DJ v The Queen
[2020] SASCFC 18
•17 March 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DJ v THE QUEEN
[2020] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
17 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - COMPLAINTS
The appellant was convicted of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his niece. The appellant contended that the primary judge erred in failing to give a direction as to the forensic disadvantage suffered by the appellant and further, he erred in failing to give appropriate directions about the complaint evidence.
Degree of consistency between complaint evidence and evidence overall – evaluative process – whether there was a risk the jury would have reasoned improperly due to the judge’s directions – delay between alleged offending and trial – whether a forensic disadvantage direction was required
Held, per Lovell J (Peek and Bampton JJ agreeing), allowing permission to appeal in respect of Ground 1, but dismissing the appeal:
1. The primary judge gave the appropriate direction about the complaint evidence.
2. There was no significant forensic disadvantage suffered and a direction was not required.
Evidence Act 1929 (SA) ss 34M, 34CB, referred to.
R v H, T (2010) 108 SASR 86; R v Cassebohm (2011) 109 SASR 465; R v Parry [2017] SASCFC 66; Crampton v The Queen (2000) 206 CLR 161; R v W, PK [2016] SASCFC 3, considered.
DJ v THE QUEEN
[2020] SASCFC 18Court of Criminal Appeal: Peek, Bampton and Lovell JJ
PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J and the orders he proposes.
BAMPTON J: I would grant permission to appeal on ground 1 but dismiss the appeal for the reasons given by Lovell J.
LOVELL J.
Overview
The appellant is the uncle of the complainant, K. K alleged that the appellant sexually abused her on multiple occasions commencing when she was five years old. It ceased when she was approximately 10 years of age. The alleged offending ceased in approximately October 2016.
The appellant was charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant pleaded not guilty but the jury returned, by majority, a verdict of guilty.
Issues on appeal
There are two grounds of appeal. The appellant contended that the primary judge erred in failing to give appropriate directions about the complaint evidence of K (Ground 3) and further, he erred in failing to give a direction as to the forensic disadvantage suffered by the appellant (Ground 1). Ground 2 was not pursued.
For the reasons that follow, I would dismiss the appeal.
Background
During the period of offending, K was aged between five years, 11 months and 10 years, 11 months. The appellant was between 18 and 23 years of age. At the time of the offending, the appellant lived with his mother, K’s paternal grandmother. The offending occurred on various occasions when K and her siblings visited her grandmother and the appellant.
The offending
The complainant was interviewed by police on two occasions: 29 July 2017 and 9 April 2017. The prosecution tendered both interviews at trial and they were admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (SA).[1] The prosecution led no further evidence from K but she was cross-examined by defence counsel.
[1] Exhibit P1; Exhibit MFIP1A and Exhibit P2; Exhibit MFIP2A.
In the first interview, K said the first occasion of touching occurred when she was “quite young”[2], maybe around eight or nine, as she was “pretty sure it was before or just when [her] sister was born”[3]. She said the appellant told her to sit down on his bed and watch a movie. The appellant put his hands in her pants and told her to stay there which she did as she didn’t know what else to do. She said he put his finger “right in the middle”[4] of her vagina and described that it “hurt”[5] and was “pretty uncomfortable”[6]. K said the appellant pulled down his pants and exposed his penis.[7] K stated that she bit him and had to use all her strength to get away.[8]
[2] Exhibit MFIP1A line 110.
[3] Exhibit MFIP1A lines 130 and 132.
[4] Exhibit MFIP1A line 136.
[5] Exhibit MFIP1A line 144.
[6] Exhibit MFIP1A line 142.
[7] Exhibit MFIP1A lines 120, 146 and 148.
[8] Exhibit MFIP1A line 154.
K said that the touching occurred on numerous occasions. She said the appellant “pulled his pants down more than three times” and on one occasion forced her to take her pants off.[9] There were also times when her grandmother walked into the room but they had a blanket over them so she didn’t see the touching.[10]
[9] Exhibit MFIP1A line 162.
[10] Exhibit MFIP1A lines 166-170.
In the first interview, K also described the last occasion when touching occurred. She stated that she had been in the loungeroom when the appellant asked her into his room to watch television. He then put his hands inside her pants. K stated that he “touched the area”, meaning her vagina, “right in the middle”. She said that she slapped him and told him to “get off” but he didn’t listen. At one point, K’s grandmother walked in, causing the appellant to stop momentarily, before resuming the touching after the grandmother left. K said she then hurt him and threatened to tell someone, at which point the appellant stopped and K left the room, returning to watch Foxtel with her sister.[11]
[11] Exhibit MFIP1A lines 41-108.
Complaint evidence
In the interviews, K referred to the complaints made to her mother and then to her grandmother. In her first interview, she said that on an occasion when she and her mother were watching a television program that dealt with issues of sexual abuse, she told her mother the reason she doesn’t like the appellant is “because he does it to me” and “he’s touching me in places and it felt really uncomfortable cos I don’t, it hurt”[12].
[12] Exhibit MFIP1A line 311.
K’s mother gave evidence at trial that she had been watching ‘Thirteen Reasons Why’ on television when K came into the loungeroom. K seemed to know that the show had sexual abuse references in it. K’s mother said K then told her that the appellant had been touching her on her vagina.[13] K’s mother gave evidence that K told her she thought the touching had happened “about 15 times or more” and that it started before her younger sister was born as she can’t remember her being there.[14]
[13] T58-59.
[14] T61.
In her second interview, K said she told her grandmother that the appellant “touched me quite a lot of times”[15]. K said the appellant touched her “in the area”[16] which meant her vagina. K said she told her grandmother that the touching occurred “in his room… every single time”[17]. The grandmother gave a statement to police. Defence counsel cross-examined K on information contained in that statement. Following the cross-examination of K, the prosecution decided not to call the grandmother to give evidence.
[15] Exhibit MFIP2A line 153.
[16] Exhibit MFIP2A line 167.
[17] Exhibit MFIP2A lines 180 and 182.
Ground 3
It is convenient to deal with this ground first.
The appellant contended that the jury should have been directed that they needed to assess the degree of consistency between the complaint evidence and K’s evidence overall and the failure by the primary judge to do so has given rise to a miscarriage of justice.
Complaint evidence is governed by s 34M of the Evidence Act 1929 (SA) (‘the Act’) which relevantly provides:
34M—Evidence relating to complaint in sexual cases
(1)…
(2)…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
· when the complaint was made and to whom;
· the content of the complaint;
· how the complaint was solicited;
· why the complaint was made to a particular person at a particular time;
· why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)…
(Emphasis added)
Section 34M(4)(a)(ii) of the Act requires a judge to direct the jury on the degree of consistency of conduct of the alleged victim. Mr Mead SC, counsel for the appellant, correctly noted that the primary judge, in his direction, did not use the precise words contained in the section; he did not use the expression “degree of”. Mr Mead SC, contended that the absence of the words “degree of” in the primary judge’s directions is significant. What is required, he submitted, is that the jury are made aware that they are to engage in an evaluative process. That is, it’s not just a matter of demonstrating consistency, the direction must indicate that there may be degrees of consistency in the sense that some complaints might be very consistent, others less so.
Mr Mead SC accepted that s 34M(5) of the Act makes plain that a particular form of words is not required when directing the jury on matters set out in s 34M(4) of the Act. However, Mr Mead SC contended that the direction to the jury had to indicate the evaluative process.
To support his argument, Mr Mead SC drew attention to the legislative amendment to s 34M of the Act which added the phrase “degree of” to the wording of s 34M(4)(a)(ii) of the Act. This, he submitted, indicated that Parliament intended the direction on complaint evidence to emphasise the need for the jury to undertake an evaluative process.
It is necessary to consider the appellant’s submissions in the context of what the primary judge actually said.
In summing up to the jury, the primary judge said the following in relation to the complaint evidence:
[44]It is important, ladies and gentlemen, that you understand how you may and may not use that evidence of [K’s] complaints to her mother and grandmother. The evidence of those complaints is before you for a number of reasons.
[45]First, the evidence is before you to inform you how [K’s] allegation first came to light. It gives you a more complete picture of [K’s] account of what she says happened between her and the accused.
[46]Secondly, the evidence of what [K] said when she complained to her mother and grandmother is before you so that you may judge whether [K’s] making her complaints demonstrates consistency of conduct on [K’s] part. Do the circumstances of her complaining to her mother and grandmother appear to you to be consistent with the occurrence of the sexual conduct which she says occurred between her and the accused?
[47]Thirdly, the evidence of [K’s] initial complaint to her mother and her brief elaboration of it shortly afterwards to her grandmother is not before you to demonstrate the truth of what [K] said to them. You must have regard to what you heard in [K’s] interviews with the police and her evidence in court for that purpose but the evidence of what [K] said to her mother and her grandmother is before you for the purpose I have just mentioned; namely, to demonstrate consistency of conduct on [K’s] part.
[48]It will, of course, be for you to determine the significance, if any, of the evidence you have heard about [K’s] complaints.
[49]Ladies and gentlemen, there may be many reasons why [K] delayed in making a complaint to anybody but you must bear in mind that her delay in making her complaint does not necessarily mean that [K] has made false allegations. We do not know why she chose to complain at the time she did although, as I reminded you, her mother’s use of the word ‘touch’ in the context of the television program seems to have triggered the complaint but that, ladies and gentlemen, is a matter for you.
(Emphasis added)
It is correct that the primary judge did not use the phrase “degree of” when dealing with the question of consistency.
Further, Mr Mead SC contended that the use of the word “demonstrate” in the absence of the words “degree of” in the primary judge’s directions was “close” to a judicial direction that the complaint evidence does demonstrate consistency. Such a direction, he submitted, would be impermissible.
Mr Mead SC submitted that the complaint direction itself, namely the instruction that the evidence is led not for the truth of its contents, is conceptually difficult for a jury to understand. He submitted that any direction that does not specify that assessing complaint evidence is an evaluative process must be examined against the suggested difficulties with the general direction.
Finally, Mr Mead SC submitted that the deficiency in the directions about the complaint evidence was exacerbated by the state of the evidence because of the late decision not to call the grandmother of K to give evidence. Mr Mead SC accepted at the appeal hearing, that the grandmother was available to be called by the appellant yet he elected not to. The failure to call the grandmother cannot, in my view, affect the complaint directions.
Mr Press SC, for the respondent, submitted that in 2016 s 34M of the Act was amended following the decision of this Court in R v H, T.[18] Kourakis J, as his Honour then was, construed s 34M of the Act as follows:[19]
It is convenient now to deal with the supposed difficulty with the direction that the complaint is admitted as evidence of the consistency of the complainant’s conduct. It is contended that a complaint made decades after an alleged offence cannot in any material sense be consistent conduct. In my view, that difficulty dissolves once it is understood that the use of the complaint referred to in the direction described in s 34M(4)(a)(ii) is “as evidence of the [degree of] consistency of conduct of the alleged victim”. No violence is done to the meaning of the phrase by inserting the words in square brackets. Plainly, the degree of consistency will vary from case to case. There is no one measure of consistency. To read in the words “degree of” is also consistent with the final direction which the judge must give the jury that it is for the jury to determine the significance if any of the evidence.
The construction I propose requires a direction to the jury that the making of a complaint in itself demonstrates some degree of consistency, even though that degree may be minimal. In my view for the reasons that I have given, that is Parliament’s intention and the ineluctable result of the language it has used. Moreover it is my view that a complaint, however late, is consistent with the allegation of an assault it makes. The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak, of its occurrence. That is perhaps even more obvious when the recognition of the psychological and social factors to which I have earlier referred is taken into account. In any event, it is not open, given the terms of s 34M(2) of the Act, to ever regard delay in itself as being inconsistent.
[18] (2010) 108 SASR 86.
[19] R v H, T (2010) 108 SASR 86 at [105]-[106].
The amendments to the legislation adopted the view of Kourakis J and addressed the need to clarify “that initial complaint evidence can be used to demonstrate consistency of conduct in any case, even where the complaint is made many years later”[20]. Mr Press SC submitted that Parliament’s intention, when adding the words “degree of”, was to eliminate any uncertainty over the fact that no matter how delayed a complaint is, it can still show consistency. Parliament was not concerned, as Mr Mead SC had suggested, that juries misunderstood that it was open to them to evaluate the degree of consistency between complaint evidence and the evidence as a whole.
[20] South Australia, Parliamentary debates, House of Assembly, 6 May 2015, 1040 (John Rau, Attorney-General).
Mr Press SC submitted that when the summing up is looked at in its entirety the jury would have understood that what was involved, when assessing complaint evidence, was an evaluative process. The absence of the phrase “degree of” from the primary judge’s summing up must be read in the context of his other directions. The primary judge, at the outset of his summing up, told the jury that “the facts and the way they are interpreted are your responsibility.”[21] The jury were informed that an evaluation of all the facts was a task for them, and them alone. The primary judge gave the specific direction that it was for the jury to “determine the significance, if any, of the evidence [they] have heard about [K’s] complaints.”[22] Despite the absence of the expression “degree of”, the primary judge’s specific direction that it was the task of the jury to determine the significance, if any, of the complaint evidence clearly shows that an evaluative task is required.
[21] Summing up at [1].
[22] Summing up at [48].
Discussion
Section 34M(5) of the Act states that it is not necessary that a particular form of words be used in giving the direction. The directions in relation to the use to be made of the complaint evidence must be looked at in the context of the entire summing up. The direction should convey to the jury that it is their task to evaluate the evidence by comparing the complaint evidence with the conduct alleged by the complainant. In my view, the primary judge’s directions achieve that aim.
The primary judge, directed the jury that “the facts and the way they are interpreted are your responsibility”[23] and that an evaluation of all the facts was a task for them, and them alone. The primary judge gave the specific direction that it was for the jury to “determine the significance, if any, of the evidence [they] have heard about [K’s] complaints.”[24] Further the primary judge directed the jury that it was for them to judge “whether [K’s] making her complaints demonstrates consistency of conduct on [K’s] part.”[25] The use of the conjunction “whether”[26] is also suggestive of an evaluative process.
[23] Summing up at [1].
[24] Summing up at [48].
[25] Summing up at [46].
[26] A potential synonym would be “if”.
I am satisfied that when the directions are looked at in the context of the entire summing up, despite the absence of the expression “degree of”, the jury would have understood that what was involved, when assessing complaint evidence, was an evaluative task.
The jury were explicitly informed both by counsel and then by the primary judge that they could not use the complaint evidence as proof of the truth of the allegations so it cannot reasonably be said that they would have done so. I reject Mr Mead SC’s submission that this direction is so difficult for a jury to understand that it in some, but undefined, way makes it harder for the jury to understand other directions.
I do not accept that there was a risk that the jury would have reasoned improperly due to the primary judge’s directions.
I am satisfied that the jury would have understood how they could use the complaint evidence. I am satisfied that the jury would have understood there could be varying degrees of consistency between complaint evidence and the overall evidence and that it was for them to determine the degree of consistency in this case. In my view, the direction given was appropriate.
For the above reasons, I would dismiss Ground 3 of the appeal.
Ground 1
Counsel for the appellant abandoned Ground 1 at the permission stage but now seeks permission to appeal on this ground. The appellant submitted that the primary judge erred in failing to give a direction to the jury pursuant to s 34CB of the Act about the forensic disadvantage caused to the applicant by the delay in the complaint.
The offending occurred between about 1 October 2011 and 31 October 2016. The offending was reported to police in July 2017 and the trial commenced on 17 June 2019. Consequently, a period of approximately seven years and eight months had elapsed between the commencement of the offending and the trial. The delay between the conclusion of the offending and the trial commencing was approximately two years and seven months.
Prior to his closing address, defence counsel submitted that the primary judge should give a forensic disadvantage direction during his summing up. During his closing address, defence counsel emphasised the forensic disadvantage caused to the appellant because of the lapse of time between the offending and the trial commencing.[27] After the primary judge finished his summing up and the jury had retired, defence counsel again requested a direction be given to the jury relating to the forensic disadvantage. The primary judge said he had considered the matter but had decided not to give any direction.[28]
[27] T105–109.
[28] Summing up at 12.
Section 34CB of the Act provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)…
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
Doyle CJ, in the Full Court decision of R v Cassebohm,[29] outlined the obligation created by s 34CB(2) of the Act. His Honour said:[30]
The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”.
[29] (2011) 109 SASR 465.
[30] R v Cassebohm (2011) 109 SASR 465 at 474 [29].
If a judge is satisfied that there has been a significant forensic disadvantage suffered due to the passage of time, the judge must then give a direction accordingly.[31] In cases where no direction as to forensic disadvantage has been given, such as the current one, the question to be answered on appeal is “whether the Judge should have formed the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant”[32].
[31] R v Cassebohm (2011) 109 SASR 465 at 475 [31] per Doyle CJ.
[32] R v Parry [2017] SASCFC 66 at [121].
Mr Mead SC submitted that the decision of the primary judge not to direct the jury on the forensic disadvantage due to the delay was an error and has led to a miscarriage of justice. At trial, in support of his application for the direction, defence counsel referred to the fact that bedsheets could have been seized for DNA analysis as well as testing of the accused for DNA. At the hearing of the appeal, Mr Mead SC did not press this point. Given the offending allegedly occurred in the context of day to day family life where K regularly stayed over at her grandmother’s house, any DNA would be equivocal and the presence or absence of her DNA would be meaningless.
Mr Mead SC, however, emphasised the fact that the delay had impacted on the possibility of there being eyewitness testimony to support or contradict the complainant’s version of events.
Mr Mead SC referred to Crampton v The Queen[33] where Gaudron, Gummow and Callinan JJ stated that:[34]
An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question.
[33] (2000) 206 CLR 161.
[34] Crampton v The Queen (2000) 206 CLR 161 at 181 [45].
Mr Mead SC submitted that these offences allegedly occurred in the context of day to day family life. As Kourakis CJ pointed out in R v W, PK,[35] “recollection of detail and of particular occasions will necessarily be difficult in those circumstances”[36]. Kourakis CJ also observed that “a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection”[37]. I note that the time period between the offending and the trial in R v W, PK[38] was approximately 40 years; the period of delay in Crampton v The Queen[39] was approximately 20 years.
[35] [2016] SASCFC 3.
[36] R v W, PK [2016] SASCFC 3 at [41].
[37] R v W, PK [2016] SASCFC 3 at [41].
[38] [2016] SASCFC 3.
[39] (2000) 206 CLR 161.
Mr Mead SC submitted that the offending allegedly occurred in the context of routine family life, where events such as K watching a movie in the appellant’s room, or K’s grandmother walking into the appellant’s room on a particular day, might be unremarkable. He contended that the passage of time, combined with the familial situation in which the offending allegedly occurred, would have caused the memories of potential eyewitnesses, namely K’s grandmother, to decay. Mr Mead SC submitted that in such situations where the offending occurs within a familial situation and it is word against word, there is a disadvantage caused by a significant lapse in time when it impacts on the ability of the accused to properly refute the allegations by advancing evidence to the contrary.
Consequently, the primary judge needed to direct the jury as to the forensic disadvantage caused by the lapse in time and the failure to do so led to a miscarriage of justice.
Mr Press SC submitted that the primary judge was correct to assess any forensic disadvantage as not significant and therefore s 34CB of the Act was not engaged.
Mr Press SC submitted that this court had to identify what disadvantage the appellant suffered. As Doyle CJ stated in R v Cassebohm,[40] it is only if the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time that the judge must give the jury an appropriate direction.[41] Doyle CJ observed:[42]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.
…
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
[40] (2011) 109 SASR 465.
[41] R v Parry (2011) 109 SASR 465 at 475 [31].
[42] R v Cassebohm (2011) 109 SASR 465 at 474-475.
Mr Press SC submitted that there was only a small group of eyewitnesses who could have been called to give evidence about what they did or did not see in the grandmother’s house. The grandmother was the main eyewitness that could have been called. She was available to be called but defence counsel chose not to call her. Mr Press SC submitted that, when a witness is available to be called and a decision is made not to call them, the practical result is that there is no evidence one way or the other as to what they have seen or not seen. In those circumstances, a court should not have to give a direction that, because of the passage of time, the appellant has been disadvantaged. There may be situations where the passage of time has caused a disadvantage and a direction would be appropriate; for example, if the grandmother had passed away and was unavailable to be called or if there was direct evidence of a forensic disadvantage in the sense that she had been called to give evidence and stated that it was too long ago for her to be able to remember properly. The disadvantages, as they were, did not warrant a direction pursuant to s 34CB of the Act and it was therefore open to the primary judge to determine that a direction was not required to avoid a miscarriage of justice.
Discussion
I have considered the question of whether the Judge should have formed the opinion that the period that elapsed between the alleged offending and the trial, in addition to the issues at trial, resulted in a significant forensic disadvantage to the defendant. I accept that evidence that may have been relevant to the allegations would have related to mundane family activities. However, the Court must consider what was in issue between the prosecution and defence. There was no dispute that the complainant attended the appellant’s house, that he was at times alone with K, and that there was opportunity for the offending to have occurred. The witness who may have given relevant evidence was the grandmother. As discussed, she was available to be called but defence counsel made a forensic decision not to call her.
Considering all of the circumstances, in my view the primary judge was correct in concluding that there was no significant forensic disadvantage. Section 34CB of the Act was therefore not engaged.
Even if the primary judge was wrong and should have given a direction on forensic disadvantage, the absence of the direction in this case would not have resulted in a real risk of a miscarriage of justice; that is, I would apply the proviso.[43]
[43] Criminal Procedure Act 1921 (SA) s 158(2); previously s 353(1) of the Criminal Law (Consolidation) Act 1935 (SA).
In Lane v The Queen,[44] the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) summarised the principles relating to the nature and effect of the error at trial in the context of the proviso:[45]
In Baiada Poultry Pty Ltd v The Queen, French CJ, Gummow, Hayne and Crennan JJ said that while, as the Court held in Weiss v The Queen, the proviso cannot be applied "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty", this negative proposition "states a necessary but not sufficient condition for applying the proviso." The course of authority establishes that an error at trial may be such as to preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. Put in a verbal formulation that amounts to the same assessment, some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable.
A misdirection by a trial judge always involves an error of law, but "sometimes [it] will prevent the application of the proviso; and sometimes it will not." It is necessary for the appellate court to consider the nature and effect of the error in every case.
(Footnotes omitted)
[44] (2018) 357 ALR 1; [2018] HCA 28.
[45] Lane v The Queen [2018] HCA 28 at [38]-[39].
When discussing the question of the application of the proviso, Kiefel CJ, Bell, Keane and Gordon JJ in Kalbasi v State of Western Australia[46] stated:[47]
A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the "drugs" were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.
(Footnotes omitted)
[46] (2018) 264 CLR 62; [2018] HCA 7.
[47] Kalbasi v State of Western Australia [2018] HCA 7 at [57]. See also R v Reeves [2013] HCA 57 at [51]-[52].
It is necessary for an appellate court to consider the nature and the effect of the error in every case. The court must assess the context in which the particular misdirection occurred when considering the question of whether there is real risk of a miscarriage of justice.
The closing addresses of counsel, the summing up and the verdict all occurred on the same day. Defence counsel, in closing, went through the forensic disadvantages the jury should consider. In his final point on this topic, defence counsel said:[48]
So you may consider that the delay between the timing of the alleged events and the complaint in April 2017 means that [the applicant] has suffered what we call significant forensic disadvantage. As I say again, that's not the fault of the police or the prosecution but I do ask you to take it into account when deciding whether the prosecution has proved any of these charges beyond reasonable doubt.
[48] T108.36-109.5.
The summing up immediately followed defence counsel’s address and the primary judge reminded the jury that they needed to have regard to the points put to them by counsel.[49] Further, he emphasised that they “must scrutinise [K’s] evidence with special care”[50] and reminded them of the onus and burden of proof. The closing addresses would have been fresh in the jurors’ minds when they deliberated and they would have been aware of the potential disadvantages as put to them by defence counsel. The jury would have been aware that the forensic disadvantage was a factor for them to consider and determine. Consequently, the absence of such a direction by the primary judge would not have caused a miscarriage of justice.
[49] Summing up at [2].
[50] Summing up at [9].
I would allow permission to appeal on Ground 1 but I would dismiss the appeal.
Conclusion
I would dismiss the appeal.
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9
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