Bristow v The Queen

The Supreme Court of South Australia, constituted by Kourakis CJ, Nicholson and Bleby JJ, heard an appeal by Mr Bristow against his conviction for offences including kidnapping and sexual assault. The dispute centred on the admissibility and use of certain evidence, particularly online communications and searches made by the complainant, DA, after her alleged ordeal.

The legal issues before the Court included whether the prosecutor’s address to the jury, in which he presented DA’s online activity as corroboration of her testimony, constituted a miscarriage of justice. Specifically, the Court considered whether the jury might have placed undue weight on this evidence, and whether a failure to direct the jury to be cautious about the possibility of concoction of this evidence amounted to a misdirection or non-direction that occasioned a substantial miscarriage of justice. The Court also considered the application of the *res gestae* principle to certain statements made by DA.

The Court reasoned that while the prosecutor’s submissions regarding the corroborative value of DA’s online activity were broad, the central issue at trial was the credibility of DA’s account. Given that the defence’s case involved an assertion that DA had fabricated the entire series of events, the jury would have understood that if DA’s account was concocted, then her online activity would also have been part of that fabrication. Therefore, the Court concluded that the failure to provide a specific warning about the possibility of concoction did not give rise to a miscarriage of justice, as the jury was already alive to the central question of fabrication. The appeal was dismissed.