Bristow v The Queen - [2020] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
BRISTOW v THE QUEEN
[2020] SASCFC 91
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)
17 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - OTHER STATEMENTS
CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction of one count of aggravated kidnapping, two counts of rape, two counts of indecent assault and one count of attempted rape.
The appellant is the owner of a small farming property (the farm). The appellant testified that he utilised Gumtree in about December 2016, seeking a farmhand to work on the farm, which he falsely stated was in Lameroo. The complainant, DA, saw his message and responded to it. DA was born in Belgium and was backpacking in Australia. The appellant and DA corresponded online and exchanged details. On 9 February 2017, DA took a bus from Adelaide to Murray Bridge. The appellant introduced himself as ‘Max’ or ‘Mark’ and drove DA to the farm.
DA gave evidence that shortly after she was taken to her sleeping quarters, a shed on the farm, the appellant overpowered her and bound her using cable ties and chains. He held an object to her back which he claimed was a gun. DA testified that she was sexually assaulted, held overnight and sexually assaulted again on the following day. During the night, DA managed to extricate herself from her chains and sent emails and Facebook messages to friends, the Police Association, the recruitment division of South Australia Police and tour companies with whom she had booked her travel. In those communications DA called for police assistance, complained that she had been kidnapped and explained that she had managed to loosen her chains. After noticing intense police activity on the following day, the appellant dropped DA off in Murray Bridge where she was spotted by police in a distressed state. On the way to Murray Bridge, the appellant dropped DA off outside a home, then returned in a different car. The prosecution case was that the appellant’s conduct was an attempt to evade detection.
Police later searched the farm and found DA’s mobile phone in a water tank, cable ties in a bin, chains at the bottom of a well near the shed and a toy gun in a paddock. They saw that bales of hay and a chicken coop had been placed over the couch on which DA had slept. Forensic analysis later identified the appellant’s DNA profile on DA’s bra, and DA’s DNA profile on the cable ties found in a bin, and a swab taken from under the appellant’s fingernails.
Prior to DA arriving at the farm, the appellant conducted an online search for fluffy handcuffs and for shackles. Even though the prosecution alleged that the handcuffs were delivered before DA arrived at the farm, DA gave no evidence of their use on her, nor were they found by police. The appellant also ordered a toy gun online and purchased cable ties.
The appellant appeals on six grounds:
1. The learned trial Judge failed to direct the jury as to the permissible and impermissible use of the evidence contained within exhibits P13 and P36, being the emails, Facebook messages, and the print out of online searches.
2. The learned trial Judge failed to adequately direct the jury in relation to the use of the premeditation evidence.
3. The learned trial Judge erred in allowing the evidence of the internet search for the fluffy handcuffs to be adduced or alternatively, incorrectly directed the jury in relation to the use of the evidence of the internet search for the fluffy handcuffs.
4. The learned trial Judge failed to adequately direct the jury in relation to the use of the post offence conduct of the appellant.
5. The learned trial Judge erred as a matter of law in allowing the prosecution to adduce the evidence P28 and P29, being letters from the appellant to his wife.
6. The trial miscarried as a result of the aggregation of faults such that the trial, as a whole miscarried.
Held per Kourakis CJ (Nicholson and Bleby JJ agreeing) dismissing the appeal:
As to Ground 1:
1. The narrative content of the emails was admissible as to the truth of what they asserted as an exception to the hearsay rule because that narrative was integral to, and explained, DA’s conduct in sending them and in remaining in the shed; there was therefore no error of law in failing to direct the jury not to so use the emails, and there was no miscarriage of justice occasioned by the failure to give the jury guidance on how to evaluate the evidence as a question of fact.
2. There is no reason in principle to treat written statements differently to the spoken word for the purposes of the integral narrative exception to the hearsay rule. The condition of spontaneity required by this head of the integral narrative exception is to be distinguished from reflexive exclamations which are verbal acts. The requirement is that the statement be a volunteered response to the circumstances. Such concerns as there may be about the reliability of a written statement are more suitably addressed by the discretion to exclude evidence which would result in forensic unfairness and an appropriate warning.
3. The admission into evidence of the identity of the online searches was necessary to explain why DA went online. The very nature of the websites for which DA searched constituted an implied assertion of offending by the appellant. There has been no miscarriage of justice in the Judge’s failure to direct the jury as to the use of the evidence.
As to Ground 2:
4. The ‘premeditation evidence’ was circumstantial evidence which rendered DA’s account more probable than not; the Judge’s direction that the jury could only have regard to it if the only rational inference they could draw from it was that the appellant was planning the offences later committed against DA, was unduly favourable and therefore no miscarriage of justice was occasioned.
As to Ground 3:
5. The evidence that the appellant ordered the fluffy handcuffs was admissible, even though they were not used on DA, because they showed that he had in mind sexual activity using a restraint device in the days before the alleged offences, and the prejudice associated with the use of a sexual aid of that kind in consensual intercourse is not great.
As to Ground 4:
6. The post-offence conduct was admissible for the same reason as the ‘premeditation evidence’ and the Judge’s direction was again unduly favourable to the appellant.
7. The essential element of inductive or abductive reasoning from subsequent evasive conduct, which is not satisfactorily explained by the evidence, is the assessment of the relative probability, as a matter of human experience, of that conduct being associated with innocence on the one hand, or guilt on the other. The weight of plausible but improbable explanations is a matter for the jury. Only in the exceptional case in which it is an indispensable step in reasoning to guilt must the innocent explanation be rejected beyond reasonable doubt.
As to Ground 5:
8. The evidence of the letters sent by the appellant to his wife from prison were admitted by consent for a forensic purpose useful to the defence, and any legal professional privilege, insofar as it attached to them, was waived; no miscarriage of justice was occasioned by their admission.
As to Ground 6:
9. Insofar as Ground 6 relies on the earlier grounds, which individually did not result in a miscarriage, they cannot do so in combination.
10. The decision not to cross examine Dr Dayman appears to have been a sound one and did not result in a miscarriage of justice.
Correctional Services Act 1982 (SA) s 33; Criminal Justice Act 2003 (UK) s 118; Criminal Law Consolidation Act 1935 (SA) ss 39, 48, 56, 270A; Evidence Act 1995 (Cth) ss 65, 66, 66A, referred to.
Papakosmas v The Queen (1999) 196 CLR 297; R v Gandfield (1846) 2 Cox CC 43; Ratten v The Queen [1972] AC 378; The Queen v Benz (1989) 168 CLR 110, applied.
Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Brown v The King (1913) 17 CLR 570; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Edwards v The Queen (1993) 178 CLR 193; Flora v The Queen (2013) 233 A Crim R 320; Homes v Newman [1931] 2 Ch 112; Howe v Malkin (1878) 40 LT 196; Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733; Mutual Life Insurance Co v Hillmon 145 US 285 (1892); O’Leary v The King (1996) 73 CLR 566; Papakosmas v The Queen (1999) 196 CLR 297; Peacock v Harris (1836) 5 Ad & El 449; R v Anderson (2017) 128 SASR 550; R v Andrews [1987] AC 281; R v Bedingfield (1879) 14 Cox CC 341; R v Blastland [1986] AC 41; R v Byczko (No 2) (1977) 17 SASR 460; R v Duong (2011) 110 SASR 296; R v Fragomeli [2008] SASC 96; R v Gandfield (1846) 2 Cox CC 43; R v Schlaefer (1984) 37 SASR 207; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; R v Taylor (1961) 4 SA 616; R v Van Beelen (1973) 4 SASR 353; Ratten v The Queen [1972] AC 378; Shepherd v The Queen (1990) 170 CLR 573; State v Damper 225 P.3d 1148, 1153 (Ariz. Ct. App. 2010); State v Ford 778 N.W.2d 473, 482 (Neb. 2010); Subramaniam v Public Prosecutor [1956] 1 WLR 965; Spurway v Police [2011] SASC 177; Teper v The Queen [1952] AC 480; The Queen v Benz (1989) 168 CLR 110; The Queen v Manh (1983) 33 SASR 563; Thompson v Trevanion (1693) Skin 402; Walton v The Queen (1989) 166 CLR 283; Wright v Doe d Tatham (1837) 7 Ad & E 313, discussed.
Bain v. Self Memorial Hosp., 281 S.C. 138, 314 S.E. 2d 603 (Ct. App. 1984); Bull v The Queen (2000) 201 CLR 443; Gorman v Newton; Ex parte Newton [1958] Qd R 169; Ibrahim v Crown Prosecution Service [2016] EWHC 1750; Kamleh v The Queen (2005) 79 ALJR 541; Kane v. Burrillville Racing Ass’n, 73 RI 264, 54 A2d 401 (1947); Mariner Health Care, Inc. v. Estate of Edwards ex rel. Turner, 964 So. 2d 1138 (Miss. 2007); McGregor v Stokes [1952] VLR 347; Mills v The Queen [1995] I WLR 511; [1995] 3 All ER 865; Morgan v DPP Divisional Court [2016] EWHC 3414; North American Acc. Ins. Co. v. Wyatt, 160 S.W.2d 298 (Tex. Civ App Fort Worth 1942); O’Hara v Central SMT Co Ltd [1941] SC 363; R v Adam (1999) 106 A Crim R 510; R v Crafter [2019] SASCFC 25; R v Flannery [1969] VR 586; R v Gilfoyle [1996] 3 All ER 883; R v Lynch [2008] 1 Cr App R 24; R v Moores (2017) 128 SASR 340; R v Nye & Loan (1977) 66 Cr App R 252; R v S, DD (2010) 109 SASR 46; R v Szach (1980) 23 SASR 504; Ramsay v Watson (1961) 108 CLR 642; Schanker v The Queen [2018] VSCA 94; Tobi v Nicholas (1988) 86 Cr App R 323; Toney v. Raines, 224 Ark 692, 275 S.W.2d 771 (1955); Texas Emp. Ins. Ass'n v. Shifflette, 91 S.W. 2d 787 (Tex. Civ. App. Dallas 1936); US v Iron Shell (8th Cir 1980) 633 F2d 77, considered.

BRISTOW v THE QUEEN
[2020] SASCFC 91
Court of Criminal Appeal: Kourakis CJ, Nicholson and Bleby JJ

KOURAKIS CJ:      Following a trial by jury in the District Court, the appellant, Mr Bristow, was convicted of one count of aggravated kidnapping (Count 6),[1] two counts of rape (Counts 8 and 9),[2] two counts of indecent assault (Counts 7 and 10),[3] and one count of attempted rape (Count 11).[4] The offences were committed on 9 and 10 February 2017. The victim of the offending, DA, was a tourist on a working holiday. She was aged 24 years.
[1] Contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The circumstance of aggravation was the appellant threatening to use an offensive weapon, namely a firearm, to commit or when committing the offence.
[2]    Contrary to s 48(1) of the CLCA.
[3]    Contrary to s 56 of the CLCA.
[4]    Contrary to ss 48(1) and 270A(1) of the CLCA.
Count 6 of the Information alleged that Mr Bristow took or detained DA without her consent, with the intention of committing an indictable offence against her, namely rape. It was alleged the appellant threated to use an offensive weapon, namely a firearm, to commit or when committing the offence.
Counts 8 and 9 alleged that Mr Bristow had non-consensual digital sexual intercourse with DA on 9 and 10 February 2017 respectively. Counts 7 and 10 alleged that Mr Bristow indecently touched DA’s breasts on 9 and 10 February 2017 respectively. Count 11 charged Mr Bristow with attempted non‑consensual penile-vaginal sexual intercourse on 10 February 2017.
Mr Bristow is the owner of a small farming property (the Bristow farm) on Fiebig Road between Murray Bridge and Meningie. At the time of trial, he and his wife of 25 years had resided on the Bristow farm for about 11 years. In 2016, he operated a small feedlot for 40 head of cattle, including cows, their calves, a bull and additional calves brought in from local dairy farms. In December 2016, there were about 30 calves in all.
DA was born in Belgium. Dutch is her first language; she spoke only a little English and French. She studied animal care in secondary school and then went on to work in pet shops. She travelled extensively, often, but not always, as a backpacker, including to South Africa, China, Guatemala, and Australia. She would be away for a month or more at a time. On her travels, she also volunteered in wildlife care projects. Prior to coming to Australia, DA had no experience with cattle, but had worked with a wide range of wild animals.
DA arrived in Australia in December 2016. She travelled to several States and cities before arriving in Adelaide on 2 February 2017, where she planned to work for six weeks before journeying on to Alice Springs. She placed an advertisement online on Gumtree expressing an interest in farm work or fruit picking.
Mr Bristow testified that he utilised Gumtree in about December 2016, seeking a farmhand to work on the Bristow farm, which he falsely stated was located in Lameroo. DA saw his message and responded to it. Mr Bristow and DA corresponded online and exchanged details. DA was told that she could take a bus to Murray Bridge where ‘Max’, a pseudonym used by Mr Bristow, would pick her up and take her to the Bristow farm. Mr Bristow, also falsely, stated that a company called Genesis owned and operated the Bristow farm.
Mr Bristow testified that he responded to a number of advertisements because he needed assistance with the calves and other jobs, which his wife and son, who also lived on the Bristow farm, could not, or would not, give him. Mr Bristow’s evidence was that he needed help for about two days. In the course of the online exchanges between DA and Mr Bristow, DA told ‘Max’ that she was available to work for about five to six weeks. Mr Bristow never corrected DA’s misapprehension about the work on offer with him whilst online. He testified during cross‑examination, however, that he informed DA she would only be required for two days when he picked her up at Murray Bridge. On Mr Bristow’s account, DA accepted that, much more limited, offer of employment without protest.
For the above, and other reasons, the prosecution case was that in going online, Mr Bristow was not genuinely looking for a farmhand, but was in fact trawling for a victim of his pre-planned sexual offending. The evidence was referred to at trial as ‘premeditation evidence’, but it was, more accurately, circumstantial evidence of the commission of the offences because it was more consistent with Mr Bristow contemplating the commission of offences of that kind than it was with any discernible innocent purpose.
DA gave evidence that shortly after she was taken to her sleeping quarters, a shed on the Bristow farm, Mr Bristow overpowered her and bound her using cable ties and chains. He held an object to her back which he claimed was a gun. DA testified that she was sexually assaulted, held overnight and sexually assaulted again on the following day. During the night, DA managed to extricate herself from her chains and sent emails and Facebook messages to friends, the Police Association, the recruitment division of South Australia Police (SAPOL) and tour companies with whom she had booked her travel. In those communications DA called for police assistance, complained that she had been kidnapped and explained that she had managed to loosen her chains. After noticing intense police activity on the following day, Mr Bristow dropped DA off in Murray Bridge where she was spotted by police in a distressed state.
Police later searched the Bristow farm and found DA’s mobile phone in a water tank, cable ties in a bin, chains at the bottom of a well near the shed and a toy gun in a paddock. They saw that bales of hay and a chicken coop had been placed over the couch on which DA had slept. Forensic analysis later identified Mr Bristow’s DNA profile on DA’s bra, and DA’s DNA profile on the cable ties found in a bin, and a swab taken from under Mr Bristow’s fingernails.
Mr Bristow appeals against his conviction on the following grounds:
Ground One
1The learned Trial Judge failed to direct the jury as to the permissible and impermissible use of the evidence contained within exhibits P13 and P36. [the emails, Facebook messages, and print out of online searches]
Ground Two
2The Learned Trial Judge failed to adequately direct the jury in relation to the use of the premeditation evidence.
…
Ground Three
3The learned Trial Judge erred in allowing the evidence of the internet search for the fluffy handcuffs to be adduced or alternatively, incorrectly directed the jury in relation to the use of the evidence of the internet search for the fluffy handcuffs.
…
Ground Four
4The learned Trial Judge failed to adequately direct the jury in relation to the use of the post offence conduct of the applicant.
…
Ground Five
5The Learned Trial Judge erred as a matter of law in allowing the prosecution to adduce the evidence P28 and P29. [letters from the appellant to his wife]
…
Ground Six
The trial miscarried as a result of the aggregation of faults such that the trial, as a whole miscarried.[5]
Particulars
6.1The failure by the Applicant’s legal representatives to cross examine Dr Dayman who gave evidence about the injuries to the Complainant in circumstances where there was no objective forensic reason not to cross-examine him.[6]
Further, that the medical evidence, unchallenged, was a significant piece of objective corroborative evidence in a trial that otherwise was largely reliant upon the credibility of the complainant as to what happened at the property.
…
(Citations in original)
[5] R v Ireland [1970] HCA 21.
[6] R v Bazan (2010) SASCFC 50.
I would dismiss the appeal for the following essential reasons:
·Ground 1 – the narrative content of the emails was admissible as to the truth of what they asserted as an exception to the hearsay rule because that narrative was integral to, and explained, DA’s conduct in sending them and in remaining in the shed; there was therefore no error of law in failing to direct the jury not to so use the emails, and there was no miscarriage of justice occasioned by the failure to give the jury guidance on how to evaluate the evidence as a question of fact.
·Ground 2 – the ‘premeditation evidence’ was circumstantial evidence which rendered DA’s account more probable than not; the Judge’s direction that the jury could only have regard to it if the only rational inference they could draw from it was that Mr Bristow was planning the offences later committed against DA, was unduly favourable and therefore no miscarriage of justice was occasioned.
·Ground 3 – the evidence that the accused ordered the fluffy handcuffs was admissible, even though they were not used on DA, because they showed that he had in mind sexual activity using a restraint device in the days before the alleged offences, and the prejudice associated with the use of a sexual aid of that kind in consensual intercourse is not great.
·Ground 4 – the post-offence conduct was admissible for the same reason as the ‘premeditation evidence’ and the Judge’s direction was again unduly favourable to Mr Bristow.
·Ground 5 – the evidence of the letters sent by Mr Bristow to his wife from prison were admitted by consent for a forensic purpose useful to the defence, and any legal professional privilege, insofar as it attached to them, was waived; no miscarriage of justice was occasioned by their admission.
·Ground 6 – insofar as this ground relies on the earlier grounds, which individually did not result in a miscarriage, they cannot do so in combination. The decision not to cross‑examine Dr Dayman appears to have been a sound one and did not result in a miscarriage of justice.

I elaborate on my reasons below.
DA’s evidence
On 9 February 2017, DA took the bus from Adelaide to Murray Bridge, and waited for Mr Bristow outside the Murray Bridge Visitor Centre. She had with her a big suitcase, a backpack, and a laptop and a wi-fi dongle in a separate bag. DA noticed Mr Bristow walk past her when she first got off the bus but he did not approach her until she was alone. Mr Bristow introduced himself as Max or Mark and took her to a red pickup. The drive to the Bristow farm took a few hours and included two ferry crossings. DA did not notice any street signs or road names but recalled that access to the Bristow farm was taken over a track which the evidence showed was over the adjoining property of Mr McKay.
On arrival at the Bristow farm, DA was taken to a shed away from the house. The shed was formerly a pigsty but was used by Mr Bristow to hold calves for a few days at a time when needed. A grid for cleaning purposes was built into the floor. DA testified that she and Mr Bristow talked on a couch in the shed which was to be her bed. It is variously described in the evidence as a couch, bed, futon and sofa. Mr Bristow asked her questions about allergies and drug use before asking to examine her feet, and upper and lower legs for any needle marks. DA complied, taking off her shoes and socks, and her pants, and then putting them back on. Mr Bristow then asked to check the soles of her feet. DA once again took off her shoes and socks and lay face down on the couch. Mr Bristow seized that opportunity to sit on her back and grab her arms. DA struggled until Mr Bristow placed an object against her back which he claimed was a gun. DA stopped struggling because she feared for her life. Mr Bristow then bound her hands behind her back with cables ties. He also put chains around each foot and attached them to the floor of the shed. Mr Bristow warned DA not to misbehave or runaway because he would shoot her. He also told her that there were dangerous snakes around the property. He tightened the chains around her feet with pliers. The detention which ensued was the subject of Count 6. DA did not testify that Mr Bristow used any form of handcuff to detain her.
After he had secured DA in that way, Mr Bristow moved DA into a sitting position, pushed items of her clothing aside and touched her breasts. That conduct was the subject of Count 7. Mr Bristow then unchained DA’s feet and removed some clothing before re‑applying the chain. Mr Bristow then digitally raped her. That conduct was the subject of Count 8.
Mr Bristow removed everything from DA’s pockets. He asked her to switch off her phone before taking it with him. He also took DA’s suitcase but left the backpack and laptop case in the shed. According to DA, Mr Bristow chained one of her hands to a wall. DA testified that after securing her in that way, Mr Bristow left her in the shed alone overnight. At trial, the defence relied on the absence of any apparent fixing point on the wall for a chain to challenge DA’s credibility.
According to DA, during the time she was detained, Mr Bristow told her that a number of local men also kidnapped tourists. He warned that they picked up girls and treated them much worse than he did. Mr Bristow told DA that some girls were shipped to Melbourne and Sydney. He claimed to be one of the ‘nicer’ of those offenders but warned DA that if she did not behave he would beat her and cut her with knives.
After Mr Bristow had left for the night, DA used ‘little hooks’ she had seen in the fridge to unchain her hands and feet. After freeing herself she looked for her mobile phone but was unable to find it. She then used her laptop with a wi‑fi dongle in an attempt to call for help. She searched for people who were online. She left online messages with friends and relatives, in Belgium and Australia, and with the firms through which she had booked her travel. DA also searched for and found the SAPOL recruiting webpage. She emailed SAPOL telling them she had taken a bus to Murray Bridge and described the landmarks she recalled on the drive to the Bristow farm. DA testified that she was too scared to leave the shed in case Mr Bristow came back with his gun. After sending the emails DA rechained herself.
A record of DA’s online searches was received as part of Exhibit P36. It was an agreed fact that DA’s Facebook and email messages which were received as Exhibit P3 were sent to the following persons or entities at the times indicated:
·Facebook messages to Echo Wang (a friend in Cairns) – 7:46 pm
·Facebook messages to her friend Sieglinde Iserbyt (in Belgium) – 8:17 pm
·Facebook messages to Groovy Grape Tours – 8:19 pm
·Email to SAPOL Recruiting – 8:28 pm
·Facebook messages to the Police Association of South Australia – 8:30 pm
·Facebook messages sent to Ultimate Adventure Travel – 8:54 pm
·Facebook messages to Joke Haeck (DA’s aunt in Belgium) – time unknown.
To Echo Wang, DA wrote that she had been kidnapped and was taken from Murray Bridge to a cow farm somewhere in Lameroo after crossing with two ferries. She told her that she had loosened her chains and was using her laptop but was too scared to run away lest she be chased down and shot. Echo Wang tried unsuccessfully to call DA. Echo Wang then sent a message asking DA to send her details of her location by using Google maps. DA responded that she was on a laptop not a phone.
DA’s message to Ms Iserbyt was similar. DA asked her to call the police. Ms Iserbyt suggested trying to contact police over Facebook. DA repeated much the same information to other recipients of her messages. In the message to SAPOL’s recruiting mailbox, DA pleaded for help and said that she was afraid. She mentioned that her captor drove a red pickup. To the Police Association of South Australia, DA also mentioned a fear of snakes.
In tendering and receiving the documentary evidence of DA’s online activity, neither counsel nor the Judge adverted to the basis on which it was admissible or to its use.
The next morning, on 10 February 2017, Mr Bristow brought DA breakfast and a flannel to wash with. He released the chains. When DA was sitting down on the couch, Mr Bristow touched her breasts. That conduct is the subject of Count 10. He again digitally raped DA. That is the subject of Count 9. Mr Bristow pulled down his pants. He lifted DA’s legs and rubbed his limp penis on her vagina. That conduct is the subject of Count 11. He then put his pants back on and rechained one of DA’s feet to the grates.
DA testified that a little later Mr Bristow became anxious when he heard planes flying overhead. He left to investigate, and on his return informed her that police were everywhere. Mr Bristow told DA that they should go. He told her to dress and that she could bring her backpack with her. Mr Bristow warned her not to trust anyone, even the police, and to catch the bus to Adelaide, go to the airport, and fly home. Mr Bristow returned with a blue car, described as a four‑door ‘normal … sporty’ car. DA’s luggage and laptop remained in the shed.
DA gave evidence that they drove for about 10 to 15 minutes before Mr Bristow stopped the car and pulled over. He gave her water and told her to wait under some trees. When Mr Bristow returned he was again in the red pickup. He had her laptop bag with him. He told DA that he would drop her at a motel, near the bus station at Murray Bridge.
Mr Bristow remained close by whilst DA checked into the motel and then left. Later, when DA went to get something to eat, a policeman recognised her and approached her before she eventually accompanied the police to the station.
Mr Bristow’s evidence
On 6 February 2017, Mr Bristow conducted an online search for fluffy handcuffs and six minutes later for shackles. Even though the prosecution alleged that the handcuffs were delivered before DA arrived at the Bristow farm, DA gave no evidence of their use on her, nor were they found by police. Mr Bristow testified that even though the items were ordered on the same occasion, the former was intended as a marital aid for him and his wife, and the latter for use on the farm. Mr Bristow accepted that he had ordered a toy gun online, which was delivered before DA arrived at the Bristow farm, but explained that it was for his grandchildren. Mr Bristow agreed that he had purchased cable ties for use on the farm several days before DA arrived.
Mr Bristow testified that when he responded to DA’s Gumtree advertisement, he was looking for someone with a little bit of experience, and somebody who would enjoy working with animals. He explained that he located the property at Lameroo for his online safety because he had been ‘burnt’ online before. Mr Bristow agreed that he had informed DA through Gumtree that one of his workers would pick her up even though he had no employees at that time. He also misled DA by claiming that he had employment for her because another young woman had taken another job. In cross‑examination Mr Bristow could offer no explanation for making those statements.
Mr Bristow gave evidence that when collecting DA from the bus stop, contrary to DA’s testimony, he introduced himself as Gene Bristow and told her that the property was at Meningie. He recalled that DA had three items of luggage, but could not describe each item. His proffered explanation for taking a longer route to his farming property was that DA had expressed an interest in looking at some dairy cattle.
Mr Bristow testified that he showed DA the shed telling her that she was to ‘camp’ there using the sofa bed, and that DA agreed to sleep there. He recounted conversations he had with DA about work, both around the property, and in the shed. He denied detaining or assaulting DA. The Judge summarised Mr Bristow’s testimony as follows:
He told her they had some cattle work to do as well as the well and explained about the grass seeds getting in the calves’ eye. He had in mind that they would do the task with the calves the following day. He said [DA] was wearing a green checked shirt and beige cargo pants. He left her after speaking with her for about 20-25 minutes. He asked her if there is anything she wanted. She said she would like some water to drink and with that, he went back to the house, got the water and came back to the shed. When he got there, she was still in the shed and seated on the futon.
Mr Bristow explained to you in evidence about the cattle crush and the smaller calves, the problem with his back and the way he ties knots so that he can secure the calves in order to treat them. He said he uses a zip tie, tightens it to stop the animal running off, deals with the problem and uses the side cutters similar to the ones in the centre console of his car to cut off the zip tie.
He was then asked about some photographs, about the chains and areas where they might be attached to on the wall in the shed. He said there was nowhere they could be anchored to the wall, nowhere that would enable them to be fixed in the way that [DA] said in evidence.
He gave evidence that after he went into the shed with the bottle of water, he again said ‘Feel free to go wherever you’d like, town is 15 to 20 minutes walk away’ and he left her there. That was in the early part of the afternoon.
…
Mr Bristow testified that the last time he saw DA in the shed was at about 7:00 pm, and that he did not return until about 8:00 am the next morning when he arrived with breakfast. Mr Bristow testified that he informed DA that she could use the shower in the house if she wished but could not satisfactorily account for how he could have made that offer to DA when he had not forewarned his family, who also resided in the house, that he had a guest worker on the farm. Mr Bristow explained that he did not tell his wife of DA’s employment because she would have considered it a waste of money when Mr Bristow remained unemployed.
Mr Bristow gave evidence that on the next morning he and DA worked removing burrs from the calves until DA complained that she could no longer cope with the heat. The Judge summarised Mr Bristow’s evidence as follows:
He gave evidence then about what they did at the yards. He showed her what they were looking for with the calves. [DA] waited outside the main drafting gate. They got a few calves out and all of a sudden, the bull shot out of the gate. [DA] tripped over and ended up in a heap on the floor. He picked her up and pulled her out of the way. They then continued on with the drafting.
He showed you how he grabbed the calves and then [DA] would hand him one of the zip ties that he put around the calf’s leg and attended to the calf. He said there were about five or six calves that he dealt with in that way and it took at least an hour. It was a very hot day and after the work was complete, they followed the cattle back down to the paddock and closed the gate.
With that [DA] said to him ‘I can’t continue this work, it’s too hot. I want to leave’. He said ‘That’s fair enough. That’s up to you’. She wanted to go back to the shed.
He took her back through the fence and into the shed. He then had to go and check the water meter and then went back to the shed to see [DA]. She asked for some water to wash with and asked him to find a bus timetable. He asked her why she did not use her own phone and she said she ‘lost it last night’.
He then went to get the water for her to wash, he got a towel, soap and a washcloth. He gave them all to her and he left to go and look up the LinkSA timetable.
Mr Bristow testified that after working with the calves he collected some of the cable ties which were left lying on the ground, took them to the homestead, and dumped them in the red-lidded council bin. Mr Bristow accepted that some ties would have remained on the ground from that day, and from other occasions on which he had tended to the calves. He complained in cross-examination that if those other cable ties had been collected from the cattle yard by police, DNA which did not match DA’s profile would have been identified on them. The prosecution relied on the throwing of cable ties in the bin, and another in the well, as evidence of concealment.
Mr Bristow testified that he gave DA some items to wash with, but denied watching her whilst she washed.
According to Mr Bristow, DA told him she had lost her phone on a walk the night before. Mr Bristow testified that he did not drop DA’s mobile phone into the rainwater tank, and protested that he would not have done such a thing for fear of poisoning his cattle. It follows that the competing explanations for DA’s mobile phone being in the rainwater tank were either that Mr Bristow concealed it there, that DA, for no apparent reason, threw away her own mobile phone, or that a trespasser found the telephone after DA had lost it and had thrown it in the tank whilst DA slept.
Mr Bristow testified that DA asked him to look up the bus timetable for her, which he did. He then drove to the post office to get his mail. On that trip, he was pulled over by the police.
Mr Bristow gave evidence that he borrowed his wife’s car to take DA to Murray Bridge because it was better air-conditioned. However, he stopped short of Murray Bridge because the fuel warning light came on. He dropped DA off outside the home of his friend, Andrew Ramsey, before driving back to his farm to collect his red ute because he was anxious about running out of petrol on the way back. He heard dogs barking and noticed that DA waited outside. He assumed that DA was afraid of the dogs. Mr Bristow returned to Meningie, collected his red ute and returned to pick up DA. The prosecution case was that Mr Bristow’s conduct was an attempt to evade detection.
Mr Bristow testified that by the time they arrived in Murray Bridge, the last bus had left. He took DA to the Central Olympic Motel and remained with her as she checked in. Mr Bristow claimed that when they arrived at the Central Olympic Motel some of DA’s clothes fell out of her luggage and he handled some items of clothing when helping her to replace it. He recalled that DA still had three pieces of luggage with her, saying that ‘whatever she came with she left with’. Mr Bristow then returned home to his wife.
When police searched the Bristow farm they found that a chicken coop and bales of hay were placed on and around the couch. Mr Bristow testified that he placed those items there to gain access to a beehive in the shed which he wished to remove. The prosecution case was that they were in truth acts of concealment.
The police also found two imitation guns, one next to Mr Bristow’s bed and another in a paddock. Mr Bristow said of the former that it was a toy for entertaining his grandchildren. He denied any specific knowledge of the latter but accepted that it, too, might have been a toy for his grandchildren. The prosecution case was that it may have been the gun held to DA’s back, and that Mr Bristow had disposed of it in the paddock.
On their search, police also found chains, with a D bolt, in the bottom of a well near the shed. DA identified the chains as those by which she was bound. Mr Bristow said that he had shown DA the chains and explained to her how they were used in connection with cleaning the well on the first day DA arrived. The chains were draped over tyres. He postulated that they had accidentally fallen into the well sometime between then and when they were discovered by the police.
Mr Bristow gave evidence that he shaved off his hair on 11 February 2017 because the weather was very hot and not, as contended by the prosecution, to change his appearance.
Other witnesses
Mr David Bristow is Mr Bristow’s son. In February 2017, he was employed as a labourer on another farm. He gave evidence that during 2017 his father was unemployed but looking for work. He stated that the Bristow farm operated under the trading name Bristow Farms and he had never heard of Genesis Farms or Genesis. The only additional, and occasional, worker at the farm was their next‑door neighbour, Mr David McKay. They had never employed a farmhand or advertised for one before. He testified there was insufficient work in February 2017 to warrant the employment of a farmhand. He explained that cable ties were never used to hold down calves because it would hurt them. Mr Bristow responded when he gave evidence that, unlike his son, he could not hold down a calf without resorting to cable ties. David Bristow testified that he had never before seen the chains found in the well.
Ms Shayne Gaskell is the partner of David Bristow and was living on the Bristow farm in 2017. She gave evidence that Mr Bristow was not working in 2017. She testified that she heard Mr Bristow say that he had a job interview in Murray Bridge at a piggery on the morning of 9 February 2017, the day on which he picked DA up from the bus stop in Murray Bridge. The prosecutor alleged that Mr Bristow lied to Ms Gaskell to conceal his planned offending against DA. Mr Bristow testified that Ms Gaskell had overheard a conversation with his wife in which he had informed his wife that he had a job interview. He admitted that he did not have a job interview on that day, but explained that he was trying to appease his family who had ‘been on [his] back about getting a job’. It will be observed that Mr Bristow’s response does not explain how or why he came to fabricate a job interview for the same day on which he had arranged to pick up DA.
Mr David McKay gave evidence of the layout of the Bristow farm and his adjoining property. He testified that he and Mr Bristow had an arrangement allowing each of them to travel over the other’s property to gain access to their own.
Mr Andrew Ramsey had known the appellant for about 10 years. He gave evidence that he last worked on the Bristow farm for approximately five weeks in 2016. He was not aware that Mr Bristow had stopped in front of his home on 10 February 2017, nor that he had left DA outside.

Mr Aubrey Strydom is the proprietor of the Central Olympic Motel in Murray Bridge. He was at the motel when Mr Bristow and DA arrived at about 4:55 pm on 10 February 2017. He gave evidence that Mr Bristow left as DA was transferring money between her accounts online in order to pay for a room. He later assisted police to gain access to DA’s room.
On the evening of 10 February 2017, Sergeant Andrew Kemp of the Murray Bridge Police Station identified DA as she was walking towards him, heading in the direction of the Central Olympic Motel. He eventually caught up with her. He waved down some officers, also in plain clothes, and left DA with them. One of those officers was Detective Amanda Lewis who described DA’s demeanour as ‘very distressed’ and ‘dishevelled’. DA appeared to be ‘very frightened of police’.
Brevet Sergeant Kylie Hammond of the Victim Management Team of the Public Protection Branch took a statement from DA. She described DA as initially ‘resistant’ before starting to talk about what had happened.
Dr Gregory Dayman is employed at the Yarrow Place Rape and Sexual Assault Service. He examined DA. He gave evidence of the injuries he observed. He observed redness and tenderness around DA’s wrists and ankles. His opinion was that DA’s injuries could be consistent with the use of cable ties to restrain her. It was also Dr Dayman’s opinion that the injuries to DA’s genitalia were consistent with blunt force trauma applied by an object or a finger. It is convenient to draw attention here to the complaint made in Ground 6 that Mr Bristow’s counsel did not cross-examine Dr Dayman. Mr Bristow had suggested in a letter written to his wife, which copied instructions given to his solicitor, that DA might have engaged in conduct herself which could have caused that injury. There are many reasons why counsel may wisely have chosen not to run that past Dr Dayman. In his closing address, the prosecutor ridiculed the suggestion made in Mr Bristow’s letter. In any event, Dr Dayman’s evidence is silent on who might have caused the injury.
The DNA evidence
It is sufficient, for the purposes of this appeal, to set out the Judge’s summary of the DNA evidence appearing in the summing up:
Dr Donnelly gave evidence that [the cable ties found in the wheelie bin] had a mixed DNA profile with three contributors. He gave evidence that the results were that [DA] and the accused were greater than 100 billion times more likely to have been contributors for two of those profiles than an unknown unrelated person.
…
… He explained to you the areas on which they did the tape lift on the inner bra cups. This testing included both bra cups and the edges of those bra cups. A mixed DNA profile with three contributors was obtained. It was assumed that one of those contributors was [DA] as it was her bra, and there was extremely strong support, being 61 billion in favour of the accused being a contributor to that DNA profile.
…
The fingernails of Mr Bristow have been swabbed both wet and dry and those swabs were examined. On the left fingernails on the dry swab, there was a mixed DNA profile with three contributors, one of whom was assumed to be Mr Bristow and a statistical weighting of 68 billion being extremely strong support for the proposition that [DA] was also a contributor to that profile.
…
In cross-examination, Dr Donnelly accepted that the DNA material identified may have been deposited by secondary transfer and that if DA worked with the cable ties she may have left DNA material on them. Similarly, he accepted that the DNA profile matching Mr Bristow’s DNA on DA’s bras may have been left by Mr Bristow picking it up and placing it in the bag.
Dr Donnelly said that if the chains had caused an abrasive injury to DA, it was likely that DNA material would be left on them, but whether that DNA material could be usefully recovered was another question. He could not say whether the DNA material matching DA’s profile found under Mr Bristow’s fingernails were vaginal in origin or from touching or scratching another part of her body.
The prosecutor’s address – the online messages left as corroboration
The prosecutor commenced that part of his address in which he recounted DA’s evidence in this way:
So with that said I now turn to remind you of [DA’s] evidence in the case and as I do so I will remind you of some, probably most, of the independent evidence that entirely supports, that corroborates, what [DA] has told you.
(Emphasis added)
In the ensuing summary of DA’s evidence the prosecutor referred to items of independent evidence which supported her account of:
·communications with Mr Bristow in response to her Gumtree advertisement;
·meeting him in Murray Bridge;
·the nature of their conversation on the drive back to the Bristow farm; and
·to the sexual assaults that afternoon.
When dealing with the assaults, the prosecutor referred to the independent evidence of Dr Dayman and the finding of the chains and cable ties.
The prosecutor then turned to DA’s online activity after she had freed herself. The prosecutor read out extracts from the Facebook messages and emails sent by DA. He referred to DA’s online searches for the SAPOL Facebook page. The prosecutor also mentioned DA’s search for the ‘my current location.net’ site and the Google Maps webpage. The prosecutor then said:
So what do you have, ladies and gentlemen, you have [DA] telling you jumped on her computer, she sent messages to friends and she searched for her location and for police. What do you have in the independent evidence? Those Facebook messages, those emails she told you about, those Google searches of her trying to find her location. Yet again further evidence, further support for exactly what [DA] told you about, honest and reliable.
But not only does the evidence corroborate [DA's] account to you, not only does she say ‘This is what I was doing’, and we can see independently of her that’s what she was doing, you might think that the fact that [DA] has sent those messages in the first place, the mere fact she is sending out those messages to her friends is evidence of her distress at the time. Again, further evidence of her account, further support for her account.
…
The first sentence of the second paragraph is a submission that the hard copy print out of the electronic record of DA’s online activity supports her testimony that she made the searches and sent the messages she described. However, it hardly appears necessary to call that documentary evidence in aid as corroboration of DA’s testimony when it proves, in itself, the online activity it discloses and there was no challenge to that evidence. Importantly, the last sentence of both paragraphs goes further and suggests a broader use as corroboration of DA’s account of Mr Bristow’s offending. The jury, who never had the advantage of reading the transcript of counsel’s submissions in order to better understand the point being made, are likely to have understood the prosecutor to be submitting that the sending, and contents, of the emails, supported DA’s account of the offending.
Indeed, after hearing that part of the prosecutor’s address, the Judge was concerned that the prosecution might have been relying on the messages to corroborate DA’s account of the offending. At the adjournment taken shortly thereafter, the Judge raised the prosecutor’s address on the emails and online activities. The following exchange occurred:
HER HONOUR:   Mr Foundas, I want to just raise with you the evidence of the messages sent by [DA] on the evening of 9 February. Are you suggesting that the jury can use the contents of those messages for the truth of the assertions?
MR FOUNDAS:         No. And I don’t think they would be entitled to do that, I think that would be a hearsay use of those messages. I tried to be quite deliberate in my language in stating that it was the mere fact that the messages were sent is evidence from which they can infer her distress and consistency.
HER HONOUR:         Do you think - and I am asking you both this - the evidence can be used not as evidence of the truth of the assertions but rather it explains her behaviour, if they accept that that’s what she did, and may also explain how the police came to have the information that they had, if they accept they did, the following morning. You go further and say it may be used as evidence of distress and I will hear from Mr Weir at the end of addresses in relation to that.
MR FOUNDAS:         Yes.
HER HONOUR:         But importantly, there is no suggestion that they can use that evidence as evidence of the truth of the assertions that she makes, that she has been kidnapped, there have been threats, there is a red ute, she’s somewhere near Lameroo - you understand what I’m saying?
Defence counsel made no submission on the proper use of the evidence.
Given the express acceptance by the Judge and the prosecutor, and the tacit agreement of defence counsel, that the messages were not to be used as proof of the truth of what they asserted, it is surprising that no-one later raised the giving of a direction to that effect.
The summing up
The Judge did not give the jury any directions on the use of the evidence of the contents of DA’s emails or her online searches.
Relevantly to Ground 2, the Judge gave the following circumstantial evidence direction with respect to Mr Bristow’s online conduct in recruiting DA and searching for and ordering items which could be used in offences of the kind alleged against him:
On the prosecution case, there is a body of evidence from which they say you can draw the inference that the offences alleged to have been committed by the accused were premeditated. In this regard, the prosecution points to the degree of pre-planning, including, firstly, the evidence that the accused accessed Gumtree and answered advertisements that had been placed there by other individuals who were looking for work. …
On the prosecution case, you can draw the inference that he was looking for a female to do farm work who would attend on her own and without a car. You will need to consider this evidence bearing in mind the evidence given by the accused to determine whether you are prepared to draw the inference that the searches on Gumtree were done so that he could lure a female to his property in order to detain and sexually assault her. When considering whether you are prepared to draw this inference, you can take into account the whole of the evidence of the case, including the evidence of the accused as to his intention and purpose in conducting these inquiries.
The Judge then referred to the evidence of:
·Mr Bristow’s use of false name and location when corresponding with DA;
·the ordering of a toy gun, handcuffs and shackles;
·DA’s evidence of Mr Bristow’s use of the name Mark or Max and the route taken to the Bristow farm;
·the job interview conversation;
·keeping DA’s employment secret; and
·the purchase of the cable ties.
The Judge continued:
You will need to consider all of these circumstances. You should consider firstly which facts you accept as established by the evidence. You must then consider what inference or inferences you are prepared to draw from those facts.
To give you an example from the case, looking at the Gumtree advertisements, are you prepared to find that the accused answered each of those advertisements and are you prepared to find that his purpose in doing so was to look for a single female without a car to attend at his property? You do that in relation to each of those items that I have suggested on the prosecution case to you.
Having then determined which of the facts are established by the evidence, you will then need to consider what inference or inferences you are prepared to draw from those facts. In doing so, you look at all of the established facts together with any other evidence that you are prepared to rely upon in this case. You then determine whether you are satisfied that the only rational inference that can be drawn is that the accused was planning the offences that are alleged by the prosecution. If so, you can use that evidence in determining whether the prosecution have ultimately proven the offences beyond reasonable doubt. Unless this is the only rational inference that you can draw from the combined facts that you find to be established you cannot use this evidence to draw the inference that the accused was planning or preparing to commit the offences against [DA].
The defence position is that each of those pieces of evidence is capable of an innocent explanation. You must look at each of those explanations. However, when you come to consider whether the inference that he was planning is the only one that you can draw, you would need to consider all of the established circumstances together.
If having looked at all of the facts you find established, you are left in a position where there is a rational inference other than pre-planning, such as they do no more than proved that the accused was going about his usual business on the farm and in his private life, then you cannot use this evidence to draw the inference of pre-planning.
Before I move from this topic of pre-planning as suggested by the prosecution, I want to say something about the fluffy handcuffs. As you know, the accused gave evidence that he purchased these handcuffs in order to surprise his wife for Valentine’s Day. He was asked: ‘What did you order that for’. That is a reference to the handcuffs. He said: ‘Married to my wife for 25 years, Valentine’s Day was coming up, as a joke for my wife on Valentine’s Day. They are the cheapest handcuffs I could possibly lay my hands on and it clearly says here, Mr Foundas, “Handcuffs, toy, fluffy, hens night, police party, costume, sexy.’ Novelty handcuffs Mr Foundas, not the kind of thing you would ever think of securing someone with. They are a joke for my wife on Valentine’s Day. Plain and simple as that, I have been married to the same woman for 25 years. That should say something in itself.’ That was the explanation given by the accused for the purchase of the handcuffs.
Purchasing the fluffy handcuffs as a joke or even for consensual use between two adults is not illegal. There are many kinds of sexual activity that consenting adults engage in. If you accept this explanation by the accused, I warn that it would be quite wrong to draw an inference that the accused is the sort of person who is likely to engage in sexual conduct that involves the use of handcuffs and is thereby more likely to be a person to commit the offences with which he is charged.
This evidence is before you to assist you to evaluate the evidence in respect of the pre‑planning or preparation. It is only there for that purpose. It cannot be used in any other way by you.
…
As shall be seen, on appeal the Director of Public Prosecutions (the Director) contended that the contents of DA’s emails and online searches were admissible as distress evidence, and that the Judge’s directions on the evidence of DA’s distressed condition, given by police officers who found her at Murray Bridge on the evening of 10 February 2017, adequately assisted the jury on that use. It is therefore necessary to set out those directions:
Evidence that [DA] was distressed when she spoke to the police is only relevant to help you to decide whether she acted in a consistent manner and to decide then whether she is a truthful witness. It is not evidence that independently supports her statement that the accused kidnapped her or sexually assaulted her in the way that she has alleged.
When assessing the weight that you give to the evidence of distress, if you find she was indeed distressed at that time, you should consider whether the distress was feigned or whether it arose from some other cause, such as, perhaps the fear of the police or some unrelated reason or simply just not wanting to talk to the police. These are matters that may affect the weight that you give to this evidence.
If you find her distress emanated from the conduct of the accused, rather than being quite unrelated to the alleged offences, then you will be able to use this evidence as genuine distress. It may assist you then in assessing her credibility. This will depend upon the view that you take in relation to her behaviour at the time and whether you can consider that her behaviour at the time was consistent with the events that she now alleges, if so, it may assist you in assessing the reliability of her evidence. However, I warn you that you must exercise considerable caution in making your assessment because of the potential number of issues that may arise and the potential indicators of distress not being related to the offending.
In the final analysis, the evidence of distress is simply a tool which may assist you when you decide what weight you can place upon the evidence of [DA].
…
Relevantly to Ground 4, the Judge gave the jury the following instructions on the use of lies which the prosecution alleged Mr Bristow had told:
Whether the accused did lie about one or more aspects of the relevant events is something that you should give careful consideration to. Whether any suggested lies have in fact been told is a question for you to determine. A lie is a deliberate untruth. People do lie for all sorts of reasons. A person may lie through panic, shame, fear, threats, embarrassment or to protect some other person or because he fears that someone will think the worse of him if he tells the truth or perhaps he will not be believed by telling the truth. A person may lie because he feels the truth may falsely implicate him or he fears the truth will have another impact on another area of his life. …
The Judge then recounted the lies on which the prosecution relied, and continued:
You must first of all consider each of these pieces of evidence. You must consider whether you are satisfied that the accused has lied in each instance. If you determine that the accused has lied to you, then the only use is that it may bear upon his credibility or believability. In that situation, you may be less willing to trust his evidence or statements on other matters. Much will depend upon how significant a lie is and any explanation for it. The accused explained in evidence that whilst, for example, he has not previously employed other people, he has associated with others who have and who experienced males being rougher than females with the animals. …
After reminding the jury of Mr Bristow’s explanations for those lies, the Judge concluded her directions on this topic:
You will need to consider each of the lies and the explanations for them separately. However, I direct you that even if you find the accused has told lies, the only use that you can make of it, is it bears upon his credibility or his believability on other topics. Please remember that a total discrediting of the accused should not deflect you from a careful assessment of the strength of the prosecution case and the need for the charges to be proved beyond reasonable doubt.
The Judge gave no direction that the lies might support an inference of guilt.
On the associated issue of Mr Bristow’s alleged attempts to conceal items which DA had testified were used in the course of the offences, the Judge directed the jury as follows:
You have heard evidence in this trial that following the offence that are the subject of the charges, the accused is alleged to have done a number of different acts including moving the chicken coop and the other items to conceal the sofa in the pig shed, cutting his hair, disposing of the chains down the well, disposing of the toy gun in the field and attempting to avoid police detection when leaving Meningie with [DA] by taking his wife’s car and then swapping it over for his own and having left [DA] on the side of the road. In addition to this, the accused is alleged to have disposed of [DA’s] phone in the water tank, although it is not clear whether this occurred while [DA] was still on the property or after she had left.
The prosecution relies on each of these acts as evidence of the guilt of the accused. What inference is to be drawn from this evidence? First of all, I direct you that you must not take into account this evidence in order to draw an inference of guilt, unless having regard to all of the evidence in this case you are satisfied that there is no explanation of the conduct of the accused other than an awareness or consciousness of his guilt in respect of the charged offences.
This requires you to consider each of these pieces of evidence very carefully and determine whether you are satisfied that the accused committed each of these separate acts and then to consider the explanation for each of them. An accused person may behave in a way at first suggestive of an awareness or consciousness of guilt for reasons other than such a consciousness of guilt. For example, he may through panic or fear or a wish to avoid or escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing that falls short of criminal behaviour, behave in this way. This kind of action may only be used as evidence of a realisation of guilt where you are satisfied that it points beyond reasonable doubt to a realisation of guilt. In that regard, you will need to look at each of the suggestions separately in order to determine whether or not they reach this level of satisfaction.
In this case it has been suggested by the defence that when you do this, each is capable of an explanation that does not amount to a realisation of the guilt of the charged offences. They point to his evidence in relation to the moving of chicken coop and other items to conceal the futon as being no more than an attempt to get to the bee hive so that he could destroy it. The cutting of his hair being no more than a hair cut in the usual way, albeit that it ended up being a little shorter than he wanted. The fact that he gave an explanation for not disposing of [DA’s] phone in the water tank because he says how devastating it could be for the water quality of his stock. His explanation for the chains being down the well as being explained by cattle knocking them down. He denies any knowledge of the toy gun in the field and denies he was doing anything to try to avoid police detection when he took his wife’s car, rather he took it for the air-conditioning.
You will need to consider each of these separately and the explanations for them separately. As I have said, you must not draw an inference of guilt from any of the behaviour unless you are satisfied there is no rational explanation for the conduct of the accused other than an awareness or consciousness of guilt of the offences with which he is charged.
…

The Judge gave the jury the following direction on the use of a statement made by DA to Mr Strydom, in the accused’s presence that she was leaving for Belgium:
I want to give some directions about the use you can make of the evidence of Mr Strydom, that [DA] said she was going to the airport and then to Belgium and the accused saying that she should get money for the ticket at the same time when she was transferring the money for the room. This evidence can be used by you, if you are satisfied that it occurred as establishing the state of mind of [DA] to fly straight home to Belgium, and the knowledge of the accused that this was her plan. If so, you may be prepared to draw an inference that the accused knew at that time that she had an intention to leave Australia almost immediately. You must not engage in speculation as to why she would have said that if it were not true, to do so means you engage in unfair reasoning that is improper in the circumstances.
Ground 1 – The emails were neither complaint nor distress evidence
As has been seen, the evidence of the online messages sent by DA was not limited to the evidence of the making of the online searches and the bare sending of undisclosed messages. So much is conduct alone, which was relevant and admissible. The content of the messages, which included a narrative account of some of Mr Bristow’s offending, was also admitted. Prior consistent statements are generally inadmissible, to bolster the credit of a witness, and if for some reason they are received into evidence would, in the ordinary course, require a direction that the statement was not evidence of what it asserted. No such directions were given by the Judge.
Ground 1 complains that there has been a miscarriage of justice occasioned by the Judge’s failure to direct the jury on the proper use of the contents of the email messages and related internet searches. For the reasons appearing below, I would hold that, despite the failure at trial to advert at all to the basis of the admission, or proper use, of the narrative content of the online messages, they were admissible under the res gestae exception to the hearsay rule. I would also hold that the failure to direct on the proper use of the evidence has not resulted in a miscarriage of justice in the particular circumstances of this case. However, it is first necessary to consider the parties’ submissions that it was admissible otherwise than as res gestae and required an explanation of its use for those other purposes.
Mr Bristow contends that the evidence was evidence of an initial complaint of sexual offending. He submits that accordingly, the Judge was required to, but did not, give a direction pursuant to s 34M of the Evidence Act 1929 (SA) (the Evidence Act). No complaint of a sexual offence was made in the messages sent by DA. Her complaint was only that she had been kidnapped. I acknowledge that decisions of this Court have held that, for a complaint of a sexual offence to be admissible, it is sufficient that the sexual offence complained of be referable to the offence charged.[7] However, DA made no complaint of sexual offending at all in the messages she sent. The appellant’s contentions that the Judge’s failure to give directions on s 34M of the Evidence Act was an error of law, or resulted in a miscarriage of justice, must therefore be rejected.
[7] R v S, DD (2010) 109 SASR 46; R v Moores (2017) 128 SASR 340 at [44]-[48]; R v Crafter [2019] SASCFC 25.
The Director contends that the messages were admissible as evidence of distress and that the Judge’s directions on the use of evidence of distress, which, as we have seen, were given with respect to observations of DA by police officers in Murray Bridge, sufficiently explained the proper use of the evidence of the contents of the message. Both of the Director’s submissions must be rejected. First, the emails sent by DA were not evidence of distress, and secondly, if they were, they required a direction specifically addressing their use and a warning against the use of the narrative they contained.
The first of the Director’s submissions conflates evidence of the ‘distressed condition’ of a complainant, which is admissible, with a complainant’s express or implied assertions that she is distressed.[8] The testimony of a complainant, or the hearsay account of a witness that the complainant asserted, that she was distressed, is not admissible.
[8] R v Flannery [1969] VR 586 at 591.
In R v Byczko (No 2), Bray CJ sounded this warning on the use of evidence of distressed appearance: [9]
The vicissitudes of the status of distress on the part of the prosecutrix, as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified.
…
Courts of appeal in England and in Australia have become disturbed by this and it has been frequently said that the jury should be warned that except in special circumstances little weight should be given to such evidence …
[9] (1977) 17 SASR 460 at 462-463.
In R v Schlaefer, King CJ explained:[10]
Two decisions of the Full Court establish that independent evidence of observed indications of distress may in certain circumstances amount to corroboration: The Queen v. Yates; The Queen v. Henderson. The test to be applied was laid down in Yates, following Reg. v. Flannery, as being whether an inference which the jury could reasonably draw is that there was a causal connexion between the alleged assault and the distressed condition. This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with the sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred.
(Footnotes omitted; emphasis added)
[10] (1984) 37 SASR 207 at 216-217.
The distinction between evidence of a distressed appearance on the one hand and, on the other, evidence, circumstantial or direct, that the complainant was or is distressed, is plain from the last sentence of that passage. The contents of DA’s online messages are not evidence of her ‘distressed appearance’. It can be accepted that, if the account of Mr Bristow’s offending given in the messages were true, DA would necessarily have been distressed. However, that would be to use the truth of the narrative to draw an inference that she was distressed; it is not the circumstantial use of a distressed appearance to draw an inference supporting other evidence that DA was sexually assaulted. The admissibility of evidence of distress should not be extended to include a narrative account given by a complainant from which distress may be inferred. Such an extension would, by a sidewind, overtake the carefully framed rules governing the admission and use of evidence of complaint and the res gestae exception.
Ground 1 – Admissibility as integral narrative
It is convenient to commence the discussion of the res gestae exception to the hearsay rule with a brief discussion of the use of that Latin term, which literally means ‘the things done’. ‘The thing’ is the transaction which is the subject of, or a fact in issue in, legal proceedings. The eighth edition of Evidence: Commentary and Materials explains res gestae as ‘[t]hings so close in time or space to the matter being proved as to be inseparable from it’.[11] However, the Latin term provides little by way of insight into the scope of the exception or assistance in its application.
[11] Bull v The Queen (2000) 201 CLR 443 at [110] citing the Butterworths Australian Legal Dictionary (1st ed, 1997) 1015.
The expression res gestae has a history with strong ties to public affairs, private dealings, and business transactions, such that it came naturally to legal discourse.[12] Nonetheless, there is broad agreement that it does not serve any useful purpose.[13] Odgers writes strongly against its use:[14]
The term res gestae should be abandoned in the law of evidence. To the extent that it encompasses statements tendered for a non-hearsay purpose, it is unnecessary and confusing. To the extent that it creates an exception (or exceptions) to the hearsay rule, it would be far better if the scope of those exceptions were precisely delimited in accordance with the justifications for each. …
[12] W.A.N Wells, Evidence and Advocacy (Butterworths,1988) Chapter 9, Appendix, 93.
[13] Phipson on Evidence (Thomson Reuters, 19^th ed, 2018) 1078.
[14] Stephen J Odgers, ‘Res Gestate Regurgitated’ (1989) 12(2) University of New South Wales Law Journal 262, 280.
Notably, Lord Tomlin in Homes v Newman described res gestae as ‘a respectable legal cloak for a variety of cases to which no formula of precision can be applied’.[15] Lord Blackburn once remarked that ‘if you wish to tender inadmissible evidence, say it is part of the res gestae’.[16]
[15] [1931] 2 Ch 112 at 120.
[16] Andrew Hemming, Miko Kumar and Elizabeth Peden, Evidence: Commentary and Materials (Lawbook Co, 8th ed, 2013) 812.
Wigmore was also critical of its use because its ambiguity generates uncertainty as to the limits of the hearsay exceptions it encompasses and, in turn, the limited circumstances in which the res gestae exception can and should be applied. He too argued for abandoning the phrase in favour of utilising other exceptions.[17] Stone condemned the term as confusing, preferring the language of words or acts inextricably bound up in time and place with relevant facts, or facts in issue.[18]
[17] Phipson on Evidence (Thomson Reuters, 19th ed, 2018) 945. Also see discussion in Frank Bates, ‘An Eclectic Prolegomenon to the Australian Evidence Codes’ (2000) 48 Chitty’s Law Journal and Family Law Review 1,5 citing Wigmore’s description of res gestae as an empty phrase that is difficult to distil in a useful way.
[18] Julius Stone, ‘Res Gesta Reagitata’ (1939) 55(1) Law Quarterly Review 66, 80.
In The Queen v Benz, Mason CJ identified the absence of a theoretical and principled foundation for the exception as a problem, but did not consider that it had resulted in incorrect decisions.[19]
[19] (1989) 168 CLR 110 at 117-118.
In the United States, the phrase has been criticised as ‘notoriously ambiguous’.[20] It is maligned for letting in otherwise inadmissible statements, and excluding those that may well have been admissible. Academic commentators lament that it appears to enable some members of the judiciary to invoke a catch‑all phrase, instead of articulating the logic of other rules.[21] The Federal Rules of Evidence, which are set out in [186] below, have largely codified the exception.
[20] Black’s Law Dictionary (11th ed, 2019) ‘Res Gestae’.
[21] Black’s Law Dictionary (11th ed, 2019) ‘Res Gestae’.
In this judgment, I will use the term integral narrative instead of res gestae. The concept of res gestae is problematic because it operates as a blanket phrase to encapsulate statements which are relevant for diverse reasons.[22] I acknowledge that no descriptor can encompass the breadth of the evidence falling within the concept, but the term has some advantages over its Latin counterpart. First, it has the obvious advantage of being an English term. Secondly, the word ‘narrative’ conveys that the exception is to the hearsay rule’s exclusion of second-hand narrative and does not encompass those cases in which the uttering of the word is itself a relevant act. Thirdly, the adjective ‘integral’ signifies that there must be an inextricable connection between the narrative and admissible evidence of conduct. Finally, the term leaves open the question of the necessary degree of contemporaneity whilst requiring a strong circumstantial connection of a kind which is likely to enhance the reliability of the statement.
[22] J D Heydon, Cross on Evidence (LexisNexis, 12th ed, 2020) 26, 636.
In Subramaniam v Public Prosecutor the Privy Council stated the hearsay rule as follows: [23]
Evidence of a statement to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. …
[23] [1956] 1 WLR 965, at 970.
In Walton v The Queen (1989) 166 CLR 283 at 288 Mason CJ said:
The hearsay rule applies only to out‑of‑court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. …
In Ratten v The Queen [1972] AC 378 at 387 Lord Wilberforce elaborated on that fundamental rule of the law of evidence:
The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, i.e., as establishing some fact narrated by the words. …
It is correctly accepted on this appeal that the use by DA of her computer to make online searches and the bare fact that she sent messages online was admissible. It was relevant evidence of what DA did overnight in the shed, whether it was after she had managed to extricate herself from the chains or because she had never been bound with them. Moreover, the fact that DA sent emails to friends and police asking for help was also admissible because the fact that she made calls for help was a relevant act in itself. The making of the calls for help were capable of explaining why DA did not run away. A statement which is admitted because the very making of it is relevant is often referred to as a ‘verbal act’.[24] However, the verbal act of calling for help cannot include DA’s assertions that she had been chained nor her explanation of why she was too scared to run away.
[24] In Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733 at 752 Lord Moulton said, ‘Speaking is as much an act as doing’.
Perhaps the most obvious examples of utterances which are admissible as verbal acts are words spoken by way of exclamation, i.e. a sudden forceful expression or cry. They are generally reflexive in the sense that they are not addressed to anyone other than internally to the user, and for that reason do not convey any meaning. An exclamation may be contrasted with a narrative statement in which the maker, through the medium of meaningful words, conveys to another information which he or she has perceived or experienced. Exclamatory expressions may be uttered as a reaction to pain, sorrow, euphoria or distress, and when so uttered are admissible as conduct which, as a matter of common human behaviour, often accompanies experiences of that kind. In that sense, they are verbal acts.
In the United States, utterances of this kind are referred to as ‘spontaneous exclamations’ or ‘excited utterances’.[25] In addition to spontaneous utterance, statements, acts, or conduct so closely connected with the transaction so as to form part of it, and which elucidate it, are also admissible .[26] The excited utterance need not be made contemporaneously with, or immediately after, a startling event, if the stress which excited it persists to produce the statement.[27]
[25] Thomson Reuters, Corpus Juris Secundum (online at March 2020) ‘Overview of status of rule’ [473].
[26] Toney v. Raines, 224 Ark 692, 275 S.W.2d 771 (1955); Kane v. Burrillville Racing Ass’n, 73 RI 264, 54 A2d 401 (1947); North American Acc. Ins. Co. v. Wyatt, 160 S.W.2d 298 (Tex. Civ App Fort Worth 1942), writ refused w.o.m., (May 13, 1942).
[27] David F Binder, Hearsay Handbook (McGraw-Hill, 2nd ed, 1983) 91-95. Timing is not a controlling factor, instead it is a factor for the court to weigh up alongside others, including the age of the statement maker, the characteristics of the event, and the subject matter of the statement: US v Iron Shell (8th Cir 1980) 633 F2d 77 at 85-6. Many states have codified this exception. For a critique of excited utterances and issues of fabrication and inaccuracy see Alan G Williams, ‘Abolishing the Excited Utterance Exception to the Rule Against Hearsay’ (2015) 63(3) University of Kansas Law Review 717.
Yet another example of words as conduct is to be found in the making of interpersonal, familial and community, including legally binding, arrangements. Words spoken as a promise, request or order to act in a particular way are not narrative. In Adelaide Chemical & Fertilizer Co Ltd v Carlyle,[28] Dixon J gave, as an example, the directions of a policeman on point duty. Like exclamations, words directing actions do not give a narrative account, but unlike exclamations the words have, often complex, meaningful content. The probative weight of statements arranging or procuring conduct derives from our common experience of living in organised societies in which such arrangements are generally made for good cause and are expected and intended to be kept. Arrangements, whether legally binding or not, to purchase or sell goods, advance or repay money, are regularly admitted in civil and criminal cases in which the making of the arrangement is in issue. Intercepted electronic messages or telephone calls to betting houses or to order drugs are common examples of the admissibility of statements as verbal acts in criminal proceedings. However, broader personal arrangements are also admitted. As we shall see in Walton v The Queen,[29] the High Court unanimously held that the evidence of bystanders who overheard the deceased make an arrangement to meet the accused shortly before she was killed, was admissible.
[28] (1940) 64 CLR 514 at 531.
[29] (1989) 166 CLR 283.
A call for help will often be admissible as a verbal act, both because it is a spontaneous exclamation made in the course of an attack, and/or as a call to action. Of course, exclamations may be feigned, calls for help may be a hoax and persons making arrangements may never mean to keep them. However, whether or not that is so is a question of fact for the jury, which does not involve the evaluation of the reliability or credibility of a hearsay narrative account of other events and acts seen, heard or otherwise experienced by a person who is not a witness. The question of fact is similar to the question of whether an alleged victim has self-harmed or pretended to be distressed.
A different example of the admissibility of a statement as a verbal fact is a statement disclosing esoteric knowledge. In R v Blastland,[30] the House of Lords held that statements made by a third person shortly after a murder indicating knowledge of details of said murder was not hearsay:[31]
It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard may well be the best and most direct evidence of that person’s state of mind. …
[30] [1986] AC 41. See also R v Szach (1980) 23 SASR 504 at 571 (King CJ) who held that the evidence was not, however, proof of the truth of the associated narrative. See also Kamleh v The Queen (2005) 79 ALJR 541 at [14]-[15], [40].
[31] R v Blastland [1986] AC 41 at 54.

However, the Judge directed the jury that if it were not satisfied that the ‘preplanning evidence’ established Mr Bristow’s guilt, they should put it to one side. The Judge’s direction was, therefore, more favourable to Mr Bristow than was necessary. Counsel for Mr Bristow argued that the Judge’s direction may have led the jury to first consider the preceding conduct evidence in isolation from the totality of the evidence. I reject that contention. There is no reason to suspect, having regard to the totality of the summing up, that the infelicitous but overly favourable directions on the preceding conduct evidence, led the jury to compartmentalise the evidence and engage in such an artificial reasoning process.
Finally, I reject the contention that the Judge’s direction on the preceding conduct evidence reversed the onus of proof. In its full context, which can be seen in [67] above, it plainly did not.
I would therefore dismiss the appeal on Ground 2.
Ground 3
Mr Bristow particularised the complaint made by Ground 3 as follows:
·the applicant sought the exclusion of the evidence that Mr Bristow had searched for fluffy handcuffs on the internet, but the Judge permitted the evidence to be adduced.
·there was no suggestion that there were fluffy handcuffs present at the time of the alleged offending or that there was any suggestion that fluffy handcuffs were to be used.
·the evidence was irrelevant, highly prejudicial and of no probative weight and should have been excluded.
·the evidence was treated as a specific piece of circumstantial premeditation evidence but was subject to a specific direction by the learned Trial Judge at page 20 of her summing up where she directed that if ‘you accept this explanation by the Accused … ’
·this incorrectly placed the onus of proof onto the applicant in relation to this evidence.
It can be accepted that the evidence that Mr Bristow ordered the fluffy handcuffs was of little weight because handcuffs of that kind were not used and, in any event, the effectiveness of a fluffy handcuff as a restraint might be doubted. On the other hand, if the jury accepted that the handcuffs were intended as a marital aid, the evidence could not be described as ‘highly prejudicial’. Moreover, the Judge’s direction set out in [67] above strongly warned the jury against any prejudicial use.
The relevance of the evidence was that it showed that, in the days before the alleged offending, Mr Bristow had in mind the use of a restraint device in connection with sexual activity. It is, at least to some degree, more probable that sexual offending of the kind described by DA was committed by Mr Bristow, given that he had sexual activity involving restraint in mind shortly before DA arrived at the farm, than if he had not. Mr Bristow may not have used the handcuffs on DA because he realised when he saw them that they would not effectively restrain DA, or because they were, as he testified, intended for use with his wife. But they were questions of fact for the jury to determine.
I would dismiss the appeal on Ground 3.
Ground 4 – Post offence conduct
The appellant’s complaints on Ground 4, in effect, repeat the complaint made in respect of Ground 2 but with respect to the direction given by the Judge on the evidence of Mr Bristow’s conduct after the alleged offending. Ground 4 is particularised as follows:
·the circumstantial evidence direction left the post offence conduct evidence as manifesting a consciousness of guilt;
·the direction was unnecessary because there was other evidence of guilt and the evidence was not an indispensable link in the chain of reasoning;
·the direction had the effect of suggesting that by looking at the post‑offence conduct evidence as a collection of facts independent of all the other evidence at trial they could determine as a separate issue whether the post‑offence conduct was borne out of a consciousness of guilt;
·the erroneous direction that it was permissible to undertake a reasoning process which dealt with the evidence in discrete parts;
·the error was exacerbated by the failure of the Judge to explain:
o how the jury should use this evidence in conjunction with the other evidence at trial; and
o any use the evidence had if the jury formed the view that the evidence was capable of an explanation other than a consciousness of guilt;
·the failure to direct as to the manner in which the evidence could be used in the context of all of the evidence at trial was ‘… confusing and possibly misleading’.
The Judge’s direction on the evidence of Mr Bristow’s post-offence conduct is at [73] above.
It is convenient to first reject Mr Bristow’s contention that a direction on the use of circumstantial evidence is unnecessary when there is other evidence of guilt. It is the obligation of a trial judge to direct on the proper use of that evidence which may have a material bearing on the guilt or innocence of the accused. In particular, a direction on the use of circumstantial evidence remains necessary even if there is direct testimony of an accused’s criminal conduct.
The relevance of flight, escape, concealment or other evasive conduct engaged in after an alleged offence (subsequent evasive conduct) was explained by Wigmore as follows:[132]
276(4) Flight, escape, resistance or concealment Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ‘The wicked flee, even when no man pursueth; but the righteous are bold as a lion.’ In our primitive system of law, the accused who fled, whether innocent or guilty, suffered forfeiture and escheat; though this was rather a mode of deterring him from refusing to appear for judgment than an evidential rule.
It is universally conceded today that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself …
(b) It has sometimes been said that an unexplained flight is the admissible evidence. But this is obviously unsound. The prosecution cannot be expected to negative beforehand all conceivable innocent explanations. The fact of flight is of itself significant; it becomes most significant when after all no explanation is forthcoming.
(Emphasis added; citations omitted)
[132] James Chadbourn, Wigmore on Evidence: Evidence in Trials at Common Law (Vol 2, 1979) s 276(4) at 122-9.
The following propositions can be taken from that passage.
First, evidence of subsequent evasive conduct is admissible. Secondly, subsequent evasive conduct is admissible as evidence of consciousness of guilt; it is not a condition of the admissibility of the evidence that it shows that the particular accused on trial fled because he was actually conscious of his guilt. Rather, the drawing of an inference of guilt from subsequent behaviour is based on an understanding of human behaviour generally. Thirdly, the availability of an alternative explanation for evasive conduct in any particular case does not preclude the admission of the evidence; it merely affects the strength of the inference which can be drawn from it.
The following passages from the reasons of the Court in Flora v The Queen are also instructive on the use of evidence of subsequent evasive conduct and explaining how evidence, which in isolation may be consistent with innocence, might, in combination with other evidence, support an inference of guilt:[133]
[133] (2013) 233 A Crim R 320 at 335-336, 338.
[79]As with lies and other post-offence conduct, evidence of distress is circumstantial. One should not lose sight of how circumstantial evidence generally acquires its probative force. It is the totality of the circumstantial evidence which must be considered. As Dawson J stated in Shepherd, “the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately”. This was again emphasised in the joint judgment of Gummow, Hayne and Crennan JJ in Hillier who observed that in a circumstantial case it is often the case that
there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused … As Gibbs CJ and Mason J said in Chamberlain (No 2):
… the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence.
…
[81]In Brooks v The Queen, Weinberg JA considered the authorities, including Ciantar and Butler. He emphasised that, because post-offence conduct was a type of circumstantial evidence, it had to be looked at against the totality of the evidence as a whole. He said after quoting the above passage from Hillier:
Post-offence conduct is, of course, nothing more than a species of circumstantial evidence.
Returning to the facts of the present case, the “big lie” must be “considered in the context of all of the evidence”. When viewed merely as one item of evidence amongst several which might have been used as the basis of an inference of murderous intent, it cannot be said that the “big lie” was intractably neutral. It had to be considered in the context of other evidence including the severity of the wound inflicted, the relationship evidence, and the appellant’s statements to his neighbours and police immediately following Ms Chapple’s death. Having regard to the “whole of the material”, as the jury were instructed to do by the trial judge, the “big lie” was significantly more probative of murderous intent than of some lesser intent.
[82]Whether evidence is really intractably neutral must be assessed by reference to the cumulation of circumstantial evidence. The jury was not required to consider the circumstantial evidence of distress in isolation.
…
[90]As recognised in Ciantar, there will be few cases where evidence is truly “intractably neutral”. As there are always degrees of distress, and a jury is in a position to assess whether the distress is of such a severity as to match the crime alleged, it might only be very rarely that distress evidence is “intractably neutral”.
(Citations omitted)
Like any other item of circumstantial evidence which is not an indispensable step towards guilt, subsequent evasive conduct is probative even if it cannot, alone, support a conclusion of guilt beyond reasonable doubt. It is not a condition of the admissibility of any item of evidence that it prove (without more) an intermediate fact, or an element of the offence, or the offence. It is sufficient that it is relevant to a fact that is in issue in the proceedings, in the sense that it has a tendency or capacity to render that fact more or less probable.
It follows that a direction that subsequent evasive conduct is only probative if it, of itself, reveals that the accused was actually conscious of his or her guilt is not required by any principle of logic or common human experience. Indeed, as a logical proposition it is circular. A jury can only be satisfied that the flight of a particular accused supports an inference of guilt if the evidence in the case, or human experience, does not disclose a satisfactory explanation for it.
To say that subsequent evasive conduct which lacks a satisfactory explanation manifests a consciousness of guilt is a usage hallowed by time and legal authority, but it is apt to mislead. Plainly enough, a jury finding beyond reasonable doubt that the accused engaged in subsequent evasive conduct because, actually conscious of his guilt, he was concealing his commission of it, necessarily entails a finding that the accused committed the offence. There is no utility in admitting, as relevant evidence, evidence which cannot be used unless and until an accused’s guilt is proved by other evidence. However, once it is understood that ‘manifesting a consciousness of guilt’ means that, absent a satisfactory innocent explanation, the subsequent evasive conduct is indicative of guilt, there is no circularity. The use of evidence of subsequent evasive conduct in that way is to treat it as any other item of circumstantial evidence. If, however, the jury is directed that it must be satisfied that the evidence of subsequent evasive conduct exhibits a consciousness of guilt before it can use it, then the evidence of itself can play no part in reaching that conclusion. The circularity of a direction along those lines denies the evidence of subsequent evasive conduct its very nature as an item of circumstantial evidence.
A direction to the jury that evidence of evasive conduct is only of probative force if it shows that the accused was conscious of his or her guilt is not required by any authority. The High Court considered the related issue, namely, the inference that can be drawn from evidence of an accused’s lies, in Edwards v The Queen (Edwards).[134]It has often been acknowledged that evidence of lies raises similar issues to those raised by evidence of flight, and for that reason a consideration of the reasoning in Edwards is useful for the purposes of this case.
[134] (1993) 178 CLR 193.
The majority in Edwards proceeded on the basis that a lie is probative of guilt only insofar as it amounts ‘to an implied admission of guilt’ because it springs ‘from a realisation or consciousness of guilt’.[135] However, they explained that ‘an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof’.[136] In that respect there is no difference between the approach of the majority and that of Brennan J and McHugh J (in separate judgments). Both Brennan and McHugh JJ accepted that false statements were capable of being corroborative, even if they did not amount to an implied ‘admission of guilt’ but were merely corroborative of other evidence.
[135] Edwards v The Queen (1993) 178 CLR 193 at 209.
[136] Edwards v The Queen (1993) 178 CLR 193 at 210.
The essential element of inductive or abductive[137] reasoning from subsequent evasive conduct, which is not satisfactorily explained by the evidence, is the assessment of the relative probability, as a matter of human experience, of that conduct being associated with innocence on the one hand, or guilt on the other. The weight given to subsequent evasive conduct and the degree to which it is indicative of guilt will vary. If the jury accepts an accused’s innocent explanation of his or her subsequent evasive conduct it will have no weight. On the other hand, subsequent evasive conduct which appears to have no plausible explanation may strongly support an inference of guilt. The weight of plausible but improbable explanations is a matter for the jury. Only in the exceptional case in which it is an indispensable step in reasoning to guilt must the innocent explanation be rejected beyond reasonable doubt.
[137] Abductive reasoning is similar to inductive reasoning but better describes a particular way in which circumstantial evidence is commonly used in fact finding. It is similar to the reasoning employed by medical practitioners when making a diagnosis from a clinical examination. It is a form of bottom_up reasoning employed when not all facts are completely known. It involves identifying the hypothesis which best explains all of the known circumstances. It will seldom, if ever, itself, allow a conclusion to be reached beyond reasonable doubt, but explains how and why a combination of circumstantial indicators may support other evidence.
I would dismiss the appeal on Ground 4.
Ground 5
The appellant’s argument on Ground 5 concern the admission of the letters he sent his wife. It was particularised as follows:
5.1The letters were sent by the applicant from prison to his wife.
5.2They were intercepted by the prison authorities and provided to the police.
5.3The Correctional Services Act 1982 governs the circumstances in which prisoners[’] mail is to be dealt with.
5.4Section 33(1) of the Correctional Services Act 1982 provides that letters sent by prisoners must be forwarded as soon as possible[.]
5.6The letters of the applicant to his wife do not contravene the section.
5.7The prison authority through an authorised person [as defined] was entitled to open the applicant’s mail pursuant to Section 33(4) of the Correctional Services Act 1982 but in the absence of any contravention of Section 33(3) was required to forward the applicant’s letter as soon as possible to his wife.
5.8The authorised person pursuant to Section 33(13) of the Correctional Services Act 1982 must not disclose to any other person the contents of any prisoner’s letters unless required by law or in the performance of duties.
5.9There is no basis to suggest that there was a legal requirement to disclose the letter to the police unless it contravened the relevant section and therefore came within Section 33(11)(a)(ii) of the Correctional Services Act 1982.
5.10The letters should have been forwarded to the applicant’s wife as soon as possible. There was no basis required by law or in the performance of duties for the authorised officer to intercept the letters or to provide them to the police.
5.11The relevant sections of the Correctional Services Act 1982 should be interpreted in accordance with the principle that fundamental rights of individuals, including accused persons in custody, should not be eroded or diminished without the relevant statute expressly doing so.
(Citation omitted)
The prosecution put into evidence letters which Mr Bristow accepted he sent to his wife whilst he was in prison. The first, P28, was sent on 27 March 2017, and the second, P29, on 7 April 2017. Mr Bristow explained in his evidence that he copied into the letters instructions which he had given his solicitor.
The prosecutor informed the Judge that the letters were intercepted in the prison mail by the police. A police officer, Detective Steven Leary, gave evidence that he made arrangements to obtain copies of the letters but he did not disclose what they were. Before the letters were received, Mr Bristow’s counsel explained that Mr Bristow had written letters to his then solicitor and copied his instructions into the letters which he had sent to his wife. Mr Bristow’s counsel conceded that the information is arguably ‘not privileged’ but informed the Judge that, insofar as it was necessary to do so, Mr Bristow waived privilege.
In the first of the letters, Mr Bristow speculated as to DA’s motives for making the allegations. He set out the reasons why DA may have made false allegations, including monetary gain and seeking attention by creating a drama. Mr Bristow suggested topics for cross‑examination, such as why DA had not immediately asked the motel owner to contact the police, and why she did not immediately escape on loosening herself, if that were true. Mr Bristow asserted that: ‘The allegations against me are false and not a true representation of events...’. Mr Bristow claimed to be the victim of trial by media and that his arrest and charging should be a ‘warning to other employers taking on backpackers for casual labour…’.
Relevantly to Ground 6, with which I deal below, the letter attempted explanations as to why DNA matching DA’s DNA profile might be found in the shed. One explanation was that DA might have used an object or objects to masturbate.
In the first letter Mr Bristow also gave an account of his contact with DA. His description of driving DA to the Bristow farm and what happened on the first afternoon was largely consistent with his evidence. However, he also falsely claimed in the second letter, P29, that:
My friend Andrew Ramsey is the one who initiated contact with [DA] help him on his property, he has cattle at times and lives alone with his dog. He’s a computer technician and hacker and is known to use an alias when online. It was he who told me when and where Friday 11.2.2017 to pick [DA] up from M.B.

However, when he testified Mr Bristow admitted the falsity of that allegation. He explained that his reason for lying was that he did not want to admit that he needed outside help on the farm.
The second letter gave an account, similar to that given by Mr Bristow in his evidence, of working with DA to remove the grass seeds from the calves on the second day, much as he had in his evidence. His account of taking DA, first in his wife’s car, and then in a truck to Murray Bridge was also similar to his evidence.
His letter concluded with the following:
From my experience over the last couple of months it seems that anybody can make a complaint against another person with false allegations while making a false statement and the police will simply lock them up and let the courts decide their fates. This is so wrong and no wonder jails are overflowing.
In the first letter, Mr Bristow claimed that he had a verbal agreement with DA to work for two days and stay over on just one night. He also mentioned a medical condition which had reduced his capacity to achieve an erection.
Section 33 of the Correctional Services Act 1982 (SA) (the CSA) provides:
33—Prisoners’ mail
(1) Subject to this section—
(a)     prisoners are entitled to receive and send letters; and
(b)     letters sent to prisoners must be handed to them as soon as reasonably practicable after delivery to the institution; and
(c)     letters sent by prisoners must be forwarded as soon as reasonably practicable.
(3) A letter sent to or by a prisoner contravenes this section if it contains—
(a)     a threat of a criminal act; or
(b)     a proposal or plan to commit a criminal act, or to do anything towards the commission of a criminal act; or
(c)     an unlawful threat or demand; or
(d)     an incitement to violence, or material likely to inflame violence; or
(e)     plans for any activity prohibited by the regulations; or
(f)      an item prohibited by the regulations; or
(g)     a sum of money, whether in cash or otherwise, or a request for any such sum, where the prior permission of the CE has not been obtained in respect of that sum or request; or
(h)     a request for any goods, without the prior permission of the CE; or
(i)      a statement that is in code; or
(j)      material relating to, or that constitutes, work by the prisoner that the prisoner is not authorised to perform.
(4) The CE may cause all letters sent to or by prisoners to be opened and examined by an authorised officer for the purpose of determining whether any letter contravenes this section.
…
(10) Where a letter sent to a prisoner is found to contravene this section, the CE may—
(a)     in the case of a letter—
(i) hand it over to the prisoner; or
(ii) retain it and hand it over to the prisoner on discharge from prison; or
(iii) furnish a copy of it to the prisoner with any material that contravenes this section deleted from the copy, provided that the letter is handed over to the prisoner on discharge from prison; or
(iv) retain it as evidence of an offence, provided that a copy of it, or an expurgated copy of it, is handed over to the prisoner as soon as reasonably practicable, or on discharge from prison; and
…
…
(11) Where a letter sent by a prisoner is found to contravene this section, the CE may—
(a)     in the case of a letter—
(i) return it to the prisoner; or
(ii) retain it as evidence of an offence, provided that a copy is furnished to the prisoner at some time prior to any hearing in respect of the offence; and
…
(12) The CE must advise a prisoner in such manner as the CE thinks fit of any action taken under this section in respect of a letter, or anything contained in a letter, sent to or by the prisoner.
(13) An authorised officer must not, otherwise than as required by law or in the performance of duties, disclose to any other person the contents of any letter perused pursuant to this section.
(14) In this section—
authorised officer means an officer or employee of the Department authorised by the CE for the purposes of this section, not being a person who is engaged in a position involving substantial day-to-day contact with prisoners.
Mr Bristow’s complaint is that the interception of his letters contravened the requirement in s 33(1)(c) of the CSA in two ways. First, the interception by Detective Leary meant that the letter was not sent as soon as reasonably practicable. Secondly, the interception contravened the implied prohibition against retaining letters, other than those prescribed by s 33(11)(a)(ii) of the CSA, as evidence.
The discretion to exclude unlawfully obtained evidence is premised on the evidence otherwise being admissible. That was the case here. The letters were admissions against Mr Bristow’s interests. In the absence of an application, the discretion to exclude the letters because of any illegality associated with their interception was not enlivened. There was therefore no error of law. It is impossible to find that there was a miscarriage of justice occasioned by their admission when Mr Bristow’s counsel expressly waived any legal professional privilege attached to the letters, on the instructions of Mr Bristow, in order to facilitate their admission. The forensic reasons for doing so are obvious enough. They allowed a defence of sorts to be put before the jury within the prosecution case, thereby giving Mr Bristow the option, even though he ultimately did not exercise it, of not testifying. I would dismiss Ground 5.
Ground 6
Ground 6 was particularised as follows:
The trial miscarried as a result of the aggregation of faults such that the trial, as a whole miscarried.
Particulars
6.1 The failure by the Applicant’s legal representatives to cross examine Dr Dayman who gave evidence about the injuries to the Complainant in circumstances where there was no objective forensic reason not to cross-examine him.
Further, that the medical evidence, unchallenged, was a significant piece of objective corroborative evidence in a trial that otherwise was largely reliant upon the credibility of the complainant as to what happened at the property.
6.2The tendering of P28 & P29:
6.2.1 When the letters were obtained illegally [Ground 5 above]; and
6.2.2 Where the letters contained admissions against interest by the applicant as to his impotency which was a significant issue at trial where there was no objectively foreseeable forensic benefit to such an admission.
6.3The failure of the learned Trial Judge to direct as to the permissible use, if any, of P13 and P36 [see ground 1 above].
6.4The failure of the learned Trial Judge to adequately direct as to the use of premeditation evidence and post offence conduct [Grounds 2 and 4 respectively].
(Citations omitted)
There is often an attempt to accumulate claimed errors, which individually may not have caused a miscarriage of justice, under the misapprehension that together they did occasion a miscarriage. However, there is no logic nor utility in doing so. Generally, there is a miscarriage of justice when directions fail to adequately summarise or explain the evidence and its use, or fail to warn against its frailties, such that the jury may have returned a verdict of guilty ignorant of some salient aspect of the evidence. An appeal court must make that assessment with respect to each of the discrete impugned direction separately, unless they are related complaints. If satisfied that there is no miscarriage, with respect to each of the discrete impugned directions, the position is not altered because the appellant has made other unrelated, and ultimately unfounded, complaints. It may well be different if the directions are related in the sense that one compounds the risk of miscarriage inherent in another in dealing with the same evidence or issue. That is not this case.
Ground 6.1 makes an additional complaint, which is not made elsewhere, concerning the failure to cross-examine the medical practitioner who examined DA. However, there is no substance in the complaint. The evidence of Dr Dayman was that an injury on DA’s genitalia was consistent with digitally applied force. It is not obvious to me, and no material was adduced to suggest, that any cross‑examination would have cast any doubt on that evidence. The notion that inculpatory evidence must always be challenged in cross‑examination rather than dealt with in an address, or even simply ignored, is not necessarily good advocacy. Nor does a failure to cross-examine, of itself, lead to a miscarriage of justice. In [243] above I referred to the claim in Mr Bristow’s first letter which underlies this complaint. The suggestion was forcefully ridiculed by the prosecutor. The forensic decision not to put it to Dr Dayman would, on the material available to this Court, appear to have been a sound one.
I would dismiss Ground 6.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I gratefully adopt his Honour’s comprehensive analysis of the res gestae (integral narrative) authorities. I wish to add just one minor observation concerning appeal ground 1.
I agree that in the circumstances of this case it is difficult to see to what impermissible use the content of the emails and the online searches might possibly have been put. I also have no concern, in the circumstances of this matter, that there is an appreciable risk that the jury might have placed undue weight on this content in favour of the prosecution, particularly given that only the kidnapping allegation and none of the sexual offence allegations is referred to.
It is potentially of concern that the jury was not directed to be cautious as to the possibility of concoction. However, it was apparent throughout the trial including the addresses and the summing up that the central issue was whether the prosecution had excluded as a reasonable possibility that DA had made up a series of lies designed to inculpate a wholly innocent person.
It could not have escaped the jury that to acknowledge such a reasonable possibility necessarily meant that the email and search content had also been concocted.
For this reason and those given by the Chief Justice the failure to warn about possible concoction did not give rise to a miscarriage of justice.
BLEBY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.