Kakule v The King
[2025] SASCA 20
•13 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KAKULE v THE KING
[2025] SASCA 20
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
13 March 2025
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - IMPROPER ADMISSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED
Appeal against conviction.
The appellant was convicted of one count of assault with intent to rape (Count 1), one count of indecent assault (Count 2) and two further counts of rape (Counts 3 and 4), contrary to ss 270B, 56 and 48 of the Criminal Law Consolidation Act 1935 (SA). The appellant and complainant were both members of the Congolese community in Mount Gambier. On Count 1, the prosecution case was that the appellant drove the complainant to somewhere in the bush and, once stopped, attempted to rape the complainant. Counts 2-4 concerned penile-vaginal intercourse alleged to have occurred on 6 December 2019 at the appellant’s house.
The issues arising on appeal were, broadly:
1.whether a miscarriage of justice occurred by reason of the admission into evidence of handwritten notes by the appellant;
2.whether the judge erred in directing the jury that they could reason from a lie or lies told by the appellant to a consciousness of guilt;
3. whether the judge’s directions in respect of the alleged lies were adequate;
4.whether a miscarriage of justice occurred by reason of the prosecutor’s submission about the appellant’s attendance at the complainant’s unit;
5.whether the judge erred by failing to give directions required by s 34R of the Evidence Act 1929 (SA); and
6.whether the admission of evidence of initial complaint in respect of count 1 occasioned a miscarriage of justice.
Held (by the Court) allowing the appeal, setting aside the conviction and remitting the matter for retrial:
1.It was open for the judge to find it was not reasonably practical to caution the appellant prior to the arrival of an interpreter. It was open to the Judge to admit the notes (Ground 1).
2.It was not open to the prosecution to rely on the appellant’s provision of the notes to police as lies evidencing a consciousness of guilt (Ground 2).
3.The failure to direct the jury in accordance with s 34R of the Evidence Act 1929 (SA) on the impermissible use of evidence of the events of 7 December constituted an error of law (Ground 5 in part).
4.The admission of initial complaint evidence in respect of Count 1 did not occasion a miscarriage of justice (Ground 6).
Criminal Law Consolidation Act 1935 (SA) ss 48, 56. 270B; Evidence Act 1929 (SA) ss 34M, 34P, 34R; Criminal Procedure Act 1921 (SA) s 158(2), referred to.
Van Der Meer v The Queen (1988) 62 ALJR 656; R v Quist (2017) 127 SASR 471; Edwards v The Queen (1993) 178 CLR 193; R v Lane (2011) 221 A Crim R 309; Eade v The King (1924) 34 CLR 154; Law v The Queen [2020] WASCA 196; O’Leary v The King (1946) 73 CLR 566; JGS v The Queen [2020] SASCFC 48; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Usher (2014) 119 SASR 22; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v Rippey [2022] SASCA 141; Weragoda v The Queen [2021] SASCA 123; R v T, S (2017) 128 SASR 66; R v P, S [2016] SASCFC 97; R v Moores (2017) 128 SASR 340; R v Landmeter (2015) 121 SASR 522; Boyle (a Pseudonym) v The Queen (2022) 299 A Crim R 92; Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; GBF v The Queen (2020) 271 CLR 537; Kalbasi v Western Australia (2018) 264 CLR 62, considered.
KAKULE v THE KING
[2025] SASCA 20Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT: This is an appeal against conviction of one count of assault with intent to rape, one count of indecent assault and two counts of rape, contrary to ss 270B, 56 and 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The issues arising on the appeal are, broadly:
·whether a miscarriage of justice occurred by reason of the admission into evidence of handwritten notes by the appellant (Ground 1);
·whether the judge erred in directing the jury that they could reason from a lie or lies told by the appellant to a consciousness of guilt (Ground 2);
·whether the judge’s directions in respect of the alleged lies were adequate (Ground 3);
·whether a miscarriage of justice occurred by reason of the prosecutor’s submission about the appellant’s attendance at the complainant’s unit (Ground 4);
·whether the judge erred by failing to give directions required by s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 5); and
·whether the admission of evidence of initial complaint in respect of count 1 occasioned a miscarriage of justice (Ground 6).
It is not necessary to address every ground in every particular. For the following reasons, the appeal must be allowed, the conviction set aside, and the matter remitted for retrial.
Background
The appellant and the complainant were members of the Congolese community in Mount Gambier. The complainant met the appellant through her brother. The complainant did not have a driver’s licence. On the prosecution case, the appellant would often drive the complainant to TAFE and her son to kindergarten.
Prior to the events the subject of the charges, the appellant sent pornographic videos to the complainant and expressed interest in having a sexual relationship with her.
The prosecution case was, broadly, as follows. On 4 December 2019, the appellant drove the complainant to somewhere in the bush. Once they had stopped, there was an altercation in the front passenger seat during which the appellant attempted to remove the complainant’s clothing and tried to rape her. That allegation was the subject of count 1.
Counts 2 to 4 were alleged to have occurred on 6 December 2019 at the appellant’s house. Count 2 alleged that the appellant attempted to insert his penis into the complainant’s vagina. The complainant locked her legs and prevented him from doing so. The appellant pressed his penis against the complainant’s lower back. He ejaculated. This occurred underneath the dining table.
The complainant got up from under the table. As she leaned against the kitchen counter, the appellant inserted his penis in her vagina from behind. This allegation was the subject of count 3. The appellant then moved the complainant to the couch where he had vaginal sex with her. This allegation was the subject of count 4.
The appellant’s case at trial was that the events the subject of count 1 did not occur and the events the subject of counts 2 to 4 were consensual.
On the afternoon of 6 December 2019, the complainant attended at the Mount Gambier Hospital and made a disclosure to a triage nurse, Ms Williams. That disclosure is the subject of Ground 6. Police were notified but did not take a statement from the complainant that day.
On 7 December 2019, the appellant attended at the complainant’s house. She refused to let him in. The appellant laughed at the complainant and tried to open the door with a piece of metal he had in his hand. The complainant went inside and called the police. Police attended and found the appellant sitting in his car. They told him he was not welcome and not to come back. They did not inform him on that occasion of the complainant’s allegations.
At some time after 6 December 2019 but prior to Christmas that year, the appellant called the complainant’s neighbour and asked to speak to the complainant. During the call, he asked the complainant to forgive him, ‘so the police will not know what he have done’. The complainant told the appellant that she had already told the police. The appellant pleaded with her to discontinue the matter, and to tell the police that she was his girlfriend. The complaint said she could not do that. The appellant offered to buy her a car and teach her to drive. He said he did not want to be gaoled.
The complainant provided a statement to police between 20 and 21 December 2019. On 27 December 2019, the appellant attended at the Mount Gambier Police Station with a friend, Mr Chizungu. Police arrested the appellant. The appellant requested an interpreter. While they were waiting for an interpreter, police stopped the interview process and turned off the video camera. While off camera, the appellant requested a notebook from his car. Police retrieved the notebook and photocopied its contents.
The notebook
Grounds 1 to 3 concern the admission into evidence of and directions given in respect of the notebook. The circumstances of its procuring were as follows. Police attended at the appellant’s home address on 27 December 2019 at about 11:10am, with the intention of arresting the appellant. The appellant was not at home, so police left their contact details with his son.
At about 12:30pm the same day, the appellant attended at the Mount Gambier Police Station with Mr Chizungu. Police took the appellant and Mr Chizungu to an interview room. Officer McGregor told the appellant she was investigating some offences with the complainant. Officer McManus spoke to the appellant about the execution of a general search warrant at his home address.
Officer McGregor confirmed the complainant’s surname and placed the appellant under arrest. The appellant was told the basic facts of the allegations. He was advised of his right to make a telephone call. He declined. He was offered a solicitor, which he declined. Officer McGregor repeated the offer, using the term ‘lawyer’. The appellant responded, ‘maybe a lawyer’.
The appellant and Mr Chizungu then had an exchange in another language. Mr Chizungu then said to police that he had explained to the appellant that:
he’s under arrest, for three (3) count or for crime, which led to investigation of his house.
Mr Chizungu further said,
And then I’m asking does he understand what you are explaining to him … And if he have something to say before he can say it. He said yes, he got something which he can say.
Police offered the appellant the services of an interpreter, which the appellant accepted. Prior to any interpreter arriving, there was some further conversation in which the appellant displayed a basic understanding of English and agreed that he understood what the police had been saying. While police were attempting to arrange for an interpreter and a solicitor, they continued to speak with the appellant and Mr Chizungu. Mr Chizungu asked:
So the offence is a question. The offence is a confirmed or still you are under investigation?
Officer Wales responded in the following terms:
Okay, we’re just conducting the investigation. So the … matter is still being investigated. Okay and it has been investigated and now we’re at the stage where the allegations are so John’s being arrested and the allegations are being put to John, um, um and he has the right if he wishes to answer questions he can answer questions but he doesn’t have to if he doesn’t wish to. Um, and then a file, so it will be prepared for Court. The investigation, all the paperwork will be put to the courts and it will be for the Court to decide whether or not the offence has happened or it hasn’t. Okay.
(Emphasis added)
Police paused the recording at 1:07pm, to await the arrival of a solicitor and an interpreter. After the recording was paused, the appellant requested a notebook from his car. Officer McGregor responded that the appellant could not get the notebook as he was under arrest. The appellant gave his keys to Officer Wales who went out to the car and retrieved the notebook. Officer Wales’s evidence was that the notebook was like a children’s exercise book with children’s work in the front and pages of writing at the back.
Officer Wales photocopied the pages of writing, handed a copy to the appellant and retained the original. The copied pages constituted five pages of handwriting in Kirundi. The pages were subsequently translated into English. They referred to the events of 25 November and 6 and 7 December 2019. The prosecution pointed to various matters asserted in the notes. As to the events of 25 November 2016, the notes asserted:
a.the complainant and the appellant first met that day when the complainant asked the appellant to take her child to kindergarten;
b.the complainant told the appellant that her husband did not sexually satisfy her because he wore condoms;
c.the appellant and the complainant had engaged in consensual sexual touching of the appellant’s penis and the complainant’s vagina at the complainant’s instigation;
d.afterwards, the complainant said, ‘wow, John you are really a good and wonderful man, I love you and thank you so much’;
e.when asked if she was okay, the complainant responded, ‘so much indeed!’.
As to the events of 6 December 2019, the notes asserted:
a.the complainant initiated sexual contact by kissing and caressing the appellant;
b.the complainant ‘could not control or contain herself anymore for she badly wanted to have sex with [the appellant]’;
c.the appellant was unable to resist and found himself ‘inserting [his] penis into her vagina’, that the complainant dragged him, causing them to fall and that he ejaculated outside of her vagina;
d.the complainant found it ‘very dissatisfying’; and
e.later in the car, the complainant told the appellant, ‘now I hate you! For you left me unsatisfied! Now, I will be desiring you for 3 days which will be painful for me’.
Both Officers McGregor and Wales gave evidence that they thought the appellant had reasonable English, but they did not caution him because they were waiting for an interpreter before questioning him.
In 2004, the appellant fled ethnic conflict in the Congo to a refugee camp in Zambia. He gave evidence that during the conflict, police were ‘just killing people and put people into gaols and beating people up’. He said he had witnessed police killing people. He travelled to Australia in 2010. He gave evidence that he was fearful of Officer McGregor. He said that at the time of the exchange with Mr Chizungu, quoted earlier, he understood that ‘if you are in front of a police officer, you have to tell the truth, otherwise you can be beaten up’ and ‘so I knew and concurred to back in our country, if you don’t tell the truth, they can just kill you’.
The appellant’s evidence was that he asked for his book because Officer McGregor was asking about dates and months. He was thinking he was in a courtroom. He said he did not think he had a choice about answering the questions about dates and months because no-one told him, and he felt he had to answer any question being asked of him.
The appellant was cross-examined on this. It was clear that he was not correct about Officer McGregor asking him about dates and months at this time. He was also cross-examined to the effect that he should have known that police in Australia were different from those in Congo. He maintained that he did not think they were any different. He said it was his first time ‘to appear to police’ and that he thought it would be the same.
The trial judge found that Officers McGregor and Wales understood their obligation to inform the appellant of his rights as soon as reasonably practicable and to warn him that anything he said may be used in evidence.[1] He found that they had started to caution him but that the appellant had wanted an interpreter and a lawyer. They halted the interrogation and advised the lawyer they contacted that they would not question the appellant without a lawyer and an interpreter present.[2] It was then that Officer Wales made the statement to Mr Chizungu quoted earlier. Police then turned the camera off. The judge found that these actions were consistent with the police obligation to inform the appellant of his rights and to warn him as soon as reasonably practicable and that the police acted lawfully.[3]
[1] [2023] SADC 139 at [88].
[2] [2023] SADC 139 at [89].
[3] [2023] SADC 139 at [93].
As to whether it was reasonably practicable to caution the appellant without an interpreter, the judge found that given the request for an interpreter, the police officers could not have been reasonably satisfied that what they had said had been effective or successful, absent an interpreter.[4] The appellant said that he only understood his right to silence when it was interpreted to him.[5] The judge found that the delay occasioned by procuring a solicitor and an interpreter was relatively short. He found that the police had not engaged the appellant in conversation during that time.[6] He found that the police therefore did not breach the requirement to inform the appellant of his rights and caution him as soon as reasonably practicable.[7]
[4] [2023] SADC 139 at [96].
[5] [2023] SADC 139 at [99].
[6] [2023] SADC 139 at [101].
[7] [2023] SADC 139 at [102].
The judge further found that when the police turned off the video recorder, they had no intention to interrogate the appellant and did not do so. He found that the appellant then made an unprompted statement that he had a book in his car that he wanted to access. The judge found that the unprompted statement did not arise from any action by police.[8]
[8] [2023] SADC 139 at [104]-[111].
The interview recommenced at 1:54pm in the presence of a solicitor and with an interpreter on the phone. The appellant was given his full arrest rights which were interpreted. Prior to the interview restarting, the solicitor spent 14 minutes with the appellant. Police asked whether she needed more time. She said she did not.[9]
[9] [2023] SADC 139 at [121]-[125].
Once the appellant had had his arrest rights interpreted, he said he understood that he had not been required to answer questions. The judge found that what was said from that point was voluntary, given under caution and with the assistance of an interpreter and a solicitor.[10]
[10] [2023] SADC 139 at [126]-[128].
The defence at trial sought to exclude the evidence of what was said while the camera was turned off and, it appears, the notebook produced at that time. In this regard, the defence relied in part on the unfairness discretion, the conversation not having been recorded. As to this, the judge observed that there was other evidence on the topic. He said:[11]
In the interview with his solicitor and after he had been informed of his rights and cautioned, the accused:
·said police had ‘all the evidence and the copy is just there for you’ while gesturing to the notes from his car;
·described the complainant as his friend and girlfriend;
·when asked to tell police some of the things that they did together had said ‘you have the evidence word written there in the, inside there’;
·when asked by police ‘the evidence written?’ had said in English, ‘in the diary’; and
·when asked whether he had written the diary, he said ‘yes’.
[11] [2023] SADC 139 at [132].
The judge declined to order the interview and notebook be excluded from evidence, including in the exercise of the unfairness discretion.
Whether the evidence of the notebook should have been excluded (Ground 1)
The appellant emphasised that the obligation to caution arose at the outset, police having at all times intended to arrest and interview him. So much may be accepted. He submitted further, however, that when he indicated, through Mr Chizungu, that he had something to say, the need to caution him became acute. He submitted that there was an impropriety in the police officers making no attempt to caution him in any way, despite their impression that he could understand them and the appellant’s indication, via Mr Chizungu, that he had something to say.
The appellant submitted that in those circumstances, it was not reasonably open to find, as the trial judge did, that it was not reasonably practicable for the police officers to advise him of his right to silence. He submitted that the result was that given the prosecution relied on those notes as demonstrative of a consciousness of guilt, a significant forensic unfairness arose from his speaking up to request his notes at a time he believed he had to answer police questions, despite no genuine attempt to caution him.
The question for this Court on appeal is that identified by Mason CJ in Van Der Meer v The Queen:[12]
In this Court the applicants must show at least that there was an erroneous exercise of the discretion and, in the circumstances of this case, that means that the trial judge erred in principle or failed to take account of relevant considerations or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle.
[12] (1988) 62 ALJR 656 at 660-661.
The appellant had requested an interpreter. He gave evidence that he could not understand the directions that Detective Wales gave to Mr Chizungu as to answering questions. He confirmed in cross-examination that he only understood that he did not need to answer questions after a caution was given through the interpreter.
The state of affairs with which the police were faced was that an attempt to caution the appellant and press on with questioning would have been quite fraught. In our view, the request for the interpreter constituted a reasonable basis for thinking that it was not appropriate to continue.
It was in those circumstances that the appellant made the request to fetch the notebook, which the judge found was unprompted. That finding was clearly open. The request was not made in response to any question that the appellant thought he was required to answer.
Finally, once the appellant had the assistance of a solicitor and an interpreter, he expressly relied on the notebook as containing the evidence of what happened, as set out by the judge and identified above.
In all of these circumstances, it was open to the judge to find that it was not reasonably practical to caution the appellant prior to the arrival of the interpreter. Further, and subject to the question of the relevance of the notes, discussed below, it cannot be said that the decision to admit the evidence of the notes, over an objection based on the forensic unfairness to the appellant, was unreasonable or otherwise not open to the judge.
We grant permission to appeal on Ground 1 but dismiss this ground.
Whether the judge erred in directing the jury that they could reason from a lie or lies told by the appellant to a consciousness of guilt (Ground 2)
The prosecution case with respect to the notes was that the appellant had prepared the notes in order to characterise, falsely, his relationship with the complainant as a romantic relationship, and to ‘get on the front foot’, as the prosecution characterised it in submissions, with the police investigation.
The prosecution submitted at trial that the statements in the notes were so ridiculous and exaggerated that the jury could reject the account in them. Its case was that the ridiculousness of the statements, and the conduct of the appellant in preparing them and providing them to the police, meant that the jury should accept them to be deliberate falsehoods told by the appellant because he knew that the truth would implicate him in the offences.
That is to say, the prosecution relied on the provision to police of the statements in the notes as lies evidencing a consciousness of guilt.
In R v Quist, Blue J explained the five preconditions for admissibility or use of evidence of a lie as probative of guilt:[13]
1.the defendant made a statement;[14]
2.the statement was false;[15]
3.the false statement was a lie, ie a deliberate untruth;[16]
4.the lie was about a material issue;[17] and
5the defendant told the lie because he or she knew that the truth of the matter about which he or she lied would implicate him or her in the offence or of an element of it[18] and as a corollary that the possibility that the lie was told for some other reason – such as out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence – is excluded.[19]
(Footnotes in original)
[13] R v Quist (2017) 127 SASR 471 at [169].
[14] Edwards v The Queen (1993) 178 CLR 193 at 198-199 per Brennan J; at 209-211 per Deane, Dawson and Gaudron JJ; at 215 per McHugh J; R v Lane (2011) 221 A Crim R 309 at [60] per Simpson J (with whom Howie AJ agreed).
[15] Edwards v The Queen (1993) 178 CLR 193 at 198-199 per Brennan J; at 209-211 per Deane, Dawson and Gaudron JJ; at 215 per McHugh J; R v Lane (2011) 221 A Crim R 309 at [60] per Simpson J (with whom Howie AJ agreed).
[16] Edwards v The Queen (1993) 178 CLR 193 at 198-199 per Brennan J; at 209-211 per Deane, Dawson and Gaudron JJ; at 215 per McHugh J; R v Lane (2011) 221 A Crim R 309 at [60] per Simpson J (with whom Howie AJ agreed).
[17] Edwards v The Queen (1993) 178 CLR 193 at 198-199 per Brennan J; at 209-211 per Deane, Dawson and Gaudron JJ; at 215 per McHugh J; R v Lane (2011) 221 A Crim R 309 at [60] per Simpson J (with whom Howie AJ agreed).
[18] This is the formulation by Deane, Dawson and Gaudron JJ in Edwards v The Queen. See also Eade v The King (1924) 34 CLR 154 at 158 per Knox CJ, Gavan Duffy and Starke JJ. In earlier cases it had often been formulated as that the defendant is unable to account innocently for the circumstances comprising the evidence against him or her.
[19] Edwards v The Queen (1993) 178 CLR 193 at 211 per Deane, Dawson and Gaudron JJ (cf at 198-199 per Brennan J; at 215 per McHugh J); R v Lane (2011) 221 A Crim R 309 at [60] per Simpson J (with whom Howie AJ agreed).
It is important that satisfaction of the falsity of the statement be established other than through the evidence of, in this case, the complainant. As the High Court said in Edwards v The Queen:[20]
If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself.
[20] (1993) 178 CLR 193 at 211 (Deane, Dawson and Gaudron JJ).
The circumstances of the provision of the notes are relevant to whether it could have been inferred that they contained lies. There was no evidence about when the notes were prepared. The complainant’s evidence was that on 6 December, she told the appellant she was unhappy because she did not permit the sexual activity. On 7 December, police came to the complainant’s unit and asked the appellant to leave. It followed, on the appellant’s case, that by 7 December, he knew he was under suspicion. This was certainly the case by the time of the appellant’s call to the complainant’s neighbour, when the complainant told the appellant that she had spoken to police. Then on 27 December, police attended at the appellant’s house and left a card.
As the appellant observed, the evidence was consistent, at least, with him having prepared the notes after the phone call to the neighbour’s house, when he was on notice of the complainant having spoken to the police. There was nothing in the notes that revealed esoteric knowledge that was itself probative of guilt. Consequently, the prosecution relied only on the proposition that the notes were so ridiculous that the jury should accept them to be falsehoods propounded from a consciousness of guilt.
It was not open for the jury to rely on the complainant’s evidence in any regard in determining whether the notes contained lies. On the prosecution case, the conclusion that the notes contained lies was to be drawn from their inherent improbability.
In this regard, the respondent referred to Law v The Queen,[21] where the Western Australian Court of Appeal held that statements by an accused could be established to be false on the basis of their inherent implausibility. The appellant in that case was convicted of one count of importing a commercial quantity of a border controlled drug. He was one of eight persons found on a fishing vessel when it was boarded by Australian Federal Police and Border Force officers. Earlier that morning, a large quantity of methamphetamine had been landed from the vessel by a tender and intercepted by police.
[21] [2020] WASCA 196.
The appellant had made some statements to police, the effect of which was:[22]
(1)The appellant was not aware of the tender, or the tender being launched with crew on board and returning or the fishing vessel stopping at any time.
(2)The appellant was paid HK $100,000 to go on the fishing vessel but did not have anything to do and only slept, ate and went to the toilet.
(3)The appellant had not seen the black bags which contained the methamphetamine.
[22] Law v The Queen [2020] WASCA 196 at [93].
The Western Australian Court of Appeal accepted the prosecution submission that each of those positive statements could be seen to be lies without making any assumption about the appellant’s guilt of the charged offences.[23] The prosecution invited the jury to consider that the first statement was a lie because of the size of the tender and the steps to launching it were such that it could not have been missed by anyone on the vessel. The second statement could be rejected as inherently implausible. As to the third, the prosecution submitted that any person on the fishing vessel for two weeks must have been aware of the 15 black bags that were stored there, showing this to be a lie as well.[24] The Court did not consider a challenge to this reasoning to be reasonably arguable.[25]
[23] Law v The Queen [2020] WASCA 196 at [94].
[24] Law v The Queen [2020] WASCA 196 at [94].
[25] Law v The Queen [2020] WASCA 196 at [96].
In the present case, the respondent relied on the ‘ridiculousness’ and ‘exaggerated nature’ of the notes as providing a basis from which the jury could infer that the notes contained lies as to the circumstances of the sexual encounters. We have not set out the translation of the notes in full. The full text provides a florid narrative of the interactions. However, there is nothing in them that could be said to be, for example, an obvious descent into fantasy. Moreover the original notes were written in Kirundi. The jury had an English translation. In assessing the prosecution submission as to ridiculousness, the jury had no assistance other than that translation of the written words. To treat that account as so inherently implausible as to amount to a deliberate untruth, when there was no objective evidence tending to undermine it, was highly problematic.
We are not persuaded that the notes were anything other than equally consistent with the appellant putting forward an explanation for the circumstances of his sexual interactions with the complainant. There was no feature of the notes that rendered them inherently implausible such that it could be concluded that they constituted deliberate untruths. We cannot see that it would be possible to reach a contrary conclusion without some reliance on the evidence of the complainant.
The judge directed the jury about the use of the notes as lies evidencing a consciousness of guilt, in accordance with the requirements of Edwards v The Queen.[26] The appellant makes separate complaints about those directions, and in particular, about a failure to identify precisely the statements said to be lies. It is not necessary to determine those complaints. In our view, it was not open for the prosecution to rely on the appellant’s provision of the notes to police as lies evidencing a consciousness of guilt.
[26] (1993) 178 CLR 193.
We would grant leave to appeal on Ground 2 and, subject to consideration of the proviso, allow the appeal on that ground.
The appellant’s attendance at the complainant’s unit (Grounds 4 and 5)
Ground 4 concerns the prosecutor’s approach to evidence of the appellant attending at the complainant’s home on 7 December 2019 and attempting to open the door with a piece of metal. Ground 5 complains that the judge was required to, but failed to give directions under s 34R of the Evidence Act in respect of post-offence conduct that included that attendance on 7 December.
The prosecution made the following submission:
I suggest that the accused attended [the complainant’s] home in a desperate effort to talk to her to try to force his way inside because he knew that the sexual acts were not consensual and he was worried about any consequences. This interaction is relevant to what was going through the accused’s mind at the time of the alleged offending. In other words, did he know or appreciate the possibility that [the complainant] was not consenting during the sexual activity the previous day?
The prosecutor had not identified previously that he would be making this submission. Counsel for the appellant at trial applied for the jury to be discharged. He submitted that the evidence could not be relevant to the appellant’s state of mind the previous day as it was too long afterwards. He submitted that the only way the prosecutor’s submission could be supported was if the jury were to reason that because he was trying to force his way in on 7 December, he must had had sex with the complainant without her consent on the 6th. He submitted that the appellant’s attempt to force his way into the complainant’s home was discreditable conduct, proffered on a propensity basis. The prosecution did not file a notice under s 34P(4) of the Evidence Act.
The judge refused the application. He held that the evidence was not led for a propensity purpose. He considered it was open for the jury to reason in the manner suggested by the prosecutor, subject to proper directions about the use of circumstantial evidence.
The respondent submitted that while the evidence did not suggest that the appellant said anything to the complainant while he was attempting to open the door with a piece of metal, it could be inferred from the evidence that he was attempting to speak with the complainant in the aftermath of the events of 6 December. This incident occurred before the complainant had spoken with police and, therefore, before the appellant knew the complainant had made allegations against him. The respondent submitted that the characterisation of the appellant’s actions as ‘desperate’ was open, given the appellant’s persistent attempts to enter the house. This was capable of bearing on the jury’s assessment of the appellant’s knowledge or appreciation that the complainant had not been consenting on 6 December 2019.
The respondent submitted that the events were not so temporally removed as to have no rational bearing on an assessment of the appellant’s state of mind, given that it was their next interaction after 6 December and it occurred the following day.
The events of 6 and then 7 December cannot be described as a single, continuous transaction such that the events of the 7th assisted in understanding the events of the 6th as something other than an ‘unreal and not very intelligible event’.[27] On the other hand, we accept that the appellant’s conduct on the 7th was capable of evidencing a consciousness of guilt in respect of his actions on the 6th. Having said that, it would be necessary to direct the jury as to the need to reject alternative possible explanations for the appellant’s conduct, if that evidence and reasoning was to be relied on. The judge did direct the jury in this regard. It is not necessary to parse those directions here.
[27] Cf O’Leary v The King (1946) 73 CLR 566 at 577 (Dixon J).
We do not accept that the prosecution relied on the evidence of the events of 7 December for a propensity purpose. However, that does not mean that there was not a risk that the jury would engage in impermissible propensity reasoning that was required to be addressed. This observation feeds into Ground 5, to which it is convenient to turn.
Sections 34P and 34R of the Evidence Act provide, relevantly:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
…
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
The evidence of the appellant attending at the complainant’s home and attempting to open the door with a piece of metal was discreditable conduct evidence. The respondent submitted that the evidence ‘when read in context’ is fairly described as innocuous and did not reflect poorly on the appellant such as to warrant the description ‘discreditable’. The door was found to be undamaged. Counsel submitted that there was only evidence of an attempt to talk to the complainant. That submission was, with respect, untenable. The mere fact that no damage to the door was apparent did not mean that evidence of an attempt at forced entry into a person’s home, while laughing, was not discreditable conduct.
The evidence being of discreditable conduct, it was incumbent on the judge to give a direction under s 34R as to the purpose for which the evidence could not be used. In this case, the impermissible purpose was ‘bad person’ reasoning, namely that because he had attempted to force entry into the complainant’s home, he was more likely to have raped her. The risk of the jury reasoning from one act of violence to another in this way was real.
The judge did give directions on the permissible use of this evidence. The respondent submitted that the jury were consequently left with no doubt, by implication, as to how they should not use the evidence.
The obligation under s 34R(1) is framed by the issues at trial. In JGS v The Queen, Lovell J said:[28]
As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.
(Footnote omitted)
[28] [2020] SASCFC 48 at [97].
We do not accept that there is no occasion for concern that the evidence of the appellant’s attendance on 7 December might be used for an impermissible purpose. While some comfort might be drawn from counsel’s failure at trial to complain about the judge not giving a direction, there is no contextual basis in the judge’s summing up from which it can be inferred that the necessary direction was sufficiently communicated to the jury. Compliance with s 34R is mandatory, even if what constitutes sufficient compliance can depend on the circumstances of the case.[29] Here, the risk of impermissible reasoning was real and required addressing explicitly.
[29] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [51].
The failure to direct the jury on the impermissible use of the evidence of the events of 7 December constituted an error of law. Subject to the question of application of the proviso, we would allow the appeal on Ground 5.
Whether the admission of evidence of initial complaint in respect of count 1 occasioned a miscarriage of justice (Ground 6)
Sub-sections 34M(3) and (4) of the Evidence Act provide:
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
As described earlier, on 6 December, the complainant went to the Mount Gambier Hospital. She gave evidence that the nurse at reception asked for her details and what she needed help with. The complainant started to cry and said she had been raped by a man. The account she gave was clearly of the events of that morning, which comprised counts 2 to 4. The complainant’s evidence of this complaint did not identify any complaint about the events of 4 December, the subject of Count 1.
The triage nurse, Ms Williams, gave evidence relevant to a complaint about Count 1 as follows:
Q.Around the time that [the complainant] said to you ‘He took me to his house’ was there anything else that she told you that you haven’t mentioned already.
A.She had told me about a struggle, a car and pines and I wasn’t sure and I’m still not sure how that formed into a sentence because I had shut that conversation down on the basis that I had enough information to allocate a triage score and my priority was to move her to a safer private space where she could tell her story safely.
Q.Can you recall at which point in the conversation [the complainant] made reference to a struggle, a car and the pines.
A.She made that reference after I had asked if this had happened to her before.
The appellant submitted that this evidence was inadmissible, on the basis that the complaint disclosed here could have been referring to a non-sexual offence, namely assault. This complaint did not extent to the sexual element of the charged offence. That is, it may not have encompassed the conduct alleged in the relevant count. In this regard, the appellant relied on the following observation in R v Usher:[30]
On a proper construction of s 34M(3) of the Evidence Act the phrase “an initial complaint of an alleged sexual offence” corresponds with the subsequent phrase in the same subsection “a charge of the sexual offence”. [31] The complaint must therefore be of the sexual offence charged. Similarly, the “allegation” referred to in s 34M(4)(a)(i) of the Evidence Act is the allegation made by the charge and it is therefore as evidence of consistency between the complainant’s conduct and that charge that the complaint is admitted.
Provided that the complaint is sufficiently general, it is not necessary for it to be admissible under s 34M(3) of the Evidence Act that the details of the complaint are entirely consistent with the offence charged.[32] Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge. However, there must be an identity between the two before it can be received. As Duggan J observed in R v S, DD, where a general complaint of sexual abuse is led in evidence, the terms of the complaint must be capable of encompassing the conduct alleged in the particular count or counts:[33]
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
(Footnotes in original; emphasis added)
[30] (2014) 119 SASR 22 at [49]-[50] (Kourakis CJ).
[31] R v S, DD (2010) 109 SASR 46 at [98] (Peek J).
[32] R v El Rifai [2012] SASCFC 98 at [132]-[134].
[33] R v S, DD (2010) 109 SASR 46 at [4].
The appellant submitted in the alternative that this evidence was not probative of how the allegation came to light or of consistency of conduct. He submitted that it was not probative of how the allegation of assault with intent to rape came to light, because that allegation did not come to light in this disclosure. Neither could it be said to be evidence of consistency of conduct, when it merely appeared to be a reference to the events the subject of Count 1. In this regard, he relied on R v Rippey:[34]
To be admissible under s 34M(3), the complaint must be one that is referable to the charged conduct, and hence capable of demonstrating a degree of consistency of conduct on the part of the complainant.[35] However, it is not necessary that the terms of the complaint correspond precisely with the charged conduct.[36] Evidence of a complaint about an alleged sexual offence will be an initial complaint, as defined in s 34M(6), and be admissible, despite the complaint not being accompanied by a description of the offending conduct, provided the evidence of the complaint is capable of being probative of the purposes specified in s 34M(4)(a)(i) or s 34M(4)(a)(ii); that is, the evidence is capable of informing the jury as to how the allegation first came to light and is evidence of the consistency of conduct of the complainant.[37]
(Footnotes in original; emphasis added)
[34] [2022] SASCA 141 at [113].
[35] Weragoda v The Queen [2021] SASCA 123 at [52] (Doyle and David JJA, Stanley AJA); R v T, S (2017) 128 SASR 66 at [130]-[133] (Hinton J, Kelly and Nicholson JJ agreeing); R v S, DD (2010) 109 SASR 46 at [4] (Duggan J, Anderson J agreeing), [98]-[99], [107]-[111] (Peek J).
[36] R v El Rifai [2012] SASCFC 98 at [132]-[133] (Kelly J); R v Usher (2014) 119 SASR 22 at [50] (Kourakis CJ, Peek J agreeing); R v P, S [2016] SASCFC 97 at [22]-[24] (Nicholson and Lovell JJ, Parker J agreeing); R v Moores (2017) 128 SASR 340 at [46] (Blue J, Vanstone and Doyle JJ agreeing).
[37] R v Landmeter (2015) 121 SASR 522 at [12] (Vanstone and Blue JJ).
The appellant’s contentions fail to take account of the context in which the complaint was made. As the respondent submitted, the words, ‘a struggle’, ‘a car’ and ‘pines’ cannot be considered in isolation. Ms Williams said that these words were offered in response to her question whether ‘this’, which could only mean nonconsensual sexual contact, had happened before. The answer the complainant gave, in this context, can only have been a complaint of a sexual offence. The words that the complainant did use were clearly referable to Count 1. There was a clear correlation between the complaint, articulated in the limited way that it was, and the details the subject of Count 1 as recounted by the complainant.
We dismiss this complaint.
The appellant further submitted, in the alternative, that this evidence should have been excluded in the exercise of the Court’s discretion on the basis that it was more prejudicial than probative. He submitted that the only ‘real use’ the jury could have made of this evidence was an impermissible testimonial use. In this regard, he submitted that by reason of its failure to include any reference to sexual offending, it was so lacking in probative value in respect of the purposes for which it was admissible under s 34M that the risk of misuse far outweighed that value.
We reject that contention. As the respondent submitted, the risk of an improper testimonial use was no greater than in any case of evidence admitted pursuant to s 34M. Admission of such evidence is subject to the directions mandated in s 34M(4)(b). The jury were directed in terms that complied with this section. There was no miscarriage of justice.
Conclusion
We have upheld the complaints under Ground 2 and Ground 5, in part. The consequence is that the appeal must be allowed unless the Court is satisfied that no substantial miscarriage of justice has actually occurred.[38] In this regard, this Court said in Boyle (a Pseudonym) v The Queen:[39]
The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.[40] In Kalbasi v Western Australia,[41] Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.[42]
(Footnotes in original)
[38] Criminal Procedure Act 1921 (SA) s 158(2).
[39] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [145].
[40] Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]‑[37]; GBF v The Queen (2020) 271 CLR 537.
[41] (2018) 264 CLR 62.
[42] Kalbasi v Western Australia (2018) 264 CLR 62 at [15].
The credibility of the complainant was central to the prosecution case. It is not possible for this Court to assess whether guilt was proved notwithstanding the erroneous admission of the evidence of the notes and the failure to give the necessary direction under s 34R of the Evidence Act. We allow the appeal, set aside the conviction and order that the matter be remitted for retrial.
0
25
0