JJP v The Queen - [2021] SASCA 53

Supreme Court of South Australia
(Court of Appeal: Criminal)
JJP v THE QUEEN
[2021] SASCA 53
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 June 2021

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The appellant was convicted following a trial by jury of maintaining an unlawful sexual relationship with his daughter.
The Information included three allegations of sexual offending by the appellant. The first allegation was that the appellant exposed his penis to the complainant in the shower. The second allegation was that the appellant touched the complainant’s vagina on multiple occasions using his fingers and a cotton bud. The third allegation was that the appellant touched the inside of the complainant’s vagina with his fingers and a cotton bud.
The complainant was eight years old at the time of the trial. In relation to the first allegation, she gave evidence that the appellant ‘flicked’ his penis in the shower and demonstrated what she meant. This led the prosecution to describe the first allegation as an act of masturbation.
It was the defence case that the complainant could not be relied on as a credible and reliable witness due to the numerous inconsistencies in her evidence. In addition, three explanations consistent with the innocence of the appellant were advanced. It was contended that the complainant’s mother influenced the complainant to fabricate the allegations, that the complainant was mistaken as to the identity of the offender, and that the acts described by the complainant were, in truth, innocent in nature.
The appellant appeals against his conviction. The grounds of appeal proceeded with are below:
2. The Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry pursuant to s 9 of the Evidence Act 1929 (SA);
3. The Judge failed to exclude inadmissible opinion evidence given by the complainant’s mother in relation to whether the appellant’s penis was erect at the time of the offending;
4. The Judge failed to direct the jury as to the elements of the sexual offences and in relation to the factual issues he was obliged to consider for the purpose of determining whether the appellant committed the unlawful sexual acts;
4A. The particularisation of facts in relation to the first allegation and the conduct of the prosecution case in relation to that allegation was bad for uncertainty;
5. The Judge failed to adequately direct the jury as to the nature and significance of inconsistent statements made by the complainant;
7. The verdict was unreasonable and could not be supported by the evidence.
Held per Kelly P (Doyle and Bleby JJA agreeing), granting permission to appeal in respect of ground 7 and dismissing the appeal in respect of grounds 2, 3 and 7:
1. The Judge was not required, by virtue of the age and/or any suggested confusion on the part of the complainant, to hold an inquiry pursuant to s 9 of the Evidence Act 1929 (SA) in the circumstances of this case.
2. The evidence of the complainant’s mother did not cause any real prejudice to the appellant.
3. None of the matters relied on by the appellant present an insurmountable obstacle to conviction.
Held per Kelly P and Doyle JA (Bleby JA agreeing), granting permission to appeal in respect ground 5 and allowing the appeal in respect of ground 5:
1. The jury was not adequately instructed as to critical matters about which it needed to be satisfied of before finding that the appellant had committed two or more acts of an indecent nature towards the complainant.
Held per Doyle JA (Kelly P and Bleby JA agreeing), allowing the appeal in respect of ground 4:
1. The jury should have been directed as to the sub-elements of the sexual offences that the alleged acts were said by the prosecution to have constituted, so that the jury understood that the question for them was not simply whether the alleged acts occurred, but whether they occurred in circumstances that rendered them sexual offences.
Evidence Act 1929 (SA) ss 9, 13BA; Summary Offences Act 1953 (SA) Part 17; Criminal Law Consolidation Act 1935 (SA) ss 50, 74; Criminal Code (Qld) s 229B(1), referred to.
R v P, BR [2004] SASC 323; R v CH [2016] SASCFC 112; R v Cheng [2015] SASCFC 189; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 94 ALJR 394; Chiro v The Queen (2017) 260 CLR 425; Hamra v The Queen (2017) 260 CLR 479; Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; KBT v The Queen (1997) 191 CLR 417; R v M, BJ (2011) 110 SASR 1; R v Little (2015) 123 SASR 414; R v Johnson [2015] SASCFC 170; KMC v Director of Public Prosecutions (SA [2020] HCA 6; DL v The Queen (2018) 266 CLR 1; R v Hamra (2016) 126 SASR 374; Alford v Magee (1952) 85 CLR 437; RPS v The Queen (2000) 199 CLR 620; Huynh v The Queen (2013) 87 ALJR 434, considered.

JJP v THE QUEEN
[2021] SASCA 53

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
KELLY P.
Introduction

After a trial by jury, the appellant, JJP, was convicted on 17 August 2020 of one count of maintaining an unlawful sexual relationship with a child. The offending was committed between January 2017 and October 2018 against his daughter when she was aged five and six years old.
The appellant appeals against his conviction on seven grounds. It is contended that the learned trial Judge:
1.Erred in determining that the audio-visual record of an interview between Child Protection Services (CPS) and the complainant on 8 November 2018 was admissible under s 13BA of the Evidence Act 1929 (SA) (‘the Evidence Act’) when it had not been satisfactorily established that the complainant had the capacity to give sworn or unsworn evidence at the time the interview was conducted;
2.Erred in allowing the complainant to give sworn evidence without conducting an inquiry to determine whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence;
3.Failed to exclude inadmissible opinion evidence given by the complainant’s mother that a demonstration performed by the complainant indicated to the witness that the appellant’s penis was erect when he allegedly committed acts particularised in the Information as allegation (a);
4.Failed to direct the jury as to the elements of the sexual offences and in relation to the factual issues he was obliged to consider for the purpose of determining whether the appellant committed the unlawful sexual acts;
5.Failed to adequately direct the jury as to the nature and significance of inconsistent statements made by the complainant;
6.Failed to warn the jury of the danger of convicting the appellant on the complainant’s evidence and the reasons for the warning.
The seventh ground of appeal is a complaint that the verdict was unreasonable and could not be supported by the evidence.
On 29 January 2021, in light of concessions by the respondent, permission to appeal in respect of grounds 2 and 4 was granted. Permission was not required in respect of ground 3. The remaining grounds 1, 5, 6 and 7 were referred to this Court for permission.
In written and oral submissions on the appeal, counsel for the appellant advised that grounds 1 and 6 are abandoned. A further ground of appeal was added, being ground 4A. This ground contends that the particularisation of acts in allegation (a) of the Information, and the conduct of the prosecution case in relation to that allegation, was bad for uncertainty.
Background
The complainant was born in January 2012. She was aged between five and six years old at the time of the offending and eight years and seven months old at the time of the trial.
The offending occurred against the background of family law disputes and proceedings. As the chronology of those proceedings was highly relevant to the defence case, it is necessary to set out some of that background here.
In 2009, the appellant and the complainant’s mother, LP, commenced a relationship. During the relationship, LP lived with the appellant in a country town. They separated in April 2012, approximately three months after the complainant was born.
Following the separation, LP moved to another country town where she lived with her new partner, DW. There was no formal agreement in place as to the care of the complainant, however the informal arrangement was that she lived with LP and spent time with the appellant.
In 2014, LP and the appellant undertook mediation in an attempt to reach a formal agreement about the custody of, and access to, the complainant. No agreement was reached.
In 2015, LP filed an application seeking sole custody of the complainant, following instances where the appellant failed to return the complainant to LP. By an order of the Federal Circuit Court,[1] LP was granted custody of the complainant pending final determination of the application. The appellant was permitted to have access to the complainant every second weekend and during Easter. This arrangement continued until February 2017.
[1] Also known as the ‘Family Court’ during the trial.
In February 2017, the complainant commenced living with the appellant, with the consent of LP. LP gave evidence that she agreed to this arrangement because she wanted to reduce the tension in her relationship with the appellant. It was agreed that the complainant would stay with the appellant for 12 months and that LP would have access to her on some weekends and during school holidays. By this time, LP and DW had relocated to Adelaide.
LP and DW gave evidence that, within six months of February 2017, the appellant refused to hand the complainant over for her visits to her mother. They realised that they had made a mistake in allowing the complainant to live with the appellant.
In November 2017, LP commenced proceedings to return the complainant to her care. She also filed contravention applications relating to the appellant’s failure to hand over the complainant on multiple occasions.
In 2018, the appellant moved to live with his friend GP, who lived in the same country town. The complainant stayed at GP’s house when the appellant had access.
In July 2018, the Federal Circuit Court made temporary orders, pending trial of the custody issue, returning the complainant to the care of LP. Pursuant to the order, the appellant had access to the complainant every third weekend and for half of the school holidays. A trial date was set for January 2019 to determine the final orders and a directions hearing was listed for 15 October 2018. LP and DW gave evidence that their understanding was that the final orders would concern the appellant’s visitation rights and access to the complainant, not where she was living.
On 15 October 2018, the Federal Circuit Court made an order that the appellant and LP discover all documents for trial.
Initial complaint
On 17 October 2018, two days after the last-mentioned Court order, the complainant allegedly complained about the appellant’s offending to her mother. LP gave evidence that both her and the complainant were at home that day with the flu.
LP stated that she went into the complainant’s bedroom and saw the complainant wriggling in her bed. She appeared to have her hands in her lap, in the vicinity of her vagina. LP asked the complainant what she was doing, to which the complainant responded by getting upset and telling LP to leave. After being questioned further by LP, the complainant eventually pulled out a small Wilma doll.
LP asked the complainant what she was doing with the doll. The complainant got upset and said she would write it down. She then wrote a note,[2] which stated that she wanted to be an adult and that she wanted to be sexy. The complainant said that she did not want to tell LP what she was doing because her ‘dad’ told her that he would be very angry and that he would not love her anymore. She further stated that her dad tickled her on her ‘penny’ and that he had waved his ‘private part’ at her in the shower. The word ‘penny’ was used in the household to describe both the vagina and the penis.
[2] Exhibit P6. At the time of the trial, the complainant did not recognise the note she had allegedly written and did not recall authoring it.
LP asked the complainant how big the appellant’s penis was. The complainant stretched her hands out. LP gave evidence that this demonstrated to her that the appellant’s penis was erect.[3]
[3] The admission of this evidence is the subject of ground 3 of this appeal.
The matter was reported to the police on the same day.
Pursuant to Part 17 of the Summary Offences Act 1953 (SA), the complainant gave evidence in the form of a recorded interview with Sarah Herbert, a social worker from CPS. The interview was conducted on 8 November 2018, when the complainant was six years and 10 months old. The audio-visual recording of this interview, which was 90 minutes long, was admitted into evidence pursuant to s 13BA of the Evidence Act.
In light of the allegations raised during the interview, the appellant was prohibited from seeing the complainant. He was arrested on 9 September 2019.
Complainant’s evidence
The prosecution case relied on statements made by the complainant in her interview with Ms Herbert and the evidence she gave at trial on 14 August 2020. The complainant gave evidence via audio-visual link.
Three separate allegations of sexual offending were made against the appellant. It was alleged that he exposed his penis to the complainant on more than one occasion (allegation (a)), that he touched her vagina on more than one occasion (allegation (b)) and that he inserted his finger into her vagina (allegation (c)).
I turn now to discuss each allegation in more detail.
Allegation (a)
The first allegation, referred to as ‘allegation (a)’ in submissions on the appeal, was based on the complainant’s statement to CPS that there were occasions when the appellant showed her ‘his penny, his willy’ in the shower and flicked ‘his penny around’ with his fingers when she was six years old.
During examination-in-chief, the complainant was asked to give a demonstration of the manner in which the appellant ‘flicked his penny’. The complainant shook her right hand. This led the prosecution to contend in its closing address that the appellant had masturbated in front of the complainant in the shower.
In relation to allegation (a), there was no evidence from the complainant as to whether the appellant’s penis was erect, whether he ejaculated or whether he may have been performing an innocent act such as washing himself.
Allegation (b)
The second allegation was based on statements made by the complainant that there were occasions when the appellant ‘tickled her penny’ in the shower and in her bedroom at GP’s house. During the interview, the complainant told Ms Herbert that this occurred eight times in total.
When asked about the last time that it happened, the complainant stated that the appellant started tickling her on her back. When she said she wanted to go to her own room, he touched her on her penny.
The complainant was asked to describe the first time that it happened. She stated that the appellant tickled her penny with his fingers and then washed his hands. The complainant told him to stop, however he continued to touch her.
The complainant also described another instance when the appellant tickled her penny with his fingers and with a cotton bud. This occurred in the complainant’s bedroom in the appellant’s house, prior to him moving into GP’s house. The complainant thought she was aged five or six.
During the interview, the complainant recalled that she wore bathers in the shower because she did not want the appellant to touch her penny. However, it is noted that in evidence, the complainant stated that she only wore bathers in the shower when she had been swimming in the appellant’s pool.
Allegation (c)
This allegation was based on the complainant’s assertion during the interview that the appellant ‘touched the inside’ of her penny with his fingers and a cotton bud. This was alleged to have occurred in the complainant’s bedroom at the appellant’s house. The complainant thought she was aged six at that time. The complainant stated that she was clothed and that the appellant went through her ‘knickers’ to touch her penny.
The defence case
The appellant did not give evidence at trial.
The defence case had two main aspects. The first aspect related to the fact that the complainant could not be relied on as a credible and reliable witness and therefore, the jury could not be satisfied of the appellant’s guilt beyond reasonable doubt. In making this submission, the defence pointed to elements of the complainant’s interview which suggested that she was confused at times, and a number of inconsistencies between the evidence given during the interview and the evidence she gave at trial. For example, in cross-examination, the complainant stated that the appellant only touched her ‘in a bad way’ when she was ‘three or two’, casting doubt on her timeline of events.
Secondly, three explanations consistent with the innocence of the appellant were advanced by defence.
The first explanation was that the complainant’s mother influenced the complainant to tell authorities that she had been sexually interfered with by the appellant, in order to obtain custody of the complainant in the context of family court proceedings.
The second explanation was that the complainant was mistaken as to the identity of the offender, and that it could have been DW who sexually abused the complainant. This explanation was based on evidence that DW funded family law proceedings and his sudden separation from LP after the allegations came to light. There was also conflicting evidence as to whether the complainant had seen DW naked in the shower.
The third explanation was that the complainant described acts by the appellant, which, in truth, were innocent in nature. It was submitted that in respect to allegation (a), the appellant was merely washing himself or behaving in a joking manner. In relation to allegation (b), it was submitted that the appellant touched the complainant’s vagina while he was washing her in the course of discharging his parental responsibilities. Finally, it was contended that there was a possibility that no act of penetration occurred, given the vague nature of the allegations.
All three of these explanations were put to the complainant at trial and she rejected each one.
I now turn to discuss the grounds of appeal that are proceeded with by the appellant. These are grounds 2, 3, 4, 4A and 5.
Grounds 4 and 4A – Unlawful sexual acts
I have had the opportunity of reading in draft the reasons of Doyle JA with respect to grounds 4 and 4A. I agree with his Honour’s reasons.
Ground 2 – Sworn evidence
Ground 2 is a complaint that the Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry to determine whether she had sufficient understanding of the obligation entailed in giving sworn evidence.
Before discussing this ground of appeal, it is necessary to set out what occurred before the complainant gave evidence.

Prior to the complainant being called to give evidence-in-chief, the Judge told counsel that he was satisfied, having regard to the content of the audio-visual record of the CPS interview with the complainant, that the complainant understood the difference between the truth and a lie. However, the Judge queried whether she had sufficient understanding of the oath obligation.
After hearing submissions, the Judge expressed an opinion that he found the matter ‘troubling’. On 28 August 2020, his Honour ruled as follows:
[The complainant] was, as I have said, six at the time she was interviewed and is now eight. Pursuant to Section 9(1) of the Evidence Act she is presumed to be capable of giving sworn evidence in this trial unless I determine that she does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Earlier in the trial, there was some brief discussion between counsel and me about whether or not I should make an enquiry to determine whether or not she has such sufficient understanding. Since that discussion, I have had the opportunity to look at some of the authorities, especially R v P, BR [2004] SASCFC 323. In that case, Mulligan J, with whom Nyland and Anderson JJ agreed, considered a number of issues raised by Section 9. At paragraph 127 his Honour said:
There is no reason to construe the section as requiring an enquiry when the person is a young child.
In my earlier discussions with counsel I said that the only matter which concerned me was her age. It is clear, from the authorities, that age in itself does not rebut the presumption of capacity to give evidence and there is no other factor which leads me to suspect that [the complainant] does not have such capacity. I am mindful of the fact that there are some dicta that, in the case of a child of very tender years, an enquiry may be appropriate. Those cases were not decided against the background of the witness having been interviewed for the purposes of Section 13BA. I have seen and heard that interview twice. It is 90 minutes long. As I said, the interviewer was trained. I am quite satisfied, on the basis of the questions asked by the interviewer and of [the complainant’s] answers to those questions, that she well understands the difference between a truth and a lie. Nothing in the interview made me think that she was ever doing anything other than trying her best to be honest. Her accuracy and reliability, of course, will be a matter for the jury. Against that background, I have no reason to determine that [the complainant] does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Accordingly, I shall not make any enquiries of her pursuant to Section 9 of the Act.
Counsel for the appellant now complain that the Judge’s decision not to make an inquiry was in error. First, it was submitted that ordinarily, it would be necessary to conduct an inquiry of a child of very tender years. Second, it was suggested that the Judge appears to have given significant weight to the questions asked by the trained interviewer in the audio-visual record and the answers given by the complainant, in concluding that she understood the difference between the truth and a lie. In the appellant’s submission, that did not negate the risk that the complainant did not understand the oath obligation and there was nothing in the audio-visual record of interview to indicate that the complainant understood the oath obligation.
To support these submissions, the appellant pointed to the apparent confusion displayed by the complainant during aspects of the audio-visual record of interview and some inconsistencies in her evidence. Reference was also made to the fact that she was eight years and seven months old and the time of giving evidence.
In submitting that the Judge should have held an inquiry due to the complainant’s age, the appellant relied on what fell from Mullighan J in R v P, BR:[4]
I do not think that there is any obligation on the part of a judge to conduct any inquiry under s 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted. Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, although it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given or of what a witness has said in a statement or otherwise to an investigator which suggests the need for an inquiry. Information provided by counsel may require an inquiry to be undertaken. It is not difficult to think of other reasons. S 9(1) does not require an inquiry merely because the person is a young child.
[4] [2004] SASC 323 at [119].
Counsel for the appellant submitted that the remarks of Mullighan J in that case have been adopted in subsequent authorities and that it is now an established principle that if a child is of tender years, ordinarily there should be an inquiry.
For instance, the appellant referred the Court to the case of R v CH,[5] in which Blue J (with whom Stanley and Doyle JJ agreed), said:
Section 9 does not expressly address whether or in what circumstances a Judge should embark upon an inquiry under subsection (3) whether a person may not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (the oath obligation) under subsection (1). However, as a matter of statutory construction, three principles are now clearly established:
1.The starting point is the presumption that a person has sufficient understanding of the oath obligation and, absent good cause, a judge is not obliged to embark on an inquiry into that question.
2.What amounts to good cause depends on the particular circumstances of the case drawn to or coming to the attention of the judge.
3.The mere fact that the person is a child does not amount to good cause but ordinarily an inquiry will be warranted when the child is of very tender years.
[5] [2016] SASCFC 112 at [21].
In oral submissions, the appellant also relied on what fell from Sulan and Peek JJ (Stanley J dissenting) in R v Cheng. At [14] their Honours expressed the view, in obiter, that: [6]
…if it is sought to make a child under the age of ten years bear the responsibility of giving evidence affecting the criminal liability of another person, the child should at least be subjected to a s 9 inquiry by the Judge to determine whether that evidence should be sworn or unsworn (or that the child is unable to give unsworn evidence).
[6] R v Cheng [2015] SASCFC 189 at [14].
The authorities make it clear that the young age of a complainant is not, of itself, reason enough to undertake an inquiry to determine whether the presumption in s 9(1) has been rebutted. The authorities make it plain that there must be something in the particular circumstances about the complainant which call for the inquiry.
In Cheng, the majority (Sulan and Peek JJ) seem to have relied on the rationale for the principle of doli incapax to suggest that in all cases, a s 9 inquiry is required for a child under the age of 10. The rationale for the doli incapax principle is that a child under the age of 14 years lacks the capacity to be criminally responsible for his or her actions. Even if the prosecution prove that the child actually knew that what they were doing was seriously wrong, rather than merely mischievous or naughty, the child is incapable at law of committing the charged offence and must be acquitted.
While the principle of doli incapax is founded upon some similar considerations in relation to the intellectual capacity of young children, the principle has no application with respect to the interpretation of s 9 of the Evidence Act. If the appellant’s submission in relation to the complainant’s age were to be accepted, it would effectively reverse the presumption in s 9(1) of the Evidence Act so that in all trials where a person under the age of 10 is called to give evidence, the trial Judge must conduct an inquiry under s 9. Such a proposition runs counter to the clear wording of s 9.
Here, apart from the age of the complainant and some confusion in her recorded interview, there was no other reason for the Judge to have made an inquiry. As to the complainant’s apparent confusion, the observations of Blue J in R v CH are relevant. Rejecting a similar submission made in that case, his Honour said:[7]
It may be observed that in most trials there are differences between accounts given by different witnesses and between accounts given by the same witness at different times. The mere existence of such differences does not usually give rise to the need for a subsection 9(1) inquiry into the understanding of the witness of the oath obligation. Given the limited nature of a subsection 9(1) inquiry, it would not usually be appropriate to explore such differences on such an inquiry. This is not to say that the nature of a witness’s account might not be so extraordinary on its face, or conflicts and inconsistencies in a witness’s account might not be so grave, as to call for a subsection 9(1) inquiry. However that is not this case.
[7] R v CH [2016] SASCFC 112 at [36].
In my view, this is also not a case where the inconsistencies in the complainant’s accounts are so grave so as to warrant a s 9 inquiry. Here, while the Judge referred in his ruling to the fact that some of the dicta in the decided cases suggests that in the case of a child of very tender years, an inquiry may be appropriate, he noted that those cases were not decided against the background of the witness having been interviewed for the purposes of s 13BA of the Evidence Act. In making this statement, I consider that he was plainly referring to the incongruity that exists between the criteria that exist in s 13BA for the admissibility of an interview recorded before trial, and the requisite requirements for actually giving evidence in court. There is no condition in s 13BA that requires that the person who is interviewed have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. That seems to be what the Judge was referring to when he indicated that the point was troubling him.
Turning to the facts here, I have viewed the audio-visual record of interview and the evidence of the complainant. The interviewer questioned the complainant about her understanding of the concepts of telling the truth and lying, and it is plain from the complainant’s answers that she did understand those concepts. To my mind, her answers indicate a capacity to engage in abstract thinking. There is nothing in the complainant’s answers in that interview to suggest that she did not understand the importance of telling the truth in the witness box.
I would hold that the Judge was not required, by virtue of the age and/or any suggested confusion on the part of the complainant, to hold an inquiry in the circumstances here. I would dismiss this ground of appeal.
Ground 3 – Evidence of the complainant’s mother
This complaint arises out of a passage in the evidence given by the complainant’s mother:
A.I asked her if she slept in her dad’s bed and she said ‘yes’ and I asked if he had clothes on and she said ‘no’. Then she told me that he had waved his private part at her. I asked her how big it was and she stretched her hands out which then noted to me that it must have been erect when he showed her.
The appellant complains that the opinion evidence of the complainant’s mother was irrelevant and highly prejudicial to the appellant, as no evidence had been given that the appellant’s penis was erect when he ‘flicked’ it. It was contended that, therefore, the demonstration that the complainant gave was ambiguous in that respect.
No complaint was made at the time the evidence was led and the Judge was not asked to give any particular direction about it.
While the mother’s opinion, based on the complainant stretching her hands out, was that the appellant was waving his erect penis at the complainant, I do not consider that it adds to the complainant’s demonstration in examination in chief when she was asked to demonstrate what she meant by the appellant flicking his penny or willy in the shower. To my mind, what the complainant demonstrated was plainly an act of masturbation. There was no ambiguity in that demonstration. The jury saw that demonstration and it was open to them to draw the same inference.
Equally, when the complainant’s mother asked the complainant how big the appellant’s penis was, and the complainant answered by holding her hand out and apart, it was open to the jury to draw that same inference.
In these circumstances, I reject the appellant’s submission that the complainant’s mother’s evidence could have caused any real prejudice to the appellant.
Grounds 5 and 7 – Unsafe verdict
I intend to deal with grounds 5 and 7 together, as the Judge’s directions in respect of the acts required to be proved and the relevance of the complainant’s inconsistent statements really merge into some of the complaints made in respect of ground 7.
The test enunciated in M v The Queen[8] was reiterated again in the High Court decision of Pell v The Queen.[9] Relevantly, the High Court stated:[10]
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.
(Citation omitted)
[8] (1994) 181 CLR 487
[9] (2020) 94 ALJR 394.
[10] Pell v The Queen (2020) 94 ALJR 394 at [39].
Here, the prosecution was required to prove that the appellant engaged in at least two or more acts, the general character of which amounted to unlawful sexual acts towards the complainant.
In support of ground 5, being the complaint that the Judge failed to adequately direct the jury as to the nature and significance of the inconsistent statements made by the complainant, counsel for the appellant pointed to the following paragraphs of the Judge’s directions:
I now say something on the topic of what we call prior inconsistent statements. You may think there are some inconsistencies in [the complainant’s] evidence, or inconsistencies between what she said at the interview and what she said to us in evidence. You may think that there are inconsistencies in the evidence of other witnesses.
Let me give you just a couple of examples. On the topic of the accused having flicked his penis, [the complainant] said on one occasion that it only happened at [the appellant’s] house, and then she said it normally happened at [GP’s] house. In her interview she said, talking about sexual touching, that she was six when it happened. And in her evidence, about the sexual touching, she said she was four. She said in the interview that she wore bathers in the shower to prevent the accused being able to touch her vaginal area or the whole of her penny, I think she said. But in evidence she said that she only wore bathers in the shower because she had been in the swimming pool. So, there are some inconsistencies. You may think that there are others; that’s a matter for you.
In addition to the complaint that the Judge made a factual error in relation to the age the complainant said she was when the sexual touching happened, the appellant complained that there were important inconsistencies not mentioned by the Judge. These included the first and last times the appellant allegedly tickled the complainant’s penny, when the appellant allegedly penetrated her vagina, and the manner in which he penetrated the vagina, that is to say whether it was with fingers, or a cotton bud, or both.
Counsel for the appellant complained that these inconsistencies went directly to one of the main planks in the defence case, which was that the touching complained of by the complainant might have been innocent.
In support of the complaint that the verdict is unreasonable or cannot be supported having regard to the evidence, in addition to the complaints made about the Judge’s directions in respect of grounds 4 and 4A, the appellant pointed to what he submitted were fundamental deficiencies in the complainant’s evidence, which ought to have resulted in the jury entertaining a reasonable doubt as to the appellant’s guilt. The appellant dealt with each allegation separately.
In respect of allegation (a), the appellant submitted that the jury ought to have had a doubt as to whether the appellant committed the acts described in allegation (a). This is in light of the complainant’s statements that she could not remember much in the shower and that she did not suggest his penis was erect or that he ejaculated. The appellant also pointed to unsatisfactory features in the complainant’s evidence concerning allegation (a) as to the number of times it happened, where it happened and how old the complainant was when it happened.
As to allegation (b), the appellant pointed to the complainant’s evidence as to:
·the number of times the appellant had tickled her on the penny and the discrepancy as to when that had occurred, conceding in cross-examination that she was about three the last time he tickled her penny and that he never touched her in a bad way when she was six years old;
·the lack of detail provided by the complainant as to any specific incident when she was five;
·the inconsistencies in the complainant’s evidence as to whether she wore her swimming bra and knicker bathers to avoid the appellant touching her on the penny; and
·her statement in cross-examination that she only wore her bathers because she had been swimming in a pool prior to showering.
The appellant also referred to the complainant’s overall vagueness about the way and the circumstances in which the appellant touched her penny, which meant that an innocent explanation for the touching could not be excluded.
As to allegation (c), the appellant made similar complaints about the lack of specificity provided by the complainant and inconsistencies between the interview and her evidence as to the use of a cotton bud to touch the inside of her vagina and the timing and circumstances of the incident.
None of these matters, in my view, present an insurmountable obstacle to conviction, assuming that the jury was properly instructed. Many of the matters relied on by counsel for the appellant really amount to complaints that the complainant was confused and unclear at times in the interview and in her evidence. I consider that most of these matters, including the inability to particularise or to be accurate as to when things occurred, are common place in cases such as this where a child is giving evidence of past sexual abuse. This is the very reason why s 50 was enacted.
For this reason, and having carried out my own independent review of the evidence, I consider that it would be open to a jury properly instructed to convict the appellant.
However, the fact that the accidental or innocent touching of the complainant for hygiene or medicinal purposes was an important aspect of the defence case cannot be ignored. Given this, I consider that the jury was not adequately instructed as to critical matters about which it needed to be satisfied of before finding that the appellant had committed two or more acts of an indecent nature towards the complainant. The jury was not told that, in order to find the appellant guilty, it needed to reject those important aspects of the defence case.
Conclusion

For these reasons, I would make the following orders:
1.     Permission to appeal on grounds 4A, 5 and 7 is granted;
2.     The appeal is allowed on grounds 4 and 5;
3.     The conviction is quashed; and
4.     The matter is remitted for a retrial in the District Court.
DOYLE JA: The background to this matter, including the evidence at trial, the parties’ respective cases, and the grounds of appeal, are set out in the reasons of Kelly P.
As her Honour has explained, there were originally seven grounds of appeal. These grounds were amended to add an additional Ground 4A. Grounds 1 and 6 were abandoned.
Ground 2: the complainant’s sworn evidence
I agree with Kelly P’s reasons for rejecting the appellant’s challenge to the trial judge’s decision to permit the complainant to give sworn evidence without conducting an inquiry to determine whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
As her Honour has explained, s 9(1) of the Evidence Act 1929 (SA) creates a presumption that a person has the capacity to give sworn evidence, and the complainant’s young age (eight years) at the date of trial did not of itself require that the trial judge conduct an inquiry. While authority suggests that a trial judge would ordinarily conduct such an inquiry in the case of witness of this young age, this general approach should not be seen as tantamount to a rule of law. To suggest otherwise would tend to reverse the statutory presumption of capacity.
In any event, through his viewing of the complainant’s record of interview, the trial judge had information available to him that would have assisted him to form a view as to the complainant’s capacity to understand the obligation to be truthful entailed in giving sworn evidence, and hence as to the need for an inquiry. While the interview did not involve any questions expressly addressing this capacity, it nevertheless gave the judge an opportunity to assess the complainant’s capacity to understand the difference between the truth and a lie, and to engage in the abstract thinking that underpins an ability to understand the obligation to be truthful when giving sworn evidence. In my view, the trial judge was also in a position to make an assessment of the (limited) significance of the inconsistencies and incongruities in the complainant’s interview to the complainant’s understanding of these matters.
I do not think this ground of appeal has been made out.
Ground 3: opinion evidence given by the complainant’s mother
As described by Kelly P, the complainant’s mother gave evidence that the complainant told her that the appellant had “waved his private part at her”; that when she asked the complainant how big it was, the complainant stretched her hands out; and that she (the complainant’s mother) inferred from this that the appellant’s penis must have been erect at the time.
Subject to the qualification below, this evidence from the complainant’s mother was admissible as evidence of the initial complaint made by the complainant. The trial judge gave the usual directions required in respect of such evidence, including that it was not evidence of the truth of what the complainant told her mother; that it was before the jury to inform them of the allegations came to light and to enable them to assess the degree of consistency in the complainant’s conduct.
It may be accepted that the mother’s evidence as to the conclusion she drew, to the effect that the complainant was describing an erect penis, was an inadmissible opinion. However, no complaint was made at the time the evidence was led, and the trial judge was not asked to give any particular direction about it.
While there is no way of this Court knowing why no complaint or request for a direction was made, it may have been because the evidence was seen as either inconsequential in the sense that it would have been understood by the jury as either not adding anything to the mother’s description of what the complainant had said and indicated to her, or as carrying little weight by reason of it being merely the mother’s own interpretation of what the complainant had communicated. Alternatively, or additionally, defence counsel may have formed the view that this aside from the mother was best left alone, and that any comment or direction from the trial judge might serve only to result in an undue and unhelpful focus upon that aside.
Whatever the explanation for the failure to make any complaint, or to request any direction, I agree with Kelly P’s conclusion that the trial judge’s failure to give any direction to the jury to ignore the evidence of the complainant’s mother did not cause any miscarriage of justice. Understood in the context of the evidence as a whole, and bearing in mind the trial judge’s directions as to the limited use that could be made of the mother’s evidence of the complainant’s complaint to her, I am not satisfied that there was any realistic prospect that the jury was influenced by the mother’s aside.
Ground 4: directions as to the s 50(1) offence
The appellant was charged with maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The terms of the applicable version of s 50 (being the current version of that section, as enacted in late 2017), are relevantly as follows:
50—Persistent sexual abuse of a child[11]
[11] As has been set out in the reasons of Kelly P, the title of s 50 has since been amended, such that it now reads “Unlawful sexual relationship with child”.
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)     However—
(a)     the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)     the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c)     if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(7) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)     an offence of maintaining an unlawful sexual relationship with a child; and
(b)     1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)     Except as provided by subsection (7)—
(a)     a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b)     a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12) In this section—
…
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
unlawful sexual relationship offence means an offence against subsection (1).
…
The particulars of the offence alleged against the appellant in the Information were as follows:
Particulars of Offence
[The appellant] between the 30^th day of January 2017 and the 7^th day of October 2018 at Port Pirie South and Risdon Park South, maintained an unlawful sexual relationship with [the complainant], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)exposing his penis to her on more than one occasion;
(b)touching her vagina on more than one occasion; and
(c)inserting his finger into her vagina.
The trial judge directed the jury as to the primary elements of the charged offence in terms that the prosecution had to prove each of the following four elements beyond a reasonable doubt: (i) the appellant was an adult at all relevant times; (ii) the complainant was a child (under the age of 17 years) at all relevant times; (iii) the appellant maintained a relationship with the complainant; and (iv) the appellant engaged in two or more unlawful sexual acts with or towards the complainant in the course of that relationship.
The appellant makes no complaint about the trial judge’s articulation of these four primary elements. Nor does he make any complaint about the trial judge’s comment that there was no dispute as to the first and second of these, and that it seemed obvious that there was a relationship between the appellant and complainant given they were father and daughter.
The complaint the subject of Ground 4 relates to the trial judge’s elaboration upon what the fourth of these primary elements required the prosecution to prove. In this respect, the trial judge directed the jury as follows:[12]
[1]The prosecution must then prove that there was an unlawful sexual relationship. That, ladies and gentlemen, is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. In this case, the unlawful sexual acts alleged against the accused are that he exposed his penis to [the complainant] and masturbated on more than one occasion, that he touched her vagina on more than one occasion, and that, on an occasion, he inserted his finger into her vagina.
[2]Ladies and gentlemen, an unlawful sexual act simply means an act that would constitute a sexual offence. I direct you that those sexual activities which I have just listed constitute sexual offences and are therefore unlawful sexual acts. Ladies and gentlemen, consent has nothing to do with this matter. [The complainant] was too young to be able to consent to any sexual activity at all.
[3]Now, ladies and gentlemen, in determining whether or not there was an unlawful sexual relationship, being a relationship in which [the accused] engaged in two or more sexual acts with or towards [the complainant] over any period, it is not necessary for all of you to agree on which sexual acts constitute the two or more sexual acts to constitute the relationship. It is sufficient for a unanimous verdict - that is, all 12 of you - if you are agreed, that the accused committed two or more unlawful sexual acts upon [the complainant] during the relevant period. For a majority verdict, that is 10 or more of you, it is sufficient if 10 or more of you are agreed that he performed two or more sexual acts upon [the complainant] during the period. Of course, [the complainant] has not been especially clear as to how many unlawful sexual acts she said occurred, but it is the prosecution case that the accused committed a number of such acts against her over a period of time.
[4]Ladies and gentlemen, I mention this: the title of the offence is maintaining an unlawful sexual relationship with a child. ‘Maintain’ carries its ordinary English meaning that is carried on, kept up or continued.
[5]While matters of fact are for you and not for me, you may think in this case that there is no particular difficulty about the legal elements of the offence. Rather, you might think the issue is whether the conduct of the accused which is said to make up the offence occurred at all. It seems to me, although I emphasise it is always a matter for you, the question for you will be this: has the prosecution proved beyond reasonable doubt that the conduct alleged in relation to this charge occurred at all and if you are satisfied that such conduct did occur, has the prosecution satisfied you beyond reasonable doubt that it was the accused who engaged in the conduct?
[12] Numbering inserted for ease of reference.
The focus of the appellant’s complaint in Ground 4 is paragraph [2] of the above extract from the trial judge’s directions. He contends that by listing the three allegations relied upon by the prosecution,[13] and then saying to the jury that “I direct you that those sexual activities which I have just listed constituted sexual offences and are therefore unlawful sexual acts”, the trial judge erred. His Honour erred, so the appellant contends, because he failed to direct the jury as to the elements of the constituent offences relied upon as rendering those particularised acts sexual offences and hence “unlawful sexual acts” for the purposes of the s 50(1) offence. The effect of this error was said to have been exacerbated by his Honour’s suggestion in paragraph [5] that the only issue was whether the conduct alleged occurred at all. This suggestion, it was contended, overlooked that an aspect of the defence case was that even if the acts described by the complainant did occur, then it was reasonably possible that they were of an innocent nature, rather than of a nature sufficient to satisfy the elements of the sexual offences they were alleged by the prosecution to constitute.
[13] With the addition of the reference to masturbation in the case of allegation (a), as will be considered in more detail under Ground 4A.
The appellant contends that proof of an unlawful sexual relationship offence in contravention of s 50(1) requires proof of “2 or more unlawful sexual acts” (s 50(2)), which, through operation of the definitions of “unlawful sexual act” and “sexual offence” (s 50(12)), in turn requires proof of the elements of the offences said to make the relevant acts offences of the type contemplated by the definition of “sexual offence”. While acknowledging that the terms of ss 50(4)(a) and (b)[14] limit the extent to which the prosecution is required to allege or prove the particulars of the relevant acts, the appellant contends that the terms of the legislation do not go so far as to relieve the prosecution of the obligation to prove the elements of the offences said to render the relevant acts offences of the requisite type.
[14] And, it might be added, the inclusion of the words “or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised)” in the definition of unlawful sexual act in s 50(12).
The respondent, on the other hand, contends that, by reason of the reference in s 50(4)(b) to the trier of fact needing to be satisfied as to “the general nature or character of those acts”, there is no need for the trier of fact to be satisfied as to the elements of the constituent offences relied upon by the prosecution as rendering the relevant acts sexual offences. It is enough that the trier is satisfied of the sexual nature or character of those acts.
The respondent contends that the legal context and legislative history of s 50, and in particular the 2017 amendments to that section and the mischief they were intended to address, support this broader, or more relaxed, approach to what must be proved to make out an unlawful sexual relationship offence under s 50(1).
As the mischief identified by the respondent relies in part upon the references to the decisions of the High Court in Chiro v The Queen[15] and Hamra v The Queen[16] in the course of the Second Reading Speech upon the introduction of the 2017 amendments to s 50, it is appropriate to make particular reference to those decisions in outlining the relevant context and history. It is also appropriate to refer to the recommendations made in the Criminal Justice Report prepared following the Royal Commission into Institutional Responses to Child Sexual Abuse, given the references to this report in that Second Reading Speech.
[15] Chiro v The Queen (2017) 260 CLR 425.
[16] Hamra v The Queen (2017) 260 CLR 479.
The legal context and legislative history of s 50
The legal context and legislative history of the 2017 version of s 50 was summarised and considered by the High Court in Hamra v The Queen.[17]
[17] Hamra v The Queen (2017) 260 CLR 479 at [18]-[26] (the Court).
The reasons of the Court in that case commenced with reference to the common law principles governing the provision of particulars in criminal matters, as enunciated in Johnson v Miller[18] and S v The Queen.[19] The Court referred to the reasoning of Dixon J in the former, to the effect that an accused “is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”;[20] and the consequential requirement that each “occurrence or transaction, the subject of the charge … be identified and distinguished from other occurrences or transactions alleged to have occurred”.[21]
[18] Johnson v Miller (1937) 59 CLR 467.
[19] S v The Queen (1989) 168 CLR 266.
[20] Johnson v Miller (1937) 59 CLR 467 at 489 (Dixon J).
[21] Johnson v Miller (1937) 59 CLR 467 at 490 (Dixon J).
The Court explained:[22]
The common law principle upon which the appellant relied, which requires the prosecution to be able to identify from the evidence the particular occurrences or transactions which are the subject of the charge, is not based merely upon a concern with forensic prejudice to an accused person. It is based also upon ensuring certainty of the verdict including enabling a plea of autrefois convict or autrefois acquit, ensuring jury unanimity, and ensuring that the court knows the offence for which the person is to be punished.
[22] Hamra v The Queen (2017) 260 CLR 479 at [20] (the Court) (omitting footnotes).

Turning to the South Australian legislation, the Court in Hamra v The Queen[23] observed that the progenitor of s 50 was s 74 of the CLCA as originally enacted in 1994. Section 74(1) provided for an offence of “persistent sexual abuse of a child”. By s 74(2), that offence consisted of “a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).” Section 74(5) required that the jury “be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days” in the relevant period and that the jury “be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred)”.
[23] Hamra v The Queen (2017) 260 CLR 479 at [22] (the Court).
As the Court also observed,[24] in the Second Reading Speech in the Legislative Council, when this provision was first introduced in 1993, the then Attorney‑General referred to the decision in S v The Queen,[25] and addressed the difficulties confronting the prosecution in historical, persistent child sexual abuse cases.[26]
[24] Hamra v The Queen (2017) 260 CLR 479 at [23] (the Court).
[25] S v The Queen (1989) 168 CLR 266.
[26] South Australia, Legislative Council, Parliamentary Debates (Hansard), 13 October 1993 at 546-547.
In 1994, the legislation was re-introduced by the following government.[27] In the House of Assembly, the Deputy Premier’s Second Reading Speech was near identical to the 1993 Second Reading Speech. The Deputy Premier referred to the decision in S v The Queen,[28] and said:[29]
The decision of the High Court poses great difficulty in charging defendants where the allegations involve a long period of multiple offending. In some cases, like S, the child – or the adult recalling events which took place when he or she was a child – cannot specify particular dates or occasions when the offence is alleged to have taken place. The result is that defendants are being acquitted even where juries clearly indicate that they accept the evidence that abuse took place at some time.
Legislation has been introduced in all Australian jurisdictions except the Northern Territory to deal with this problem. The Directors of Public Prosecutions in all jurisdictions have agreed that such legislation is necessary. In late 1993, the South Australian Director of Public Prosecutions had requested that legislation be introduced as a matter of urgency, and the former Government did so, just before the election.
...
While the various models differ in detail, the essence of the legislation in other jurisdictions is, in general, the creation of a new offence of having a sexual relationship with a child or, as is proposed here, persistent sexual abuse of a child. That offence is proved by proving that the defendant commits a sexual offence against a child on three or more separate occasions. The effect is that it is not necessary to specify the dates, or in any other way to particularise the circumstances, of the alleged acts.
The Bill follows these models. It is a necessary reform to the way in which the criminal law copes with these particularly difficult cases.
[27] South Australia, Legislative Council, Parliamentary Debates (Hansard), 9 March 1994 at 188; South Australia, Legislative Council, Parliamentary Debates (Hansard), 20 April 1994 at 536.
[28] S v The Queen (1989) 168 CLR 266.
[29] South Australia, House of Assembly, Parliamentary Debates (Hansard), 4 May 1994 at 1005.
The Court in Hamra v The Queen[30] explained that s 74 did not dispense with the common law requirement for particulars of the three or more offences other than, in s 74(4), to provide that the charge (i) need not state the dates on which the sexual offences were committed, (ii) need not state the order in which the offences were committed, and (iii) need not differentiate the circumstances of commission of each offence.
[30] Hamra v The Queen (2017) 260 CLR 479 at [24] (the Court).
In 2008, s 74 of the CLCA was replaced by an earlier version of s 50. This earlier version of s 50 relevantly provided:
50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)     If—
(a)     at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)     the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)     the alleged conduct comprising the acts of sexual exploitation;
(b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)     In this section—
…
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment.
…
In the Second Reading Speech of the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 (SA), which introduced this earlier version of s 50, the then Attorney-General described the purpose of the proposed section as follows:[31]
The current offence of persistent sexual abuse was enacted to overcome problems such as those identified by the High Court in the case of S v The Queen and by the South Australian Court of Criminal Appeal in R v S. In that case multiple offences against the same child were charged as having occurred between two specified dates, each one being part of an alleged continuous course of conduct. Because the evidence given of the alleged course of conduct was not sufficiently related to the particular charges, in that the child could not identify particular occasions and link them with particular counts, an appeal against conviction was allowed and an acquittal entered.
The offence of persistent sexual abuse is rarely charged because it fails to overcome the very problem of particularity that it tried to remedy. Children are still unable to identify precisely each separate incident of abuse that is required to prove the offence.
The new offence has the same aim as the current offence: to punish the persistent sexual abuse of a child, and not just the sexual acts that can be identified with enough particularity to be charged as specific offences in themselves.
Often, children who have [been] subjected to long-term sexual abuse can remember in some detail when the abuse started and when it ended, so that the first and last alleged acts are often capable of being charged as specific offences, but can't remember the detail of when and where each of the many intervening acts occurred enough to distinguish each one from the other. That is why all these acts cannot be charged as specific offences, and why, when convicted of only the acts that can be so charged, the law fails to recognise or punish the full extent of the abuse. The current offence aims to overcome this but has not worked.
The Bill proposes to replace the current offence with a new one of persistent sexual exploitation of a child. The new offence focuses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences.
Under the Bill, an act of sexual exploitation is an act of a kind that could, if it were able to be properly particularised, be the subject of a charge of a specific sexual offence.
[31] South Australia, House of Assembly, Parliamentary Debates (Hansard), 25 October 2007 at 1473-1474.
As the Court in Hamra v The Queen noted,[32] the offence of persistent sexual abuse in s 50 had the same underlying purpose as the s 74 offence which preceded it. It was designed as a response to decisions such as S v The Queen to create a new, but single, offence that focussed upon acts of sexual exploitation. However, the language of s 50 departed from s 74, most notably in that only two or more acts were required rather than three or more.
[32] Hamra v The Queen (2017) 260 CLR 479 at [26] (the Court).
It was against this background that the High Court came to consider the earlier version of s 50 of the CLCA in the cases of Chiro v The Queen and Hamra v The Queen. However, before addressing the significance of those decisions, it is appropriate to mention the earlier High Court decision in KBT v The Queen[33] in relation to the similar offence of maintaining an unlawful relationship of a sexual nature with a child under s 229B(1) of the Criminal Code (Qld), and its application to the earlier version of s 50 of the CLCA by this Court in R v M, BJ[34] and R v Little.[35] I shall also mention a further decision of this Court in R v Johnson.[36]
[33] KBT v The Queen (1997) 191 CLR 417.
[34] R v M, BJ (2011) 110 SASR 1.
[35] R v Little (2015) 123 SASR 414.
[36] R v Johnson [2015] SASCFC 170.
The offence of maintaining an unlawful relationship of a sexual nature with a child under s 229B(1) of the Criminal Code (Qld), by reason of s 229B(1A), required proof that the offender had, during the period in which the relationship was said to have been maintained, “done an act defined to constitute an offence of a sexual nature in relation to the child … on 3 or more occasions”. However, s 229B(1A) also provided that “evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions”.
An issue in KBT v The Queen[37] was whether the jury needed to be agreed as to the commission of the same three or more acts constituting offences of a sexual nature (that is, whether the s 229B(1) offence was subject to a requirement of extended unanimity). In explaining why the jury did need to be agreed in this way, Brennan CJ, Toohey, Gaudron and Gummow JJ said the following in relation to the nature of the s 229B(1) offence:[38]
The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
Before turning to the precise issue in this appeal, it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of “an act [which] constitute[s] an offence of a sexual nature … on 3 or more occasions”, albeit that it does not require proof of “the dates or the exact circumstances of [the] occasions” on which the acts were committed. The sub-section’s dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of “an act defined to constitute an offence of a sexual nature … on 3 or more occasions” for the purposes of s 229B(1A).
[37] KBT v The Queen (1997) 191 CLR 417.
[38] KBT v The Queen (1997) 191 CLR 417 at 422-423 (Brennan CJ, Toohey, Gaudron & Gummow JJ) (emphasis added).
Kirby J also accepted that it was necessary for the jury to be agreed both that the prosecution had established offences of a sexual nature on three or more occasions, and, where more than three occasions were alleged, that the same three occasions had been proved.[39] In so concluding, his Honour described the s 229B(1) offence in the following terms:[40]
It will be observed that the offence provided by s 229B(1) is of a somewhat unusual character. It relates not to a particular act, matter or thing happening upon a specified date at an identified place. It is inherent in the nature of a “relationship” that it will extend over a period of time and be of a continuous nature. The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship.
[39] KBT v The Queen (1997) 191 CLR 417 at 431 (Kirby J).
[40] KBT v The Queen (1997) 191 CLR 417 at 428 (Kirby J) (omitting footnotes).
In R v M, BJ,[41] the appellant complained of the trial judge’s failure to give an extended unanimity direction in respect of an allegation of an offence under s 50 of the CLCA. The respondent contended that it was not necessary for the jury to be agreed in this way, arguing that the actus reus of the offence was a course of conduct as opposed to particular and identifiable sexual acts. The respondent relied in this respect upon the terms of s 50(4) of the CLCA, and the lessened burden upon the prosecution in terms of the provision of particulars. In addressing this issue, and after referring to KBT v The Queen, Vanstone J, with whom Sulan and White JJ agreed, said:[42]
In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting. It is within s 50(1) that the actus reus of the offence is given. Section 50(4) is concerned, as I said, with the framing of a charge against the section and cannot derogate from s 50(1).
[41] R v M, BJ (2011) 110 SASR 1.
[42] R v M, BJ (2011) 110 SASR 1 at [70] (emphasis added).
While thus accepting that the s 50 offence did attract a requirement of extended unanimity, her Honour was ultimately satisfied that the failure to give a direction to that effect was not productive of any substantial miscarriage of justice in the circumstances of that case.[43]
[43] R v M, BJ (2011) 110 SASR 1 at [80].
The applicability of the requirement of extended unanimity to the s 50 offence was confirmed by this Court through its application of KBT v The Queen in R v Little.[44]
[44] R v Little (2015) 123 SASR 414 at [20].
In R v Johnson,[45] this Court allowed an appeal against a conviction following a trial by jury on a count of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA. The complainant gave evidence that the defendant had penile-vaginal intercourse with her every week or so when she was 15 and 16 years of age, and that on each occasion it happened at home and, generally, in her bedroom. Peek J reasoned that the requirement of extended unanimity recognised by the Court in R v M, BJ and R v Little carried with it an implication that, in order to reach the requisite agreement among the jury, “there must be a minimum amount of evidence adduced by the prosecution to enable jurors … to delineate two offences (at least) and to agree that those two offences were committed”.[46] His Honour held that the evidence of the complainant in that case was not sufficient for that purpose; its generality made it impossible for the jury to delineate any pair of offences, thus rendering the verdict unreasonable.[47] Sulan and Stanley JJ agreed with the reasons of Peek J, but noted that the operation of s 50 of the CLCA could thus produce the “perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence”.[48]
[45] R v Johnson [2015] SASCFC 170.
[46] R v Johnson [2015] SASCFC 170 at [111].
[47] R v Johnson [2015] SASCFC 170 at [112]-[116].
[48] R v Johnson [2015] SASCFC 170 at [2].
As will be seen below, while this decision has not been overruled, the effect of subsequent decisions has been to confine it to its facts. In particular, in R v Hamra,[49] the Full Court of this Court emphasised the nature of the appeal in R v Johnson (being an appeal on the ground of unreasonableness that turned upon a consideration of the evidence) in observing that it should be understood as confined to its facts, and as not bearing upon the proper construction of s 50 of the CLCA and the determination of its elements.[50] As will be seen, this approach was upheld by the High Court in Hamra v The Queen.
[49] R v Hamra (2016) 126 SASR 374.
[50] R v Hamra (2016) 126 SASR 374 at [49]-[50].
I turn now to address the High Court’s consideration of the operation of the s 50 offence in Chiro v The Queen and Hamra v The Queen. These cases were heard together, with judgment in each delivered at the same time.

Against this background, several observations can be made about the current version of s 50 of the CLCA.
Under s 50(1), the actus reus of the offence is expressed in terms of the maintenance of an unlawful sexual relationship with a child. However, by reason of ss 50(2) and (3), it is plain that establishing an “unlawful sexual relationship” requires proof of a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child. And, by reason of the definition of “unlawful sexual act” in s 50(12), it is also plain that this requires proof of 2 or more acts that constitute a sexual offence of the type specified (or would have constituted such an offence if particulars of the time and place at which the act took place were sufficiently particularised). As such, ss 50(1), (2), (3) and (12) operate in combination to incorporate within the actus reus of the s 50 offence the elements of the sexual offences from the CLCA listed in the s 50(12) definition of “sexual offence”.
It is clear that s 50 creates a single offence. Further, given the expression of the actus reus in the current version of s 50(1), the offence may be described as a course of conduct or relationship offence. Certainly the articulation of the actus reus in the current version of s 50(1) is in contradistinction to the articulation of the actus reus in the former version of s 50(1), which involved direct reference to the acts of sexual exploitation that constituted the offence. However, for the reasons set out in the preceding paragraph, s 50(1) of the current version of the offence is not a complete statement of the actus reus. By reason of the operation of ss 50(2), (3) and (12), the offence still requires proof of two or more unlawful sexual acts. As such, while the primary expression of the actus reus is by reference to a relationship, proof of this relationship ultimately depends upon proof of two or more unlawful sexual acts. In this sense, and like the former version of the offence, and the version of the Queensland offence considered in KBT v The Queen, it is not a course of conduct offence in the true or strict sense.
All of that said, the current version of the offence does overcome the primary difficulty with the former version of the offence, as identified in earlier decisions of this Court and confirmed by the High Court in Chiro v The Queen; that is, the difficulty associated with the requirement of extended unanimity. This is achieved by the express removal in s 50(4)(c) of any requirement that the jury be agreed as to the unlawful sexual acts constituting the unlawful sexual relationship.
In addition to this, the current version of s 50 also overcomes the related difficulties in relation to the sentencing of an offender considered in Chiro v The Queen and R v Hamra. It does so by providing in s 50(11) that the offender is to be sentenced having regard to the unlawful sexual acts that the sentencing judge determines have been proved beyond reasonable doubt, without the sentencing judge having to ask the jury which unlawful sexual acts it found proved.
In this way, the current version of s 50 does address the concerns identified and considered in Chiro v The Queen, Hamra v The Queen and the Criminal Justice Report to which I have referred. It avoids the risk that an offender will only be held accountable for the less serious acts, and will not be punished for the full range of unlawful sexual acts proved.
The current version of s 50, like its predecessors, also addresses the concerns that emerge from the case law and the Criminal Justice Report associated with the difficulty that victims of child sexual abuse often have in describing the acts of abuse to which they have been subjected with the particularity that would ordinarily be required by the common law for the prosecution to allege and establish a criminal offence. It does so through the abrogation by ss 50(4)(a) and (b) of the ordinary common law principles governing particularity.
While s 50(5) requires that the prosecution allege the period of time over which the unlawful sexual relationship existed, s 50(4)(a) provides that the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence. In this way, s 50(4)(a) operates to remove any requirement that the prosecution specify the date, time or place of the unlawful sexual acts alleged to constitute the unlawful sexual relationship, or indeed any requirement to otherwise provide particulars sufficient to delineate or differentiate between the unlawful sexual acts alleged.
As such, s 50(4)(a) of the current version of the offence operates similarly to s 50(4)(b) of the former version of the offence. Understood in this way, s 50(4)(a) is concerned merely with the framing of a charge against an accused, and does not derogate from the elements of the offence as specified in s 50(1) (and elaborated upon through ss 50(2), (3) and (12)).
In my view, s 50(4)(b) performs a related function. While s 50(4)(a) operates to remove the need for the prosecution to frame its allegations of unlawful sexual acts with the usual particularity, s 50(4)(b) operates to remove the need for the trier of fact to be satisfied of unlawful sexual acts with this usual particularity. Thus, s 50(4)(b) appears intended merely to overcome any potential obstacle to a conviction that might otherwise have existed by dint of reasoning along the lines of that adopted by this Court in R v Johnson. It ensures that there is no room to argue that a conviction is dependent upon the trier of fact being able to identify the unlawful sexual acts relied upon to constitute the s 50(1) offence with the usual particularity, including being able to delineate or differentiate between those acts.
In summary, ss 50(4)(a) and (b) operate to remove any need to allege or prove the requisite unlawful sexual acts with the usual particularity. But they do so without derogating from the articulation of the actus reus in s 50(1) (as elaborated upon in ss 50(2), (3) and (12)). In my view, that is so despite the reference in s 50(4)(b) to it being sufficient that the trier of fact “be satisfied as to the general nature or character of those acts”. Contrary to the contentions of the respondent in this matter, I do not think these words can be taken to mean that it is unnecessary to prove the relevant unlawful sexual acts by reference to the sexual offences they are said to constitute. To so hold would, in my view, be to ignore, or at least attach insufficient weight to, the articulation of the actus reus in ss 50(1), (2), (3) and (12). Rather, I consider that the reference to it being sufficient that the trier of fact “be satisfied as to the general nature or character of those acts” is intended merely as a reference to the nature or character of the acts that must be established in order to make out the elements of the relevant sexual offences (but stripped of the usual need for particularity). In other words, the requisite general nature or character of those acts must still be determined by reference to the elements of the relevant sexual offences. It is not sufficient to establish merely that the acts were of a sexual or indecent nature in some general sense untethered from the elements of any particular sexual offence.
In my view, this is the plain meaning of the words used in s 50(4)(b) when read in the context of the section as a whole. I do not think there is anything in the terms of s 50 that would support a broader role for those words in relaxing the content of the actus reus of the s 50 offence. To the contrary, the meaning sought to be given to those words by the respondent’s argument would, as I have said, tend to ignore, or at least attach insufficient weight to, the articulation of the actus reus in ss 50(1), (2), (3) and (12).
Further, I do not consider that the Second Reading Speech upon the introduction of the 2017 amendments assists the respondent’s argument. That Speech makes it plain that the mischief sought to be addressed by the amendments was that which had been identified in Chiro v The Queen, Hamra v The Queen and the Criminal Justice Report. But for the reasons I have explained, the amendments do address that mischief in various ways. The mischief identified in those cases, and in that report, does not include any difficulty or concern with the need to establish the elements of the underlying sexual offences said to render the acts relied upon unlawful sexual acts. Rather, the mischief identified in those cases, and in that report, and to which the Second Reading Speech refers, was the difficulties or concerns with the need for particularity, the requirement of unanimity and the consequential difficulties for sentencing and risk that an offender would not be punished for the entirety of their conduct. All of these concerns have been addressed in the current version of s 50.
It follows from the above that the elements of the s 50 offence will include the elements of the sexual offences relied upon as rendering the alleged acts unlawful sexual acts. In the case of a trial by jury, the judge will thus be required to have regard to the elements of those sexual offences in framing directions for the jury. In some cases, where a range of unlawful sexual acts is relied upon, it may be that the directions will become somewhat lengthy and complicated. In such cases, an aide memoire may assist to ensure the directions are able to be followed and understood by the jury. While length and complexity in jury directions is undesirable, it is sometimes an unavoidable consequence of the nature of the offence(s) alleged.
That said, it seems to me that recognition that the elements of a s 50 offence include the elements of the sexual offences relied upon by the prosecution will not ordinarily cause much difficulty. The directions to be given can, and should, be tailored to reflect the real issues in the case. They can, and should, be confined to so much of the law as the jurors need to know in order to dispose of the issues in the case.[70] In some cases, where the only issue is whether or not the acts alleged took place at all, it may well be appropriate and sufficient to give directions in the relatively truncated form in which they were given in this case. However, in those cases where the issues in the case include the nature or character of the acts alleged to have occurred, it will be necessary to frame the directions to the jury in terms that reflect the elements of the relevant sexual offences.
[70] Alford v Magee (1952) 85 CLR 437 at 466 (Dixon, Williams, Webb, Fullagar & Kitto JJ); RPS v The Queen (2000) 199 CLR 620 at [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ); Huynh v The Queen (2013) 87 ALJR 434 at [31] (the Court).
Application to the present case
Turning to the present case, it will be recalled that the particulars alleged by the prosecution involved three acts, namely that the appellant: (a) exposed his penis to the complainant on more than one occasion; (b) touched the complainant’s vagina on more than one occasion; and (c) inserted his finger into her vagina. These acts were said to constitute unlawful sexual acts by reason that they involved the offences of gross indecency,[71] indecent assault[72] and unlawful sexual intercourse[73] respectively.
[71] Contrary to s 58 of the CLCA.
[72] Contrary to s 56 of the CLCA.
[73] Contrary to s 49(1) of the CLCA.
I have earlier extracted the relevant passage from the trial judge’s directions in relation to what the prosecution was required to prove in order to make out the s 50 offence alleged against the appellant. In what I have numbered as paragraph [5] of those directions, the trial judge suggested that the jury “might think the issue is whether the conduct of the accused which is said to make up the offence occurred at all”. If that had been an accurate statement of the issues in the case, then the relatively truncated directions given by the trial judge as to what was required to make out the s 50 offence would have been adequate. However, the difficulty is that this was not an accurate statement of the issues in the case.
It is true that the defence case involved a direct challenge to the credibility and reliability of the complainant’s evidence, including by reason of the complainant having been influenced by her mother to make the allegations she did, or by reason of the complainant being mistaken as to the identity of the offender (on the basis that it might have been the mother’s new partner who sexually abused the complainant).
However, critically for present purposes, the defence case also included an argument that the acts described by the complainant were, properly understood, innocent in nature. It was submitted that it was reasonably possible that the acts described by the complainant involved: in respect of allegation (a), the appellant washing himself or behaving in a joking manner; and in respect of allegations (b) and (c), the appellant touching the complainant’s vagina while he was washing her, or applying cream, in the course of his parental responsibilities (particularly if the acts occurred when she was younger than she suggested in her interview (six years of age), and at the age she gave during cross-examination (two or three years of age)).
The trial judge made reference to this aspect of the defence case towards the end of his summing up, when summarising the defence case. After outlining the defence challenge to the credibility and reliability of the complainant’s evidence, the trial judge said:
Or, the defence suggests, [the complainant] is very confused about her age at the time of the touchings. So, the defence has suggested here that it is a possibility that she was touched by the accused but when she was much younger than she said and that in those circumstances the touchings were innocent, for purposes of hygiene for example.
While this passage from the summing up addressed, albeit briefly, the “innocent acts” aspect of the defence case in respect of allegations (b) and (c), it did not include any reference to that aspect of the defence case in respect of allegation (a). It did not include any reference to the jury needing to consider, and exclude as a reasonable possibility, that the act the complainant described involved the appellant merely washing himself or behaving in a joking manner.
Further, and in any event, I do not think it was sufficient to leave this aspect of the defence case to the judge’s summary of the parties’ cases towards the end of his summing up. This aspect of the defence case raised issues relating to the elements of the offence that ought to have been addressed in the section of his Honour’s summing up that I have extracted earlier.
As mentioned, his Honour had identified the four elements of the s 50 offence, which might conveniently be described as the “primary elements” of that offence. However, proof of the fourth of these primary elements (namely, that there was an unlawful sexual relationship) required proof of two or more acts which constituted sexual offences (or would have if sufficiently particularised). As such, proof of that fourth primary element required proof of the various “sub‑elements” necessary to render the alleged acts sexual offences.
In the case of allegation (a), this required proof of the sub-element that the acts were acts of gross indecency. The jury ought to have been directed as to the need to be satisfied beyond reasonable doubt of this matter. If they accepted that the acts described by the complainant involved the appellant masturbating, then they would undoubtedly have been so satisfied. However, given that the allegation as framed in the Information was an allegation merely that the appellant exposed his penis to the complainant on more than one occasion, and that the complainant’s verbal description of his acts (as opposed to her demonstration in the witness box) was in terms of him “flicking” his penis in her presence, the nature or character of the alleged acts the subject of allegation (a) was an issue that required the jury’s consideration and determination. It was not accurate, and certainly not sufficient, to direct the jury that the question for them was whether the conduct alleged occurred.
The same may be said of the acts the subject of allegations (b) and (c). The jury ought to have been directed as to the sub-elements of the sexual offences that those acts were said by the prosecution to have constituted so that the jury understood that the question for them was not simply whether the acts alleged occurred, but whether they occurred in circumstances that rendered them sexual offences. For example, in respect of allegation (b) the jury ought to have been directed that it was necessary that they be satisfied beyond reasonable doubt that the alleged touching was intentional, and occurred in circumstances of indecency, as opposed to it being accidental or occurring in the course of attending to the complainant’s hygiene.
For these reasons, I am satisfied that the trial judge erred in his articulation of the elements of the s 50 offence, or at least that his directions occasioned a miscarriage of justice by reason that they did not give the jury adequate assistance in their application of those elements to the facts and issues arising on the defence case. I would therefore allow the appeal on Ground 4.
Ground 4A: uncertainty in respect of allegation (a)
Ground 4A complains of uncertainty in respect of allegation (a), and the conduct of the prosecution case in respect of the same.
It will be recalled that, as particularised on the Information, allegation (a) was that the appellant exposed his penis to the complainant on more than one occasion. In her record of interview, the complainant had described the appellant as flicking his penis. However, when giving evidence the complainant gave a demonstration of what she saw the appellant doing, which the judge described as involving her shaking her hand, and which was consistent with the appellant masturbating. In her closing address, the prosecutor referred to allegation (a) as an allegation that the appellant was masturbating. And in his summing up the trial judge referred to allegation (a) as an allegation that the appellant “exposed his penis to [the complainant] and masturbated”.[74]
[74] See paragraph [1] of the extract from the summing up earlier in these reasons.
The appellant contends that this evolution in the prosecution case as to allegation (a), without there having been any amendment of the allegation as it appeared in the Information, gave rise to an ambiguity or uncertainty that infected the jury’s verdict. The appellant contends that by directing the jury in terms that the issue for them in respect of allegation (a) was whether the conduct alleged by the complainant occurred at all,[75] the trial judge left the task of the jury unclear, and left open the possibility that they acted upon the basis that the only issue for them in respect of allegation (a) was whether the appellant had exposed his penis to the complainant, in the sense that he had flicked it.
[75] See paragraph [5] of the extract from the summing up earlier in these reasons.
The respondent contends that the jury would have understood from the prosecution closing address, and the judge’s summing up, that the prosecution case in respect of allegation (a) had narrowed to an allegation of masturbation. While there is some force in this contention, I am not satisfied that the prosecutor or trial judge made it sufficiently clear to the jury that the prosecution had narrowed its case in this way. Rather, there was a real prospect that the jury would have proceeded on the basis that, even if not satisfied that the appellant was masturbating, they were still required to consider the complainant’s allegation that the appellant exposed his penis to her by flicking it.

The risk that the jury did proceed on this basis serves to underscore the significance of the trial judge’s failure to direct the jury as to the elements of the sexual offence of gross indecency (which was the offence relied upon by the prosecution to render the conduct the subject of allegation (a) an unlawful sexual act).
While I would prefer to refrain from expressing a final view as to whether the complaint of uncertainty in Ground 4A provides an independent basis for allowing the appeal, I am satisfied that when considered in combination with Ground 4, the complaints raised by the appellant establish a miscarriage of justice and warrant the appeal being allowed.
Ground 5: inconsistencies in the complainant’s interview and evidence
In Ground 5, the appellant contends that the trial judge failed to adequately direct the jury as to the nature and significance of the inconsistent statements made by the complainant.
As set out in the reasons of Kelly P, the trial judge’s directions included reference to the inconsistencies said to exist within the complainant’s evidence, and between her evidence and what she said in her interview. His Honour gave three examples, before adding that “[y]ou may think that there are others; that’s a matter for you”.
The appellant complains that the judge made an error in respect of one of the examples that he gave; namely, that his Honour referred to an inconsistency between the complainant saying in her interview that she was six when the sexual touching occurred, and saying in her evidence that she was four. In fact the complainant had said in cross-examination that she was only two or three when the sexual touching occurred. The appellant contends that this error was significant in that it went to the plausibility of the defence suggestion that the touching might have occurred in the innocent circumstances of the appellant washing or applying cream to the complainant.
The appellant also complains that there were various other inconsistencies that were not mentioned by the trial judge, other than through his concluding remark that the jury “may think that there are others”. Several of these other inconsistencies have been set out in the reasons of Kelly P.
I accept that, in the ordinary course, a trial judge will be afforded significant latitude in determining the nature and detail of the directions to be given to the jury in relation to inconsistencies in a witness’ evidence. This will include latitude in determining the extent to which the judge reminds the jury of the particular inconsistencies relied upon to impugn the witness’ evidence.
The difficulty in the present case is that the relevance of the additional inconsistencies in the complainant’s evidence relied upon by the appellant was not confined to the complainant’s credibility and reliability in a general sense. Rather, as Kelly P has described, the inconsistencies were directly relevant to an assessment of the defence case that it was possible that the acts described by the complainant were innocent rather than sexual in nature. In circumstances where, as explained in the context of my consideration of Ground 4, the trial judge failed to otherwise adequately bring this aspect of the defence case to the jury’s attention for their consideration, I am satisfied that there was a related inadequacy in the trial judge’s directions as to the potential significance of the inconsistencies in the complainant’s evidence.
For these reasons, I consider that Ground 5 has been made out, at least when considered in combination with the complaint the subject of Ground 4.
Ground 7: unreasonable verdict
As explained by Kelly P, in contending through Ground 7 that the jury’s verdict was unreasonable, the appellant relied upon the frailty of the complainant’s evidence by reason of matters that included, and indeed were focussed upon, the inconsistencies the subject of Ground 5. For the reasons given by Kelly P, I do not accept that the matters relied upon by the appellant in this context presented an insurmountable obstacle to conviction, or otherwise rendered the verdict unreasonable.
Conclusion
As set out in the reasons of Kelly P, there has already been a grant of permission to appeal in respect of Grounds 2 and 4. Permission was not required in respect of Ground 3. I would grant permission to appeal on the remaining grounds pressed by the appellant, namely Grounds 4A, 5 and 7. I would allow the appeal on Grounds 4 and 5. I would quash the conviction and remit the matter for a retrial in the District Court.
BLEBY JA: I would grant permission to appeal on Grounds 4A, 5 and 7. I would allow the appeal on Ground 4, for the reasons given by Doyle JA. I would further allow the appeal on Ground 5, for the reasons given by both Kelly P and Doyle JA. I agree that this Court should quash the conviction and remit the matter for retrial in the District Court.