MSP v The Queen

Supreme Court of South Australia
(Court of Criminal Appeal)
MSP v THE QUEEN
[2019] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
4 October 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF CROWN CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE
Appeal against conviction.
Appellant submitted that trial Judge:
1. Erred in failing to direct jury that the delay in the complainant reporting the matter could not be taken into account as something that was capable of supporting the complainant’s credibility which was referred to in the Prosecution address;
2. Erred in failing to direct the jury to ignore inadmissible opinion evidence;
3. Erred in directing the jury in relation to evidence of the complaint;
4. Erred in failing to direct the jury that statements made by the complainant to a third party were not evidence of the truth of those statements;
5. Erred in failing to direct the jury that a statement by the complainant’s mother to a third party was not evidence as to the truth of that statement.
Held by David AJ (Kelly and Parker JJ agreeing) allowing the appeal and ordering a re-trial:
1. That the trial judge should have corrected the statements in the Prosecution address in her summing up;
2. That the opinion evidence was of no real consequence and there was no need to direct the jury on it;
3. That the directions in relation to evidence of the complaint did not amount to a miscarriage of justice;
4. That the trial Judge’s failure to direct the jury in respect of statements made by the complainant to a third party about what the appellant had stated were not evidence of the truth of those statements was an error which was so highly prejudicial to the appellant and has led to a miscarriage of justice.
Evidence Act 1929 (SA) s 34M, referred to.

MSP v THE QUEEN
[2019] SASCFC 120
Court of Criminal Appeal: Kelly and Parker JJ, David AJ

KELLY J: I agree that the appeal should be allowed and that the matter should be remitted for re-trial. I agree generally with the reasons of David AJ.
PARKER J: I would allow the appeal. I agree with the reasons of David AJ.
DAVID AJ.
Introduction
This is an appeal against conviction. The appellant was convicted by verdicts of a jury of seven counts of unlawful sexual intercourse with a person above the age of 12 years and under the age of 17 years. The offending all occurred between October 1999 and June 2002, against one female complainant, whom I will refer to as “C”. The appellant appeals against all seven convictions.
At the time of the offending, C was aged between 13 and 16 years. The appellant was the biological son of the foster parents with whom C resided between 1999 and 2002. The appellant was about 12 years older than C. The offences all took place on a farming property belonging to C’s foster parents, where she, her biological half-sister, her foster parents and the appellant all lived.
The various grounds of appeal focus on the Judge’s directions on delay in complaining and the forensic disadvantage suffered by the appellant because of the period of time between the conduct the subject of the allegations and the trial. Involved in those arguments are complaints made by the appellant about parts of the final address of prosecuting counsel, which the appellant argues were incorrect and should have been addressed by the Judge in her summing up.
There are further complaints about the trial Judge’s directions on complaint evidence and her incomplete directions on the use to be made of inconsistent statements.
The trial
In a previous aborted trial, the complainant completed evidence-in-chief and was cross-examined for a period of time before the trial was discontinued. Pursuant to s 13D of the Evidence Act 1929 (SA), a recording of her evidence and incomplete cross-examination was tendered and played to the jury at the re-trial. This very sensible procedure was with the consent of both parties.
C gave evidence that she was born on 24 May 1986 and was placed in foster care when she was five. In 1999, when she was 13 years of age, she was fostered out to the appellant’s family and moved into their premises. Her half-sister, “J”, was already fostered out to that family and living on that premises. Whilst she was there, her foster parents occupied the premises with the appellant (their son) and C’s half-sister. The property itself was a farmhouse surrounded by paddocks and she said that during a period of time there she was involved in farming on the property which involved work with crops, sheep, and cows. At that time, the appellant was in his mid-20s. C gave evidence that she attended the local school and did so until she was 16.
C gave evidence of the first occasion that she said she was sexually abused by the appellant. Her evidence was that late one night the appellant came into her room while she was in bed. They then went to the appellant’s room and they were both watching television in his bed. After an initial period of touching, he inserted his finger into her vagina. That behaviour was the subject of the first count and was followed by an act of penile sexual intercourse which was the subject of the second count.
C gave evidence that from that first occasion onwards, penile vaginal intercourse between she and the appellant occurred on a regular basis. She said that they would go into the appellant’s room and have sexual intercourse. Generally, she would be lying on her back and he would ejaculate onto her stomach. She said that he never ejaculated inside of her and he never wore a condom and that he was circumcised. None of those acts which were described as of a general nature were the subject of any charge, but were considered, quite properly, to be relevant evidence.
C gave evidence of a number of further specific occasions of sexual intercourse having occurred between her and the appellant, the subject of counts three to seven.
With respect to count three, C said she remembered that occasion specifically because whilst intercourse was taking place she was on top of him. That was not the usual position.
C gave evidence of another specific occasion when she was about 14 years of age. Her evidence was that she came into the appellant’s room and he had the barrel of a rifle in his mouth. She was concerned that he was contemplating suicide. The appellant told C that he had broken up with his girlfriend. After some discussion, the appellant desisted from taking any action with the gun, and C sucked his penis. That act of oral intercourse was the subject of count four. The next specific occasion about which C gave evidence, and was the subject of count five, occurred the next night, when they had penile vaginal sexual intercourse. She gave evidence that at that stage she considered that despite the difference in their ages they were in a boyfriend/girlfriend relationship. She gave evidence that sexual intercourse then continued on a regular basis.
C gave further evidence that she and the appellant did farm work together and on one occasion, whilst out on the farm, they were in a Volvo F12 truck. She was allowed to drive it for a short distance and after they stopped, they had penile vaginal intercourse on a bed that was behind the seats in the cabin of the truck. That was count six. On another occasion, the subject of count seven, she was driving a chaser bin in the paddock and he was driving a header. They stopped and he asked her to get into the header and when that happened they had penile vaginal intercourse again.
C gave further evidence that sexual activity as described continued until she ceased living at the foster parents’ premises. She was suspended from school and left after being threatened with expulsion. As a result of that her placement with the foster parents ended. Before she left, the appellant gave C his mobile number so that they could catch up in the future and C gave evidence that he seemed upset she was leaving. From there, she stayed with a girl in her class for a while and then went to Queensland with her mother. It was clear that she and her mother had a difficult relationship. She was only in Queensland for six weeks and things did not go well. C then came back to South Australia. She lived in Balhannah for a while and on one occasion, while she was in a car with a friend at Murray Bridge, she spoke with the appellant on the phone. Although she did not want to see him, she hatched a plan whereby she told him she would meet him, but did not intend to turn up. She arranged to meet him at the Bank SA in the main street of Murray Bridge, but she did not keep the appointment. She drove past and saw his car in the car park area.
The first person who C told about the sexual relationship with the appellant was her half-sister, J. C gave evidence that this occurred when she was still living with the appellant’s family, but she did not give any detail about what was occurring or where or when it occurred.
In cross-examination, it was put to her by defence counsel that these events never happened. She denied that suggestion. It was put to her in cross‑examination that in December 2004 she told a social worker, Mr C, that she had been abused sexually by the appellant whilst living with the appellant’s family. It was put that this was said in the context that she was worried about losing permanent care of her first-born child, who was born in September 2003. She said that she could not remember talking to Mr C about that topic. However, she gave evidence that she had a memory of telling another social worker, Ms B, what happened. She could not remember when that conversation took place.
She was further cross-examined about a conversation she had with a lady called Ms C, who worked at Families SA. It was suggested in cross-examination that she told Ms C that the appellant was constantly phoning her. It was further suggested that C said to Ms C that she felt unsafe because the appellant had said to her “if they have a baby, they will stay together because people don’t break up families”. That proposition was put to her in cross-examination. C said in answer to that question that she had never said anything like that.
However, the following facts were agreed:
[Ms C]
33.[Ms C] is a social worker and was employed by Families SA until 2010.
34.From 2001 to 2006 [Ms C] worked from the Murray Bridge Office of Families SA.
35.[Ms C] was not directly involved in the care or case management of [C].
36.[Ms C] held the position of Acting Manager in the Murray Bridge Office of Families SA on 25 September 2002.
37.On that day, [Ms C] was in the Murray Bridge Office of Families SA and recorded that [C] attended the office. She also recorded that [the appellant] attended the office.
38.[Ms C] initially spoke to [C] and then to [the appellant]. [Ms C] spoke to them separately.
39.[Ms C] made the following notes about her discussion with [C] in her office:
[C] advised me that [the appellant] is the son of her previous caregiver. She stated that [the appellant] has been phoning her constantly on her mobile phone and today has been trying to see her. She stated she felt scared of [the appellant] and did not want to see him. She stated she felt scared of [the appellant] because when she was with her previous carer, and [the appellant] was also living there, he entered her bedroom one day and banged her head against a cupboard. She stated that he did this because she had wagged school. She also stated that when she was residing with her previous carer and [the appellant] was there as well, [the appellant] had a fight with his father and broke his father’s ribs. [C] stated she felt unsafe because [the appellant] has stated to her that if they have a baby they will stay together as people don’t break up families. She stated that [the appellant] does not know where she lives in Murray Bridge.
40.[Ms C] recorded that [C] was then taken through the FAYS office and out to the car park and driven home, so [the appellant] could not see her.
41.[Ms C] made the following notes about her discussion with [the appellant] in the Waiting Room:
I asked him why he was waiting for [C]. He stated that [C] had rung him this morning and arranged to meet him. I asked him what his interest was in [C] and he stated he used to reside with her and that he was worried about her. He stated that [C] rang him a while ago and asked if she could live with him. I advised him that the Department would not support a move. I advised him that as Acting Manager, and as legal guardian of [C], that we would strongly recommend that he leaves her alone. I stated I would pass the information on to [C’s] caseworker and that someone will contact him in the near future to further discuss the situation. [The appellant] also started asking questions about whether [C] was going to school and what she was doing with herself. I advised him that [C] is safe, is in a new placement and things are in place for her.
(Emphasis in original)
This agreed conversation and how it was dealt with by the trial Judge are the subject of ground five of the appeal.
It was also put in cross-examination that C had made up these allegations in order to obtain some form of compensation and also as revenge against her foster mother, the appellant’s mother, for ejecting her from the household after she was suspended from school.
DB, the natural mother of C, was called. She gave evidence that C told her about her relationship with the appellant on an occasion when she visited her in Queensland in 2002. C told her that she and the appellant had a sexual relationship and they were boyfriend and girlfriend. DB said that C also told her that the appellant forced himself upon her the first time they had sex and that C was afraid that he would kill himself having seen him hold a gun to his head. C was afraid that if she would not be his girlfriend, the appellant would kill himself. DB also recalled that when she and C were in Queensland together, the appellant phoned and DB told him not to phone again.
In cross-examination, DB said that she reported the conversation about the sexual relationship to Families SA and had dealings with a social worker, Ms K, at Families SA.
Ms K gave evidence that she was a caseworker for the complainant, being a qualified social worker employed by Families SA. She was then working at the Murray Bridge office. She commenced being a caseworker for C at the beginning of 2002 and had contact with her on a fairly regular basis. She also had telephone contact with the appellant. She phoned him on one occasion because she had learned that the appellant’s family were going away for a few weeks and was not happy about C staying at home with the appellant while they were away, as to her mind it was not appropriate. This was, of course, during the period that C was living with the appellant’s parents as a foster child. There was then a further conversation between Ms K and the appellant, in July 2002 whereby the appellant said that he was not living at home anymore and would be prepared for C to come and live with him if she came back from Queensland where she was living with her mother. Ms K gave evidence that she was surprised at that conversation, as she wasn’t expecting that the appellant would be as interested in C as he seemed to be and that concerned her. The fact of her surprise is also the subject of a ground of appeal.
There are a number of agreed facts tendered with the consent of both sides, which I will deal with when discussing the various grounds of appeal.
The appellant elected not to give evidence but called two witnesses. His mother gave evidence that she started fostering children in 1996 and fostered both C and her half-sister J. J started in 1996 or 1997 and C started in 1999. She gave evidence that she never saw any firearm in the appellant’s room. Also, she never saw any inappropriate behaviour between C and the appellant, and told the Court that C was suspended from school and then left the farm in about June 2002.
Mr B was also called. He is the cousin of the appellant and worked on the farm during harvesting, driving a tractor that pulled a chaser bin. He said that the firearms on the farm were locked in a cabinet and that he stayed upstairs whilst he was on the farm during the harvest, but C was always sleeping downstairs and he never saw her operate the chaser bin as she described.
Appeal
There were six grounds of appeal. I set them out:
1The Learned Trial Judge erred in failing to direct the jury that the delay in the complainant reporting the matter could not be taken into account as something that was capable of supporting the complainant’s credibility.
2The Learned Trial Judge erred in her directions as to the forensic disadvantage faced by the appellant by failing to direct the jury that the delay in the matter being reported to the police could not be used as a forensic disadvantage favourable to the Crown.
3The Learned Trial Judge erred in failing to direct the jury to ignore inadmissible opinion evidence given by Ms K.
4The Learned Trial Judge erred in directing the jury in relation to evidence of the complaint.
5The Learned Trial Judge erred in failing to direct the jury that statements made by the complainant to Ms C (see agreed fact [39] above) were not evidence of the truth of those statements.
6The Learned Trial Judge erred in failing to direct the jury that the statement by DB to Ms K was not evidence as to the truth of what was contained in the statement.
Permission to appeal was granted on all except ground two. I deal with each in turn.
Ground 1 - The Learned Trial Judge erred in failing to direct the jury that the delay in the complainant reporting the matter could not be taken into account as something that was capable of supporting the complainant’s credibility
This ground focuses upon comments made by the prosecutor in her closing address which the appellant argues were inappropriate and should have been corrected by a direction from the trial Judge. It is to be noted that in relation to this ground as well as other grounds in this appeal the trial Judge was, in a number of instances, not assisted by objections or requests for a direction from counsel.
Counsel for the appellant argues that the following passages from the prosecutor’s final address, uncorrected, would inevitably lead to impermissible reasoning. At one stage in her closing address the prosecutor said:
I suggest this is nothing and can’t say anything to you about the character of the 32-year-old woman who was brave enough to give evidence to you 18 years later in this court.
Further on, the prosecutor continued:
More often than not, when we are dealing with the alleged sexual offending against young people, often the allegations don't come to light until some time later.
Here, while there is evidence of various disclosures made and notifications recorded, you have heard that, ultimately, police didn't become involved until March 2015, some 13-15 years after the alleged event. Of course, at that point, there is no opportunity and really no point for DNA testing which might support what the complainant says, so that puts her at a disadvantage, and most certainly it puts the defendant at a disadvantage, and defence will no doubt tell you about that, but that's the very nature of these offences; behind closed doors, no witnesses to the actual offending and the allegations not coming to light until some time later.

The appellant’s counsel argues that those remarks are impermissible for a number of reasons. His first argument is that referring to C as a “32-year-old woman who was brave enough to give evidence to you 18 years later in this court” connotes a presumption that she was a victim of a sexual offence who was brave enough to get into the witness box. The appellant’s counsel argues that linking that comment to the period of time of 18 years is inviting the jury to reason that giving evidence 18 years later somehow assumes that she was telling the truth. He argues that this contravenes s 34M(2) of the Evidence Act 1929 (SA) (the Act) which says:
(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.
He argues that as no suggestion can be made that delay in making a complaint is of itself probative of the complainant’s credibility or consistency, then equally, no suggestion can be made that it boosts the complainant’s credibility or consistency. He argues, therefore, that any comment suggesting that delay can bolster her credibility is wrong and should have been corrected.
The other aspect of the prosecutor’s address, quoted above, touches upon the question of forensic disadvantage. It is argued that the prosecutor’s comments that DNA testing might support C’s version of events leads to the conclusion that delay, rather than being a forensic disadvantage to the appellant, is a forensic disadvantage to the prosecution. Counsel for the appellant argues that the comments about forensic disadvantage and about delay both impermissibly assist the prosecution when, in fact, forensic disadvantage should only be of assistance to the defence and delay should not be used to bolster C’s evidence. The appellant’s counsel submits that these remarks should have been corrected by the trial Judge.
The trial Judge gave an accurate general direction in relation to the question of delay when she said:
I also direct you that there may be varied reasons why an alleged victim of a sexual abuse offence makes a complaint of an offence at a particular time or to a particular person. It is entirely a matter for you to determine the significance, if any, of the evidence and the circumstances of this particular case.
This general direction accords with s 34M(4)(c) of the Act. However, counsel for the appellant argues that it did not address the specific comment of the prosecutor in suggesting that the delay in making the complaint made it more likely that she was telling the truth.
In relation to forensic disadvantage her Honour gave a direction pursuant to s 34CB of the Act when she said:
I then turn to what is described as forensic disadvantage. That relates to the period of time that has occurred between the alleged offending and the matter now proceeding to trial.
As you would have worked out, the period of time is years now. That delay has resulted in significant disadvantage to the accused. By that I mean there are difficulties for the accused in challenging the allegations because of the passage of time. Had there been a trial more promptly, he may have been in a better position to test her evidence.
For example, the evidence that C gave, it is a matter for you, might lack specificity about the timing of the charged occasion. You have heard that they occurred at times over a couple of years and she can't be certain about dates or other times. Another example is that the police took no forensic samples from the truck because of the passage of time and such samples would be meaningless. Also, C said that she complained to Ms B from Families SA, but you now know that she's deceased.
The passage of time results in a disadvantage to the accused in not being able to fully explore with C in cross-examination the context in which she alleges the offending occurred, including the finer details. You must take those disadvantages in account when scrutinising the evidence for the prosecution and assessing whether the prosecution has proved its case against the accused.
However, the appellant’s counsel argues that she should have gone further and corrected the prosecutor’s comments suggesting that delay is also a disadvantage to the prosecution.
In my view, there is some merit in the complaints made by counsel for the appellant. However, I do not consider that the failure of the trial Judge to specifically address those aspects of the prosecutor’s address has led to a miscarriage of justice. Without in any way inhibiting the flexibility of counsel when addressing the Court, the comments the prosecutor made about forensic disadvantage to the Crown case and to inferentially bolster the credibility of the complainant should have been corrected and placed in perspective. It would have been preferable if the prosecutor’s address had been corrected in relation to the above aspects, however there was no objection by experienced counsel who represented the appellant at the trial. I would not have allowed the appeal on this ground only.
Ground 3 – The Learned Trial Judge erred in failing to direct the jury to ignore the inadmissible opinion evidence given by Ms K
This ground can be dealt with briefly. Ms K, a social worker, gave evidence of a conversation between her and the appellant which took place on 9 July 2002. In that conversation, the appellant told her that he was prepared to have C come and live with him. When giving evidence about that conversation Ms K said, “to the extent that I was a bit surprised to have the telephone call from [the appellant] and a bit concerned at why would he be wanting …”. She was then interrupted by the prosecutor.
Counsel for the appellant argues that her reference to surprise “and concern” amounted to an inadmissible opinion. He further argues that although the prosecutor tried to prevent that evidence being elicited, a clear direction should have been given to the jury that her “surprise and concern” was to be ignored. It is to be noted once again that no objection was made to that evidence and there was no request for such a direction. In my view, the evidence as it came out was of no real consequence and I would dismiss this ground of appeal.
Ground 4 – The Learned Trial Judge erred in directing the jury in relation to evidence of the complaint
It is important to set out in full s 34M of the Evidence Act 1929 (SA).
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).
In her summing up, the following evidence was referred to by the trial Judge as being capable of being used as evidence of complaint:
1C’s evidence that she made a disclosure to her half-sister J.
2The evidence of C’s mother that the complainant told her that she had a sexual relationship with the appellant. This was lead as an elaboration to the first complaint made to J.
3C’s evidence that she told a social worker, Ms B, at some stage. No details were given. This was elicited in cross-examination.
4DB’s evidence that she reported the sexual relationship to Families SA. That was also elicited from DB in cross-examination.
5An agreed fact that C made a disclosure of sexual abuse to Mr C of Families SA.
6It was an agreed fact that on 26 February 2007 the Special Investigations Unit (SIU) of the Department of Families and Communities received a sexual abuse notification about C while in the care of the appellant’s family. These allegations were referred to SAPOL.
It was common ground and conceded by the prosecution that the complaint evidence of disclosures made to J and to C’s mother were the only genuine complaints capable of being used as described by s 34M(4)(a) of the Evidence Act 1929 (SA). The others were not technically complaints capable of being used for that purpose. In dealing with the question of complaint evidence her Honour directed the jury accordingly:
I now turn to give you a direction about the evidence of complaints made by [C]. She gave evidence that the first person she told was her half-sister, [J]. She said that that was during visitation at her dad's while she was still living at the [farm]. She did not give [J] any detail about what was occurring or when or where. Of course you have not heard from [J] in this trial.
She also gave evidence that she told a social worker, [Ms B], at some stage, although she did not know when but thought it was when she was staying with the [Ns] and then she went back to stay with the [appellant’s family] afterwards for a brief period. She did not go into detail about what she claims to have told that social worker.
You also have evidence not from [C] but from [C]'s mother, [DB], that when C visited in July or August 2002, [C] told her that she had a boyfriend and girlfriend relationship with the accused, that it was a sexual relationship. [C]'s mother said that [C] told her the first time he forced himself onto her, she was afraid he would kill himself. [C] said he held a gun to his head one time and she was really afraid he would kill himself if she wouldn't be his girlfriend. [C]'s mother described her as quite upset. [C]'s mother said that [C] said they would meet in the shed also. When considering that you need to take into account that [C] did not give that evidence, she could not remember telling her mother.
Also, [C]'s mother gave evidence that she reported it to [Ms K]. [Ms K] gave evidence that she had no record of being told that during her discussions with [DB] during two phone calls on 18 and 30 July 2002.
You then also have the agreed facts, namely, that on 21 December 2004 [C] met with [Mr C] at Families SA. He was involved in the temporary care of her son who had been placed under the guardianship of the minister for 12 months. [C] disclosed sexual abuse on that occasion by the accused. You have got the agreed facts that a notification was then made to the Investigation Unit and then a referral was made to SAPOL. Another notification was referred by that unit to the police in February 2007. It's agreed that [C] did not wish to participate with the unit or police regarding those notifications at that time, so they closed their file in January of 2008. You know that she gave a statement to the police in May of 2015.
Members of the jury, that evidence is put before you to inform you as to how the allegations have come to light, how it is that we are in this courtroom. Importantly, what was said by [C], if you find that those things were said, is not put before you as evidence of the truth of what was allegedly said by her at that time. It is common sense but the fact that someone told people out of court that something happened a number of times does not make it true. The content of the complaint to her mother, if you find the complaint was made in those terms, may be referable to counts 1 and 2, the first occasion, and count 4, the occasion with the gun. Otherwise, the complaint to [J] and to Families SA in 2004 is so bare in its terms that it could only relate to the general sexual relationship.
The evidence of those complaints may be used by you as evidence of consistency of conduct on the part of [C] but it is a matter for you to assess whether it is consistent and therefore relevant to her credibility. The defence points to what she told her mother in 2002 as being inconsistent on her part in regard to what was actually said. For example, them meeting in the shed.
I also direct you that there may be varied reasons why an alleged victim of a sexual abuse offence makes a complaint of an offence at a particular time or to a particular person. It is entirely a matter for you to determine the significance, if any, of the evidence and the circumstances of this particular case.
The appellant argues that it should have been made clear to the jury that only two of those “complaints” were complaints that could be used in the way directed by the trial Judge, namely as to how the allegations came to light and to show consistency. In not making that distinction between the two genuine complaints, and the other four statements, it gave the jury the impression that all of the statements, referred to as ‘complaints’, could be used as evidence of consistency on behalf of C.
However, it is to be noted that there is no argument that in relation to the two genuine complaints the directions of the trial Judge were correct, and most importantly, in relation to all of those complaints (genuine or otherwise) they could not be used as evidence of the truth. In my view, the direction could not have amounted to a miscarriage of justice.
I would reject that ground of appeal.
Ground 5 – The Learned Trial Judge erred in failing to direct the jury to statements made by the complainant to Ms C were not evidence of the truth of those statements
This ground has given me great concern. As already indicated, C was cross examined about a phone conversation that she had with Ms C saying that she felt unsafe because the appellant had said to her that if they had a baby they will be able to stay together because families are not broken up. C, in evidence, said that she did not make such a statement to Ms C, nor did the appellant say anything like that to her. As the cross examination unfolded at the very least she could not remember either of those conversations. However, by way of agreed fact, Ms C made notes about a discussion with C on that topic. That conversation is set out above.
It is very unclear as to why the defence at trial elicited that conversation. Not only did C not remember it, but even if she did, it is hard to see the basis of its admissibility other than the defence bringing it out in cross examination to establish some form of inconsistency or attack on her credit. Nevertheless, as that statement was before the jury it was potentially highly prejudicial to the appellant unless a clear direction was given as to its proper use. The agreed fact about what C said to Ms C concerning a conversation with the appellant about having a baby, on its face, amounts to hearsay evidence of an implied admission of a sexual relationship between the appellant and C. It called for a very clear direction by the trial Judge that that agreed fact was not to be used as evidence of the truth, namely that the appellant made that statement.
The fact that no such direction was given is, in my view, fatal to the conviction. It is to be contrasted with the direction given to the jury about not using complaints as evidence of the truth. In my view, the difference exacerbates the danger of its misuse. Although, once again, neither counsel sought any direction, I consider that the failure to direct the jury as to the proper use of that evidence may have led the jury to believe that they could act on what amounted to an admission by the appellant of an illicit sexual relationship with C. I consider that failure has led to a miscarriage of justice. I would allow the appeal on this ground.
It is unnecessary to decide the final ground of appeal.
Conclusion
For the reasons given I would allow the appeal and order a re-trial.

[2019] SASCFC 120

4 October 2019

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