable’, before explaining that the delay has had a significant impact on the appellant’s ability to respond to the allegations and to test the case against him. It is to be immediately noted that the witnesses called in this trial were predominately prosecution witnesses, with the exception being Amber Bates. Her Honour then explained that due to the passage of time, witnesses did not have a good memory for detail, and emphasised that MS, in particular, was unable to say when the alleged sexual acts occurred nor the order in which they occurred during the five years particularised. Her Honour then instructed the jury that this has impeded the ability of defence to challenge witnesses on matters of detail or to expose where a witness might be inconsistent or even wrong, and that the jury must take these disadvantages into account when scrutinising the evidence from all the prosecution witnesses.
In relation to the appellant’s contention that the direction lacked specificity and failed to ‘tie the forensic disadvantage back to particular aspects of the complainant’s evidence’, we consider that her Honour’s direction was sufficient in this regard. Defence counsel, in his closing address, did not specify or highlight any particular aspects of the forensic disadvantage suffered by the appellant outside of those matters raised by her Honour when she explained that delay had impeded the appellant’s ability to challenge witnesses on matters of detail and expose where witnesses might be inconsistent or wrong in their evidence. Nor did counsel at the appeal hearing.
However, there remains two significant difficulties with the forensic disadvantage direction.
First, it was not necessary for the trial Judge, when instructing the jury as to the forensic disadvantage suffered by the appellant, to refer to the potential impact of delay on MS’ memory. The forensic disadvantage suffered by the appellant was in respect of adequately testing the allegations and marshalling a defence up to 12 years after the alleged events compared with his position if there had been a contemporaneous complaint. The forensic disadvantage was exacerbated in this case by the lack of precision in MS’ evidence as to detail and sequence, and the wide nature of the particularised dates; but it was not predicated on MS’ memory having been affected by the delay.
Ordinarily, a trial judge’s directions on the impact of delay as a relevant factor in assessing the evidence of witnesses (including a complainant’s evidence) should be given separately, and in a different context, from a forensic disadvantage direction so as not to dilute the force of the direction. The purpose of a direction under s 34CB is to instruct the jury about the forensic disadvantage suffered by an accused person not the prosecution. That must be kept steadily in mind.
Secondly, the trial Judge put to the jury, as a positive assertion, that it is ‘quite understandable’ that a number of witnesses may have difficulty remembering events, and the delay meant that MS, in particular, by reason of the delay was unable to say when the alleged sexual acts occurred within the five-year period, and in what sequence they occurred. The defence case was in fact to the contrary. The defence case was that the lack of detail and precision in MS’ evidence was not caused by delay but was attributable to the fact she was not telling the truth.

For the respondent it is contended that the trial Judge’s directions were adequate; first, by explaining how the delay caused the relevant forensic disadvantage (by impeding the ability of defence to challenge witnesses on matters of detail); and, secondly, by pointing out that the relevant forensic disadvantage was only suffered by the appellant. The respondent submits that her Honour drew a necessary distinction between what is obvious, that is, the passing of time and how the subsequent fading of memories impacts us all, and the fact that there was a particular consequence in a forensic context which was only to the disadvantage of the appellant.
It may be accepted that the trial Judge ultimately instructed the jury to take the forensic disadvantage caused by delay into account only when scrutinising the evidence from the prosecution witnesses. However, her Honour’s earlier references to the impact of delay on MS were unnecessary; this was not a case where the reference to the effect of delay on the memories of witnesses, including MS, was necessary to make the point that delay had resulted in a forensic disadvantage to the appellant which was exacerbated or compounded by the generality of the complainant’s evidence. The trial Judge’s statements to that effect served to dilute the force of the direction by suggesting that both MS and the appellant suffered a forensic disadvantage due to the delay. More significantly they tended to undermine the defence case that the lack of detail and precision in the complainant’s evidence was by reason of the fact she was not telling the truth.
The prosecution case rested almost entirely on the evidence of MS. Her credibility and reliability were crucial in proof of the charge and were directly under challenge as the focus of the defence case. For those reasons, we are satisfied that the inadequacies in the forensic disadvantage directions, in the circumstances of this case, gave rise to a miscarriage of justice. The case being one dependent upon the jury’s assessment of the credibility and reliability of the complainant, it is not appropriate to apply the proviso. Having regard to the natural limitations on appeal, we are not satisfied of the negative criterion in Weiss v The Queen.[19]
[19] (2005) 224 CLR 300 at [44] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
We grant permission to appeal on Ground 1 and allow the appeal.
Ground 2 – discreditable conduct evidence
Under this ground of appeal, the appellant complains that the trial Judge erred in admitting the evidence of the uncharged act or, alternatively, erred by failing to give appropriate directions concerning the permissible use of the evidence.
There was no challenge to the admissibility of the evidence at trial. Defence counsel did not object to its receipt. Accordingly, there was no error of law by the trial Judge in not excluding the evidence.[20] However, the appellant maintains that the evidence was inadmissible, and the receipt of that evidence combined with erroneous directions resulted in a miscarriage of justice.
[20] R v C, G (2013) 117 SASR 162 at [43]-[53] per Gray, Sulan and Blue JJ; R v Jones (2018) 131 SASR 532 at [28] per Nicholson J (with whom Kourakis CJ and Hinton J agreed).
It is important to emphasise at the outset that whilst the prosecution did not allege that the evidence of the uncharged act was one of the unlawful sexual acts that fell within the particulars on the information, the appellant’s conduct which formed the basis of this incident (the appellant calling MS into the kitchen and exposing his erect penis to her with icing on it), if accepted, constituted an act of gross indecency contrary to s 58 of the CLCA. This offence is an unlawful sexual act within the meaning of s 50(12) of the CLCA. It was open to the prosecution to particularise the incident as forming part of the charge.
However, at trial both parties were content to treat the evidence of the incident in the kitchen as an ‘uncharged act.’ It is common ground that the uncharged act constituted evidence of ‘discreditable conduct’ and therefore ss 34P and 34R were engaged. They relevantly provide:
34P – Evidence of discreditable conduct
(1)    In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)    Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)    In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)    Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)    The court may, if it thinks fit, dispense with the requirement in subsection (4).
34R – Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
A mandatory s 34P(4) notice was not served. The prosecution relied on the evidence of the uncharged act for a non-propensity purpose pursuant to s 34P(2)(a). In response to an inquiry from the trial Judge as to the status of the evidence, the prosecutor submitted that it was an uncharged act that ‘[had] a non‑propensity use to complete the picture and allow the jury to understand how the other acts occurred; why the complainant didn’t make a complaint at a particular time, why she submitted to the ongoing abuse.’
The prosecution did not allege at any stage that the evidence was relevant for a propensity purpose, that is, as evidence of sexual attraction and a willingness to act upon it. The parties and the trial Judge proceeded on the basis that the evidence was admissible for a non-propensity purpose in terms as outlined by the prosecutor.
Both parties addressed the jury on the topic of the uncharged act. The prosecutor urged the jury to consider that ‘this would be a particularly strange thing to make up as a 15 year old girl reporting allegations to police.’ He explained (in similar terms to his submission to the trial Judge) that the evidence ‘was led as an uncharged act to allow [MS] to tell you the whole picture about how she interacted with the accused, why the alleged abuse continued, and why [MS] did not complain to anyone at the particular time.’
Defence counsel emphasised the alleged prior inconsistent statement to the police that the appellant’s penis was entirely ‘covered in icing’ (as opposed to just the tip) and submitted that it was a ‘bizarre’ allegation and ‘if it really happened you’d remember it’.
In challenging the admissibility of the evidence on appeal, the appellant now submits the evidence of the uncharged act lacked any meaningful non-propensity relevance given this incident occurred after the other alleged incidents; and was of a different, less serious character to the other allegations such that it did not cast any relevant light on the relationship nor illustrate an escalation in the offending.
It is not entirely clear from the evidence whether the uncharged act is, in fact, the last incident of unlawful sexual conduct by the appellant towards MS. When asked about the sequence of events, MS said that the office incident occurred before the uncharged act but after the other alleged incidents. This would put the uncharged act last in time if there were no other sexual allegations. However, when MS was explicitly asked in evidence whether she could identify the final sexual incident, she said ‘no’.
Irrespective of whether the uncharged act was the last sexual incident, we are satisfied that it was admissible for a non-propensity purpose. The issue in dispute at trial was whether there was a relationship between the appellant and MS during which he committed at least two unlawful sexual acts. The evidence of the uncharged act was relevant to provide the complete picture of their relationship; and potentially marked the end of the alleged sexual conduct within that relationship. The evidence, if accepted, also revealed the full extent of the sexualised nature of their relationship, and shed some light on the trajectory by which the appellant had become emboldened to commit the offending in an increasingly brazen manner (standing naked in the kitchen with icing on the tip of his penis) in the absence of any earlier complaints by MS. In that way, the evidence was relevant in providing a context in which the particularised unlawful sexual acts occurred.
On the question of admissibility, the appellant contends that the risk of prejudice lay in this uncharged act, with little or no contextual or explanatory value, becoming a ‘lightning rod’ for a contest between the credibility of the complainant and the appellant’s denials. The appellant emphasises that the critical detail of the allegation was never put to him for comment in his record of interview; and thus to answer the allegation the appellant would have to go into evidence tending to undermine his right to silence. This contention can be answered shortly. In his interview, the appellant denied the uncharged incident by way of an interjection as the allegation was being outlined to him and before the details of the icing on his penis could be put. Further his denials of having exposed his penis to MS (and all other sexual contact with her) were clear in the interview.
We are satisfied that the probative value of the evidence as outlined above outweighed any prejudicial effect it may have had on the appellant; there was no suggestion that, with appropriate directions, the permissible use of the evidence could not be kept separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. The evidence of the uncharged act was admissible for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act.
Turning to the appellant’s contentions as to the directions on the uncharged act, the trial Judge instructed the jury as follows:
Now, I have already reminded you about [MS’] evidence about the kitchen incident in which she alleges Mr Bates called her into the kitchen and he exposed his erect penis to her in the context of a direction about prior inconsistent statements. That, ladies and gentlemen, is arguably a sexual act that might amount to gross indecency. It is not particularised on the information and does not form part of the charged offence against Mr Bates. This is evidence of an uncharged sexual act that is led in order to demonstrate the context in which the charged sexual acts are alleged to have occurred. So it is important to understand the use that you can make of this kitchen evidence and the use you may not make of it.
If you are satisfied that the incident in the kitchen actually occurred, you should not reason therefore that it therefore follows Mr Bates is guilty of all or any of the other sexual acts that have been alleged in the information. If you are satisfied that the kitchen incident did occur, you may only use it as providing the context in which the charged sexual acts are alleged to have occurred. For example, the prosecutor suggested that this would be a strange thing to make up, whereas Mr Culshaw says that [MS’] inconsistency on this topic casts doubt upon the credibility generally. Those are proper uses for that evidence.
However, you should not reason that because you might be satisfied Mr Bates behaved as [MS] said he did in the kitchen, he is therefore guilty of all or any of the sexual acts with which he has been charged.
The requirements of s 34R are mandatory. In order for a direction to comply with s 34R(1) it must identify the permissible purpose for which the discreditable conduct evidence may be used and the impermissible purpose for which it may not be used. However, it is not necessary for a direction to use the precise language of the section.
The adequacy of the trial Judge’s directions must be assessed and determined in light of the conduct of the trial, including the manner in which the parties invited or encouraged the jury to use, or not use, the evidence of discreditable conduct. The permissible use of the evidence must be clearly identified to reduce the risk of a jury misusing the evidence for an impermissible purpose.
As Nicholson J explained in R v Pringle:[21]
It is important (and required by section 34R) that a Judge direct not just as to impermissible uses but also as to the permissible uses of such evidence. Any failure to do so may well increase the risk of its improper use by a jury. The failure to properly direct as to permissible uses will be an error of law just as will be a failure to properly direct as to impermissible uses. It is another question as to whether or not, in particular circumstances, any such error of law will necessarily warrant the setting aside of a conviction.
(citations omitted)
[21] [2017] SASCFC 9 at [74] per Nicholson J (with whom Kelly and Hinton JJ agreed).
The appellant criticises the discreditable conduct directions on the basis they were ‘illogical and circular’ and ultimately did not identify a permissible use of the evidence such that there was a failure to comply with s 34R.
The trial Judge instructed the jury that they may use the evidence ‘as providing the context in which the charged sexual acts are alleged to have occurred.’ That was the permissible non-propensity use of the evidence. Her Honour went on to say that, for example, the prosecutor suggested ‘this would be a strange thing to make up’. It is to be accepted that in providing this example, her Honour confused the basis upon which the prosecution asked the jury to accept the evidence (namely that it was so strange it was unlikely to have been fabricated by MS) with its permissible use. It is also to be observed that her Honour did not set out, with any specificity, the permissible use of the uncharged kitchen incident beyond its relevance for ‘context’. It would have been a clearer direction and preferable if her Honour had done so.
As Doyle J explained in R v Singh:[22]
When identifying the permissible use(s) of discreditable conduct evidence, precision and specificity are generally desirable. This is so both so as to ensure that the jury are able to properly understand and employ the permissible use of that evidence, and so as to reduce the risk that they will stray into reasoning that involves an impermissible use of that evidence. It is for this reason that (in different factual contexts) general descriptors of the relevance of the evidence, such as “background”, “context” or “relationship” evidence, have been deprecated as seldom illuminating.
It does not follow, however, that the articulation of the permissible use need be lengthy or detailed. Further, as the extent of the trial judge’s obligation under s 34R(1) is to be determined in the context of the conduct of the particular case, it does not extend to identifying or explaining every conceivable or theoretical line of reasoning, or every aspect of the permissible lines of reasoning. Nor does it extend to instructing the jury in logic, or in what would otherwise be obvious to them. Often a quite simple and succinct identification of the permissible and impermissible uses of the discreditable conduct evidence will be appropriate and sufficient, leaving it to the jury to determine whether and to what extent they are assisted by that evidence.
(citations omitted)
[22] [2019] SASCFC 51 at [69]-[70] per Doyle J (with whom Peek and Parker JJ agreed).
In the present case, the permissible use of the evidence was relatively straightforward; it required little elaboration and the jury would have well understood the relevance of the uncharged incident as providing the complete picture of the sexualised relationship between the appellant and MS, and thus the context in which the particularised sexual acts were alleged to have occurred. Moreover, the trial Judge correctly identified the impermissible uses of the evidence and gave orthodox non-propensity and non-substitution directions. This was not a case where any lack of specificity or detail in the direction, as to the permissible use of the evidence, would have increased the risk of its improper use by a jury.
For those reasons, we are satisfied that the directions as to the discreditable conduct evidence complied with s 34R, and there was no error of law.
We grant permission to appeal on Ground 2 but reject this ground of appeal.
Ground 3 – the trial Judge’s summing up
The appellant contends that the trial Judge failed fairly to put the substance of the defence case. The appellant relies on the fact her Honour made no reference to defence counsel’s submissions as to the demeanour of MS; and the inherent implausibility in her account. The appellant contends the ‘net effect’ was an imbalanced summing up which gave rise to a miscarriage of justice.
The principles governing a trial Judge’s obligations with regards to adequately summarising the defence case were recently summarised by this Court in Roberts v The Queen.[23] As explained in that case, while a trial judge must accurately and fairly summarise the cases for the prosecution and defence and ensure an appropriate balance between the parties’ cases is struck, the trial Judge is not required to address every aspect or detail raised by counsel.[24]
[23] [2022] SASCA 36 at [212]-[217] per Doyle JA (with whom Livesey P and David JA agreed).
[24] R v Roberts [2022] SASCA 36 at [215] per Doyle JA (with whom Livesey P and David JA agreed), citing R v Perks (1986) 43 SASR 112 at 116-7 per King CJ; Domican v The Queen (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
It must also be kept in mind that a trial judge is to be afforded significant flexibility as to the structure of the summing up. As King CJ explained in R v Perks:[25]
Each judge has his own style of summing up. It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence. But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution. What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge. Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence. In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge.
[25] (1986) 43 SASR 112 at 116-117 per King CJ.

As outlined earlier, the trial was a relatively short one. Evidence was heard over the course of three days, and defence counsel’s closing address (after lunch was taken) was immediately followed by the summing up. This was not a case where the jury required extensive reminding of the evidence or the parties’ respective cases or arguments. Those matters would have been fresh in their mind at the time of the summing up.
Further, the trial Judge commenced her charge to the jury by foreshadowing that she would not repeat all of the arguments of counsel and explained that the jury was bound to consider the arguments of both sides and reminded the jury that if she did not comment on all facets of the arguments put by counsel, this did not mean that they were not worthy of their consideration.
In her summing up, the trial Judge outlined the prosecution case and referred to each of the prosecution witnesses, and the agreed facts. Her Honour expressly referred to the appellant’s interview with police and defence counsel’s submission that it was ‘an honest and open interview where his client made appropriate concessions.’ Her Honour then turned to focus on the evidence of MS before summarising the defence case and the evidence of Amber Bates. Her Honour then set out the elements of the offence, including outlining the evidence of the particularised unlawful sexual acts, and the uncharged act.
In summarising the evidence, the trial Judge reminded the jury of defence counsel’s submissions in relation to the unlawful sexual acts. In particular, express reference was made to defence counsel’s emphasis on prior inconsistent statements purportedly made by MS, and the use that the jury could make of MS’ evidence and the uncharged act.
It is to be accepted that the trial Judge did not make any distinct reference to defence counsel’s submissions about the demeanour of MS. However, her Honour directed the jury that in assessing the credibility of witnesses they ‘can have regard to your own impression of the witness as you saw them in the witness box or on the screen.’ Her Honour went on to refer to MS and the ‘need to carefully consider her evidence bearing in mind the detailed submissions that both counsel have made to you this morning.’
It is also true that the trial Judge did not refer to defence counsel’s argument as to the inherent unlikelihood of MS’ account. However, given the jury had just heard defence counsel’s closing address on this topic, we do not consider it was incumbent on her Honour to say anything directly on that point.
In considering this ground of appeal, it is also relevant (but not determinative) that defence counsel did not make any contemporaneous complaint to the trial Judge in this regard.
Bearing in mind that this was a short trial in which the issues in dispute were sharply defined, and the subject of recent addresses by counsel, we are not satisfied that the trial Judge’s summing up was unbalanced or failed to adequately summarise the defence case.
We grant permission to appeal on Ground 3 but reject this ground of appeal.
Ground 4 – unreasonable verdict
The appellant complains that the verdict of guilty was unreasonable and unable to be supported by the evidence. In support of this Ground, the appellant relies on inadequacies in the complainant’s evidence which it is submitted gave rise to an ineradicable doubt. They were as follows:
1.The evidence of MS was uncorroborated and allegedly occurred in a household where there was a significant opportunity for observation yet neither AS nor Amber Bates witnessed anything untoward, with AS expressing the view when the allegations were later raised, by a police officer in 2017, that MS had fabricated the allegations.
2.MS’ inability to precisely place the allegations within a five year time frame, and the possibility that her evidence involved her giving evidence of events occurring some twelve years earlier than the trial when she was only five years old, was indicative of unreliability.
3.Inconsistencies in MS’ account of the particularised acts without explanation.
4.MS’ account of her complaint was contradicted by both LP and Dr Kanters.
5.The appellant’s forensic disadvantage attributable to the delay between the alleged offending and the trial proceeding.
6.The appellant was forthright in his denials during the police interview.
In determining an appeal on a ground of unreasonable verdict the required approach for this Court is to ask itself whether it thinks that, on the whole of the evidence, ‘it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’[26] This requires an independent assessment of the capacity of the evidence to support the verdict, and, the reasonableness of the verdict having regard to the whole of the evidence, making due allowance for the limitations inherent in the nature of appellate proceedings.[27] That is, the Court must ask itself whether the jury must, as opposed to might, have entertained a doubt about the appellant’s guilt.[28]
[26] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, cited with approval in Pell v The Queen (2020) 268 CLR 123 at [43] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
[27] Weiss v The Queen (2005) 224 CLR 300 at [41] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
[28] Libke v The Queen (2007) 230 CLR 559 at [113] per Hayne J (with whom Gleeson CJ and Heydon J agreed) (emphasis added); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
In M v The Queen, the plurality said:[29]
Where, notwithstanding as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
It was with those considerations in mind that some members of this Court have thought it necessary to qualify the statement by Barwick C.J. in Ratten v The Queen that: “It is the reasonable doubt in the mind of the court which is the operative factor.” Barwick C.J. went on to say:
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(citations omitted)
[29] M v The Queen (1994) 181 CLR 487 at 493-495 per Mason CJ, Deane, Dawson and Toohey JJ, cited in Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [95] per Doyle JA.
In the present case, the prosecution case rested almost entirely on the complainant’s evidence. If the jury accepted beyond reasonable doubt the credibility and reliability of her evidence and discounted the appellant’s denials in his record of interview as a reasonable possibility, then there was a sufficient basis for the guilty verdict.
In determining whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged, the Court must not disregard or discount that the jury is the body entrusted with the primary responsibility for determining whether the prosecution has established the appellant’s guilt, or that the jury had the advantage of having seen and heard the witness in the context of the evidence as a whole at trial.[30] Nevertheless, it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or any other witness, will be determinative.[31]
[30] Patterson (A Pseudonym) v The Queen [2022] SASCA 57 at [97] per Doyle JA.
[31] DES v The Queen [2020] SASCFC 32 at [80]-[83] per Doyle J (with whom Kourakis CJ and Livesey J agreed).
Ultimately, the question is whether this Court’s assessment of the totality of the evidence leaves it with a reasonable doubt as to guilt which the Court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.[32]
[32] Dansie v The Queen (2022) 96 ALJR 728 at [16] per Gageler, Keane, Gordon, Steward and Gleeson JJ.
We now turn to consider the matters relied upon by the appellant in support of his contention that the guilty verdict was unreasonable.
Lack of material support for the allegations
The appellant contends that the evidence of MS was not only uncorroborated but was also said to have occurred in a household where there was opportunity for detection yet there were no observations of anything untoward. As discussed earlier, there was however some modest support for the evidence of MS as to the pencil incident (from AS in relation to the location of the pencil holder) and it was accepted at trial that there was opportunity for the appellant to commit the offences. Whilst there was a risk of detection, there was no suggestion on the evidence of MS that any other person was present for the offending, with the exception of DS for the playfighting incident, which was allegedly committed under guise. It is to be accepted that there was little material support for the evidence of MS, and the allegations involved brazen and inherently risky conduct by the appellant. The trial Judge gave the jury clear directions that their assessment of MS will be of critical importance. Her Honour said ‘[S]he is the key witness for the prosecution. You will need to carefully consider her evidence bearing in mind the detailed submissions that both counsel have made to you.’ Whilst the absence of any material support for the evidence of MS, and the lack of observation of any untoward behaviour, are relevant matters for this Court to take into account, they did not of themselves render the verdict unreasonable.
Lack of specificity as to dates and sequence
As properly conceded by the appellant at the appeal hearing, MS was able to provide some specificity as to when the offending occurred within the particularised period of five years. She indicated that the offending occurred after PS ceased living at the farm (in 2011 or 2012), and she was able to say that the offending stopped a couple of months before she consulted Dr Kanters.
MS also provided some sequence to the alleged unlawful sexual acts: the office incident occurred before the uncharged act and after the other incidents; and the pencil incident occurred after the ‘first incident’. Notwithstanding those details, it is to be accepted that there was a lack of precision in her evidence as to the timing and sequence of the particularised unlawful sexual acts. However, those shortcomings were consistent with her young age at the time of the alleged offending, and the lapse of time before the matter proceeded to trial. It is also to be remembered that she was still a teenager at the time of giving evidence. We are satisfied that the lack of specificity in the evidence of MS as to when the offending occurred and the sequence in which it occurred did not of itself mean that the verdict was unreasonable.
Prior inconsistent statements
MS made various prior inconsistent statements in relation to the particularised acts, most of which have been outlined earlier in these reasons. In considering this aspect of the unreasonable verdict ground, it is necessary to set out the more significant inconsistencies.
·In relation to the first incident, MS initially gave evidence that she did not tell anyone about the conduct because the appellant had told her not to. However, she later said she thought it might have been ‘at another time’, possibly on another day.
·In relation to the playfighting incident, MS gave evidence that she tried to get out from beneath the appellant, but it was too difficult. However, in her police statement she said, ‘I managed to crawl out from underneath them’. She agreed her initial statement in court was incorrect, and she had in fact managed to get out from beneath the appellant eventually.
·As to the bedroom incident, MS gave evidence that there was light emanating from the television in the lounge room. However, in her police statement she described light coming from the television and the lounge room lights. She agreed that her police statement differed to her evidence but maintained that the only light emanating from the lounge room was from the television.
·MS gave evidence that there were two incidents that occurred in the master bedroom and another that occurred in the appellant’s office. However, in her police statement she said that aside from the lounge room ‘[t]he only other place was the time on my bed’.[33] MS agreed that this differed from her evidence and reiterated that sexual acts occurred in the master bedroom on two occasions.
·In relation to the shower incident (being the second incident that occurred in the master bedroom), MS gave evidence that the appellant had just taken a shower when he called her into the room. However, in her police statement she said that he was ‘just about to get into the shower’. MS agreed this differed from her evidence but maintained that she was ‘pretty sure he had already had a shower’.
·In relation to the shower incident, MS also gave evidence that the appellant grabbed her hand and put it on his penis so that she was touching it for a little bit before pulling her hand away and exiting the room. In her police statement she said: ‘I touched his penis with my hand but I pulled my hand and walked out.’ MS reiterated that she touched the appellant’s penis for a little bit before pulling her hand away, as opposed to pulling her hand away immediately.
·As to the uncharged act, MS gave evidence that the appellant’s penis was erect and had icing on the tip. However, in her statement to police she said the appellant’s penis was ‘covered in icing’.[34] She agreed there was a difference between the appellant’s penis being covered in icing and there being icing only on the tip; and reiterated that the icing was on the tip of his penis.
·In relation to the office incident, MS gave evidence that the appellant called her into his office. She agreed that in her police statement she did not say the appellant called her into his office.
[33] Emphasis added.
[34] Emphasis added.
Despite acknowledging the inconsistencies in her evidence, MS gave no express reason for them. However, it was open to a jury to find they were attributable to her young age; the passage of time that had lapsed since the offending; and that the offending occurred over multiple occasions in a broadly similar manner. Moreover, the inconsistencies in relation to: the playfighting incident; the light emanating from the living room during the bedroom incident; being called into the office relative to the office incident; whether the appellant’s penis was covered in icing (as opposed to just the tip); and whether or not the appellant had just taken a shower or was about to get into the shower, related to largely peripheral matters which were of no particular significance. That being so, we are satisfied that the inconsistencies raised on the evidence did not, either individually or cumulatively, render the verdict unreasonable.
Initial complaint
The appellant also relies on the inconsistencies between the evidence of MS on the one hand, and LP on the other, as to MS’ initial complaint; and the evidence of MS as to her lack of disclosure to Dr Kanters when compared to the evidence of Dr Kanters and AS that she did also complain to Dr Kanters.
There is an inconsistency between the evidence of MS and LP regarding her complaint. In evidence, MS said she told LP the appellant had touched her. However, LP said that MS told her that the appellant ‘used to get into her bed’. The appellant also relies on the purported inconsistency of LP’s account (which it is suggested implies it occurred on more than one occasion) with MS’ evidence that there was only one instance where the appellant allegedly got into her bed.
Further, MS’ evidence that she did not disclose the alleged offending to Dr Kanters is directly contradicted by the evidence of Dr Kanters, who had the benefit of contemporaneous notes, and the evidence of AS (who was present at the appointment).
The inconsistencies in the complainant’s evidence need to be considered in its complete context. MS was a teenager at the time, she was unaware that her mother was taking her to see a medical practitioner until she arrived, and she was unprepared for the appointment. She ultimately wanted to return ‘home’ to the farm as she did not want to upset her mother’s relationship with the appellant. She did not have the benefit of notes or any other material to jog her memory as to what occurred in the consultation. Those matters combined with the passage of time provided some explanation as to why she believed she did not disclose the allegations to Dr Kanters. We do not consider that the evidence of MS in this regard substantially undermined her credibility or reliability to the extent that it required a verdict of not guilty.
Forensic disadvantage
The appellant contends this was a case where the forensic disadvantage was potentially great in that the appellant could have potentially pointed to other inaccuracies or inconsistencies in MS’ account but for the delay.
In determining whether the verdict is unreasonable, and in making an independent assessment of the record, the extent to which the appellant was under a forensic disadvantage due to the passage of time is a relevant consideration. In this case, it is also relevant that, for the reasons outlined in relation to Ground 1, the forensic disadvantage direction did not comply with s 34CB of the Evidence Act when considering the extent of any advantage enjoyed by the jury.
The forensic disadvantage to the appellant was, however, confined to a diminution of his capacity to challenge the evidence of MS. He did not give evidence, nor was there any suggestion that the delay resulted in a loss of records or the unavailability of witnesses. Whilst the lapse of time between the alleged offending and the trial certainly resulted in a significant forensic disadvantage to the appellant, to the extent that it adversely affected his ability to challenge the reliability and credibility of MS, we are not satisfied that this matter alone, rendered the verdict unreasonable.
The appellant’s police interview

The appellant gave a police interview in November 2020 during which he denied the allegations and protested his innocence. We were urged to watch the video. It was submitted that the appellant’s answers were compelling. Senior counsel described his demeanour as exhibiting a ‘sad disbelief’ when emphatically denying the allegations which it was said was strongly supportive of his innocence.
In SKA v The Queen,[35] (‘SKA’) the High Court considered whether the Court of Criminal Appeal (NSW) had erred in its consideration of an appeal ground alleging that the verdict was unreasonable and could not be supported having regard to the evidence by reason of their failure to watch a video recording of the complainant’s evidence in chief.[36] A significant concern in SKA was the potential for an ‘undue focus’ on the complainant’s evidence.[37] It was also emphasised that it was a recording of only part of the complainant’s evidence, her evidence in chief, and thus may not have been a fair representation of her evidence as a whole.[38] The High Court considered that there was no error by declining to watch the video recording of the complainant’s evidence in chief. The High Court explained:[39]
The account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of evidence. It is to be expected that if there is something which may affect a court's view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach.
[35] (2011) 243 CLR 400.
[36] SKA v The Queen (2011) 243 CLR 400 at [29]-[33] per French CJ, Gummow and Kiefel JJ; see also Pell v The Queen (2020) 268 CLR 123 at [32]-[39] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
[37] SKA v The Queen (2011) 243 CLR 400 at [29] per French CJ, Gummow and Kiefel JJ.
[38] SKA v The Queen (2011) 243 CLR 400 at [29] per French CJ, Gummow and Kiefel JJ.
[39] SKA v The Queen (2011) 243 CLR 400 at [31] per French CJ, Gummow and Kiefel JJ.
In the present case, the appellant’s police interview is not a recording of the evidence, rather it is the evidence itself. To that extent, there is a distinction to be drawn between the video recording of part of a witness’s testimony which is admitted as that person’s evidence in a trial, and an out of court police interview with an accused person which is admitted as a statement against interest. Further, in this matter, the appellant articulated a specific reason for this Court to view the police interview, namely to observe the appellant’s response when he was first tested with the specific allegations. For those reasons, we considered it appropriate to view the appellant’s police interview. During the police interview, the appellant is clearly distressed and adamant in his denials.
In undertaking an independent assessment of the evidence, we have taken into account: the appellant’s denials in his record of interview; the inconsistencies and purported implausibility of MS’ account; the fact there is no independent material support for her evidence; and the appellant’s forensic disadvantage. However, upon an independent review of the evidence, MS remained clear on the central aspects of the particularised unlawful sexual acts. It was open to the jury to find some of the more unusual aspects of her evidence (such as the pencil incident, and the pillow incident) as convincing. Ultimately, notwithstanding those matters relied upon by the appellant considered either individually, or in combination, we are satisfied on an independent assessment of the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
For these reasons, we dismiss Ground 4.
Orders:
1.The appeal is allowed.
2.The conviction is set aside.
3.The matter is remitted to the District Court for a retrial.