Herbert James Hartley v R No. SCCRM 94/294 Judgment No. 4754 Number of Pages 16 Criminal Law and Procedure Unlawful Sexual Intercourse with a Child

[1994] SASC 4754

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR(3), OLSSON(2) and PERRY(1) JJ

CWDS
Criminal law and procedure - unlawful sexual intercourse with a child - Warning as to complainant's evidence - appeal against conviction on counts alleging unlawful sexual intercourse and other indecent conduct over a period of time involving a young girl - held that the trial Judge's warning to the jury as to the need for caution before accepting her evidence was inadequate in the circumstances. Pahuja (1987) 49 SASR 191; Longman (1989) 168 CLR 79; Question of Law (No 1 of 1993) (1993) 59 SASR 214; M v R (unreported) Court of Criminal Appeal, 18.8.93, Judgment No 4128; R v Bryce and Dewar (1993) 170 LSJS 52 and Pix v R (1993) 171 LSJS 43, considered.

Criminal law and procedure - unlawful sexual intercourse with a child under 12 years - materiality of allegation of date of offence in information - Evidence of complainant of intercourse with the accused before her 12th birthday - conflicting evidence from the accused as to the time frame within which the offences could have occurred - direction to the jury that if they accepted that the incident occurred as the complainant alleged but after her 12th birthday, an alternative verdict of indecent asault should be returned held not to be in error, but that a failure to direct dismissal of a separate charge in the information of indecent asault on a child under the age of 12 years if the jury found the charge proved but the age to be 12 years or more was erroneous - consideration of materiality of allegations in an information as to the date or period of the commission of the of fences - consideration of the question of a special verdict depending on findings as to age of the complainant. Criminal Law Consolidation Act 1935s49(1) and (3), s56, s58(1) (a) and 575 and Lunn Criminal Law (South Australia) Butterworths Vol 1, para 6395.4, p.5057. Wright v Nicholson (1970) 54 Cr App R 38; R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171 and Van Bay Che (1988) 50 SASR
1, considered.

Criminal law and procedure - lies by accused - Appellant was alleged to have lied in out-of-court statements to the investigating police and in his evidence in court on several discrete topics, including his opportunity to commit the alleged of fences - trial Judge gave no direction at all as to lies in the mistaken view that it was not necessary to do so, having found that there was no evidence of corroboration - held that the question of the need for a direction as to the use to be made of alleged lies should have been considered separately from the question of corroboration and a direction should have been given as to any lies upon which the prosecution relied as evidence of guilt. Edwards (1993) 178 CLR 193; (1993) 68 A Crim R 349, considered.

Criminal law and procedure - appeal from conviction - order for retrial - Held by the majority (Prior J dissenting) that the deficiencies in the evidence of the complainant could never satisfactorily be surmounted on a retrial, which should therefore be refused.

HRNG ADELAIDE, 18 August 1994 #DATE 6:9:1994 #ADD 13:3:1995

Counsel for appellant:     Mr G F Barrett

Solicitors for appellant:    Ms G A Brown

Counsel for respondent:     Ms W Abraham

Solicitors for respondent: DPP (SA)

ORDER
Application for retrial refused. Order that a verdict of acquittal be entered on all counts.

JUDGE1 PERRY J The appellant appeals against his conviction following a trial in the District court before a Judge and jury on six counts alleging various forms of sexual interference with a young girl.

2. At the conclusion of the hearing of the appeal, the Court quashed the convictions on all counts, reserving the right to publish reasons later.

3. Counts 1 and 2 relate to a single incident, allegedly committed when the child was of the age of 10 years. The first of them charged the commission of an act of gross indecency (s.58(1)(a) of the Criminal Law Consolidation Act1935) ("the Act"), and the second, indecent assault (s.56). On both counts, the jury returned a verdict of guilty as charged.

4. Counts 3, 4 and 5 alleged unlawful sexual intercourse with a person under 12 (s.49(1)). Two instances (counts 3 and 4) alleged acts of cunnilingus, and the other (count 5), the insertion of the appellant's finger into the victim's vagina. It was alleged that the victim was then of the age of 11 years. As to each of those three counts, the verdict returned by the jury was not guilty of unlawful sexual intercourse with a person under 12, but guilty of indecent assault.

5. On the sixth count, which alleged unlawful sexual intercourse with a person of the age of 12 years (s.49(3)), the jury found the appellant guilty as charged. The allegation on this count took the form of an alleged act of cunnilingus.

6. The grounds of appeal allege that there were deficiencies in the summing up, including a failure adequately to direct the jury as to the danger of convicting on the uncorroborated evidence of the victim, a failure properly to put the defence case, and a failure to direct the jury on the use to be made of alleged lies by the appellant. It is further alleged by the appellant that the learned trial Judge erred in directions which he gave as to the ability of the jury to return alternative verdicts, and that for those and other reasons, the convictions are unsafe and unsatisfactory.

7. The alleged victim, whom I will call Natasha, was born on 22 July 1976. She lived with her older sister Kylie and their mother at an address at Ingle Farm. Her father had left the home in 1983 or 1984, from which time her mother lived there alone with her two daughters.

8. The appellant is a married man who was aged 58 years at the time of the trial. At the time of the offences, which were alleged to have occurred between various dates in 1987 and 1988, he was unemployed but was endeavouring to build up a small business collecting beer bottles and lawn mowing. His evidence was that he had the authority of the Adelaide Bottle Company to collect beer bottles in various suburbs between Munno Para and Wingfield.

9. For some time the appellant's niece lived in the house next door to that occupied by Natasha and her family. She lived there with a man named Geoffrey Thomas.

10. The appellant used to visit Thomas and his niece until Thomas sold the house and moved elsewhere in February 1988.

11. On an occasion when the appellant was doing what he described as his "bottle round" at Ingle Farm he noticed that the lawn around Natasha's family house could do with cutting. He called and spoke to Natasha's mother, as a result of which he came to an arrangement to mow their lawns. Conflicting evidence was given at the trial as to whether or not there was any discussion as to remuneration. The appellant's evidence was that there was talk of $10 to do the front and back lawns, and that it would be paid when Natasha's mother had the money, but the latter maintained in evidence that she had made it clear from the outset that she could not afford to pay him anything. They both agreed, however, that she gave the appellant an occasional meal.

12. Be that as it may, the appellant began to call regularly at the house every two or three weeks to mow the lawn, and sometimes to do other gardening or cleaning work.

13. Natasha's sister Kylie suffered from behavioural problems. Her mother took Kylie regularly to an institution known as Willis House, in connection with that condition. Often that would be on a Saturday morning. At other times on a Saturday morning, she would take Kylie for an access visit to her father.

14. Natasha's mother's trips to Willis House or to Kylie's father would take about forty to forty five minutes, during which time Natasha would often be left at home while the appellant was working around the house. Natasha's evidence was that it was on such occasions that the appellant interfered with her.

15. Her evidence was that the first incident occurred in February or March of 1987, a short time after he started doing the lawn mowing. Consistently with that evidence, the first two counts alleged the incident in question to have occurred between 1 January 1987 and 30 April 1987. Natasha's evidence was that on that occasion, while she was alone at the house with the appellant, she went into her bedroom to show him one of her dolls. She asserted that while she was standing up in the bedroom, he approached from behind, put his arms around her and touched her with his hands outside of her clothes, on her breasts and in the area of her vagina. She said, "He was just feeling me all over". She said that the appellant then proceeded to drop his pants and asked her to touch his penis, which she did for a second or so before hearing her mother's car return. The appellant thereupon got dressed, warning her not to tell anybody, to use her words, "because it was our secret and nobody would believe me".

16. The appellant's alleged action in having Natasha touch his penis was the subject of the first count (gross indecency). His alleged action in touching her in the area of her breasts and vagina was the subject of the second count (indecent assault).

17. Natasha's evidence was that the incident the subject of the first two counts was the prelude to a long course of indecent handling of her by the appellant, all taking place on occasions when her mother had taken Kylie out of the house, and taking the form of indecent touching, cunnilingus, and insertion of his fingers in her vagina.

18. The third, fourth and fifth counts related to an incident said to have occurred in a shed at the rear of the house. In her evidence in chief, Natasha fixed the date of this incident as November or December of the same year as the incident in the bedroom, that is, 1987. The information alleged that the third, fourth and fifth counts occurred on a date between 1 December and 31 December 1987.

19. As to the circumstances of these counts, Natasha alleged that the appellant got her to undress and lie on her back on a discarded cot stored in the shed, with her feet hanging down towards the floor. While she was in that position, she alleged that the appellant licked her vagina and inserted one or more fingers into it (counts 3 and 5 respectively). At one point, she put her clothes on and went into the house, thinking that she had heard her mother's car. When she realised that it was not her mother, she returned to the shed where a further act of cunnilingus occurred in similar circumstances (count 4).

20. Natasha turned 12 on Friday 22 July 1988. The incident the subject of the sixth and final count was said to have occurred on the following Saturday, that is, 23 July 1988. Natasha alleged that the appellant came over on the Saturday morning and drove her to a shopping centre known as Tea Tree Plaza at about 10 or 11 o'clock in the morning, where he gave her the money for a birthday present, from which she bought a pair of pyjamas. Her evidence was that when they returned from that trip, her mother had just left with her sister to go to Willis House. After she and the appellant entered the house, a further act of cunnilingus occurred when she lay back on a couch in the lounge room, the appellant lifting up her dress and taking off her underpants.

21. That was the last of the specific incidents which Natasha said she could remember, although it appears from her evidence that other indecencies occurred which she could not recall specifically, until the appellant stopped calling to do the lawn mowing. She could not be sure when that was, although at one stage she said that "it happened for about three years", which would take the period to early 1990.

22. The appellant gave evidence on oath denying the alleged offences, and denying that he had at any time had any sexual contact with Natasha.

23. There are several reasons why it became important during the course of the trial for the jury to be able to establish the time frame within which the offences were alleged to have been committed. Not the least of these was the difficulty posed by the fact that sexual intercourse with a person under the age of 12 years is a felony (s.49(1)) for which the penalty is imprisonment for life, whereas sexual intercourse with a person "of or above the age of 12 years and under the age of 17 years" is a misdemeanour carrying a penalty of imprisonment for a term not exceeding seven years (s.49(3)).

24. Given that Natasha's 12th birthday was on 22 July 1988, if her evidence was to be accepted that the incident the subject of counts 3, 4 and 5 occurred in November or December of 1987, she would then have been under 12 years of age and it would have been open to the jury to enter a conviction on the offences as charged. But if the jury was satisfied that the incident had occurred but that it had occurred after her 12th birthday, a difficulty would then arise as to the appropriate verdict for the jury to return in those circumstances.

25. The potential difficulty with respect to the time frame of the offences, was highlighted by certain aspects of the evidence.

26. The first relates to when it was that the man Thomas sold up and left the adjoining house. Natasha's unequivocal evidence was that the appellant first approached her mother with a view to doing the lawn mowing about two weeks after Thomas had left the adjoining house. The evidence of the appellant was that Thomas left in February 1988. Eventually, a copy of the certificate of title was tendered in evidence at the trial, upon which it was recorded that a transfer of the title from Thomas to a purchaser named Fameli was produced for registration on 19 February 1988. No other evidence was led on either side which threw any doubt upon the reasonable inference to be drawn from the state of the title, supported as it was by the appellant's evidence, that Thomas was likely to have left his house following its sale in about February 1988.

27. Proof of that fact, coupled with the evidence of Natasha, meant that the conduct the subject of all six counts must have occurred between February and July 1988, a much shorter period of time than that suggested by Natasha in her evidence.

28. But the evidence of the appellant was that he first started coming to the house to do the lawns in December of the year that Thomas left his house, that is, December 1988. His evidence was that he stopped going to the house in August 1989. He did not deny that he had bought Natasha a birthday present, or at least given her the money for it, but on his evidence this could only have been for her 13th and not her 12th birthday.

29. Realising the difficulty faced by the jury having regard to the different bodies of evidence as to the time frame within which the offences could have occurred, at the end of his summing up the learned trial Judge instructed the jury in the following terms:
    "If you are satisfied that the accused is guilty of
    doing the things alleged by Natasha on those three
    occasions, or one or other of them, and you are
    satisfied that they occurred at the times that Natasha
    says they occurred, then you will find the accused
    guilty of the charge then under consideration; guilty
    as charged.

If you are satisfied that the accused committed the
    offences on the three occasions that I have mentioned,
    or one or other of them, but you are not satisfied that
    they occurred when she says they occurred, but that
    they occurred during the period the accused says he
    attended at the house, that is for some nine months or
    so, then the verdicts open to you are as follows:
    Guilty as charged in count 1, guilty as charged in
    count 2, not guilty as charged in count 3 but
    guilty of indecent assault, not guilty as charged
    in count 4 but guilty of indecent assault, not
    guilty as charged in count 5 but guilty of
    indecent assault and guilty as charged in count 6.

The reason for the different verdicts in counts 3, 4
    and 5 is that if you are satisfied the events occurred
    in 1988, Natasha would have been 12 and not 11 and the
    accused could not be convicted or found guilty of the
    offences of unlawful sexual intercourse with a person
    under 12. In those circumstances, the verdict of
    indecent assault is an alternative verdict."

30. The learned trial Judge discussed that part of his direction with counsel beforehand, and they both agreed that it was proper for him to leave the matter with the jury in those terms.

31. The ability to enter an alternative verdict on charges alleging a breach of s.49 of the Act is spelt out in s.75, which provides as follows:
    "If on the trial of any information for any felony or
    misdemeanour under section 48 or 49, or for an attempt
    to commit a felony under section 48 or a felony or
misdemeanour under section 49, the jury is satisfied
    that the accused is guilty of an indecent assault or of
    a common assault but is not satisfied that the accused
    is guilty of the felony or misdemeanour charged, the
    jury may acquit the accused of that felony or
    misdemeanour and find him guilty of an indecent assault
    or of a common assault, as the case may be, and
    thereupon the accused shall be liable to be punished in
    the same manner as if he had been convicted on an
    information for an indecent assault or for common
    assault, as the case may be."

32. It is clear from the verdicts returned by the jury, and in particular the verdicts on counts 3, 4 and 5, that the jury must have been satisfied that the incidents occurred as described by Natasha but that they occurred, to use the Judge's expression in his direction to the jury, "during the period the appellant says he attended at the house". As I have said, that period was between December 1988 and August 1989.

33. To suggest to the jury that if they were satisfied there was an act constituting unlawful sexual intercourse within the meaning of s.49, they should nonetheless enter a verdict of indecent assault and not unlawful sexual intercourse if they found that the offence occurred when the victim was over the age of 12, is hardly a satisfactory course to follow. While a literal construction of the words in s.75 tends to support such an approach, it can hardly have been intended that the section should have such an application.

34. At first I thought that the proper course should have been to direct an acquittal if, solely because of a finding that Natasha was over 12 years at the relevant time, the jury found counts 3, 4 or 5 not proved. Preferably, if the prosecution had anticipated any doubt about the matter, it should have laid alternative counts. But it must be accepted that, as was apparently the case here, it will not always be obvious in advance that the problem is likely to arise.

35. Of course, the appellant was no doubt happy to confine the risk of conviction on an alternative view as to when the offences might have been committed, to the lesser offence of indecent assault. Not surprisingly, his counsel went along with that approach. On reflection, unsatisfactory though it was, I do not think that it was wrong in law, and viewed in isolation did not result in a miscarriage of justice.

36. Given then that s. 75 is of application in such a situation, in the circumstances of this case, preference for the account of the appellant as to the possible time frame, which is clearly demonstrated by the verdict of the jury, raises serious doubts as to the credibility of Natasha.

37. Natasha's evidence was, not only that Thomas had moved out a week or two before the appellant started to do the lawn mowing, but that this was in 1987 - see the following passage in her evidence in cross examination (T42):
    "Q. You don't think it might have been early 1988.
    A. I don't really remember. I'm sure it was 1987.
    Q. Do you think it is possible it may have been

    1988.
    A. It could have been, but I'm sure it was 87." Although she agreed with the possibility that it might have been 1988, clearly this was only because she was confronted with evidence that Thomas had sold his house in 1988, and it was not her recollection that that was so.

38. From start to finish, her evidence was that the sequence in which the alleged incidents occurred corresponded with the sequence of counts in the information, and terminated with the incident which occurred the day after her 12th birthday, that is, on 23 July 1988.

39. Furthermore, she was adamant that it was her 12th birthday and not her 13th birthday - see the following passage of evidence (T44):
    "Q. Is it possible that it was your 13th birthday
    that you are talking about when you say that
    incident occurred.
    A. It was definitely my 12th because I was in year 6.
    Q. You remember that, do you
    A. Yes."

40. Whether the date or period alleged in an information is vital to a conviction depends on the circumstances; see, for example Wright v Nicholson
(1970) 54 Cr App R 38, R v Dossi (1918) 13 Cr App R 158, the discussion of those cases in R v Pfitzner (1976) 15 SASR 171 per Bray CJ at 185-186, and generally Lunn Criminal Law (South Australia) (Butterworths) Vol 1, para 6395.4 page 5057.

41. Here, I tend to think that the period alleged as to each count was not an essential particular, so long as the particular occasion or incident in each case was accurately and reliably identified in the evidence. But once it is accepted that the jury's verdict means that counts 3, 4 and 5 occurred within the time frame indicated in the evidence of the appellant, count 6 must be taken to have occurred on or just after a different birthday from that alleged by Natasha. It must follow that the evidence as to count 6 is not consistent with the same incident as that deposed to by her.

42. In the circumstances of this case, the evident view of the jury that counts 3, 4 and 5 occurred during the period that the appellant said he attended at the house, coupled with the matters I go on to refer to with respect to her psychiatric and other treatment and counselling, and the late complaint, raises such a doubt about the reliability of Natasha's evidence of the alleged offending as to render the verdicts as a whole unsafe.

43. There is a further difficulty with respect to count 2. That alleged a breach of s.56 of the Act which provides:
    "A person who indecently assaults another shall be
    guilty of a misdemeanour and liable to be imprisoned
    for a term not exceeding eight years, or where the
    victim was at the time of the commission of the offence
    under the age of 12 years, for a term not exceeding ten
years." The particulars of the offence alleged in the information with respect to this count asserted that the offence occurred between 1 January and 30 April 1987, and that Natasha was then of the age of 10 years. No alternative to conviction under s.56 was open on this count. S.75 does not refer to s.56. No common law principle could support any alternative verdict on a charge under s.56; Van Bay Che (1988) 50 SASR 1 per Perry J at 5-7.

44. The second count was left to the jury on the footing that they could return a verdict of guilty or not guilty, but this was unaccompanied by any indication that they could only return a verdict of guilty on that count if they were satisfied that at the time Natasha was under the age of 12 years. On the time frame put forward by the appellant, if that incident occurred at all, Natasha could not have been "under the age of 12 years".

45. Clearly, having regard to the verdict which the jury returned on counts 3, 4 and 5, the time frame put forward by the appellant was accepted by the jury. It follows that the jury could not have been satisfied that at the time of the incident the subject of count 2, Natasha was then under the age of 12 years. Given the terms of s.56 of the Act, the allegation as to age was a material allegation. There should have been a verdict of acquittal on the second count.

46. In reaching that view, I do not overlook the fact that in such circumstances it may be possible to invite the jury to give a special verdict, stating that they find the offence of indecent assault proved but that the victim was 12 years or over at the time. Such a special verdict was not sought in this case, and that possibility was not canvassed in argument on appeal. I do not, therefore, address that possibility further. For the other reasons which I have given, in my view, the verdict as returned on count 2 must be quashed.

47. Several other features of the trial add weight to the view that the verdicts on all counts must be regarded as unsafe and unsatisfactory.

48. In my opinion, the learned trial Judge erred in failing to give to the jury a direction as to the manner in which they were to approach the question of alleged lies said to have been told in and out of Court by the appellant.

49. It is clear that the nature and conduct of the case for the Crown involved the assertion that the appellant told lies, and that he had done so out of a consciousness of guilt.

50. During the course of his address counsel for the Crown suggested that the appellant was lying:
    (a) on the topic of whether or not he had done the lawn
    mowing for Natasha's mother pursuant to an understanding
    that he would be paid for it;
    (b) in his inability to "name a single other paying client"
    in his lawn mowing business;
    (c) in that in his police interview he did not recall that
    there was a birthday party on the day on which he had
    admittedly bought a present for Natasha, but later admitted
    in the witness box that there was a birthday party on that
    day;
    (d) in giving conflicting and changing accounts of an
    alleged inability to close the garage door, stating at first
    in examination in chief that the garage door was broken and
    stuck open (whereas Mrs Myers' evidence was that it "worked
    fine"), and then that junk in the shed obstructed it, and
    later again that rather than junk, some piping stored in the
    trusses of the garage had stopped the door closing;
    (e) as to the number of times he had been left alone with
    Natasha. As to this, his evidence was that he was only
    alone with her on two occasions when nothing had occurred,
    whereas the evidence of Natasha and her mother was that it
    was on many more occasions that he was left alone with her.

51. In dealing with these alleged lies, counsel for the Crown in his address to the jury said:
    "Ladies and gentlemen, I do suggest that he's told you
    some lies, and the thing about this, I suggest, is not
    only whether he's told you lies but why he would lie
    about some things ... I suggest that the reason he has
    lied about ... these things can only be to cover his
    involvement in what Natasha told you happened".

52. Later counsel for the Crown said:
    "There may be some significant things to you that I
    haven't mentioned, but at the end of the day don't we
    have here a young girl giving you a true account of the
    traumatic experience that she went along with and later
    felt disgusted about, and the tissue of lies from the
    accused about a whole lot of little things where the
    only reason to lie about them would have been to cover
    up for this conduct."

53. The learned trial Judge did not offer any direction to the jury as to how they were to deal with the question of lies. The fact that he had failed to do so was a matter of concern to counsel for the Crown, who, after the jury had been sent out, raised the matter with the learned trial Judge in the following terms:
    "MR MCEWAN: ... There is only one matter that I raise.
    I raise it because I think I am obliged to raise it
    with Your Honour and see what Your Honour thinks.
    During my address I suggested that this man told lies.
    I don't know whether Your Honour considered the
    question of whether to give - a spiel, that's probably
    not the right word, but say something to the jury about
    lies and consciousness of guilt or not. I just raise
    it. If Your Honour decided not to, that's fine. If
    you overlooked it -
    HIS HONOUR: I did consider it and decided not to.
    MR MCEWAN: I think I made it plain what I was saying.
    HIS HONOUR: I took into account what you had said and
    decided for that reason not to mention it to them.
    MS BROWN (counsel for the appellant): No problems."

54. When His Honour said that he had taken into account something which Mr McEwan had said and decided not to mention the question of lies to the jury, His Honour must have been referring to an exchange which took place between him and counsel after the conclusion of the evidence and before addresses. In the absence of the jury, the following exchange took place:
    "MR MCEWAN: There was one other matter. We were
    talking about the problem of the corroboration warning.
    I don't want to urge Your Honour to throw into the
    possible corroboration basket the topic of lies. I
    think strictly legally it is there, but I don't -
    HIS HONOUR: I have given it some thought over the
    weekend, and I know what you say about the criteria for
    lies capable of being corroboration as it exists in
    this case. It might be close to that, but I am not
    satisfied that it is, and in these circumstances I
    propose to direct the jury that there is in fact no
    corroboration and to give them a warning."

55. The statements attributed to His Honour in those passages suggest that the learned trial Judge misdirected himself as to the necessity to give a warning as to lies, and confused the need to give such a warning with the questions whether there was any corroboration of the evidence given by Natasha, and whether in particular, the alleged lies, or any of them, could amount to corroboration.

56. At the time of giving her evidence, Natasha was aged 17 years, almost 18 years. On the evidence of the appellant, which, for the reasons I have already given as to this aspect of the matter, must be taken to have been accepted by the jury, he stopped going to Natasha's house soon after her 13th birthday. As will be seen, it was not until she was over 16 years that she made a complaint to anyone as to the alleged offences.

57. In those circumstances, as to which I go into greater detail later, it was a matter for the discretion of the trial Judge as to whether or not he saw fit to give a full corroboration warning, or a warning falling short of a full corroboration warning. Certainly, the circumstances of the case were such that a warning of some kind was clearly called for; Pahuja (1987) 49 SASR 191; Longman (1989) 168 CLR 79; Question of Law (No 1 of 1993) (1993) 59 SASR 214.

58. But the question of an appropriate direction with respect to lies does not stand or fall with the decision made as to whether or not a corroboration warning was to be given. The two matters are quite separate and distinct.

59. Once evidence of alleged lies was given, and particularly when that evidence was relied upon by the Crown in the presentation of its case as evidence pointing to the guilt of the appellant, it was incumbent upon the learned trial Judge to give an appropriate direction to the jury as to the manner in which they were to approach the evidence of alleged lies, and what use was to be made of that evidence. The need for such a direction arose quite independently of any decision which the trial Judge came to as to the necessity for a corroboration or other warning.

60. The High Court of Australia has recently pronounced upon the use to be made of lies in the context of criminal trials, and the appropriate direction to be given when the issue of lies arises: see Edwards (1993) 178 CLR 193;
(1993) 68 A Crim R 349.

61. The judgment of the majority in that case (Deane, Dawson and Gaudron JJ) makes it clear that the telling of a lie will always be a matter going to the credit of the witness, and in the case of a lie told by an accused, in limited circumstances the fact that the accused has lied may amount to an implied admission of guilt. It will only, however, be an implied admission of guilt if it springs from an awareness that to tell the truth would be incriminating, that is, would implicate the appellant in the offence; that it relates to a material issue; and that there are no other reasons such as panic or embarrassment to explain the lie.

62. Once a lie is accepted as an implied admission, it may be relied on as independent evidence of guilt, and as corroborative evidence. In the latter case, that is, where it is relied upon as corroborative evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. But that requirement does not apply when the telling of the lie is used merely to strengthen the prosecution case.

63. Where a lie is relied upon to prove guilt, it should be precisely identified "as should the circumstances and events that are said to indicate that it contributes an admission against interest". The trial Judge then owes a duty to instruct the jury that before they can take it into account, the various matters to which I have referred must be considered.

64. I have referred to the various lies highlighted by the Crown prosecutor during the course of his address. Clearly, some of the alleged lies went only to matters which could not be described as material issues, and were, therefore, capable only of being used adversely to the appellant with respect to his credit rather than as probative of guilt.

65. However, other alleged lies, such as the appellant's lies as to the limited occasions upon which he had been alone with Natasha, were clearly relevant to a material issue, and if told against a background of an awareness that the truth would be incriminating and would implicate the appellant in the offences, were capable of being used as evidence of guilt.

66. Furthermore, the alleged lies told by the appellant with respect to the occasions he had been alone with Natasha were proved, if the jury saw fit to accept the evidence of the mother, by evidence apart from the evidence of Natasha. In those circumstances, those particular alleged lies were capable of being used as corroboration, if the trial Judge had taken the view that a full corroboration warning was needed.

67. The case not only called for a direction as to the legitimate use to which the jury might put the question of lies, but the distinction between those lies which could go only to credit and those which could be regarded as probative of guilt should have been explained to the jury. The jury should have been directed as to the need to exclude other explanations, apart from an awareness of guilt, which might lie behind the lies.

68. Absent any direction as to the alleged lies, it is impossible to say that the jury may not have approached the question of the legitimate use to be made of the evidence of lies in an impermissible fashion, adversely to the accused.

69. I turn to the question of the adequacy of the warning given by the learned trial Judge as to the evidence of Natasha.

70. While the learned trial Judge did warn the jury that they must "scrutinise her evidence with particular care and not act upon it alone unless" they were fully satisfied of its reliability "in all its essential aspects", in my opinion, the warning was inadequate in that it failed to go on and explain to the jury the particular circumstances which gave rise to the need for them to scrutinise her evidence with care.

71. If the circumstances are such that a warning should be given, not only the warning, but the warning coupled with an explanation of those circumstances, must be given to the jury; M v R (unreported) Court of Criminal Appeal, 18.8.93, Judgment No S4128; R v Bryce and Dewar (1993) 170 LSJS 52; Pix v R (1993) 171 LSJS 43.

72. Here, at the forefront of the circumstances which compelled a warning, was the fact that it was not until Natasha had spoken to a counsellor at her school in August 1992, at least two years after the last possible date upon which the offending had concluded, that she complained of the appellant's alleged conduct. That circumstance fell to be considered against evidence of Natasha's behaviour over a long period before then.

73. Natasha admitted in cross-examination that she had been admitted to Adelaide Children's Hospital on 21 occasions since 1981 up to the date of trial, some of those occasions being before she had met the appellant, and some afterwards. The admissions related to medical and other problems. She admitted that she had had "huge problems" with Kylie. Towards the end of 1990, or early 1991, she admitted having seen a psychiatrist at the hospital, and continued to see her on and off for about two years. She had also seen a psychologist, some occasions when she did so falling "right in the middle of the time" that the appellant was coming to her home (T68). She also saw social workers from the Department of Community Welfare, and in particular a social worker styled an Adolescent Service Worker (T70).

74. She admitted that the people she had seen were "very concerned" about her welfare. She further admitted that she had falsely stated to them that she had trouble "coping" with her mother since her father had left home. She had complained also of problems with Kylie, and problems at school. Despite the sustained and frequent contact with those involved in her medical and psychiatric treatment and counselling, she did not make a complaint to any of those people as to the alleged conduct towards her by the appellant. Her explanation (T73) was that she was "too scared and I was told no-one was going to believe me anyway and I wasn't going to bother".

75. She said further that her sister was raped in 1991 and she then "took the pill", albeit for a short period of two or three weeks when she ceased taking it because of her blood pressure.

76. Natasha's mother gave evidence (T94):
    "Q. I believe that since about 1985 Natasha has
    been seeing psychologist Mr Merton and various
    psychiatrists and people at the Children's
    Hospital.
    A. That is correct, yes.
    Q. And she had some or has some psychiatric
    problems that she is getting ongoing assistance
    with.
    A. That is correct.
    Q. And part of those problems were to do with her
    problems with Kylie and getting on with Kylie.
    A. That is correct.
    Q. Kylie is pretty difficult at times, or was.
    A. Yes, that's correct.
    Q. At some stage there were problems with Natasha
    doing things to get your attention and feeling she
    wasn't getting enough attention from you.
    A. That is correct."

77. It was an essential feature of the defence case that the complainant was fabricating the allegations as part of her attention-seeking behaviour.

78. The circumstances of the case called for a particularly clear warning to the jury that they were to scrutinise her evidence carefully, and in the course of doing so, to give careful consideration to the question of Natasha's failure, despite the opportunities she had to do so, to complain earlier, and her attention-seeking behaviour.

79. It appears to me, looking at the summing up as a whole, that the learned trial Judge failed adequately to put these matters in a way calculated to bring home to the jury the need for caution in dealing with Natasha's evidence, and the particular reasons why it was necessary for them to approach her evidence with circumspection.

80. For these reasons, I was of the view that the conviction on all counts must be quashed.

81. I have anxiously considered the question whether it is a proper case in which to order a re-trial.

82. While it is true that errors in the summing up would, no doubt, be corrected if there was to be a re-trial, it seems to me that the verdict returned by the jury clearly indicates an acceptance by the jury of a time frame which would make it impossible to entertain the degree of confidence in Natasha's evidence necessary to allow a conviction to stand.

83. I would, therefore, decline to order a re-trial.

84. In the result, the convictions having been quashed by order of the Court made on 18 August 1994, I would go on to order and direct that a verdict of acquittal be entered on all counts.

JUDGE2 OLSSON J I agree with the orders proposed by Perry J. I am also in general agreement with the reasons expressed by him.

JUDGE3 PRIOR J I joined with the order of the Court quashing the convictions on the ground that the verdicts were unsafe and unsatisfactory.

2. The Judge erred in failing to give the jury a direction as to the manner in which they were to approach the question of lies. The case called for a direction as to the legitimate use to which the jury might put the question of lies. Distinctions had to be made between those lies that could go only to credit and those which could be regarded as probative of guilt. This was not done. No verdicts adverse to the appellant could be upheld absent those directions and the inadequacy of the warning given by the trial Judge as to Natasha's evidence. In this particular case the jury should have been told the particular circumstances which gave rise to the need for them to scrutinise her evidence with particular care. The trial Judge should have directed the jury to give careful consideration to the question of the girl's failure, despite opportunities, to complain earlier. He also needed to give the jury directions about the evidence of her attention-seeking behaviour. On these grounds, the convictions had to be quashed.

3. I would not direct verdicts of acquittal to be entered on all counts. I would permit a retrial. I cannot say that any verdict of guilty would be unsafe. Issues of credibility are for a jury against evidence then before it and adequate directions from the trial Judge.