(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
10 April 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED
Following a jury trial, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child (as that offence was then known), contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA).
The principal evidence in the case was given by the complainant, the appellant’s stepdaughter. The prosecution had available to it statements given by the complainant before the trial in the course of three prescribed interviews, conducted pursuant to s 74EB of the Summary Offences Act 1953 (SA), and in the course of a pre-trial special hearing, conducted pursuant to s 12AB of the Evidence Act 1929 (SA). The audio-visual recordings of these statements and evidence were played for the jury at the trial.
During the pre-trial special hearing the complainant was cross-examined about what she had said in an initial interview with police, which was captured in a video recording. In that interview the complainant initially said that the appellant had put his penis in her bottom on at least 10 occasions and that was the extent of the appellant’s wrongdoing. The complainant was cross-examined to the effect that those statements were inconsistent with the statements made in the prescribed interviews, which described different offending. The complainant agreed but in re-examination appeared to provide a different explanation for the prior statements. The prosecution case did not rely on any allegation of anal intercourse.
At the trial, the appellant applied to play the video of the initial interview to the jury. This was opposed by the prosecution. The trial judge admitted the initial interview video into evidence at the trial and it was played for the jury. On the defence case, this initial interview with police was relevant for the purposes of establishing important inconsistencies in the complainant’s account.
Those inconsistencies and the adequacy of the directions given about them are the subject of appeal ground 1.
The appellant’s case at trial was that the complainant’s account was a fabrication. The appellant did not give or call any evidence. The directions given to the jury about the way they should approach the determination of the honesty and reliability of the complainant’s evidence are the subject of appeal ground 2. During the course of her final address, the prosecutor submitted that if a proposition was not put to a witness, it meant that the jury could generally accept that what the witness was saying was uncontested. That is, that what the witness was saying was,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Brown (a pseudonym) v The King [2025] SASCA 40
Case
[2025] SASCA 40
Decision Date
CaseChat Overview and Summary
The case of Brown v The King involved the appellant appealing against his conviction and sentence for multiple sexual offences against a complainant. The Court of Appeal was required to consider whether the trial judge’s directions to the jury regarding the use of certain evidence amounted to a miscarriage of justice. The key issue was whether the trial judge's instructions were sufficient to prevent the jury from misusing the complainant's initial police interview, which was admitted for a limited purpose only.
The Court of Appeal found that the trial judge’s direction concerning the initial police interview was inadequate. The judge had not sufficiently clarified to the jury that this evidence could only be used to assess the complainant's credibility and to identify any inconsistencies in her statements, rather than as evidence of the truth of her allegations. The Court determined that this failure to provide a clear direction resulted in a miscarriage of justice, as there was a significant risk that the jury misunderstood the purpose of the initial interview and potentially used it improperly. The Court of Appeal allowed the appeal, set aside the conviction, and remitted the matter for a retrial.
The Court of Appeal concluded that the appeal should be allowed, the conviction set aside, and the matter remitted for retrial. The Court emphasized the importance of clear and direct instructions to juries regarding the limited purpose for which certain evidence may be used, particularly in sexual offence cases where the risk of misunderstanding is heightened.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Later, evidence was taken before the trial at a “special hearing” on 11 August 2023 (Ex P10), conducted pursuant to s 12AB of the Evidence Act 1929 (SA) (the Evidence Act). Video recordings of this evidence were played to the jury at the trial. It is not necessary to address all of the allegations made by the complainant, nor the order in which they were made. As is seen from time to time, the evidence was not given by the complainant in a strictly sequential manner and, at times, the order of events was difficult to understand. What is clear in what follows, however, is that it formed no part of the prosecution case that the appellant had engaged in penile/anal intercourse with the complainant at any stage. Broadly, the complainant described the appellant initially starting to touch her inappropriately at his home unit during the latter part of 2020, after he had acquired a spa. The complainant had used the spa and the appellant told her that there was something chemically wrong with it and he needed to do things to her. The complainant described the appellant placing what she thought may have been baby oil on her thigh and then rubbing his penis down her thighs and bum. This happened on a number of occasions. The complainant described this happening more than 10 times in the appellant’s bedroom. When asked about the first time it happened, the complainant described an occasion in the appellant’s bedroom in his home unit when she had a really bad hair cut and he rubbed her vagina in a circle. The appellant told the complainant that if she told her mum they would both be kicked out. This was apparently on Christmas. The complainant also described being touched and being told to put the appellant’s penis in her mouth. He apparently kept telling her to do it every time. The complainant described the times being “kind of all the same” except there was one occasion when the appellant licked her vagina. The complainant was asked about the last time, and she said that the appellant always said that this was the last time, “I promise”, but he would do it again. The complainant described an occasion when the appellant took her to McDonald’s and referred to her needing liquid in her system. When they returned to the appellant’s home unit, the appellant forced her to put his penis in her mouth. The complainant also described an occasion when she was laying on the lounge and the appellant told her to sit on his lap. The complainant said that the appellant rubbed his finger underneath her underwear and down her vagina and kept rubbing. The complainant said her mother and brother were upstairs at the time. The complainant described an occasion when, whilst she was asleep, the appellant came in and touched her boobs and her bum. The complainant also described a time when the appellant took her to McDonald’s and then to the car wash and then to an aquatic centre. The complainant said that the appellant told her to touch his private part and told her to suck on it like an icy pole and she did so. She said that some weird stuff that was white and gooey came out of the appellant’s private part. The complainant said that the appellant grabbed his t-shirt and wiped it.
Decision
Reasons for decision
The jury did not ask to see the transcripts, and they had access to all the videos. They deliberated for less than 3 hours after a comparatively short trial.[226] Having regard to the issues in dispute at the trial and the whole of the record, including the acquiescence of counsel in the course taken, it is difficult to see how the direction to retrieve the aides-memoire resulted in a miscarriage of justice.[227] This appeal ground should be dismissed.[226] Appeal book, 67.[227] Cf R v Curzon (2000) 1 VR 416, [39] (Chernov JA).Conclusion The appeal should be allowed, the conviction set aside, and the matter remitted for retrial in the District Court. S DOYLE AND BLEBY JJA: We gratefully adopt Livesey P’s description of the issues on appeal and the circumstances in which they fall to be decided. Appeal ground 1 concerns the use of the complainant’s initial police interview. We agree generally with Livesey P’s reasons for allowing the appeal on that ground. Unlike the recordings of the complainant’s prescribed interviews and the special hearing conducted pursuant to s 12AB of the Evidence Act 1929 (SA), the recording of the initial interview was not received as evidence given by the complainant. It was admissible only for its use in assisting the jury to consider and assess the significance of what the defence contended was a prior inconsistent statement made during the course of the initial interview. The trial judge adverted to the distinct nature of the initial interview in her summing up, instructing the jury that it was not a prescribed interview, but had been received in evidence ‘to provide you with the context of [the complainant’s] disclosure to police, what she said and what questions were first asked of her’. However, we agree with Livesey P that this was not adequate to explain to the jury the use to be made, and not to be made, of this evidence. The trial judge ought to have told the jury in direct and clear terms that the initial interview was not evidence of the complainant, and could not be used as evidence of the truth of what she said, or as evidence of what occurred. Rather, the initial interview was before them only so as to assist them in assessing the complainant’s credibility, and in particular, to enable them to determine the existence and significance of the suggested inconsistency in the complainant’s description of the appellant’s conduct. Whilst the focus of the parties’ submissions was appropriately upon this potential use of the initial interview, there was a significant risk of misuse of that evidence in the present case. This was not a case where there was an obvious difference between a complainant’s in-court evidence and an earlier out-of-court statement. In circumstances where the complainant’s evidence (that is, the prescribed interviews and the special hearing), like the initial interview, was in the form of recordings of the complainant made ahead of trial and not in front of the jury, there was a heightened risk that the jury may have failed to appreciate the distinct and limited use to be made of the initial interview. And the initial interview, whilst providing a basis for the defence to challenge the complainant’s evidence, also contained some very damaging allegations against the appellant. In the circumstances of the present case, the failure to give a direction along the lines we have indicated gave rise to a miscarriage of justice.