Fragos v The King

[2023] SASCA 6

Supreme Court of South Australia

(Court of Appeal: Criminal)

FRAGOS v THE KING

[2023] SASCA 6

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)

9 February 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

The appellant was found guilty by jury of maintaining an unlawful sexual relationship with his stepdaughter. The prosecution case at trial was that, when the complainant was aged between eight and 15 years' old, the appellant regularly sexually abused her, typically at their then family home while the complainant's mother, Mrs J, was at work or asleep.

The appellant appeals his conviction on six grounds, including, inter alia, that the trial Judge's directions were inadequate, that the trial Judge erred in admitting evidence of discreditable conduct and initial complaint and that the verdict was unreasonable.

Held, per the Court, granting permission to appeal and dismissing the appeal:

1.   The trial Judge appropriately directed the jury as to attempted unlawful sexual intercourse (particulars (f) and (h) on the Information). The question of merger does not arise on the facts of this case.

2. Evidence that the appellant licked the armpits of the complainant while on a family trip to Cuba was properly admitted as discreditable conduct evidence pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA).

3. The complainant's evidence of disclosing to a friend, M, that the appellant "touches [her]" was correctly admitted as initial complaint evidence pursuant to s 34M of the Act. The trial Judge's directions in relation to this evidence were appropriate.

4.   The trial Judge's directions in relation to the requisite burden of proof were appropriate.

5.   It was reasonably open to the jury on the complainant's evidence to find the charge proved beyond reasonable doubt.

Evidence Act 1929 (SA) s 34P(2); s 34M, referred to.
Boyle (a pseudonym) v The Queen [2022] SASCA 50; De Silva v The Queen (2019) 268 CLR 57; DES v The Queen [2020] SASCFC 32; Liberato v The Queen (1985) 159 CLR 507; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Murray v The Queen (2002) 211 CLR 193; Pell v The Queen [2020] HCA 12; R v Anderson [2017] SASCFC 125; R v Garner; R v Webb [2021] SASCA 68; R v Landmeter [2015] SASCFC 3; R v Lavery (2013) 116 SASR 242; R v Rippey; Rippey v The King [2022] SASCA 141; R v Usher [2014] SASCFC 32; Weragoda v The Queen [2021] SASCA 123 , considered.

FRAGOS v THE KING
[2023] SASCA 6

Court of Appeal – Criminal:    Livesey P, Lovell and Doyle JJA

1. THE COURT:  On 24 September 2021, the appellant was found guilty by jury of one count of maintaining an unlawful sexual relationship with a child. The complainant was the appellant’s stepdaughter. The prosecution alleged that the appellant regularly sexually abused the complainant from when she was about eight years’ old until she turned 15. At trial, the appellant gave evidence denying the sexual abuse.

2. The appellant appeals his conviction on six grounds, including, inter alia, that the trial Judge erred in directing the jury that the complainant’s evidence was capable of proving the attempted unlawful sexual acts particularised and in admitting evidence of discreditable conduct and initial complaint, that the trial Judge’s directions as to the requisite burden of proof were inadequate and that the verdict was unreasonable or could not have been supported by the evidence.

   Background

3. The complainant is the appellant’s stepdaughter. She was born in November 2003 and was aged between eight and 15 during the period of the alleged offending. The offending was alleged to have taken place at the then family home and on a few occasions, overseas. The house was a multi-level property. The complainant had a bedroom and bathroom on the downstairs level. There was also an office downstairs with a bed in it. The master bedroom was upstairs. The complainant alleged that sexual activity occurred in the downstairs bathroom, her bedroom, the office and the master bedroom.

4. The sexual abuse commenced after the complainant, her mother and the appellant returned from a trip to Cuba in June 2012. However, the complainant gave evidence of an incident that occurred while on the Cuba trip, whereby the appellant licked her armpits whilst tucking her into bed. Subsequent to the Cuba trip, the complainant recalled that the appellant licked her vagina as they were having a bath at their home. The complainant was eight or nine years’ old. From that point, the sexual abuse escalated into what the complainant referred to in evidence as regular “itching”; a term used by her and the appellant to denote the appellant “scratching [her] vagina”, the “scratching” involved “him licking [her] vagina”. The appellant would ask; “Are you itchy”, or the complainant would say; “I’m itchy” and the appellant would “proceed to lick [the complainant’s] vagina”.

5. The appellant then showed her how to masturbate him and perform oral sex on him. The appellant and the complainant would then “itch” each other on a regular basis, that is, they would perform oral sex on each other. The complainant stated that the sexual activity would occur before her mother, Mrs J, came home from work, when Mrs J was out on weekends, and when the complainant’s mother was home but asleep. There were also uncharged acts of sexual abuse which occurred on a subsequent overseas trip to Cuba and the USA in 2018.

6. The appellant introduced the complainant to pornography and it became a part of the sexual abuse: the complainant would watch pornography while the appellant performed cunnilingus on her and the appellant would watch pornography while the complainant performed fellatio on him. The appellant attempted to insert his finger into the complainant’s vagina on multiple occasions but stopped each time as the complainant protested that it hurt and asked him to stop. Similarly, the appellant tried to insert his penis into her vagina but stopped each time the complainant protested. There was an occasion where the appellant inserted his finger into her anus and she reciprocated by inserting her finger into his anus.

7. The alleged sexual acts were particularised as eight offences falling within three types of sexual offending, namely unlawful sexual intercourse (particulars (a), (b) and (e)), attempted unlawful sexual intercourse (particulars (f) and (h)) and gross indecency (particulars (c), (d) and (g)). These eight occasions of offending were particularised in the context of the complainant’s evidence that the offending occurred almost every week, usually multiple times each week, and continued until early 2019 when she was 15 years’ old. It was the prosecution case that the appellant would opportunistically engage in sexual activities with the complainant when he was home alone with her after school before her mother returned home from work, as well as on the other occasions mentioned in the complainant’s evidence.

8. The complainant lived at the family home until around April or May 2019 when she moved out of home to live with her biological father. By that point, the relationship between the complainant and her mother had become strained and volatile.

9. Sometime after she moved into her father’s house in 2019, the complainant told her friend M words to the effect of “[the appellant] like touches me”.

10. The appellant denied the allegations. At trial, defence counsel submitted that the complainant had shown, by her history, a capacity and willingness to engage in manipulative and deceptive acts, including forging the signatures of her teachers and mother when it suited her. The appellant submitted that the complainant’s evidence that oral sex occurred “every other day”; namely, when she returned home from school, for a period of some seven years, was not just implausible, but fundamentally inconsistent with the preponderance of evidence. The appellant gave evidence that he worked as a vineyard manager and a relief teacher throughout much of the charged period and would return home from work around 5.30pm to 6.00pm in winter and 6.00pm to 7.00pm or later in summer, by which time his wife would typically be home.

11. The prosecution called the complainant’s mother (and the appellant’s wife), Mrs J, who gave evidence favourable to the appellant. As she was a prosecution witness, she was put forward as a witness of truth.

    Grounds of Appeal

12. The appellant appeals his conviction on six grounds, which can be summarised as follows:

    1.The learned trial Judge erred in directing the jury that the complainant’s evidence concerning alleged digital and penile vaginal penetration was capable of proving the attempted unlawful sexual acts particularised in paragraphs (f) and (h) of the Information.

    2.The learned trial Judge erred in admitting evidence that the appellant had licked the armpits of the complainant as discreditable conduct evidence pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (“the Act”).

    3.The learned trial Judge erred in admitting evidence that the complainant told a friend that the appellant “touches me” as evidence of initial complaint pursuant to s 34M of the Act.

    4.Further or in the alternative to Ground 3, the learned trial Judge erred in failing to direct the jury that the evidence of “initial complaint” could only be used for a permissible purpose within the meaning of s 34M(4) of the Act, in relation to the unlawful sexual acts alleged as particulars (e) and (f) on the Information.

    5.The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.

    6.The learned trial Judge erred in failing to adequately direct the jury as to the burden of proof in that:

    a.The directions failed to make clear to the jury that they could not reject the appellant’s evidence, Ms J’s evidence or the defence case generally unless satisfied that it was not reasonably possibly true.

    b.The directions invited the jury to approach their assessment of the conflicting evidence of the complainant and Ms J by identifying whose evidence they preferred.

    Ground 1

13. The appellant submitted that the trial Judge erred in directing the jury that the complainant’s evidence as to digital and penile vaginal penetration was capable of satisfying particulars (f) and (h) of the charge. While those particulars alleged attempted unlawful sexual intercourse, it was accepted by both parties that the complainant’s evidence was to some degree ambiguous and potentially consistent with completed acts of sexual intercourse. The appellant submitted that in those circumstances, particulars (f) and (h) ought to have been withdrawn from the jury.

14. The complainant’s evidence on the topic is as follows:

    ·The appellant “tried to finger me multiple times … So he would stick his finger inside my vagina … Because it hurt I would always tell him to stop and he would stop.”

    ·In cross examination, the complainant was asked if “[the appellant] actually put [his finger] inside you”. Her response was “I’m not sure” and when asked what she meant by that, she explained: “Well, I knew that he tried to but I didn’t like it so I would tell him to stop”.

    ·The appellant would “try to stick his like penis in my vagina but I’d always [sic] like ‘Stop’ as he’s doing it and tell him to stop so he’d stop. And he’d wear a condom during it … he would just try to have sex with me and he - and then every time he tried to stick it in it would - I would say ‘Stop, stop, stop’ and he would take it out.”

    ·In cross examination, the complainant said the appellant’s penis did not go in her vagina at all but that he “removed it from my vagina area” and “… he wouldn’t insert it fully in, it would just be he’d remove it from the entrance of where my vagina was”.

15. Before summing up, the trial Judge raised the issue with counsel. The prosecutor accepted that the complainant’s evidence in relation to particulars (f) and (h) at times suggested “more than an attempt”. However, it was agreed by counsel that the trial Judge should sum up only on the issue of attempt.

16. The trial Judge proceeded to sum up on the elements of attempted unlawful sexual intercourse and the evidence relating to particulars (f) and (h).

17. The appellant submitted that the trial Judge ought to have found that there was no case to answer on particulars (f) and (h) as the evidence was incapable of proving attempt. The appellant submitted that an attempt to commit an offence is not a necessary ingredient of the commission of the cognate completed offence.

18. Section 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) distinguishes an “attempt” as a separate offence. The ingredients of an attempt to commit unlawful sexual intercourse are not the same as the ingredients of the offence of unlawful sexual intercourse. That is, an attempt requires the intention to commit an act which, if successful, would constitute a recognised completed offence. The appellant submitted that it is inherent in the common law definition of “attempt” that the conduct of the accused is unsuccessful in achieving satisfaction of the offence attempted.

19. The appellant submitted that the prosecution alleged, through particulars (f) and (h), that the appellant intended to penetrate the complainant’s vagina with his finger and penis respectively. Further, the steps he took were more than merely preparatory to attaining that objective, but they were unsuccessful. If the steps taken by the appellant were successful to achieve penetration, the appellant made no “attempt” to commit an unlawful act, but he had actually committed a different unlawful act, that of unlawful sexual intercourse. In those circumstances, the appellant submitted that the “attempt” had merged with the completed offence and therefore the appellant could not be convicted of “attempted” unlawful sexual intercourse. If the evidence did not sustain particulars (f) and (h), it was not open to the jury to find that the appellant simply “went further”.

20. The respondent accepted that there was some ambiguity in the complainant’s evidence. This was accepted at trial and indeed defence counsel submitted that it should be left to the jury as attempt, given that is the case the prosecutor had put to the appellant in cross examination. There was no application for the particulars to be withdrawn and the case proceeded on the basis that the prosecution had to prove that there was an attempt rather than a complete offence. That is how the trial Judge directed the jury. The respondent submitted that the appellant did not complain that the trial Judge’s directions on this issue were incorrect but rather that the issue ought not to have been left to the jury at all.

21. As the respondent submitted, the question of merger does not arise on the facts of the case. The trial Judge raised the ambiguity in the complainant’s evidence with counsel before commencing her summing up. Counsel for the appellant at trial submitted that the trial Judge should direct only on the question of attempt. Prosecuting counsel and the trial Judge agreed with that submission.

22. During the summing up, the trial Judge directed the jury on the definition of “sexual intercourse”, including that there would be an act of sexual intercourse “if there’s been any penetration of the vagina or the labia majora, however, if no penetration occurs then the offence of attempted unlawful sexual intercourse must be considered.”

23. The trial Judge then directed the jury on the question of attempt in the following terms:

    It is a crime to attempt to commit a criminal offence. A criminal attempt is committed if it is proved that the accused had, at all material times, the guilty intent to commit the specified crime and it is proved that at the same time he had that guilty intent, that is the intent to commit the particular crime, he did an act or acts which are sufficiently proximate or connected to the intended commission of the specified crime and not merely preparatory or in the lead-up.

    So to put that into context, to be guilty of attempted unlawful sexual intercourse the prosecution has to prove that an accused intended to have sexual intercourse with a person under the age of 17 and did an act that is sufficiently proximate to the act of sexual intercourse and not merely a preparatory step.

    So in this case, what the prosecution alleges is that the attempt to insert a finger or penis into the complainant’s vagina at a time when she was under the age of 17 was something that was done with the intention of performing the act of sexual intercourse and was sufficiently proximate to that so as to constitute an attempt.

24. The appellant did not criticise these orthodox directions.

25. The trial Judge returned to the topic of attempt when dealing with the evidence of the complainant. Having discussed the complainant’s evidence on this topic, the trial Judge directed:

    If you are satisfied beyond reasonable doubt that [the appellant] attempted to insert his finger or penis into [the complainant’s] vagina when she was under 17 and that when he performed that particular act he was intending to perform an act of sexual intercourse and that what he did was sufficiently proximate to that act of sexual intercourse, which is penile-vaginal sexual intercourse or digital penetration, then you would be satisfied that he committed the unlawful sexual act of an attempt to commit the offence of unlawful sexual intercourse.

26. Again, no criticism was made of the trial Judge’s directions which were consistent with what the appellant’s counsel at trial requested. The trial Judge at no stage suggested to the jury that the attempted offence would be proved if the jury were satisfied that penetration had in fact been achieved. Counsel at trial, understandably, made no application to have the issue withdrawn from the jury as there was evidence on which the jury could be satisfied that the offence of attempt had been committed.

27. The question of merger does not arise on the facts of this case. The trial Judge did not direct the jury that it was open to them to find that the appellant simply “went further” than an attempt and that therefore they could convict on that basis.

28. We would dismiss this ground.

    Ground 2

29. The complainant gave evidence that, during a family trip to Cuba when she was eight years’ old, the appellant was tucking her into bed when he pinned her arms down and started to lick her armpits. The complainant referred to this as the first “sexual encounter” although she had not called it this until she gave evidence.

30. The evidence, which the prosecution accepted fell within the definition of discreditable conduct, was admitted pursuant to s 34P(2)(a) of the Act. The trial Judge held that the evidence was admissible to show the appellant “testing the waters” and “becoming emboldened to embark on sexual offending because of the failure of protest or resistance”. The trial Judge also held that the evidence provided a temporal link to the commencement of the charged conduct.

31. The trial Judge’s directions to the jury were consistent with her reasons for admitting the evidence.

1. The appellant complains that the evidence lacked the probative value necessary for its admission having regard to the significant qualitative difference between the nature of the episode and the charged conduct. The appellant submitted that the evidence did not provide an explanation for the commencement of the alleged offending.

2. The appellant submitted that the admissibility of the armpit licking evidence needed to be considered in the context of the allegations of sexual abuse. The complainant’s evidence was that the first act of sexual abuse she could remember was the appellant licking her vagina whilst in the bath with her. After that, other acts of sexual abuse, such as oral sex and mutual masturbation, took place “every other day”. In those circumstances, the appellant submitted, evidence that he licked the complainant’s armpits once was not probative of the appellant investigating whether the complainant might not resist or complain about sexual activity of a different kind.

3. The alleged licking of the complainant’s armpits, the appellant submitted, was not closely linked in time with the onset of the alleged sexual abuse. The complainant alleged she was eight or nine years old at the time of the incident, and hence that it could have occurred between June 2012 and November 2013. The length of time between the incident and the onset of abuse could have been up to 18 months, making any link tenuous.

4. The appellant submitted that the allegation of licking the complainant’s armpits was highly prejudicial. He submitted that the conduct was “bizarre” but importantly unrelated to the particulars of the offending. The evidence tended to show that the appellant was the type of man who would engage in unusual and amoral behaviour rather than a person “testing the waters”.

5. The respondent submitted that while the sexual abuse evolved into acts of fellatio, digital penetration of the anus and attempted digital and penile penetration of the vagina, the first act of sexual abuse involved the appellant licking the complainant’s vagina. It was open to the jury to consider that the appellant was “testing the waters” to see how the complainant would react to him licking her body. Further, it was open to the jury to find that the appellant was emboldened by her lack of reaction to this intimate act and by her failure to say anything to anyone about the incident, thus giving him the confidence to lick her vagina in the bathtub knowing she was unlikely to resist or complain.

6. There was a temporal link, the respondent submitted, between the armpit licking and the commencement of the sexual abuse. The family returned from a trip to Cuba in June 2012. The evidence before the trial Judge, during the argument on the admissibility of the evidence, was that the first act of sexual abuse occurred when she was eight years old. The complainant’s evidence at trial was that the first act of sexual abuse occurred after they returned from Cuba and she was eight or nine years old.  The respondent accepted on appeal that the complainant’s evidence at trial, that she may have been nine years of age when the first act of sexual abuse occurred, potentially extended the outer limit of the time period between the armpit licking and the first act of sexual abuse to approximately 18 months. However, her evidence did not exclude the bathtub incident occurring within a few months of returning from Cuba.

7. Questions of admissibility are matters of law. It is open to this Court to confirm, or set aside as erroneous, a trial judge’s ruling on the admissibility of evidence.[1]

   [1]     R v Garner; R v Webb [2021] SASCA 68.

8. The approach to the question of admissibility of discreditable conduct evidence is well established.[2] The trial Judge was required to identify the relevance of the evidence and its permissible use. The admissibility of the armpit licking evidence turned on whether it possessed probative value that substantially outweighed its prejudicial effect and whether the identified permissible use of the evidence could be kept sufficiently distinct from ‘bad person’ reasoning.

   [2]     R v Garner; R v Webb [2021] SASCA 68 at [33].

9. The armpit licking evidence was evidence of unusual, if not perverted, behaviour by the appellant. It was, in our opinion, capable of supporting the prosecution suggestion that the appellant was “testing the waters”, or at least that the complainant’s lack of protest or resistance emboldened him to embark upon the alleged sexual abuse. It was sufficiently linked in nature and time to the acts alleged to be admissible for that purpose. It was also open to the jury, as the respondent submitted, to find that the act was temporally connected to the commencement of the alleged sexual abuse, at least in the sense that it fixed the time after which the sexual abuse commenced. There was a risk of prejudicial reasoning to the effect that the appellant was a person who had engaged in unusual or perverted conduct and was therefore more likely to have committed the alleged offending (‘bad person’ reasoning). However, with proper directions, the risk was limited and was, in our view, substantially outweighed by the probative value of the permissible use of the evidence outlined in the preceding paragraph.

10. The trial Judge directed the jury, correctly, on the permissible and impermissible uses of the evidence. This included a clear direction not to engage in the impermissible prejudicial reasoning mentioned in the preceding paragraph.

11. We would dismiss this ground of appeal.

    Grounds 3 and 4

12. The complainant gave evidence that she made a complaint about the appellant to her friend, ‘M’. The complainant thought she made the complaint in 2019 (Year 10). She could not remember exactly what she told M and when asked if she had a “sense” of what she told her, the complainant responded: “Probably – I just remember like along the lines of like – ‘He like touches me’. I don’t really remember how exactly I said it.” M did not give evidence as the trial Judge ruled that her evidence related to a different conversation and excluded it. No objection was taken at trial to the admissibility of the evidence as complaint evidence.

13. For evidence of complaint to be admitted it must disclose sexual abuse referable to a charge being tried. Whether evidence of an initial complaint is about the conduct the subject of the charges is a question of fact and degree.

14. In R v Usher,Kourakis CJ said:[3]

    Provided that the complaint is sufficiently general, it is not necessary for it to be admissible under s 34M(3) of the Evidence Act that the details of the complaint are entirely consistent with the offence charged. Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge. However, there must be an identity between the two before it can be received. As Duggan J observed in R v S, DD, where a general complaint of sexual abuse is led in evidence, the terms of the complaint must be capable of encompassing the conduct alleged in the particular count or counts:

    The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.

    (citations omitted)

    [3] [2014] SASCFC 32 at [50].

15. In R v Landmeter, Vanstone and Bampton JJ observed:[4]

    ... We reiterate the view expressed in R v A, GP (2012) 113 SASR 146 by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim.

    (emphasis added)

    [4] [2015] SASCFC 3 at [12].

16. These authorities, and several others, were recently reviewed in some detail by this Court in R v Rippey.[5] Thus, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to the conduct charged. In the context of the particular case, it must be evidence capable of demonstrating consistency of conduct and informing the jury of how the allegation first came to light.

    [5]     R v Rippey; Rippey v The King [2022] SASCA 141 at [113]–[117] (per Livesey P, Doyle JA, and Buss AJA).

17. We do not accept that the complainant’s evidence of her conversation with her friend M is too general to be admissible pursuant to s 34M of the Act. We reject the appellant’s submission that the description that the appellant “touches me” does not embrace the conduct the subject of the charge. In context, the allegation that her stepfather was ‘touching her’ was clearly referable to the alleged sexual abuse and was capable of demonstrating consistency of conduct. It also informed the jury of when the allegation first came to light.

18. The evidence was properly admitted.

19. The appellant submitted that, assuming the evidence was admissible as initial complaint, the trial Judge should have directed the jury that the evidence was only capable of demonstrating consistency of conduct in relation to those particulars involving ‘touching’ in the ordinary sense of the word. We reject that submission. There is no warrant in s 34M to limit the complaint evidence in such a manner. To the extent that there was any room for the jury to take the view that the terms in which the complaint was made did not correspond with some aspects of the charged offending, this was appropriately addressed through the trial Judge’s orthodox directions in relation to consistency. As required by the authorities,[6] those directions addressed the need for the jury to consider the degree of consistency of the complainant’s conduct both in making the complaint when, and in the circumstances that, one might expect, and the degree of consistency between the terms of the complaint and the complainant’s evidence of the offending.

    [6]     Recently summarised by this Court in Weragoda v The Queen [2021] SASCA 123 at [55]–[59] (per Doyle JA, David JA and Stanley AJA).

20. We would dismiss Grounds 3 and 4.

    Ground 6

21. During the appeal, the appellant was granted permission to add a further ground of appeal, namely:

    6. The learned trial judge erred in failing to adequately direct the jury as to the burden of proof in that:

    a)The directions failed to make clear to the jury that they could not reject the appellant’s evidence, Mrs Js evidence or the defence case generally unless satisfied that it was not reasonably possibly true.

    b)The directions invited the jury to approach their assessment of the conflicting evidence of the complainant and Mrs J by identifying whose evidence they preferred.

22. At trial, the appellant contended that, contrary to the complainant’s evidence, the assertion of oral sex “every other day” when the complainant returned home from school for a period of approximately seven years was implausible and fundamentally inconsistent with the preponderance of evidence. As discussed, the appellant gave evidence that he worked as a vineyard manager and a relief teacher throughout much of the charged period and would not return from work until 5.30pm-7.00pm, depending on the season, by which time his wife, Mrs J, would be home.

23. The evidence of his wife, Mrs J, in general terms, supported the appellant’s evidence. The appellant’s case, based on his evidence and that of Mrs J, was that the complainant spent much time in 2012 to 2015 in Out of School Hours Care (OSHC) and would be picked up by Mrs J on her way home from work around 6.00pm. The opportunity for offending after school was therefore limited. Some OSHC records tendered, although limited in scope, undermined Mrs J’s evidence on the frequency of after school care.

24. It is necessary to consider the trial Judge’s directions.

25. The trial Judge comprehensively summarised the evidence of the complainant, Mrs J and the appellant and no complaint is made about that aspect of the summing up.

26. On the topic of the task of assessing a witness’s evidence, the trial Judge gave the standard directions. She stated:

    In deciding what the facts are in this case, you have to consider the evidence given by the witnesses and, of course, the evidence of (the complainant) upon which the prosecution case depends. As you would appreciate, her evidence is essential to the prosecution case. That means that your assessment of her credibility and her reliability is crucial in your consideration of whether the prosecution has proved beyond reasonable doubt that (the appellant) is guilty.

    Generally speaking, the assessment of a witness is a twofold process. You, first, decide do I have an honest witness before me? Do I think they are telling me the truth. If you say 'Yes, I think they are being honest', then the next step is, is the witness reliable. You can have an honest witness who is unreliable or mistaken. An obvious example of that is, I will give you a bank robbery case where the witnesses only see the robber briefly and in very traumatic circumstances. The reliability of the witness's description of the offender might be in question, even though it is obvious to you that they are doing their best to tell you the truth.

    In determining the reliability of a witness's evidence on a particular topic, you can and may compare that witness's evidence with any other evidence that you consider to be objectively proved and reliable and upon which you are prepared to act. In assessing any witness, you can have regard to your own impressions of the witness, the way in which they gave their evidence and also, very importantly in the context of a criminal trial, how they stood up to the test of cross-examination because cross-examination is a test and you should bear in mind how a witness stood up to that test.

    You might ask yourselves questions like this: has a witness given a consistent account in his or her evidence before me, or has it been proved that he or she said something on an earlier occasion to someone else that I consider to be significantly inconsistent with what they told me in court. You might also ask does the witness's account seem to be inherently likely or inherently unlikely. Does it have what has been called the ring of truth'. When you think about those issues, as I said, you might compare the witness's evidence to other evidence in the case that you are prepared to rely upon.

    For example, in this case, if you thought Mrs J was a credible and reliable witness, and noting that she was called by the prosecution and is therefore put forward as a witness of truth, and you preferred her evidence regarding the sleeping arrangements in her mother's home in Cuba in 2012 and 2018, and also in relation to the sleeping arrangements in the hotel in Cuba in the 2018 trip, that may cause  you to have reservations about evidence of the armpit incident in 2012 or her evidence that it was she and she alone with her stepfather who stayed in the hotel.

    (emphasis added)

27. The trial Judge gave clear instructions that proof of the offence required proof beyond reasonable doubt of the elements of the offence. She stated:

    Proof beyond reasonable doubt is a doubt that you, as reasonable people, are prepared to entertain. it is the highest standard of proof that our law demands. What that means is it is not enough for the prosecution to show a suspicion of guilt, it is not enough to show that an accused is possibly guilty. It is not even enough to show that an accused is probably guilty. None of that is good enough. None of that is beyond reasonable doubt. If you find yourselves in a position where you do not know where the truth lies, then it follows that you have a reasonable doubt.

    (emphasis added)

28. The trial Judge also gave clear directions that the jury could not find the appellant guilty unless they rejected the appellant’s evidence and accepted the credibility and reliability of the complainant’s evidence beyond reasonable doubt. The trial Judge stated:

    The burden of proof: I emphasise again the prosecution alone carries the burden of proving the charge beyond reasonable doubt. An accused person does not have to prove anything and does not have to prove or provide an explanation or reasons for the prosecution allegations. The prosecution case depends entirely upon your acceptance of both the credibility and reliability of (the complainant) beyond reasonable doubt and the rejection of the defence case as it has been advanced through the cross-examination of witnesses and the evidence of (the appellant) and his two character witnesses.

    (emphasis added)

29. The trial Judge later stated:

    There is nothing surprising about the fact that there was only one witness. It does not mean that you cannot convict (the appellant) of the charge based on her evidence alone. You can, but it is only after scrutinising her evidence with great care, that you could convict him and only if the prosecution has satisfied you beyond a reasonable doubt that she is telling you the truth about the charge and she is reliable about her evidence on the charge and you have rejected the defence case. It is important that you understand that even if you were to reject (the appellant’s) evidence in its entirety, say you reject the lot as if it was never given as if he did not step into the witness box, that does not mean you find him guilty of the charge. it means you look at the prosecution case and you decide if you are satisfied beyond reasonable doubt on the evidence led by the prosecution. It is not a matter of choosing between the evidence of (the complainant) and the evidence of (the appellant) or deciding which account you prefer. The onus is always on the prosecution.

    (emphasis added)

30. The appellant submitted that the directions were clear that the rejection of the appellant’s case was a pre-requisite to a finding of guilt. The appellant submitted that the jury may have misunderstood the position to be that if they were not positively satisfied that the appellant and/or Mrs J were truthful witnesses, their evidence stood to be rejected. That is, the trial Judge failed to explain to the jury that the force of the appellant’s (and Mrs J’s) evidence was not spent if the jury did not “accept” it; and that it was only if the jury rejected any reasonable possibility that his evidence (and Mrs Js’) might be correct that they could put it to one side when answering the ultimate question of whether the charge had been proven beyond reasonable doubt.

31. The appellant relied on the observation of Brennan J in Liberato v The Queen (“Liberato”)[7] where his Honour emphasised the important distinction between a positive belief on the one hand and the existence of a reasonable doubt on the other. Brennan J stated:

    The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

    [7] (1985) 159 CLR 507 at 515.

32. Thus, the question for the jury was not whether they accepted or rejected the defence case in those absolute terms but, rather, whether the prosecution had negatived the pertinent aspects of the evidence of Mrs J and the appellant as not reasonably possibly true.

1. The appellant’s second argument under this ground was that while the trial Judge directed the jury that a resolution of the charge did not come down to making a choice between the evidence of the appellant and the complainant, no such direction was given with respect to Mrs J’s evidence. Indeed, as highlighted in the earlier directions, the trial Judge specifically directed the jury that if they thought Mrs J was a credible and reliable witness and preferred Mrs J’s evidence to the complainant’s on some topics, they might find her evidence undermined the complainant’s evidence. The appellant submitted that the trial Judge was required to tell the jury that the complainant’s evidence could not prevail over Mrs J’s evidence unless Mrs J’s evidence was not reasonably possibly true.

2. The respondent submitted that, given the factual circumstances of the case, neither suggested direction was required. Taking the summing up as a whole, the jury were left in no doubt that unless the appellant’s defence was entirely rejected, they could not convict the appellant. Further, they submitted that it was not necessary, given the nature of Mrs J’s evidence, that the jury had to act on her evidence unless it was not reasonably possibly true.

   Discussion

3. In a criminal case, the primary focus always remains on the prosecution case and whether the prosecution has proved the guilt of the accused beyond a reasonable doubt. It is not appropriate for a trial judge to frame the issue for the jury’s determination as involving a choice between conflicting prosecution and defence evidence.[8]

   [8]     Murray v The Queen (2002) 211 CLR 193 at [57].

4. As Peek J stated in R v Lavery:[9]

   The summing up must clearly convey to the jury that their verdict should not be based upon the relative persuasiveness of the complainant and the accused but rather should be based upon a consideration of all of the evidence in the case; and thathttp:// -  a verdict of guilty requires both the acceptance of the complainant’s evidence, and the rejection of the accused’s evidence, beyond reasonable doubt.

   (citations omitted)

   [9] (2013) 116 SASR 242 at [4].

5. In De Silva v The Queen,[10] the plurality observed that, while a Liberato direction is not required as a matter of law, it should be given in a case in which the trial judge perceives that there is a real risk that the jury may consider their task as involving a choice between conflicting prosecution and defence evidence.[11] They observed:[12]

   … The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt.

   [10] (2019) 268 CLR 57.

   [11] (2019) 268 CLR 57 at [10] (per Kiefel CJ, Bell, Gaegler and Gordon JJ).

   [12] (2019) 268 CLR 57 at [10] (per Kiefel CJ, Bell, Gaegler and Gordon JJ).

6. As discussed, the complainant alleged that the appellant sexually abused her on a regular basis for many years. The conduct alleged, if proved beyond a reasonable doubt, was clearly sexual abuse. The appellant’s defence at trial was also clear; that none of the events described by the complainant occurred. The appellant suggested that the complainant did have a motive to lie. The trial was fought on the basis that the complainant was lying.

7. The trial Judge directed the jury that they could accept some, all or none of what a witness said. She directed the jury that a rejection of part of a witness’s evidence did not mean they had to “write off” the witness’s evidence totally. The trial Judge directed the jury that they were to assess the appellant’s evidence in the same way as any other witness.

8. The trial Judge made it clear in her directions that the prosecution case depended entirely upon the jury’s acceptance of both the credibility and reliability of the complainant beyond reasonable doubt, as well as the rejection of the defence case as it had been advanced through the cross-examination of witnesses, the evidence of the appellant and his character witnesses. The trial Judge directed the jury on the onus of proof and stated that it was not a matter of choosing between the evidence of the complainant and the evidence of the appellant, nor deciding which account they preferred; she reminded the jury that the onus of proof was always on the prosecution.

9. Whether a Liberato direction is required depends on the issues and the conduct of the trial. Defence counsel at trial did not seek a Liberato direction. The trial Judge specifically raised with defence counsel whether a Liberato direction was sought. The trial Judge discussed with counsel her proposed directions on the topic and counsel agreed that the proposed directions were sufficient. The failure of counsel to seek a direction is not determinative of the issue, but the absence of an application for the direction may tend against a finding that the risk of the jury reasoning impermissibly was present.

10. The trial Judge made it clear that the jury had to be satisfied beyond a reasonable doubt of the complainant’s reliability and credibility before they could convict the appellant. When the summing up is looked at in its entirety, there was no risk that the jury would see their role as a matter of choosing between the evidence of the complainant and the evidence of the appellant, nor as that of deciding which account they preferred.

11. For the reasons that follow, we have not considered the question of a Liberato direction in relation to Mrs J’s evidence.

12. Mrs J’s evidence raised the issue of whether the complainant could not have been alone with the appellant as often as she alleged because she was in after school care. Mrs J said she would pick her up from after school care. That is, her evidence contradicted the complainant’s evidence about the frequency of opportunity for her and the appellant to be alone together. Mrs J also gave evidence, contrary to the complainant’s evidence, about the opportunity for the appellant and the complainant to be alone together while on the 2018 trip to Cuba and the USA.

13. The general nature of Mrs J’s evidence did not provide the appellant with an alibi. However, her evidence was important and clearly relevant to the credibility and reliability of the complainant.

14. In R v Anderson, Kourakis CJ observed:[13]

    The evaluation of competing evidence should not be conflated with the application of the onus of proof which finally determines the verdict.  It is not necessary, and often unhelpful, to suggest that the jury consider whether it accepts the testimony of the prosecution witness or witnesses beyond reasonable doubt.  It is similarly unhelpful to ask whether the defendant’s account is reasonably possible.  An intermediate fact need not be proved beyond reasonable doubt, unless it is an indispensable link in the chain of proof.  So too with respect to the testimony of a witness.  After evaluating the competing testimonies of witnesses, a tribunal of fact may have complete confidence in the credibility and reliability of some, and no confidence, if not positive disbelief, in others.  Moreover, between those extremes there is a continuum of relative weight which a jury might be prepared to give testimonial evidence.  It is on the evidence so evaluated that a jury must then consider whether the criminal onus of proof has been satisfied. 

    [13] [2017] SASCFC 125 at [3].

15. The jury had to evaluate the evidence of both the complainant and Mrs J on issues where they were in conflict. The jury were instructed that they could accept all, part or none of a witness’s evidence. The trial Judge directed the jury that if they accepted Mrs J’s evidence, they may have reservations about the complainant’s evidence. The trial Judge made it clear, on more than one occasion, that the burden of proof remained on the prosecution, to the standard of beyond reasonable doubt.

16. The trial Judge’s directions were appropriate. It was not necessary for the trial Judge to tell the jury that the complainant’s evidence could not prevail over Mrs J’s evidence unless Mrs J’s evidence was not reasonably possibly true.

17. We would dismiss this ground of appeal.

    Ground 5

18. The principles to be applied when considering whether a verdict was unreasonable or cannot be supported by the evidence are well established and not in dispute.

19. In M v The Queen, the majority stated:[14]

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    (citations omitted)

    [14] (1994) 181 CLR 487 at [7] (per Mason CJ, Deane, Dawson and Toohey JJ).

20. Often evidence adduced at trial does not all point to an accused’s guilt. The question for the appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. That is, whether the jury must, as distinct from might, have entertained a doubt about the accused’s guilt.[15]

    [15]   Libke v The Queen (2007) 230 CLR 559 at [113] (per Hayne J).

21. In determining whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the Court must not disregard or discount either that the jury is the body entrusted with the primary responsibility for determining whether the prosecution has established the accused’s guilt, or that the jury had the advantage of having seen and heard the witnesses in the context of the evidence as a whole at trial. However, it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or other witness, will be determinative.[16]

    [16]   DES v The Queen [2020] SASCFC 32 at [80].

22. As the High Court observed in Pell v The Queen:[17]

    The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

    [17] [2020] HCA 12 at [39].

23. The ultimate question is not whether it was nevertheless possible that the alleged offending did occur as alleged by the complainant; rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the defendant’s guilt. The ultimate issue remains whether, despite the inconsistencies and discrepancies, it was reasonably open to the jury to find it proven beyond reasonable doubt that the defendant committed the charged offence.[18]

    [18]   Pell v The Queen [2020] HCA 12 at [46]; DES v The Queen [2020] SASCFC 32 at [83] (per Doyle J).

    Appellant’s submissions

24. The appellant submitted that, not only was there no corroboration of the complainant’s evidence, but her evidence was also positively contradicted in key respects by the evidence of Mrs J. Further, the complainant’s evidence on important matters was marked by inconsistencies with previous statements and involved additions which showed a willingness to revise her evidence when confronted with contrary facts. The appellant described the additions as “testimonial evolutions”. The appellant also submitted that the complainant’s evidence was positively contradicted by his evidence.

25. The appellant submitted that the complainant’s account that oral sex took place “every other day” for a period of seven years, was implausible. He relied upon two main reasons in support of that submission.

26. First, there was the evidence of Mrs J. Mrs J gave evidence that the complainant spent the second half of 2012 through to mid-2013, 2014 and 2015 in after school care (“OSHC”) and that Mrs J would collect her after work. The booking confirmation documents, tendered as Exhibit ‘P 12’, while not irrelevant, had limited capacity to undermine Mrs Js evidence. The prosecution, as they had called Mrs J and presented her as a witness of truth, could put it no higher than that she was “mistaken” in her evidence. Together with the evidence concerning the appellant’s work hours and routine, Mrs J’s evidence put an end to the complainant’s allegations of oral sex occurring “every other day” after school and by itself, should have left the jury with an ineradicable doubt as to guilt.

27. Secondly, the complainant’s account of the frequency of the sexual abuse changed after she was challenged in cross examination about a six month visit by her grandmother. Mrs J and the appellant gave evidence that Mrs J’s mother came to visit and throughout this time, she took over responsibility for the running of the household, including collecting the complainant from school. This evidence was fundamentally incompatible with the complainant’s allegations about the frequency of contact. The complainant’s explanation for this omission from her evidence was also telling.

28. The appellant relied upon other aspects of the evidence. The complainant’s evidence, the appellant submitted, about oral sex in the underground car park in Los Angeles was fanciful. The family unit had just travelled to Los Angeles from Cuba. They stayed in Los Angeles for two nights. Neither the appellant nor the complainant had any discernible reason to be conducting “errands” in the evening. The allegation made by the complainant that on those two nights, she and the appellant conjured up a story that would, without suspicion, see them be absent from the room for two consecutive nights, was worthy of instantaneous rejection and was contradicted by Mrs J.

29. The appellant submitted that the complainant’s evidence was unsatisfactory in a number of respects which undermined her credibility and reliability. While the appellant referred to a number of instances, the main points were as follows:

    ·The allegation the complainant made in her evidence that she offered her virginity to the appellant in exchange for the purchase of the “pink pants” did not appear in any of her five police statements.

    ·Her allegation that the appellant would wear a condom when “attempting” to have sex with the complainant was raised for the first time in a proofing session shortly before trial.

    ·The complainant failed to mention in any of her police statements that, in the context of oral sex in the office, she would be lying on the bed with her legs on the side and the appellant would be kneeling on the floor.

    ·The suggestion that the appellant had demonstrated to her how to masturbate him was not something disclosed by the complainant in her October 2019 affidavit.

    ·There were major discrepancies in her description of the appellant licking her armpits.

    ·The complainant’s description of the “bath-tub incident”, both as to her movements and the appellant’s position was inconsistent.

    ·The evidence revealed that the complainant had engaged in manipulative and deceptive acts in forging documents at school and in obtaining an iPhone from her father to circumvent a restriction on the Wi-Fi at the appellant’s house.

30. The appellant denied the offending on oath and his account was supported in all material respects by Mrs J’s evidence. It could not be said that his account was implausible or fanciful.

31. Finally, the appellant submitted that even if his evidence is put to one side, the complainant’s evidence could not prove the charge beyond a reasonable doubt. He submitted that there was no advantage in the jury seeing the complainant give evidence as key aspects of the complainant’s account were exposed as entirely lacking in veracity by the persuasive evidence of her mother.

    Respondent’s submissions

32. The respondent submitted that the jury were entitled to take into account the issues the appellant raised as matters going to the credit and reliability of the complainant, but that close analysis of the complainant’s evidence indicates that she was both a credible and reliable witness.

33. On the issue of Mrs J’s evidence, the respondent submitted that the records of after school care, insofar as they covered some of the period under consideration, supported the complainant and detracted from the mother’s evidence that the complaint was at OSHC for five days a week. Mrs J stated that:

    ·Between June 2011 and July 2012, she would look after the complainant after school as she was studying;

    ·Once she started full-time employment, the complainant would attend Port Noarlunga Primary School OSHC after school three to five days per week and she would pick her up on the way home from work;

    ·When she moved to St John’s Primary School, the complainant went to OSHC after school up until Year 7;

    ·The appellant worked on a vineyard and would not come home from work until around 5.30pm to 6.00pm in the colder months or 6.00pm to 7.00pm in the warmer months; and

    ·The complainant would lock the bathroom door to shower/bathe on her own and the appellant never helped her to shower/bathe.

34. However, the OSHC records for Port Noarlunga Primary School, for the period from when the complainant returned from Cuba in June 2012 to the end of 2013, demonstrated that the complainant was:

    ·Booked into after school care on two occasions (weeks beginning 2 December and 9 December 2013); and

    ·Booked into vacation care for two days in 2012 (week beginning 9 July 2012) and two days in 2013 (week beginning 16 December 2013).

35. In contrast, the 2011 OSHC records indicate that the complainant was regularly booked into after school care that year, including five weeks where she was booked into after school care for three or four days of the week.

36. The respondent submitted that the jury may well have reasoned that Mrs J was mistaken about this issue (or even that she lied about it) and did not rely on her evidence where it conflicted with the complainant’s evidence on the issue of opportunity.

37. The respondent accepted that the jury were entitled to take into consideration this issue, and the other evidence (namely, whether the complainant locked the bathroom door when she had a bath and how often the appellant was home or finished work in the vineyard). However, the respondent submitted that the complainant was nevertheless a credible and reliable witness in terms of the sexual incidents themselves:

    ·The complainant did not, during cross examination, resile from her allegations of the sexual acts themselves namely, licking of her vagina, fellatio, masturbating the appellant’s penis, attempted digital penetration of her vagina, attempted penile-vaginal intercourse; fingering her anus; her fingering his anus and being introduced to pornography.

    ·The complainant did not embellish upon or exaggerate those allegations. For instance, under quite prolonged cross examination she did not change the attempted penetrations of her vagina by either finger or penis definitively into actual penetration.

    ·The complainant did not deny, or try to lie her way out of, the lies that she had told, which predominately related to school performance sheets and diary entries which she lied about or “forged” so she could avoid punishment. She also did not lie about, or deny, her marijuana use, alcohol or the taking of a pill given to her by a friend.

    ·The complainant gave a credible answer to the suggestion that her grandmother’s visit meant she was lying about the core allegations, namely:

    Q.   So when your mum's mother was staying with you for six months in Christies Beach on your account did itching stop.  

    A.   I don't think it happened, yeah, I think it had stopped.

    Q.   So there was a six-month hiatus, was there.

    A.   Well, I don't have a recollection of that, but, yeah, it would have stopped.

    Q.   You say 'it would have stopped', are you now considering that to be the case because you've been reminded that your grandma was living with you for six months.

    A.   More - yeah, because it's so long ago I barely remember even having my grandmother.

    Q.   Isn't it the case that you don't remember because nothing of that kind, that is the itching that you've alleged, happened between you and Yiannis.

    A.   It did happen.

    Q.   So are you now saying that when your grandma was there that no sexual encounters occurred between you and Yiannis for six months.    

    A.   Well, I'm not sure if what sexual encounters would have occurred, but I don't remember - but I don't think so, I don't remember any of it happening, I don't remember my grandma being here, it was just so long ago that I barely remember that part.

    Q.   It was so long ago that you're remembering things that didn't actually happen I'm saying to you, I suggest that's the case.

    A.   No, I remember the itching 'cos that stopped only a few years ago.

    ….

    Q.   Is it the case that you're now saying the offending did not occur for a six-month period because you've been reminded your grandma was living with you for six months and you're changing your evidence to fit in with that.  

    A.   Well, because my grandma was there I don't remember if the offending occurred during that six-month period.    

    Q.   Do you agree that you're changing your evidence to fit in with your memory now that your grandma was there for six months.       

    A.   Well, I don't remember what was happening in those six months with my grandmother and I don't know if he offended me or not during that time.

    Q.   What I'm saying to you is that you're changing your version of events about whether there was any offending for a six-month period because you've just been told about your grandma being there for six months.

    A.   Well, I'm not sure if he was offending me during that six-month period because I barely remember it.

    Q.   And you agree that's different to what you've told police in your five affidavits.  

    A.   Yes, 'cos I did not remember the six months of my grandma being there, it wasn't in my mind during that time.  

1. The respondent submitted that the complainant was subject to a lengthy cross examination and the jury could assess her reactions and answers to matters put to her on the issue of inconsistencies in both her statements to police and her evidence in Court, the admitted lies she told about her school performance records and diary entries and her inability to recollect certain events during the long period of abuse. These issues were, properly, matters for the jury.

2. While they were all matters relevant to credibility and reliability, the respondent submitted that they were not, either alone or in combination, matters which must have led the jury to forming a reasonable doubt.

   Discussion

3. The challenges to the complainant’s evidence may be summarised as follows:

   1.The conflict with Ms J’s evidence as to the frequency of the complainant’s attendance at after school care;

   2.There was no independent support for the complainant’s evidence;

   3.Inconsistencies in the complainant’s evidence;

   4.The complainant’s embellishment of matters while giving evidence; and

   5.The complainant’s admissions that she was involved in deceptive and manipulative behaviour.

4. The documents produced at trial, although limited in scope, undermined Mrs J’s evidence and supported the complainant’s evidence. It was open, as the respondent submitted, for the jury to not rely upon the evidence of Mrs J and prefer the complainant’s evidence where their versions conflicted. Mrs J’s evidence did not present a solid obstacle to the jury being satisfied of the complainant’s evidence beyond a reasonable doubt.

5. The complainant gave explanations for other matters put to her in cross examination. In relation to the suggestion of implausibility of the bathroom incident, the matter was explained by the complainant in re-examination. The complainant’s explanation for the time her grandmother stayed at the home is set out earlier in these reasons: the complainant acknowledged the visit but explained that she had not recalled its timing; she accepted no offending could have occurred during her grandmother’s stay but otherwise maintained that the offending occurred as she had described. It was suggested to the complainant during cross examination that she was “making up” details while giving evidence. The complainant responded that she was being asked different questions in Court than she had been by the police or by prosecutors. The complainant denied the suggested motives to lie; namely that she was getting back at the appellant regarding the school diary with forged notes, and/or that she did not want to go back to live with her mother.

6. Overall, the complainant’s evidence contained substantial detail of the acts alleged and also peripheral detail. Her credibility and reliability on these issues was for the jury to assess.

7. While there was, as the appellant submitted, little independent support of the complainant’s evidence, her evidence was not implausible. The offending was not brazen; the appellant ensured no one was around when he offended.

8. Turning to the question of inconsistencies, Kourakis CJ in DES v The Queen (“DES”) observed:[19]

   So, too, for inconsistencies in a complainant’s testimony. Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse. That is not surprising. The circumstances which strike children as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults. A jury, with the combined life experience of its members, is well equipped to decide whether or not there are explanations for the inconsistencies in the testimony of a child that do not detract from the reliability of his or her account of the offending.

   The reasons given by Doyle J demonstrate that there are credible explanations for the inconsistencies in the testimony of LW and SM, which are consistent with the truth and reliability of their accounts. However, as the High Court observed in Pell, on an appeal on the unreasonable verdict ground an appellant need not establish that the inconsistencies necessarily render his or her account incredible or unreliable. An appellant need only show that the inconsistencies are such that, notwithstanding the acceptance of a complainant’s testimony as honest and credible, no reasonable jury could have taken the further step of being satisfied beyond reasonable doubt of the commission of the offence. For the reasons given by Doyle J, the appellant has failed to show that in this case.

   (emphasis added)

   [19] [2020] SASCFC 32 at [3]­­­–[4].

9. We accept that there were inconsistencies in the complainant’s evidence. Counsel for the appellant addressed the jury in detail about the inconsistencies. Counsel also addressed the jury in detail about the “testimonial evolutions”. The weight to be given to the inconsistencies and “testimonial evolutions” was of course a matter for the jury.  None of the inconsistencies or testimonial evolutions were so stark that they necessarily undermined the credibility and reliability of the complainant to the extent suggested by the appellant.

10. In respect of the lies the complainant admitted to in her evidence, those matters were peripheral. As Doyle J observed in DES (in respect of a lie about previous sexual abuse in that case):[20]

    It was an agreed fact that in May 1986, and so when LW was nine years of age, she was examined at the sexual assault referral centre at the Queen Elizabeth Hospital. In her evidence, LW acknowledged that this related to a false accusation by her that she had been sexually abused by her stepfather.

    While it was, of course, a significant matter that LW was prepared to lie about a matter as serious as sexual assault on another occasion, I do not think this was a necessarily fatal blow to the credibility of LW’s allegations against the appellant, or otherwise required the jury to entertain a doubt as to those allegations. Rather, the weight to be attached to this consideration, like the assessment of her credibility and reliability, remained a matter for the jury. In that respect, it was of some relevance that the fact of this past false allegation – which was made on a serious occasion, albeit not on oath – was essentially volunteered by LW. Certainly, it was not something she tried to hide or deny when confronted with it in her evidence.

    (emphasis added)

    [20] [2020] SASCFC 32 at [3]­­­–[4] at [115]–[116].

11. The complainant, in evidence, admitted to forging her mother’s signature on school documents and acting deceptively to obtain an iPhone from her father to circumvent a restriction on the Wi-Fi at the appellant’s house. The lies and deceptions the complainant admitted concern peripheral matters and could not be said to be fatal to her credibility and reliability. The complainant readily admitted these matters.

12. It was open to the jury to reject the appellant’s evidence on all aspects, including his denial of the offending. The issues concerning the credibility and reliability were all matters for the jury to consider. Of course, they could not find him guilty simply by rejecting his evidence. The trial Judge correctly directed the jury on the ultimate issue; that is, even if they rejected the appellant’s evidence, which the appellant submitted was supported by Mrs J’s evidence, that did not mean the appellant was guilty. The jury were instructed that, even if they rejected the appellant’s defence, they had to be satisfied of the complainant’s evidence beyond reasonable doubt before they could return a guilty verdict. The jury were also directed to scrutinise the evidence of the complainant with great care but that they could convict the appellant on the basis of the complainant’s evidence alone.

13. For the reasons set out above, we do not consider that any of the challenges to the credibility and reliability of the complainant’s evidence, either taken alone or in combination, are enough to establish that the jury’s verdict was unreasonable or could not have been supported by the evidence. It was reasonably open to the jury on the complainant’s evidence to find the charge proved. We would dismiss this ground of appeal.

    Orders

14. We would grant permission to appeal on Grounds 1, 2, 3 and 4, but dismiss the appeal.