Kendall v The King
[2024] SASCA 54
•9 May 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KENDALL v THE KING
[2024] SASCA 54
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)
9 May 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP
This is an appeal against conviction.
Following a trial by jury, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) ('the CLCA'). The particulars of the charge alleged that between 1 May 2006 and 31 October 2014, the appellant performed multiple unlawful sexual acts upon or with the complainant.
The appellant was the domestic partner of the complainant’s mother. At the time of the alleged offending, the complainant was between seven and 17 years of age. The trial took place about eight years after the offending ceased, when the complainant was 25 years of age.
This was the third trial. The first trial had mistried and the second trial resulted in a hung jury. The evidence of the complainant was video-recorded during the second trial and admitted into evidence at the third trial.
There was no further examination of the complainant at the third trial. The prosecution called two witnesses regarding complaint evidence, as well as the investigating officer, and a medical practitioner who examined the appellant’s buttocks.
The appellant did not give evidence at trial. He adduced evidence from a medical practitioner that he was circumcised.
The appellant now appeals his conviction on the following grounds:
1.The trial Judge's directions regarding the significant forensic disadvantage of the appellant pursuant to s 34CB of the Evidence Act 1929 (SA) (‘the Evidence Act’) were inadequate.
2.The trial Judge erred in failing to give the jury a Murray/Robinson direction: R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162.
3.The direction of the trial Judge regarding the complaint evidence did not comply with s 34M(4)(c) of the Evidence Act.
The question of permission to appeal on all grounds was referred to this Court for consideration upon hearing the merits of the appeal.
Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:
1.Although it would have been preferable for the trial Judge to adopt the specific wording of s 34CB of the Evidence Act, the directions ultimately communicated the effect of what was required by s 34CB.
2.In the circumstances of this case, a Murray/Robinson direction was not required to avert a miscarriage of justice.
3.While the trial Judge's failure to give a direction in the terms mandated by s 34M(4)(c) was an error of law, this did not result in a substantial miscarriage of justice, and the proviso is applied.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Baptiste v The King [2023] SASCA 51; Kakule v The King [2023] SASCA 70; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v Murray (1987) 11 NSWLR 12; R v N, RC (2012) 112 SASR 399; R v T, S (2017) 267 A Crim R 36; Robinson v The Queen (1999) 197 CLR 162, discussed.
KENDALL v THE KING
[2024] SASCA 54Court of Appeal – Criminal: Livesey P, David JA and Kimber AJA
THE COURT: Following a trial by jury the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The particulars of the charge alleged that between 1 May 2006 and 31 October 2014, the appellant performed the following unlawful sexual acts with the complainant:
a. he caused or procured her to touch his penis on more than one occasion;
b. he touched her breasts on more than one occasion;
c. he licked her breasts on more than one occasion;
d.he performed an act of cunnilingus on her on more than one occasion;
e.he inserted a finger into her vagina on more than one occasion; and
f.he rubbed his penis on her genital area.
The appellant was the domestic partner of the complainant’s mother. At the time of the alleged offending, the complainant was between seven and 17 years of age. The trial took place about eight years after the offending ceased, when the complainant was 25 years of age.
This was the third trial. The first trial had mistried and the second trial resulted in a hung jury. The evidence of the complainant was video-recorded during the second trial and admitted into evidence at the third trial. There was no further examination of the complainant at the third trial. The prosecution case consisted of two witnesses regarding complaint evidence, as well as evidence from the investigating officer, and a medical practitioner who examined the appellant’s buttocks.
The appellant did not give evidence at trial. He adduced evidence from a medical practitioner that he was circumcised.
The appellant now appeals against his conviction on three grounds. The appellant complained that the direction of the trial Judge regarding significant forensic disadvantage pursuant to s 34CB of the Evidence Act 1929 (SA) (‘the Evidence Act’) was inadequate; that the trial Judge erred in failing to give the jury a Murray/Robinson direction;[1] and the direction of the trial Judge regarding the complaint evidence did not comply with s 34M(4)(c) of the Evidence Act.
[1] Robinson v The Queen (1999) 197 CLR 162; R v Murray (1987) 11 NSWLR 12.
The appellant abandoned the unreasonable verdict ground at the appeal hearing (Ground 1).
The question of permission to appeal on all grounds was referred to this Court for consideration upon hearing the merits of the appeal.
For the reasons that follow, we grant permission to appeal on all grounds but dismiss the appeal.
The evidence
Before turning to the appeal grounds, it is necessary to say something more about the evidence at trial.
The complainant gave evidence that the appellant commenced a relationship with her mother in 2005 when she was seven or eight years old. The complainant and her mother lived together in Mount Gambier. The appellant was living in a different home throughout the earlier period of the alleged offending. The complainant’s two older brothers were no longer living at home, and her two younger brothers were living with their father in Queensland.
From 2007 until 2010 or 2011, the complainant’s mother worked for a cleaning company five days a week. She would finish working at about 7:30pm. When her mother was at work, the appellant looked after the complainant, or she would be at home alone. The complainant’s mother stopped working in around 2010 or 2011 when she became ill. By this stage, the complainant was 13 or 14 years old.
The complainant gave evidence that the appellant was a father figure to her. She enjoyed spending time with him, and together they would engage in activities such as fishing, bowling, camping, playing video games and going bushwalking. She said she saw him every day.
The complainant said that the appellant started sexually touching her in the winter of 2006. The complainant thought she was seven or eight years old at the time. However, in 2006, she would have been eight or nine years old. She said that the first occasion of sexual offending occurred in the lounge room of the appellant’s house and consisted of him digitally penetrating her vagina with his fingers. He told her not to tell anyone. She linked this occasion to the appellant telling her that he could convince her mum to buy her another dog if she let him ‘play down there’. She said about eight weeks after this occurred, she was given a puppy named ‘Patches’. Defence counsel cross-examined the complainant in the second trial about her evidence at the first trial when she said that she thought she was given Patches in 2007. However, her evidence at this trial was that she received Patches in 2006. As to the inconsistency, she explained she was very young at the time of the alleged incident, only eight or nine years old, and she had confused the years because there was so much to remember.
The complainant said that following this incident, the appellant continued to insert his fingers into her vagina over about a year. She could not recall how many times he did so. She said she got used to it and that she kind of ‘blocked it out’.
The complainant gave evidence that in 2007, the appellant caused her to masturbate him to the point of ejaculation. She said that she was eight, nearly nine, years old when this first occurred and this type of offending continued until 2016. She spoke of the first incident of masturbation which occurred at the appellant’s house. She said the appellant repeated this type of sexual incident with her multiple times at his house after school when her mother was at work. She could not specify the precise number of occasions this occurred but said it happened often. The complainant said he would also look at her breasts and lick and touch them. She said the sexual touching occurred every couple of months, or whenever she wanted something, and it took place at the appellant’s house when her mother was at work.
The complainant said that despite her mother and the appellant having separated on a few occasions over the years, the sexual acts always occurred when they were together in a relationship. Her mother became ill in 2010 or 2011. There was evidence that the complainant wrote a letter in 2011 as part of her schoolwork wherein she asserted that the appellant had a positive impact on her life. She explained that she described their relationship in positive terms because she did not really have a lot of people in her life, and she enjoyed spending time with the appellant despite the alleged offending. The complainant also explained that when the offending commenced, she was not aware that it was wrong. She said she thought a sexual act was something you did to receive the things you asked for. She only came to appreciate that it was wrong when she was older.
The complainant said that by the end of 2011, as her mother became more unwell and stopped working, the offending occurred at both houses. She specified that the offending occurred at her mother’s house either in her bedroom or in the backyard. She said she would use a special code to initiate the exchange of a sexual act for a favour: she would ask him for help on a ‘level’. This was a reference to going up a level on a video game. This code indicated to the appellant to go into her bedroom, whereupon she would close the door to her room. In her room, the appellant would touch and lick her breasts.
The complainant also described an occasion in 2009, in a swimming pool in their backyard, when the appellant rubbed his penis on the outside of her bather bottoms. The complainant said that after this alleged incident, she told the appellant that she wanted to tell her mother, and as an inducement for her to stay quiet, he gave her another dog named ‘Coco’.
The complainant said that the appellant asked her for ‘proper sex’ in 2011, and told her that his sperm did not work anymore. She told him no but compromised by letting him perform cunnilingus upon her. She said this happened so many times she could not say how many exactly.
The complainant gave evidence that in 2014, she went to the appellant’s house and he ‘went down on [her]’. On that occasion she recalled being in his bedroom and him taking her pants and underwear off. She said he licked her vagina and was ‘panting’. She remembered her vagina feeling sore and seeing blood in her underwear later that day. It was her evidence that when she asked him to stop, he did.
The complainant also gave evidence that in 2014, the appellant took her fishing, and she told him that she did not want him to sexually touch her anymore. The appellant responded to the effect that it was not hurting anyone, and her mother could not have sex with him anymore.
The complainant turned 18 in 2015. She could not recall if the sexual offending continued until she was exactly 18 or whether it ceased before that time. Her mother died in 2016. She gave evidence that there was no sexual offending after her mother died. The complainant accepted that in her first statement to police given on 30 July 2019, she said that the last sexual incident occurred in 2012. She explained that a photograph of the appellant’s shed prompted her to recall that the alleged offending continued for a longer period.
The complainant’s mother died on 3 October 2016, when the complainant was 19 years old. In the last two years of her life, her mother was effectively bedbound. After her mother died, the complainant kept in touch with the appellant. She assisted him to move house. She also visited him for advice when her dog was sick, and he came to visit her for coffee. The complainant explained that she missed him, but she was also worried that abruptly ending contact with him would appear suspicious.
Complaint evidence
The complainant first disclosed the offending on 7 July 2019. Her boyfriend tried to kiss her which prompted a memory of the sexual touching by the appellant. She drove around to see her friend, Emma Beer. She told Ms Beer what had happened with her boyfriend, and Ms Beer asked her why she was upset. The complainant said that she told her that ‘[the appellant] didn’t treat me right’ and that it was physical abuse. She clarified that the physical abuse did not involve hitting but did not provide any further details to her. The complainant gave evidence that she was ashamed to talk about the offending and, because she worked with children, she did not want anyone to know about the sexual abuse. She said that she also thought no one would believe her.
Ms Beer gave evidence at the trial which generally mirrored the evidence of the complainant on this topic. She said the complainant was emotional when she came to visit her. The complainant disclosed that her boyfriend tried to kiss her, but she ‘just couldn’t do it’. The complainant said that was because the appellant ‘abused me’. Ms Beer said that she asked her if it was sexual, and the complainant responded, ‘… how do you think I got my dog and the [PlayStation]’. Ms Beer said the complainant did not go into any details of the alleged offending. Ms Beer said that she suggested reporting it to the police, however, the complainant decided instead to go and see her mother’s best friend, Ms Sharon Frahn.
When Ms Frahn asked the complainant whether the appellant had penetrated her, she agreed he had but did not provide her with any further details of the alleged offending. The evidence of this conversation was admitted as an ‘elaboration’ of her initial complaint.
The complainant reported the allegations to police later in July 2019.
On the defence case, the complainant was motivated to fabricate the allegations because she was upset and jealous of the appellant’s new relationship. It was put to the complainant in cross-examination that she lied about the alleged sexual offending after becoming aware that the appellant had commenced a new relationship. The complainant acknowledged that she was upset by the appellant’s relationship but explained that it was because she was concerned for the safety of his new partner’s child. She was working in childcare and had seen the appellant picking up his new partner’s daughter. This caused her to move to a new workplace.
Medical evidence
The complainant gave evidence that during the sexual incidents she observed a small, raised pimple in the middle of the appellant’s left buttock. In evidence she accepted that she earlier told police that she had seen a mole on his buttock, and her evidence changed on this topic to having seen a pimple on his buttocks.
A medical practitioner, Dr Kirsopp gave evidence that he was provided some photographs taken on the day of the forensic examination. He said that after considering those photographs, he did not observe a birthmark or mole on the appellant’s buttocks but noted a folliculitis or acne-like condition which may potentially be a chronic and ongoing skin condition.
The complainant also gave evidence that she saw the appellant’s penis while masturbating him, and she believed his penis was uncircumcised. Defence counsel adduced evidence from a general practitioner that the appellant was circumcised as a matter of medical opinion. The complainant explained that she was confused as to what was meant by a circumcised penis. She described an uncircumcised penis as one which had an extra layer of skin which covered the penis.
Record of interview
The police conducted a record of interview with the appellant on 18 June 2020 during which he denied the allegations as ‘bullshit’ and ‘untrue’. He said he treated the complainant like a daughter, and she treated him like a stepfather. He said that he lived separately from the complainant and her mother, and he thought his son, Robert Kendall, was living with him for a while. The appellant denied looking after the complainant on his own but agreed that there were some occasions that they were alone together. He said that on those occasions, she would end up going to a neighbour’s house to play with the kids next door. The appellant denied taking the complainant fishing alone. He said they went fishing with her uncle and the complainant’s mother. He said that the complainant would have seen him naked on one occasion when he rushed out of the bedroom with her mother as the puppy was squealing. He denied coaching her soccer and also denied having moles on his buttocks. He said that he simply had a ‘pimply bum’.
Turning to the appeal grounds, the appellant challenged the adequacy of the directions given by the trial Judge in relation to the forensic disadvantage caused by delay and the complaint evidence. The appellant also contended that his Honour was required, in the circumstances of this case, to give a Murray/Robinson[2] direction to the jury to ‘scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt.’
[2] Robinson v The Queen (1999) 197 CLR 162; R v Murray (1987) 11 NSWLR 12.
Ground 2 – significant forensic disadvantage direction
This ground of appeal challenged the directions given by the trial Judge pursuant to s 34CB of the Evidence Act. The appellant contended that the significant forensic disadvantage directions were inadequate and failed to comply with the requirements of s 34CB.
The appellant’s contention had three limbs. First, that the trial Judge failed to direct the jury on how they were to consider the forensic disadvantage suffered by the appellant due to the delay. Specifically, there was a lack of instruction to the jury that the forensic disadvantage was to be taken into account ‘when scrutinising the evidence’.[3] Aligned with this contention, it was submitted that his Honour was required to use the specific word ‘scrutinise’ when giving the direction.[4] Second, his Honour erred by not specifying that it was the prosecution evidence that the jury were required to scrutinise. Third, his Honour failed to direct the jury that one of the forensic disadvantages occasioned by the delay was the lack of specificity in the complainant’s evidence, which rendered her evidence vague, and more difficult for the appellant to challenge the evidence.
[3] Emphasis added.
[4] Emphasis added.
Accordingly, it was contended that the forensic disadvantage direction did not comply with s 34CB(2) of the Evidence Act.
Section 34CB of the Evidence Act provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases
Section 34CB mandates that a trial judge, upon forming the opinion that a delay between the alleged offending and the trial has occasioned a significant forensic disadvantage to an accused person, must explain the nature of the forensic disadvantage. Additionally, the trial Judge is required to direct the jury to take the forensic disadvantage into account when scrutinising the evidence. The explanation and direction must be specific to the circumstances of the case and must not include the phrase ‘dangerous or unsafe to convict’ or words to that effect, nor should they take the form of a warning.
In R vCassebohm,[5] Doyle CJ concluded that s 34CB(1) abolished the duty of a trial judge to give a warning based on the forensic disadvantage caused to an accused person as a result of the passage of time. However, Doyle CJ considered the abolition of that warning left open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay, ‘[b]ut a trial judge should not use this as a means of resurrecting the Longman warning in another form.’[6] Doyle CJ observed that the legislature had not abolished the obligation to give a warning to a jury which may result from circumstances other than delay and result in a forensic disadvantage to an accused person.
[5] (2011) 109 SASR 465.
[6] R v Cassebohm (2011) 109 SASR 465 at [28] per Doyle CJ (with whom Peek and White JJ agreed).
Doyle CJ considered that s 34CB(2) created a positive obligation on a trial judge to give a direction based on the forensic disadvantages suffered by an accused person attributable to the passage of time between the alleged offending and the trial. This obligation arises where the trial judge has determined that an accused person has suffered a ‘significant forensic disadvantage’ by reason of that delay.
As to the content of the direction, Doyle CJ said:[7]
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[7] R v Cassebohm (2011) 109 SASR 465 at [32] per Doyle CJ (with whom Peek and White JJ agreed).
In the present case, it was common ground that the appellant had suffered a significant forensic disadvantage by reason of the time that had elapsed between the alleged offending and the trial. The trial Judge found that was so, and gave the following direction:
Ladies and gentlemen, I will give you a direction on what we call forensic disadvantage or substantial forensic disadvantage. As you are aware, this trial concerns events which are said to have started many years ago, as far back as 2006. That means that the events you are looking at go back as long as 16 or 17 years. This delay has meant that fading memories make it difficult for the accused to defend the charge. It may be difficult for the accused to marshal evidence that might assist his defence. Because of the delay, the relative strength of [D's] evidence cannot be tested in the way that it might have been if the allegations had been made closer to when they were said to have happened.
The complainant's mother is dead so there is no evidence that can be led from her. A timely medical examination of [D] cannot be made. You should not speculate on what evidence might have been able to be given but you do take into account the disadvantage for the defence caused by the delay.
The appellant contended that the direction was inadequate because the trial Judge did not specifically direct the jury that they must take into account the significant forensic disadvantage occasioned by delay when scrutinising the evidence of the prosecution witnesses. The appellant submitted that the use of the word ‘scrutinise’ is mandated by the section. In advancing this contention, the appellant relied on the obiter comments of Peek J in R v N, RC.[8]
[8] (2012) 112 SASR 399.
In R v N, RC, the appellant was found guilty of five counts of unlawful sexual intercourse committed on his niece. The offending occurred from 1981 to 1993. The trial took place in 2011. The appellant complained, inter alia, that in the circumstances of the case, including the forensic disadvantage to the appellant, a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, and the direction given by the trial Judge was inadequate. The trial Judge outlined the forensic disadvantages suffered by the appellant and directed the jury to ‘take these forensic disadvantages into account when scrutinising the evidence for the prosecution.’[9] Unlike the present case, the trial Judge used the word ‘scrutinise’ when directing the jury that they must take into account the forensic disadvantages.
[9] R v N, RC (2012) 112 SASR 399 at [43] per Gray J (with whom Sulan J agreed), [125], [145] per Peek J citing the trial Judge’s summing up at page 4.
In R v N, RC, Gray J (with whom Sulan J agreed) concluded that the direction adequately complied with s 34CB(2), and that other circumstances of the case, apart from delay, did not necessitate a warning that it was unsafe to convict based solely on the uncorroborated evidence of the complainant.
Peek J (dissenting) considered that the direction was inadequate as it failed to explain the nature of the forensic disadvantage as required by s 34CB(2)(a). By way of obiter, Peek J relevantly interpreted the use of the words ‘when scrutinising the evidence’ in s 34CB(2)(b) as implying that the jury ‘should be positively directed in relation to a need to “scrutinise the evidence”.’[10] His Honour said:[11]
The words when scrutinising the evidence in emphasis are very interesting since there is no prior (or subsequent) reference in the Evidence Act 1929 to any obligation upon the Judge to direct that the jury should “scrutinise” the evidence at all. Further, one cannot assume that “scrutinise” is a word that will always be used by a Judge in directing a jury and it would therefore appear that the legislature intended that where the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, not only must the jury be directed that “the jury must take the forensic disadvantage into account” but also that the jury should be positively directed in relation to a need to “scrutinise the evidence”. It should be obvious that the existence of such a basis for the giving of the direction does not derogate from the other bases for the direction as considered above.
As to the content of such a direction, in my view the particular word “scrutinise” is chosen in the light of the draft person’s familiarity with such decisions as R v Murray, Fleming v R and Robinson v R and to indicate that a direction along the lines of “scrutinising the evidence most carefully” is what is intended.
(Citations omitted)
[10] R v N, RC (2012) 112 SASR 399 at [143] per Peek J (in dissent).
[11] R v N, RC (2012) 112 SASR 399 at [143]-[144] per Peek J (in dissent).
In R v Maiolo(No 2),[12] Peek J again considered the adequacy of a direction given pursuant to s 34CB(2) of the Evidence Act and said that ‘the word “scrutiny” no doubt carries the meaning of examining in a critical fashion.’[13]
[12] (2013) 117 SASR 1.
[13] R v Maiolo (No 2) (2013) 117 SASR 1 at [189] per Peek J (with whom Kourakis CJ and Stanley J agreed).
In the present matter, the appellant relied on the obiter remarks of Peek J in R v N, RC in support of his contention that the forensic disadvantage direction given by the trial Judge was inadequate and failed to comply with s 34CB of the Evidence Act.
The trial Judge, with respect, correctly formed the view that the delay between the alleged offending and the trial (spanning at least eight and up to 17 years) resulted in a significant forensic disadvantage to the appellant. Accordingly, s 34CB required his Honour to give the jury a direction which explained the nature of the forensic disadvantages by making specific reference to the circumstances of the case and communicated to the jury that they were required to take those forensic disadvantages into account when scrutinising or carefully examining the evidence.
The direction by the trial Judge identified three areas of forensic disadvantage to the appellant caused by the almost 17 years which had elapsed between the commencement of the alleged offending and the trial, namely: the death of the complainant’s mother; the absence of a timely medical examination of the complainant; and the difficulties that the delay posed for the appellant in obtaining evidence and in testing the complainant’s account. His Honour reminded the jury that the complainant’s evidence could not be tested in the same way that it might have been had there been no delay.
It is to be accepted that while the trial Judge directed the jury to take into account the identified forensic disadvantages, the jury was not expressly instructed to take those disadvantages into account when scrutinising the evidence. Section 34CB(1) makes clear that the provisions of s 34CB constitute a rule of evidence replacing the common law. Thus, it is the language of the statute which determines the issue under consideration; in this case, the adequacy of the direction.[14] Section 34CB does not prescribe a specific form of words to be used when giving the direction. Rather, the trial judge is obliged to explain the nature of the forensic disadvantage by making specific reference to the circumstances of the case and instruct the jury to take those forensic disadvantages into account when scrutinising the evidence. As Hinton J explained in R v T, S, the section identifies an outcome to be achieved, and ‘[t]he question on appeal is whether, the duty being enlivened, the prescribed outcome has been achieved’.[15]
[14] R v T, S (2017) 267 A Crim R 36 at [100] per Hinton J, citing Papakosmas v The Queen (1999) 196 CLR 297 at [10] per Gleeson CJ and Hayne J (with whom Gaudron and Kirby JJ agreed), [88] per McHugh J.
[15] R v T, S (2017) 267 A Crim R 36 at [121] per Hinton J.
The trial Judge set out the forensic disadvantages to the appellant with sufficient particularity and detail. The appellant contended that his Honour did not refer to the delay, which resulted in a forensic disadvantage to him by reason of the lack of specificity in the complainant’s account, thereby rendering it more difficult for the appellant to challenge that evidence. However, the complainant’s account was in fact relatively detailed, and any lack of specificity (which was not required in proof of the charged offence of maintaining an unlawful sexual relationship) was largely a result of the repetitive and frequent nature of the offending, rather than any delay in the allegations proceeding to trial. It was the repetition and frequency of the offending which made it difficult for the complainant to distinguish between particular incidents. In the circumstances of this case, his Honour was not required to direct the jury that the delay resulted in the complainant’s evidence lacking greater specificity when giving the forensic disadvantage direction.
The question remains whether the direction failed to comply with s 34CB because the trial Judge did not expressly instruct the jury to take the forensic disadvantages into account when ‘scrutinising the evidence’. The section does not explicitly or implicitly require the use of the word ‘scrutinise,’ nor does it prescribe the specific form of words to be used. The direction given by his Honour outlined to the jury the forensic disadvantages to the appellant resulting from the delay in the specific circumstances of this case. Further, the jury was instructed that they were required to take those disadvantages into account. Their only means of doing so was when examining the evidence and assessing whether the prosecution had proved its case beyond reasonable doubt. That is the role and function of a jury in a criminal trial. It is clear from the whole of the directions given that his Honour was exhorting the jury to carefully examine the evidence of the prosecution having regard to the appellant’s forensic disadvantages caused by delay.
Whilst it would have been preferable if the trial Judge had adopted the specific wording of the section, and expressly stated that ‘the jury must take the forensic disadvantage into account when scrutinising the evidence’, the directions given by his Honour, when read as a whole, ultimately communicated the effect of what was required and mandated by s 34CB. Based on his Honour’s directions, we are satisfied there was no risk that the jury were unaware that they were required to take into account the specific forensic disadvantages suffered by the appellant when scrutinising (or carefully examining) the evidence in order to determine whether the prosecution had proved the charge.
As to the appellant’s submission that the trial Judge was required to instruct the jury that it was the prosecution evidence that they needed to scrutinise, we disagree. While it is true that a direction given pursuant to s 34CB is required to convey to the jury that it is the appellant who has suffered the forensic disadvantage, and the direction is for the appellant’s benefit and protection, we are satisfied that the trial Judge’s directions when considered in their entirety, adequately addressed this point. The jury was informed about the difficulties faced by the appellant in defending the charge and marshalling evidence. The direction referred to the fact that ‘the relative strength of [the complainant’s] evidence cannot be tested in a way that it might have been if the allegations had been made closer to when they were said to have happened.’ Moreover, almost all of the evidence at trial was adduced by the prosecution. The appellant did not give evidence. There was but one witness called by defence. In those circumstances, the direction necessarily and implicitly required that the jury’s focus should be on evaluating the prosecution case. That is, given the limited compass of the evidence adduced on the defence case, there was no risk that the jury would interpret the direction as requiring scrutiny of the appellant’s account or as a panacea for any inadequacies in the prosecution case.
For those reasons, we grant permission to appeal but dismiss this ground of appeal.
Ground 3 – failure to give a ‘scrutinise with care’ direction.
The appellant complained that the trial Judge erred by failing to give the jury a direction that they should scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt. The appellant relied on the authorities of R vMurray[16] (‘Murray’) and Robinson v The Queen[17] (‘Robinson’). The appellant contended that there were several features of the prosecution case which created a perceptible risk of a miscarriage of justice, thereby necessitating his Honour to direct the jury to ‘scrutinise the complainant’s evidence with great care’ before arriving at a conclusion of guilt. These features included:
1. The absence of evidence independent of the complainant in support of the prosecution case; it relied entirely on the evidence of the complainant.
2. The forensic disadvantages to the appellant by reason of the delay between when the alleged offending occurred and the trial.
3. Several matters which undermined the complainant’s credibility and reliability, including: her evidence that the appellant was not circumcised despite medical evidence to the contrary; her prior inconsistent statements regarding when the offending ceased; and the inconsistencies in her evidence as to when the first occasion of sexual misconduct occurred by reference to when she first acquired her dog, Patches.
4. The complainant’s continued contact with the appellant (at her own instigation) after her mother died and when she was an adult.
5. The complainant’s purported motive to lie.
[16] (1987) 11 NSWLR 12.
[17] (1999) 197 CLR 162.
Section 34L(5) of the Evidence Act abolished the common law requirement that the jury be warned that it is unsafe to convict on a complainant’s uncorroborated evidence. Section 34L(5) now provides that a trial judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of a sexual offence.
Notwithstanding s 34L(5) of the Evidence Act, it may still be necessary for a trial judge to give a direction to the jury to scrutinise the complainant’s evidence with great care where there is a perceptible risk of a miscarriage of justice arising from the circumstances of the case.
In Murray, Lee J (with whom Maxwell and Yeldham JJ agreed) considered s 405C(2) of the Crimes Act1900 (NSW), which provides that on a trial for a prescribed sexual offence a judge is not required to give a warning as to the uncorroborated evidence of the complainant. In Murray, the Court held that it is always open to the trial judge to direct the jury that the evidence of a witness must be scrutinised with great care and to draw the jury’s attention to relevant matters, and that there will be cases where the failure to do so will lead to a miscarriage of justice. Lee J explained:[18]
Section 405C(2) has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a Judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the Judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a Judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which a 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the Judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for Judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that he witness' evidence is unreliable. There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.
[18] (1987) 11 NSWLR 12 at 19 per Lee J (with whom Maxwell and Yeldham agreed).
In Murray, the Court considered that a warning was not required to avoid a miscarriage of justice.
In Robinson, the High Court approved the approach taken by the New South Wales Court of Appeal in Murray, including the passage cited above. The High Court concluded that there were particular features of the evidence and prosecution case that created a perceptible risk of a miscarriage of justice. As a result, it determined that a warning was necessary to bring home to the jury ‘the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.’[19]
[19] Robinson v The Queen (1999) 197 CLR 162 at [26] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
In the present case, after the trial Judge completed his summing up, defence counsel requested his Honour re-direct the jury and give a Murray/Robinson direction that the jury ‘scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt’. His Honour declined to do so.
We are satisfied that in the circumstances of this case, a Murray/Robinson direction was not required to prevent a miscarriage of justice for the following reasons.
First, the trial was a short one having been completed in three days, and the issues in dispute were of a narrow compass. It was clear from the evidence, and counsels’ addresses, that the only contested issue was whether the unlawful sexual acts occurred. It was also plain that the prosecution case rested entirely on the jury’s acceptance of the truthfulness and reliability of the complainant’s evidence.
Second, the trial Judge gave orthodox directions on the burden and standard of proof. They were repeated on more than one occasion and the adequacy of those directions has not been the subject of challenge.
Third, the trial Judge set out the defence case in considerable detail, including defence counsel’s criticisms of the complainant’s evidence and the submissions pertaining to her lack of credibility and reliability.
Fourth, the trial Judge gave an adequate forensic disadvantage direction which sufficiently communicated to the jury that they were required to take into account the appellant’s forensic disadvantages occasioned by the delay.
Finally, there was in fact some evidence which was capable of providing independent support for the complainant’s evidence; namely, the presence of folliculitis or an acne-like condition on the appellant’s buttocks which accorded with the complainant’s latter description of the appellant having a raised pimple in the middle of his left buttock.
In reaching this conclusion, we have not overlooked the cumulative effect of the significant forensic disadvantages occasioned to the appellant due to delay, as well as the fact that the prosecution case relied on the evidence of one witness. It is to be accepted that the delay in a matter proceeding to trial may, in some circumstances, underscore the need for a Murray/Robinson direction. However, notwithstanding those matters and for the reasons articulated, we are satisfied that in the circumstances of this case there was not a perceptible risk of a miscarriage of justice which required a direction drawing the jury’s attention to the need to scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt.
We grant permission to appeal but dismiss this ground of appeal.
Ground 4 – complaint direction
This ground of appeal challenges the adequacy of the directions given by the trial Judge as to the evidence of complaint. The appellant contended that his Honour failed to comply with s 34M(4)(c) of the Evidence Act.
Section 34M provides:
34M—Evidence relating to complaint in sexual cases
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(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.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time)
Section 34M abolished the common law regarding the admissibility of evidence of recent complaint in cases involving sexual offences. Section 34M(2) prohibits any suggestion or statement that a victim’s delay in making a complaint is, of itself, probative in assessing his or her credibility or consistency of conduct. Section 34M(3) establishes the circumstances in which evidence relating to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. It establishes an exception to the rule against the admission of prior consistent statements. When evidence of complaint is admitted pursuant to s 34M(3), a trial judge is required to direct the jury in accordance with s 34M(4). Section 34M(4) is in mandatory terms. Section 34M(5) then provides that it is not necessary for a particular form of words to be used when a trial judge is giving the mandatory direction under s 34(M)(4).
Section 34M(4)(c) has recently been considered by this Court in Kakule v The King[20] (‘Kakule’) and Baptiste v The King[21] (‘Baptiste’).
[20] [2023] SASCA 51.
[21] [2023] SASCA 70.
In Kakule, the appellant’s sole ground of appeal was that the trial judge erred in failing to direct the jury as required by s 34M(4)(c) of the Evidence Act. In allowing the appeal, this Court considered the operation of s 34M generally and the requirements of s 34M(4)(c). This Court said:[22]
The totality of the directions required to be given to the jury therefore serve several purposes. The evidence being admitted, directions are required to ensure the jury confines their use of the evidence to understanding how the allegations came to light, assisting with the credibility of the complainant, and not going to the truth of the complaint. The directions required by ss 34M(4)(a) and (b) are, to these ends, instructional in nature.
The purposes served by the direction required by s 34M(4)(c) require a different description. First, this sub-section has a function of educating the jury about the policy of the section, as described in R v Place. It guides the jury away from necessarily drawing any adverse inference on account of delay (where that is relevant) in making a complaint. That is, it provides guidance away from fallacious and prejudicial reasoning from any delay in the making of a complaint.
However, s 34M(4)(c) is not only concerned with delay. It is concerned with any circumstance of timing and the identity of the recipient of the complaint. It leaves to the jury whatever inference they may determine to draw on account of the complaint being made at a particular time or to a particular person, without placing the imprimatur of the court on any one such possible reason.
Where evidence of a complaint is admitted, it will generally be a feature of the defence case that the complaint is untrue. The defence will often posit reasons for why that is so, by reference to the timing of the complaint and the person to whom it is made. For example, the defence may urge a thesis that the complainant is covering for conduct which the complainant now regrets. In such a case, s 34M(4)(c) provides the court’s imprimatur to the need for the jury to consider any reasons for these circumstances of the complaint posited by the defence, without endorsing those reasons or the prohibited reasoning.
Thus, in addition to serving the primary statutory policy of s 34M, as recognised by the Court of Criminal Appeal in R v Place, the direction required by s 34M(4)(c) also provides a forensic protection to the defendant, at least where a defence is raised attacking the veracity of the complaint. This aspect of s 34M(4)(c) did not require consideration in R v Place.
Sub-section (5) confirms that no particular form of words is necessary. However, the direction is required to convey, at the least, the content of the sub-section.
(Citations omitted)
[22] Kakule v The King [2023] SASCA 51 at [27]-[32] per Livesey P, Lovell and Bleby JJ.
The direction mandated by s 34M(4)(c) is intended to caution the jury against concluding that a delayed complaint will always adversely affect a complainant’s credibility. The section then permits the jury to undertake a line of reasoning against the complainant’s credibility (other than the prohibited reasoning) if appropriate. It also provides a ‘forensic protection’ to the accused within the permissive aspect of the direction in circumstances where there is a challenge to the timing of the complaint and the identity of the person to whom the complaint is made. The section requires the jury to be directed as to the need to consider all potential reasons why an alleged victim has made a complaint at a particular time or to a particular person. Those reasons may well include a motive for the complainant to make false allegations, particularly where that motive has been specifically put to the complainant and the purported motive is, on the defence case, supported by the timing of the disclosure or the person to whom the complaint is made.
While a complainant’s purported motive to lie will need to be the subject of separate and specific directions, if the issue is raised on the defence case, the forensic protection to the accused underpinning s 34M(4)(c) is engaged, and the failure to give the mandatory direction may result in a miscarriage of justice, depending on the circumstances of the case.
In Kakule, the complainant alleged that the appellant had sexually assaulted her at his home. After the incident, the complainant attended a hospital and complained to the triage nurse that she had been raped. The complainant also said that she was concerned about pregnancy and sexually transmitted diseases. In cross-examination, the complainant confirmed that in her culture it was shameful for a woman to have sex with a man outside of marriage. Defence counsel did not expressly suggest to the complainant that she made her initial complaint out of shame.
The trial Judge did not direct the jury in accordance with s 34M(4)(c). However, the trial judge did summarise defence counsel’s submissions that a plausible explanation for the complaint was her shame about the sexual acts and that there may have been a miscommunication to the triage nurse borne out of her language difficulties, which set in motion a train of events that was difficult to stop.
This Court held that, notwithstanding that the summing up did address defence counsel’s submissions on the complaint evidence, the trial Judge’s directions did not meet the requirements of s 34M(4)(c). The Court held that the trial Judge’s directions ‘did not accommodate the statement that Parliament has mandated be made to juries with respect to the timing and circumstances of complaints of sexual offending’.[23] Further, the Court considered that there was but a summary of defence counsel’s submissions on the topic and not a direction of law. The Court held the failure to give the mandated direction constituted an error of law.
[23] Kakule v The King [2023] SASCA 51 at [37] per Livesey P, Lovell and Bleby JJ.
As to the application of the proviso, the Court determined that the jury’s assessment of the credibility of the complainant was critical to the verdict, and where there was a legal error relevant to an assessment of the complainant’s credibility, the Court was precluded from giving any significant weight to the jury’s verdict. Thus, it was not in a position to be satisfied that guilt was proved beyond reasonable doubt. The appeal was allowed.
In Baptiste, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The appellant challenged his conviction, inter alia, on the basis that the trial judge erred in failing to give a direction as mandated by s 34M(4)(c).
In Baptiste, there was evidence adduced of the complainant’s initial complaint to her best friend. The complainant was aged 14 at the time. She said that she disclosed the offending to her friend because she was not sure that what was happening was normal. She said that she did not tell an adult at that stage because she felt she would not be believed. In cross-examination, the complainant was not questioned at all as to why she made the complaint to her best friend at that particular time. Nor was this topic raised during the parties’ closing addresses. Rather, the focus was on the inconsistencies between the complainant’s account and that of her friend as to the terms of the complaint.
The trial Judge did not direct the jury in accordance with s 34M(4)(c). However, bearing in mind that there was no forensic challenge in respect of the reasons why the complainant complained to the person she did, and as to the timing of her complaint, this Court considered that the failure of his Honour to give the direction did not result in any forensic disadvantage to the appellant, and in those circumstances the potentially protective function of s 34M(4)(c) was not engaged. This Court held that whilst there was a legal error in failing to give the direction mandated by s 34M(4)(c), no substantial miscarriage of justice had actually occurred. The appeal was allowed on other unrelated grounds.
Turning to the present case, and as outlined earlier, the complainant first disclosed the offending to her friend, Ms Beer, on 7 July 2019. Later that day, she spoke to her mother’s friend, Mrs Frahn, and elaborated on her complaint by disclosing that the appellant had penetrated her. The allegations were then reported to police in July 2019.
At the outset of the trial, defence counsel, when outlining the issues in contention, noted that the timing of the complainant’s initial disclosures to Ms Beer and Ms Frahn were of significance on the defence case. Defence counsel said:
The second area (of dispute) is whether the complainant may have been angry at the accused shortly before these allegations arose. So, again, it might be in dispute that was a reason why the complainant was angry at the accused in 2019. As I said, shortly before these allegations arose and after the complainant’s mother had passed away.
Defence counsel cross-examined the complainant about her initial complaint. A large part of the cross-examination challenged whether she had in fact alleged any sexual abuse by the appellant during that conversation. However, defence counsel also put to the complainant that she lied about the alleged sexual offending after becoming aware that the appellant had commenced a new relationship. The complainant acknowledged that she was upset by the appellant’s new relationship but explained that she was concerned for the safety of his new partner’s child. Implicit in that response was that she was concerned that the appellant would inflict the same offending on the child as he had allegedly perpetrated against her. She also said that she was working in childcare and had seen the appellant picking up his new partner’s daughter. This had caused her to move to a new workplace.
Both parties made submissions to the jury about the complaint’s evidence during their closing addresses. The prosecutor explained that the evidence of the initial complaint was relevant to reveal how the allegations first came to light; and submitted that it was evidence of consistency of conduct. Defence counsel made submissions as to the ‘coincidence’ between the timing of the appellant’s new relationship and the complainant’s disclosure of the alleged offending. Defence counsel submitted that the timing of the disclosure was of importance in considering whether the complainant’s jealousy and anger at the appellant’s new relationship provided her with a motive to fabricate the allegations. The timing of the allegations was said to support the defence hypothesis that the complainant had a motive to lie and fabricate the allegations.
The trial Judge gave the following direction as to the initial complaint:
I now give you a direction of law about what we call evidence of complaint. That evidence comes from Ms Donaldson, Ms Beer and Ms Frahn. You will remember that Ms Donaldson said that she had an unusual reaction when her boyfriend tried to kiss her. She became distressed and went to see her friend, Ms Beer. Although there is a slight difference between what Ms Donaldson said she said and what Ms Beer said she said, the common factor between the two is that she said that the accused did not treat her right and she was not talking about being hit.
Ms Beer said that she asked Ms Donaldson whether it was sexual and Ms Donaldson said it was. The two then went later to Ms Frahn's house where there was a slight elaboration of the complaint that had been made to Ms Beer. Ms Frahn asked Ms Donaldson directly whether she was talking about sexual abuse and Ms Donaldson said yes. She further asked whether the accused had penetrated her and Ms Donaldson said yes. So this is the evidence of what we call complaint. I give you a direction of law about how you approach that evidence.
You can only use that evidence for a limited purpose. The evidence allows you to understand how the allegations first came to light. The evidence also allows you to consider the degree to which Ms Donaldson has acted consistently; that is, to what extent. Did she complain about the offending at the time that she might be expected to? And to what extent was her complaint consistent with what she has said in court. She said she complained at the time because she unexpectedly became shocked and distressed when her boyfriend tried to kiss her and she said it reminded her of what had happened with the accused. She told the witnesses that she had been sexually abused by the accused, although she did not go into any detail with them.
It is important that you not use the evidence of complaint to demonstrate the truth of what is alleged. For that you rely on what Ms Donaldson has said in court. It is a matter for you what you will make of the evidence of complaint with those legal directions in mind.
The direction complied with, and mirrored, the language used in ss 34M(4)(a) and (b).
The trial Judge did not give a direction in the terms of s 34M(4)(c). However, he did set out, in the context of his earlier directions, the complainant’s explanation for why she complained at the particular time she did.
In addition, the trial Judge later gave the jury directions as to the complainant’s purported motive to lie which was bound up with the timing of the complaint. His Honour said:
I will now give you a direction of law on what I describe as motive to lie. The defence has suggested that Ms Donaldson had a motive to lie about the abuse by the accused. The defence says that, when she found out that the accused was in a relationship with another woman and had taken on a new stepdaughter, she decided to make a false complaint.
I give you a direction of law about that.
While it is perfectly proper for you to consider whether the complainant has a motive to lie, it is important that you bear in mind that the accused has no obligation to suggest a motive to lie, much less to prove it. The burden of proving the case is always on the prosecution. Even if you did not find that the complainant had a motive to lie, you must bear in mind that lies can be told for no discernible reason. The rejection of a suggested motive to lie does not strengthen the prosecution case, it is neutral.
Within that direction, the trial Judge expressly put the defence case that the complainant made a false complaint when she found out that the appellant was in a relationship with another woman. In other words, his Honour expressly told the jury that, on the defence case, the alleged victim made a complaint at the time she did because she had discovered that the appellant was in a new relationship. This was the only reason posited by defence counsel for why she had complained at the time she did. Apart from her own explanation for the timing of her complaint, and for disclosing the allegations to the persons she did, there was no other reason apparent on the evidence.
Whilst the trial Judge did not give the direction mandated by s 34M(4)(c), and the jury was not directed ‘that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time to a particular person’, his Honour did set out (as part of his complaint direction) the complainant’s explanation for why she disclosed the offence at the particular time she did. Critically in this case, his Honour, later in his summing up also gave the jury a direction about the complainant’s purported motive to lie and why the timing of the complaint supported the defence case that the allegations were fabricated. In relation to the latter, after outlining the defence hypothesis as to the timing of the complaint, his Honour expressly told the jury ‘to consider whether the complainant has a motive to lie’. That direction required the jury to consider the defence hypothesis as to the timing of the complaint.
It would have been preferable if the trial Judge had given a direction which adopted the wording of the s 34M(4)(c) and applied it specifically to the facts of the case, and then set out the explanations provided by the parties for the timing of the complaint. To illustrate this point, a direction in the following terms would have complied with the section in this case: ‘There may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time to a particular person. In this case, the complainant said that she complained at the time she did because she unexpectedly became shocked and distressed when her boyfriend tried to kiss her, and it reminded her of what had happened with the accused. On the defence case, she made the complaint at the time she did because she had discovered that the accused was in a relationship with another woman, which upset her, and for that reason the complainant has fabricated the allegations.’ His Honour would of course still be obliged to give some further directions about the complainant’s purported motive to lie later in the summing up.
In the context of the present case, where specific reasons were advanced by both parties for the timing of the complaint, and those matters were the subject of directions by the trial Judge, we do not consider that the failure by his Honour to direct the jury that, in addition, there may be varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time to a particular person resulted in any discernible prejudice or disadvantage to the appellant.
Moreover, counsel for the appellant did not take issue with the failure to give a direction under s 34M(4)(c) at the trial. While not determinative, the absence of a request for a re-direction is indicative that there has been no miscarriage of justice.
The trial Judge’s failure to give the direction mandated by s 34M(4)(c) is an error of law. In the circumstances of this case, where his Honour outlined the evidence and the parties’ respective cases as to the reasons for the timing of the complaint, and directed the jury to take into account that the timing of the complaint supported the defence case that the complainant had a motive to lie and the allegations were false, we are satisfied that no substantial miscarriage of justice actually occurred.
We grant permission to appeal on this ground, apply the proviso and dismiss this ground of appeal.
Order
1. We grant permission to appeal on all grounds but dismiss the appeal.
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