DJ v The Queen

The appeal concerned a conviction for offences against a child, specifically maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, who was between 18 and 23 years of age during the period of offending, appealed his conviction. The complainant, K, was between five years, 11 months and 10 years, 11 months old during the offending. The offending occurred on various occasions when K visited her paternal grandmother, with whom the appellant resided.

The central legal issue before the court was whether the primary judge’s directions to the jury regarding complaint evidence, pursuant to section 34M of the *Evidence Act 1929* (SA), were adequate. Specifically, the appellant argued that the judge failed to properly direct the jury on the "degree of consistency of conduct" of the alleged victim, as required by section 34M(4)(a)(ii) of the Act. The appellant contended that the absence of the precise phrase "degree of" meant the jury was not adequately instructed to engage in an evaluative process regarding the consistency of the complaints.

The court considered the wording of section 34M(4)(a)(ii) and acknowledged that while a particular form of words is not strictly required by section 34M(5), the legislative amendment to include "degree of" indicated Parliament's intention for juries to undertake an evaluative process. However, the court examined the primary judge's actual directions, which informed the jury that the complaint evidence was admitted to demonstrate consistency of conduct and asked them to judge whether the circumstances of the complaint appeared consistent with the alleged conduct. The court found that while the precise phrase "degree of" was not used, the judge's directions conveyed the necessary evaluative aspect, allowing the jury to determine the significance of the evidence in the circumstances.

The court determined that permission to appeal should be granted on the first ground, but ultimately dismissed the appeal.