Patterson (a pseudonym) v The Queen

[2022] SASCA 57

Supreme Court of South Australia

(Court of Appeal: Criminal)

PATTERSON (A PSEUDONYM) v THE QUEEN

[2022] SASCA 57

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)

22 June 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - JURY DELIBERATION - CONFLICTING EVIDENCE

Application for permission to appeal and appeal against conviction.

The appellant was convicted by a jury of the offence of unlawful sexual intercourse (Count 2), contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). He was acquitted of the charge of indecent assault (Count 1), contrary to s 56 of the CLCA.

The complainant was the appellant’s foster daughter. Count 1 involved an allegation that the appellant forced the complainant to masturbate him whilst in the bathroom of the family home. Count 2 related to an allegation of an act of penile / vaginal intercourse which occurred at a motel in Murray Bridge. On the prosecution case, the appellant and complainant stayed overnight at the motel after travelling to the town to see a movie. The act of sexual intercourse was alleged to have occurred after returning to the motel from the cinema.

The appellant seeks permission to appeal against his conviction on four grounds of appeal, namely that the verdict is unreasonable and cannot be supported having regard to the evidence (Ground 1), the trial judge failed to properly summarise the defence case and evidence to the jury (Ground 2), the trial judge’s directions as to forensic disadvantage were deficient and impermissible (Ground 3), and the trial judge erred in refusing to give a further direction of the kind contemplated by Liberato v The Queen (1985) 159 CLR 507.

In support of Ground 1, the appellant points to three evidential issues. The first is an inconsistency between the complainant’s evidence that she and the appellant watched different movies at the cinema and the agreed facts at trial that neither of the movies were showing on the date of the charged offending and the cinema only had one screen. The second concerns the evidence of Mr Heading, whom the complainant and appellant allegedly met while walking from the cinema to the motel. The third relates to the evidence of the motel’s current manager that the room booked by the appellant had at least two beds at the date of the charged offending, which contradicted the complainant’s evidence that she got into bed with the appellant because there was nowhere else to sleep.

Held, per the Court, granting permission to appeal on Grounds 1 to 4, allowing the appeal on Ground 1, but dismissing the appeal on Grounds 2 to 4:

1.      As to Ground 1, the difficulties with the complainant’s evidence as to Count 2 were such that a jury ought to have experienced a reasonable doubt as to the appellant’s guilt of the offence charged. The verdict was unreasonable and the conviction on Count 2 is set aside and substituted with a verdict of acquittal.

Held, per Doyle JA (Livesey P and Lovell JA agreeing):

2.      As to Ground 2, the trial judge’s summing up was balanced and adequately summarised the evidence and issues at trial.

3. As to Ground 3, the trial judge’s forensic disadvantage directions were appropriately tailored to the facts and circumstances of the case, and adequately discharged the trial judge’s obligations under s 34CB of the Evidence Act 1929 (SA).

4.      As to Ground 4, in this case there was no reason for the trial judge to have given a further Liberato direction.

Criminal Law Consolidation Act 1935 (SA) ss 49(3), 56; Evidence Act 1929 (SA) s 34CB, referred to.
DES v The Queen [2020] SASCFC 32; Fennell v The Queen (2019) 93 ALJR 1219; Liberato v The Queen (1985) 159 CLR 507; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Martin v The Queen (2013) 46 VR 537; MFA v The Queen (2002) 213 CLR 606; Pell v The Queen (2020) 268 CLR 123; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v Perks (1986) 43 SASR 112; R v T, S (2017) 128 SASR 66; R v W, PK [2016] SASCFC 5; Roberts v The Queen [2022] SASCA 36, considered.

PATTERSON (A PSEUDONYM) v THE QUEEN
[2022] SASCA 57

Court of Criminal Appeal – Criminal:  Livesey P, Lovell and Doyle JJA

LIVESEY P AND LOVELL JA: 

Introduction

1. This is an appeal against a conviction of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), entered following a trial before a jury in September 2021. At the same time, the appellant was acquitted of a charge of indecent assault, contrary to s 56 of the CLCA.

2. The offending was alleged to have occurred between October 1999 and June 2002. Following submissions, the trial judge gave a direction relating to delay resulting in significant forensic disadvantage to the appellant pursuant to s 34CB of the Evidence Act 1929 (SA) (the Evidence Act).  It will be necessary to say something more about that issue.

3. Following an earlier trial, a conviction for the unlawful sexual intercourse charge was set aside on appeal.[1]  At the earlier trial no verdict was returned on the indecent assault charge. 

   [1]     R v P, TJ [2019] SASCFC 114 (Nicholson J, with whom Stanley and Doyle JJ agreed), regarding a failure to give directions on evidence which may or may have not been complaint evidence under s 34M of the Evidence Act 1929 (SA). That evidence does not appear to have been led at the retrial.

4. The appellant challenges his conviction on a number of grounds, each of which require permission to appeal pursuant to s 157(1)(a)(ii) of the Criminal Procedure Act 1921 (SA) (CPA). We are grateful to Doyle JA for comprehensively setting out all of the grounds of appeal, the cases for the prosecution and the defence at trial, and the contentions made on appeal.  Because we have reached the view that the appeal should allowed on appeal Ground 1, we may be comparatively brief.

   Appeal Ground 1: the verdict is unreasonable

5. Appeal Ground 1 is concerned with whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, within the meaning of s 158(1)(a) of the CPA.

6. On this ground the ultimate question is whether there is a significant possibility that an innocent person has been convicted.[2]  That is, this Court must determine whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.[3]  The question is sometimes put as whether the jury must, as distinct from might, have entertained doubt about the appellant’s guilt.[4]

   [2]     Pell v The Queen (2020) 268 CLR 123, [9], see also [119], [127] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

   [3]     M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

   [4]     Libke v The Queen (2007) 230 CLR 559, [113] (Heydon J), followed in Pell v The Queen (2020) 268 CLR 123, [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

7. The appeal court must not “disregard or discount” that the jury is the body entrusted with primary responsibility for determining guilt or innocence and that it had the benefit of having seen and heard the witnesses and was, as a result, in a position to evaluate the evidence in a manner that is denied to a court of appeal.[5] 

   [5]     M v The Queen (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJ).

8. In this case, it is necessary to bear in mind that the prosecution case depended upon the evidence of the complainant.  Whilst the conviction suggests apparent acceptance of the credibility and reliability of the complainant by the jury, that acceptance was not unqualified, as is shown by the acquittal on the indecent assault charge. 

9. Moreover, it remains necessary for this Court to examine the record to determine whether, notwithstanding the jury’s assessment, this Court is satisfied that the “jury, acting rationally, ought nonetheless to have entertained a reasonable doubt” and this may be determined “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence …”.[6]  As it was described by the High Court in M v The Queen:[7]

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. …

   [6]     Pell v The Queen (2020) 268 CLR 123, [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

   [7]     M v The Queen (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJ).

10. We propose to highlight those features of the evidence which, when considered as part of the evidence as a whole and the way in which the prosecution case was conducted, demonstrate that it is reasonably possible that the conduct alleged by the complainant did not occur, with the result that there is a reasonable doubt about the appellant’s guilt.[8]

    [8]     Pell v The Queen (2020) 268 CLR 123, [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

11. Whilst we have considered the whole of the evidence, our review is not intended to be exhaustive, it concentrates on the matters emphasised on the hearing of this appeal. As mentioned, the general background and the detail of the evidence is set out in the reasons of Doyle JA.

    The case for the prosecution

12. The complainant resided with the appellant and his family on their farm under a foster placement arrangement.

13. The complainant described travelling alone with the appellant to Murray Bridge by car so that they could see a movie and stay overnight at a motel, the Olympic Motel.  The complainant said this occurred when she was aged 14 years and in year 8 at school.  Having read the transcript of the complainant’s evidence, the complainant was clear that this was the only occasion when she and the appellant had ever spent the night alone together in Murray Bridge.   

14. In addition, the complainant’s evidence was that, after they arrived at Murray Bridge they went through a “bottle-o” where the appellant bought a “four pack” of

    
    

    “Vodka Cruisers” for the complainant before they checked into the motel. 

15. The complainant said that after they checked into the motel, they walked to the cinema. 

16. The complainant’s evidence was that there was some disagreement about which movie would be seen.  The complainant said that the appellant wanted to see “Erin Brockovich”, but she was worried about seeing an M-rated film as she was not yet 15.  In any event she did not want to see that movie, she wanted to see the movie with the character “Jar Jar Binks” in it, being “Star Wars: Episode I – The Phantom Menace”.

17. The complainant said that she and the appellant saw different movies in the Murray Bridge cinema.  The appellant was “fairly sure” that she saw the Star Wars movie and she was “pretty sure” the appellant saw the Erin Brockovich movie.  Her evidence was clear: there were two cinemas at the Murray Bridge cinema.

18. In cross-examination, the complainant was asked whether she was “pretty clear on the movie aspect of things” to which the complainant agreed, saying that she felt “my memory’s right”.  She agreed that she was “very clear” that she and the appellant went into separate cinemas.  Soon after this passage, she agreed that she had Googled “the number of cinemas in Murray Bridge” because she had been “worried in case I had it wrong”. 

19. The cross-examiner then put to the complainant that the Star Wars movie was only shown in Murray Bridge between June and July 1999, whereas the Erin Brockovich movie had only been shown in Murray Bridge the following year, between May and June 2000.  To this the complainant said, “either way, we went to the cinema anyway”. 

20. It was then put to the complainant that there was only one cinema in Murray Bridge, to which the complainant said, “well then I must be wrong”. 

21. The underlying facts the subject of this part of the cross-examination were agreed facts. 

22. The complainant then described meeting with a Mr Heading whilst walking back to the motel after leaving the cinema.  It is not necessary to go into this evidence in detail.  The evidence of Mr Heading is that he recalled meeting the complainant twice on the same evening, not once, on a Friday or Saturday evening in January or early February 2001.  Mr Heading’s evidence was that the complainant was with an older man, in his mid-fifties, who was stocky and about 5 foot 11 inches in height.  It was agreed that the appellant was just over 5 foot 2 inches in height.  The man with the complainant was introduced by her as either her foster father or foster carer. 

23. The complainant’s evidence was that she was wanting to delay the walk back to the motel, so she stopped to speak with Mr Heading.  She said that she recalled the appellant becoming agitated if not angry. 

24. Obviously enough, Mr Heading’s recollection of meeting with the complainant did not correspond with the dates when either the Star Wars movie or the Erin Brockovich movie were shown in Murray Bridge.

25. The complainant attempted to describe the interior layout of the motel room.  The complainant said that outside the motel room she drank one of the Vodka Cruisers.  She said that the appellant asked her to come inside.  The complainant said that she was “trying to act like I was drunk” before getting into the bed where the appellant lay, awake.  The complainant said that there was “nowhere else to sleep”. 

26. The effect of the complainant’s evidence was clear: she got into bed with the appellant because there was nowhere else to sleep. It was the only bed in the room. In cross-examination the complainant was not asked about the number of beds in the motel room.

27. The complainant gave evidence that the appellant wore a condom and had sexual intercourse whilst lying on top of her in the bed.  It is not necessary to address the balance of the complainant’s evidence, which culminated in her remembering that the appellant gave her $50 and told her not to tell his wife. They left the motel the next morning to ensure that they arrived back at the family farm before the appellant’s wife and son returned from potato picking.

28. The complainant gave evidence that the appellant was uncircumcised, which was also an agreed fact, but there was some evidence to suggest that this fact may have emerged in a conversation with the appellant’s wife. 

29. The current owner and manager of the Olympic Motel in Murray Bridge, Mr Aubrey Strydom, was called to give evidence.  Records from the Olympic Motel were tendered. Mr Strydom told the jury that the motel had been owned and managed by his family for more than 50 years. 

30. One page from a motel diary of the Olympic Motel was produced which included an entry “Mr and Mrs T [Patterson]”, recording a booking for Saturday, 27 January 2001.  Mr Strydom said that this entry was in his father’s handwriting.  At that time, Mr Strydom was assisting his father with the management of the motel and he was familiar with the motel and its booking records.  The entry indicated that someone had checked in and received a key for room 12 and paid $60 in cash.  There was no line drawn through the booking entry, indicating that it had not been cancelled. A vehicle registration number, in part indecipherable, broadly corresponded with the registration number of a vehicle owned by the appellant.

31. On the prosecution case, this evidence was consistent with Mr Heading’s account of meeting with the complainant and a man in Murray Bridge in January or February 2001.

32. This evidence was not, however, consistent with the agreed facts concerning the times when the Star Wars and Erin Brockovich movies were being shown at the Murray Bridge cinema.

33. In addition, and importantly, the complainant’s evidence was not consistent with the evidence of Mr Strydom that room 12 always had at least two beds.  Mr Strydom explained that there were only 14 rooms in the motel and room 7 was unique because, unlike all other rooms, it was the only room with one bed.  The other rooms had two or three beds, being either a double and a single or a double and two singles.  On the evidence of Mr Strydom, room 12 had “at least two beds”. 

34. This evidence was not the subject of any challenge. 

35. The appellant’s evidence from the earlier trial was read out to the jury as part of the prosecution case.  The appellant’s evidence was that his wife had made a booking for them to stay at the Olympic Motel on 27 January 2001 after attending a “Ron Wade” concert in Murray Bridge.  Ron Wade was a country and western singer.  The appellant said that he and his wife did not ultimately stay at the motel because they were called back to the farm that evening.  The appellant’s evidence was that he thought that his wife tried to cancel the booking and get a refund but she was not successful. 

36. The appellant also gave evidence that he could recall collecting the complainant from Murray Bridge on one occasion following a period of respite care.  He said that the complainant was not at the address he had been given and so it became necessary for him to look for her in Murray Bridge.  The appellant said that he eventually found the complainant outside a hotel with a man who may have been Mr Heading.

    The case for the defence

37. The appellant called the complainant’s older sister who gave very positive evidence about the foster care received from the appellant and his wife.  She and another witness gave very positive evidence regarding the appellant’s good character and standing in the community.

38. There was independent evidence that Ron Wade performed at the Murray Bridge Community Centre on Saturday, 27 January 2001.

39. Evidence was also called from Mrs N who, together with her husband, were foster carers for the complainant before she commenced living with the appellant and his wife.  She gave evidence which contradicted the complainant’s evidence in numerous respects.  Indeed, Mrs N and the appellant both gave evidence that the complainant was a difficult child with behavioural issues.  This view of the complainant was accepted, to an extent, by the complainant in her own evidence. 

40. The complainant had described Mr and Mrs N as harsh parents and that Mr N had been regularly physically abusive, with Mrs N having to reprimand him for this abuse.  This was denied by Mrs N.  In addition, the complainant sent letters to Mrs N which disclosed a positive view of her care.  This too was said to be inconsistent with the complainant’s evidence.  The complainant explained these letters by saying that they were written to keep Mrs N ‘on side’ because she was caring for one of the complainant’s seven surviving children. 

1. Whereas the complainant said that she left the care of Mr and Mrs N because of their harsh treatment, Mrs N disagreed, explaining that the complainant left their care because she and her husband were no longer prepared to care for the complainant. 

2. Finally, there was evidence that the complainant had made an application for an ex gratia payment, under the Victims of Crime compensation scheme, based on the alleged offending.

   The determination of appeal ground 1

3. When taken as a whole, and having regard to the conduct of the prosecution case, the complainant’s evidence concerning events on the night of the alleged offending should have led a reasonable jury to entertain reasonable doubt about the appellant’s guilt.  Whilst there was evidence to support the verdict, the verdict was, on the whole of the evidence, unreasonable. 

4. Though the complainant did not ever pinpoint the date of the offending as 27 January 2001, this was the date relied on by the prosecution.  The prosecution was conducted on that basis.  The complainant fixed the time of the offending primarily by reference to the cinema visit when she and the appellant separately saw two different movies on the same night.  The complainant’s evidence about those matters was shown to be wrong.  It must be remembered that this was, on the complainant’s evidence, the only time that she and the appellant had ever stayed overnight together alone at Murray Bridge.

5. Whilst some support for the date identified by the Motel records was given by the evidence of Mr Heading, there were problems with this evidence. Mr Heading’s evidence identified the person with the complainant as significantly taller than the appellant. The possibility of a wrong identification could not be lightly dismissed.

6. In addition, as this was a trial where it was accepted that the accused was under a significant forensic disadvantage, the appeal court must take that disadvantage, and the operation of s 34CB of the Evidence Act, into consideration when conducting its own review of the evidence. Section 34CB relevantly states:

   (1)…

   (2)     If, in a trial of a charge of an offence, thecourtis 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 theevidence.

   (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.

7. In terms, s 34CB only operates in favour of an accused. It does not apply to the prosecution case, or to any of the prosecution witnesses, including a complainant.

8. Where the trial judge is satisfied that the accused is under a significant forensic disadvantage, the judge must explain to the jury the nature of the disadvantage and then direct that they must take that forensic disadvantage into account when scrutinising the evidence. A judge must not direct the jury that it would be dangerous or unsafe to convict because of the forensic disadvantage.

9. The forensic disadvantage to an accused caused by delay ordinarily lies in the inability of the defence to adequately test allegations, or adequately marshal a defence, in one or more respects, compared with what the defence may have been able to do if the trial had taken place closer in time to the alleged offending. The jury are therefore asked to determine whether guilt has been proved beyond reasonable doubt on the strength of evidence that has not been tested as it might have been, or on testimony or documents that might have been answered by the calling of other evidence. Section 34CB requires that the trial judge bring the effect of that forensic disadvantage to the attention of the jury when it is undertaking fact finding.[9]

   [9]     R v T, S (2017) 128 SASR 66, [105] (Hinton J).

10. A jury will usually make allowance for the undisputed fact that memory fades over time when assessing the evidence of any witness, including a complainant. However, where delay is sufficient to produce a significant forensic disadvantage to an accused, some tension is created between the operation of s 34CB and the way in which delay may affect the memory, and therefore the evidence and assessment, of prosecution witnesses, including a complainant. As mentioned, only the accused is conferred the benefit of s 34CB. Following a substantial delay an accused may only be able to offer a blanket denial. A complainant can often provide some detail. Accordingly, inconsistencies in the evidence may arise by reason of the delay which has elapsed since the alleged offending. As Peek J warned in R v Maiolo (No 2),[10] when directing a jury the trial judge must be careful not to suggest that inconsistencies within a complainant’s evidence, apparently caused by the deterioration of memory brought about by delay, results in both an accused and the prosecution suffering a forensic disadvantage. To put that proposition another way, though the jury should understand that delay may explain errors or inconsistencies in a complainant’s evidence, when scrutinising the evidence the jury must take into account that it is only the accused who has suffered a relevant forensic disadvantage caused by delay which is recognised by s 34CB.

    [10]   R v Maiolo (No 2) (2013) 117 SASR 1, [183] (Peek J, with whom Kourakis CJ and Stanley J agreed).

11. Accordingly in this case it was necessary to consider the extent to which the appellant was suffering from forensic disadvantage caused by delay when reviewing the prosecution case and the extent to which it was answered.  Though the complainant’s evidence about the cinema and movies may have been affected by delay, it clearly formed part of her narrative of events leading to the central allegation of offending inside the motel room, and it is accordingly difficult to disregard or separate this narrative from the charged conduct.   

12. Although the discrepancies on the evidence regarding the one or two encounters with Mr Heading that night might be said to be merely incidental or peripheral, it was necessary for the jury to carefully take into account Mr Heading’s evidence about meeting a much taller man and various other features of the evidence, including those parts of the defence case that were not contradicted, when determining whether there was, on the whole of the evidence, proof beyond reasonable doubt. 

13. In our opinion, the errors and discrepancies in the complainant’s evidence concerning the movies shown at the cinema, the number of screens at the cinema, and the number of beds inside motel room 12, were not merely matters of incidental or peripheral detail.  The complainant’s evidence about these matters was important to her account of an evening that culminated in the occasion she alleged that the appellant engaged in unlawful sexual intercourse.

14. These problems with the complainant’s account necessarily undermined her credibility and reliability in a case where the complainant’s credibility and reliability formed the centrepiece of the prosecution case.  The evaluation of that evidence was necessarily undertaken in a context where the appellant was labouring under a significant forensic disadvantage caused by delay.

    Conclusions

15. On the whole of the evidence, it is reasonably possible that the conduct alleged by the complainant did not occur.  In these circumstances, we would grant permission to appeal on Ground 1 and allow the appeal.     

16. On the other grounds of appeal, we respectfully agree with the reasons of Doyle JA.

17. DOYLE JA:     The appellant seeks permission to appeal against his conviction for the offence of unlawful sexual intercourse.  He seeks permission to appeal on grounds which include a contention that the verdict was unreasonable, as well as various complaints of miscarriage by reason of contended deficiencies in the directions given to the jury by the trial judge.

18. By way of background, the appellant was charged with two offences, indecent assault[11] (Count 1) and unlawful sexual intercourse[12] (Count 2). The complainant in respect of both counts was his foster daughter.  She commenced living with the appellant and his wife when she was 13 years of age, and continued to do so until she was 16 years of age.  The offending was alleged to have occurred between 4 October 1999 and 16 June 2002, while the complainant was living with the appellant and his wife.

    [11] Contrary to s 56 of the Criminal Law Consolidation Act 1936 (SA) (the CLCA).

    [12] Contrary to s 49(3) of the CLCA.

19. The charge of indecent assault involved an allegation that the appellant forced the complainant to masturbate him whilst in the bathroom of the family home.  The charge of unlawful sexual intercourse involved an allegation of an act of penile / vaginal intercourse at the Olympic Motel in Murray Bridge.

20. At an earlier trial of these charges, no verdict was returned in relation to the charge of indecent assault, and the appellant was convicted of the charge of unlawful sexual intercourse.  That conviction was overturned on appeal.

21. In the subsequent re-trial of these charges, the appellant was acquitted of the charge of indecent assault, but convicted of the charge of unlawful sexual intercourse.  It is against this conviction that the appellant seeks permission to appeal.

22. The appellant seeks permission to appeal on four grounds, namely that:

    ·the verdict of guilty is unreasonable and cannot be supported having regard to the evidence (Ground 1);

    ·the trial judge failed to draw the jury’s attention to certain aspects of the evidence upon which the defence case placed reliance, and otherwise failed to properly summarise the defence case to the jury (Ground 2);

    ·the trial judge’s directions as to forensic disadvantage were deficient, and incorporated an impermissible reference to disadvantage that accrued on the prosecution case (Ground 3); and

    ·the trial judge erred in refusing to give a further Liberato direction to the jury in light of their apparent focus upon the evidence of the accused (as evidenced by the jury questions) (Ground 4).

23. As initially drafted, the appellant’s proposed grounds of appeal had included an additional ground that the verdict of guilty was unreasonable in that it was factually and legally inconsistent with the verdict in relation to Count 1.  However, this ground was ultimately abandoned.

24. The appellant brought an application to adduce further evidence on appeal, but that application was also later abandoned.

25. Sitting as a single judge, I referred the appellant’s application for permission to appeal for hearing as on appeal.

    Background

26. It is appropriate to commence my consideration of the various grounds of appeal with a summary of the prosecution and defence cases at trial.

27. The complainant was born in May 1986, and was placed in foster care at a very young age.  She lived with Mr and Mrs N for over nine years, from July 1990 to October 1999.  Then, from 5 October 1999 until 15 June 2002 (that is, from when she was 13 years of age until she was 16 years of age), she lived with the appellant and his wife at their rural farming property in Coomandook.  The appellant and his wife have three sons, but only the youngest of them was still living with them when the complainant lived with them.

28. The complainant gave evidence of a single uncharged act, being an occasion before the event alleged in Count 1, when the appellant looked at her through a window whilst she was in the bathroom.  She was naked at the time, having just had a shower.

29. As to Count 1, the complainant’s evidence was that the conduct the subject of this charge occurred on an evening when she and the appellant were alone together at the family home.  The appellant gave her some alcohol, which resulted in her vomiting in the passageway.  She made her way to the bathroom, removed her clothing and got in the shower.  The appellant followed her into the bathroom, undressed himself and got into the shower with her.  He took her hand and placed it on his penis.  He caused her to masturbate him for a period of time until he ejaculated.

30. As to Count 2, the complainant described an occasion of sexual intercourse at the Olympic Motel in Murray Bridge.  The complainant said that the appellant drove her to Murray Bridge so that they could see a movie and stay overnight at a motel.

31. According to the complainant, this occurred when she was 14 years of age and in year 8 at school, on an occasion when the appellant’s wife (and son) were away picking potatoes.  She said that after driving to Murray Bridge, they checked in to the motel.  They then went to the movies.  She said that on the walk back to the motel she met a male, Mr Heading.  The complainant and the appellant stopped and spoke to Mr Heading.  The complainant said that in doing so she was trying to delay their return to the motel, and that the appellant appeared agitated by this delay.  However, they ultimately returned to the motel and the act of sexual intercourse occurred that night.  The following day they returned to the family home.  The complainant said this was the only time that she and the appellant stayed together in Murray Bridge.[13]

    [13]   She thought there might have been another occasion where she went to Murray Bridge with the appellant and his wife and stayed with a relative.

32. The prosecution relied upon a number of agreed facts.  I will mention some of these as they become relevant in my analysis of the evidence.

33. The prosecution also led evidence which it contended corroborated the complainant’s evidence in relation to Count 2 in important respects.

34. Mr Heading gave evidence to the effect that he recalled meeting the complainant in Murray Bridge, one Friday or Saturday evening in about January or early February 2001.  On the prosecution case, Mr Heading’s evidence that he saw the complainant in company with the same male over about a two hour period was significant because it supported the complainant’s account that she and the appellant had gone out for the evening in Murray Bridge, and contradicted the appellant’s account of an occasion he picked up the complainant in Murray Bridge (which was offered as an occasion when he might have met Mr Heading).  Mr Heading’s evidence was also relied upon by the prosecution as supporting the complainant’s account of the appellant’s apparent frustration at the delay caused by stopping and talking to Mr Heading.

35. Evidence was called, and records tendered, from the Olympic Motel.  The current owner / manager of that motel, Aubrey Strydom, gave evidence to the effect that the motel had been owned and managed by his family since the 1960s.  As at 2001, his father (now deceased) owned and managed the motel, but he (Mr Strydom junior) was assisting in the management of the motel and was familiar with the motel and how its booking records were created and maintained. 

36. Mr Strydom explained that the system for recording bookings was that when a person made a booking it was entered into the motel diary.  When that person attended the motel to check in to their room they received the key to their room and a circle was drawn around their room number.  A tick was placed against the booking when payment was received.  If it was paid by credit card, a pink tick would be placed on the booking once the reconciliation had been done with the bank statements.  When known, the vehicle registration details of the guest were also recorded.  If a booking was cancelled, a line was drawn through the booking in the diary.

37. Mr Strydom gave evidence that the motel diary included an entry to the effect that “Mr and Mrs [Patterson]” made a booking for Saturday, 27 January 2001.  (A copy of the relevant page from the diary was received as an exhibit.)  The entry was in his father’s handwriting.  But Mr Strydom explained that the entry indicated that someone had checked in and received a key for room 12 (as indicated by a circle around the room number), and had paid $60 cash (indicated by a tick, but no pink tick).  No line was drawn through the booking entry to indicate it had been cancelled.  The vehicle registration details for the booking were recorded as “V [indecipherable]-358”.  (It was an agreed fact that in 2001 the appellant was the registered owner of a 1990 Holden Utility, with registration VEJ-358.)

38. On the prosecution case, this evidence permitted an inference that someone using the name Patterson had attended the motel, checked in, received the key and paid for the room.  Further, the appellant’s vehicle registration had been noted upon check-in. 

39. This evidence was said to be consistent with the complainant’s evidence that she and the appellant checked into the motel that evening.  The date of the booking was consistent with Mr Heading’s account of meeting the complainant one Friday or Saturday evening in about January or February 2001, and with the complainant’s evidence that these events occurred when she was in about year 8 at school.

40. The prosecution also called evidence from a police officer who was involved in arresting the appellant, and then interviewing the appellant shortly after his arrest.  A copy of the appellant’s record of interview was received as an exhibit.  He denied the allegations that were put to him.

41. The prosecution also tendered the appellant’s evidence from the earlier trial.  An edited transcript of his evidence was read to the jury.  On the appellant’s evidence, his wife had made a booking for them to stay at the Olympic Motel on 27 January 2001, after attending a concert in Murray Bridge by Ron Wade (a country and western singer).  The appellant said that they did not ultimately stay at the motel because they were called back to attend to some business at their farm.  He said that he “thought” that they left Murray Bridge straight after the concert, and “thinks” that his wife went back to the motel to cancel the booking and get their money back, but that the motel would not issue a refund.  The appellant said that he could not recall whether they went to the motel before the concert.  The evidence at trial included a page from ‘The Murray Valley Standard’ newspaper from Thursday, 25 January 2001, which included an advertisement for the Murray Bridge Community Centre that made reference to Ron Wade playing that Saturday night.

42. The appellant’s evidence from the previous trial also included evidence to the effect that there was an occasion when he went to collect the complainant from an address in Murray Bridge following a period of respite care.  His recollection was fairly vague and general, but he recalled that the complainant was not at the address he had been given and so he went looking for her in the town.  He eventually found her outside a pub with a man, who might have been Mr Heading.  This incident was proffered as a potential explanation for Mr Heading’s evidence (if accepted) that he had seen the appellant with the complainant in Murray Bridge.

43. The appellant did not give oral evidence at trial.  However, in addition to relying upon his denials in his record of interview, and his evidence from the earlier trial, the appellant called evidence from three witnesses.

44. The first was Mrs N who, together with her husband, was the foster carer for the complainant prior to her living with the appellant and his wife.  She gave evidence about the events of that period which were said by the defence to reflect poorly upon the complainant’s credit.  This included refuting allegations the complainant had made about her treatment by Mr and Mrs N, which included a number of instances of physical abuse by Mr N.

45. The second was Ms G who is the older sister of the complainant, and who also lived as a foster child with the appellant and his wife.  Ms G lived with the appellant and his wife for about five years during her teenage years.  She was living with them when the complainant moved in, but moved out before the complainant did (and, on the complaint’s evidence, before the complainant was sexually abused by the appellant).  Ms G spoke in positive terms of the care she received from Mr and Mrs Patterson.  She also gave evidence to the effect that the appellant had a good reputation in the community; a reputation for being honest and trustworthy, and helpful and caring towards others.

1. The third witness called by the defence was Mr Luck, who also gave evidence of the appellant’s good character and standing in the community.

2. The defence case centred on the complainant’s credibility and reliability.  The defence relied upon various aspects of the evidence which it contended indicated that the complainant was inaccurate in her recollection of events relating to the charges.  These matters form the basis of the appellant’s ground of appeal that the verdict was unreasonable, and are analysed in detail later in these reasons. 

3. Through the evidence of Mrs N, and various agreed facts, the defence also sought to establish that the complainant had lied about several other matters unrelated to the charges.  This included an attack upon the complainant’s credit based upon the inconsistency between an agreed fact that she had alleged to her natural mother that she had had sexual intercourse with the son of Mr and Mrs N (who was eight years older than her) when she was a teenager; and the complainant’s evidence at trial denying that she ever made these allegations, or indeed that she had ever had sexual intercourse with Mr and Mrs N’s son.

4. The defence also relied upon the appellant’s evidence (from the earlier trial) as to alternative explanations for the booking at the Olympic Motel, and for his having potentially met Mr Heading in Murray Bridge, while in the company of the complainant.

   Ground 1: unreasonable verdict

5. Ground 1 involves a contention that the jury’s verdict of guilty on the Count 2 allegation of unlawful sexual intercourse was unreasonable and cannot be supported by the evidence.  The appellant’s submission is that the conviction was reliant upon the credibility and reliability of the complainant, but that there were various aspects of the evidence that ought to have led the jury to doubt her credibility and reliability as to critical aspects of her account of the conduct the subject of Count 2.  The appellant relied in particular upon inconsistencies and incongruities in the complainant’s evidence as to: (i) the movie that she saw with the appellant; (ii) her encounter with Mr Heading; and (iii) there being only one bed in their motel room.

6. Before turning to address these aspects of the evidence in detail, it is appropriate to set out the principles governing this ground of appeal.

7. The general principles are not in dispute.  As recently confirmed by the High Court in Pell v The Queen,[14] they remain as set out in that Court’s earlier decision in M v The Queen.[15] 

   [14]   Pell v The Queen (2020) 268 CLR 123.

   [15]   M v The Queen (1994) 181 CLR 487.

8. The question is one of fact which this Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand; that is, whether there is a significant possibility that an innocent person has been convicted.[16]

   [16]   Pell v The Queen (2020) 268 CLR 123 at [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

9. In accordance with the reasons of the plurality in M v The Queen,[17] the Court must ask itself whether it thinks that, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[18]

   [17]   M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); Pell v The Queen (2020) 268 CLR 123 at [43], [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

   [18]   Libke v The Queen (2007) 230 CLR 559 at [113] (Heydon J); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

10. In M v The Queen, the plurality said the following by way of elaboration upon the Court’s task:[19]

    But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

    … To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.

    … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    [19]   M v The Queen (1994) 181 CLR 487 at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ).

11. If the jury accepted beyond a reasonable doubt the credibility and reliability of the complaint’s evidence, then it provided a sufficient basis for the conviction of the appellant of unlawful sexual intercourse (Count 2).  The issue in this case was not the sufficiency of the evidence, but rather the credibility and reliability of the complainant’s evidence.  Accordingly, the issue for this Court is whether the matters identified by the appellant undermined the complainant’s credit or reliability to the extent that a reasonable juror must have entertained a doubt about the appellant’s guilt.

12. In determining whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the Court must not disregard or discount either that the jury is the body entrusted with primary responsibility for determining whether the prosecution has established the accused’s guilt, or that the jury had the advantage of having seen and heard the witnesses in the context of the evidence as a whole at trial. 

13. However, as this Court recently emphasised in DES v The Queen,[20] it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or other witness, will be determinative.  As the High Court recently explained in Fennell v The Queen:[21]

    At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.

    [20]   DES v The Queen [2020] SASCFC 32 at [80]-[83] (Doyle J, Kourakis CJ and Livesey J agreeing); see also the additional observations of Kourakis CJ on this topic at [2]-[4]

    [21]   Fennell v The Queen (2019) 93 ALJR 1219 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) (footnotes omitted).

14. The Court’s recent observations in Pell v The Queen are also apposite:[22]

    The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

    [22]   Pell v The Queen (2020) 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (footnotes omitted).

15. Finally, as the Court in Pell v The Queen also emphasised, in considering the significance of inconsistencies and discrepancies in the evidence, it is important not to lose sight of the fact that the ultimate question is not whether it was nonetheless possible that the alleged offending did occur as alleged by the complainant; rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the defendant’s guilt.[23]  The ultimate issue remains whether, despite any inconsistencies, incongruities or instances of implausibility in the evidence, it was nonetheless reasonably open to the jury to find it proven beyond reasonable doubt that the defendant committed the charged offence.

    [23]   Pell v The Queen (2020) 268 CLR 123 at [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

16. In Pell v The Queen, despite starting from the assumption that the jury had assessed the complainant’s evidence as credible and reliable, the Court held that the “compounding improbabilities” caused by the unchallenged evidence of other witnesses (which bore on the issues of the opportunity for, and plausibility of, the conduct alleged by the complainant) nonetheless required the jury acting rationally to have entertained a doubt about the appellant’s guilt.[24]

    [24]   Pell v the Queen (2020) 268 CLR 123 at [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

17. I propose to commence by outlining the aspects of the evidence relied upon by the applicant as undermining the credibility and reliability of the complainant’s evidence, before turning to consider their individual and collective significance to the applicant’s overarching contention that the verdict of guilty on Count 2 is unreasonable.

    The Murray Bridge cinema

18. The complainant’s evidence was that after checking into the motel, she and the appellant went to the cinema.  She recalled discussing with the appellant the movie they would see.  He wanted to see ‘Erin Brockovich’, but she was worried about whether she would be able to see this movie given that it was an M rated film and she was not 15.  She was also not interested in seeing that movie.  She wanted to see the movie with Jar Jar Binks in it (which she accepted was ‘The Phantom Menance’ movie from the Star Wars series).

19. According to the complainant she and the appellant ended up seeing different movies; she saw ‘the Jar Jar Binks movie’, and the appellant saw ‘Erin Brockovich’.

20. The agreed facts at trial included that, throughout the period from 1999 to 2002, the cinema in Murray Bridge had only one screen; that ‘The Phantom Menace’ was released in Australian cinemas on 3 June 1999 and only screened in the Murray Bridge cinema from June to July 1999; and that ‘Erin Brockovich’ was released in Australian cinemas on 13 April 2000 and only screened in the Murray Bridge cinema from May to June 2000.

21. When the inconsistencies between her evidence and these agreed facts were put to the complainant in cross-examination, she said that “[m]y memory says that was what we saw but, either way, we went to the cinema anyway”; she “thought” they saw two movies, but accepted that “okay, well then I must be wrong”, adding “I’m not making it up.  We went to the cinema.”

    Meeting Mr Heading

22. The complainant could not recall how she and the appellant got from the motel to the cinema but, because she recalled walking back to the motel from the cinema, she believed they walked there.

23. According to the complainant, she encountered Mr Heading only once that evening, while they were walking back to the motel after the movie.  When in the main street of Murray Bridge, she heard someone wolf-whistle a couple of times.  She ended up having a conversation with the male who had been whistling.  He introduced himself to the complainant.  She then introduced the appellant to Mr Heading as her father; and rejected the suggestion that she would have introduced him as her foster father.  The conversation lasted “maybe ten minutes, maybe more”, before Mr Heading continued on his way to the pub.  She recalled that Mr Heading had been drinking from an orange juice container when she spoke with him.

24. The complainant said that she recalled the appellant becoming angry or agitated while she was talking to Mr Heading.  It was apparent to her that the appellant wanted to get back to the motel room, whereas she did not and so was trying to delay doing so.

25. During her conversation with Mr Heading, the complainant gave him her home phone number.  She said that he subsequently rang her, and they became friends.  Indeed, once in their twenties they used to stay over at each other’s houses from time to time.  They remained friends, although as at the date of the trial had not seen each other for a few years.

26. Turning to Mr Heading’s evidence, he said that he was living in Murray Bridge at the time.  He recalled meeting the complainant twice on the same evening, being a Friday or Saturday evening in about January or early February 2001.  He was able to recall the approximate date because he had only a few months earlier, in October 2000 (when 21 years of age), bought his first home.  Then, shortly after the start of the new year – and so early in 2001 – he had found out that his girlfriend had cheated on him.  He recalled that the occasion when he met the complainant was soon after he had found out that his girlfriend had cheated on him and had returned by bus to her family in Melbourne. 

27. According to Mr Heading, he was standing near the local pizza shop when he first met and spoke to the complainant.  He had been drinking some vodka, mixed with orange and mango juice.  He did not recall wolf-whistling.  Rather, on his evidence, the complainant first came to his attention when she called out to him.  She was with a man who appeared “a fair bit older, mid 50’s, stocky build”.  The man was “probably my height”, and so about 5 foot 11 inches in height.  The complainant introduced the man to him as her “foster” father.  They exchanged phone numbers, and the complainant and the older male walked off.  Their conversation was brief, lasting about “10 minutes if that”.

28. According to Mr Heading, he then saw the complainant and the same male again about two hours later. The complainant approached him and they spoke for a short period of time.  It was just “normal chitchat again”, and lasted for about the same length of time as their first encounter.  He recalled that the male with her seemed to want to get moving, and that he was saying things like “we must get going”.

    The motel

29. I have set out earlier the evidence as to the entry in the motel diary for Saturday, 27 January 2001.

30. The complainant’s evidence was that, having arrived in Murray Bridge, she and the appellant went through “the bottle-o” (where the appellant bought the complainant a four pack of Vodka Cruisers), and then checked into the motel.  The complainant could not recall the reception of the motel but thought she recalled that they checked in.  The motel was on the main street, near the pool.  Their room was facing the reception and “to the right”.

31. The complainant said that after going to the movies, probably getting something to eat (although she could not recall this), and talking to Mr Heading, she and the appellant ended up back at the motel. 

32. When asked to describe their motel room, the complainant said:

    AOkay, so when you first walk in, I can’t remember what was there but I assume some sort of like dining-type facility, but I can’t remember it.  And then toward the back of it, when you walk in to this side you got your side wall, and then coming out from there this way was the, it’s either a king or a double bed – a queen or a double bed.  And then to the right, at the back, is the doorway to the bathroom there.

33. Having arrived back at their motel room after going to the cinema and meeting Mr Heading, the complainant said that she grabbed one of the Vodka Cruisers that the appellant had bought her and sat outside and drank some of it.  The appellant came outside and asked her to come inside.  While she knew that the appellant was getting agitated with her for “stalling”, she did not care, and wanted to sit outside and be left alone.  The appellant “packed the grumps and went to bed”.

34. As to what happened when she returned inside, the complainant explained:

    AHe was still awake so I was trying to act sort of – I didn’t have much alcohol, but I was trying to act like I was drunk.  In the hopes that I’d get left alone.

    QDid you get onto the bed where the accused was.

    AYeah, there was nowhere else to sleep.

    QAnd what happened once you got onto the bed where the accused was already positioned.

    AYou know it’s funny how quickly someone’s attitude can just disintegrate when they’re finally getting their own way.  He was smiling.  I wasn’t.

    QAt what point did you observe the accused smiling after you’d gone back into the motel room, after having the Cruiser.

    AAs I was laying on the bed, he smiled at me, and he climbed on top of me.  I can’t even remember any of my clothes being removed or anything like that, I can’t remember.  All I remember is his body weight heavier than mine on top of me.

    QAnd what happened when he was on top of you.

    AHe had sex with me.

    QWhen you say he had sex with you, are you referring to him putting his penis in your vagina.

    AYeah.

    QYou mentioned you having a memory of his body weight being on top of you.

    AYeah, he’s heavy, he was real heavy.

    QWhen he had sex with you how were you positioned.

    AOn my back.

    QAnd was he on top of you when he had sex with you.

    AYeah.

    QDo you know if the accused wore a condom or not.

    AYes.

    QDid he wear a condom or not.

    AI believe he did.

35. The complainant said that after the appellant had had sex with her, she did not want to have anything to do with him and did not speak to him.  She pretended to be asleep until she actually fell asleep.  She could not remember any conversation from the following morning, other than that the appellant gave her $50 and told her not to tell his wife.  They left the motel to make sure they made it back to the family home before the appellant’s wife and son returned.

36. During cross-examination, the complainant adhered to and repeated her evidence to the effect that, after drinking a Vodka Cruiser outside the motel room, she got into the bed in the motel room with the appellant, and that the appellant then had sex with her.

37. The complainant’s evidence to the effect that there was only one bed in the motel room, and that she got into that bed with the appellant because “there was nowhere else to sleep” must be contrasted with the evidence of Mr Strydom.  He explained that the motel had been owned by his family since the 1960s.  It was called the Olympic Motel because it was situated over the road from an Olympic-sized swimming pool.  Since some renovations that were undertaken in 1966, the motel had consisted of two wings, with a total of 14 rooms.  Rooms 1 to 7 were to the left of reception; rooms 8 to 14 were to the right.  According to Mr Strydom, while room 7 had one bed, it was unique because all of the other rooms had two beds (a double and a single) or three beds (a double and two singles).  Mr Strydom was clear in his evidence that the room in which the diary recorded the Patterson’s staying (room 12) had two beds.

    Other matters

1. While the inconsistencies and incongruities summarised above were the focus of the appellant’s submissions, their significance fell to be considered in the context of the evidence as a whole, and hence including the other challenges to the complainant’s evidence at trial.  This includes the challenges to various aspects of the complainant’s evidence in relation to Count 1 (of which the appellant was acquitted), and the complainant’s evidence in relation to matters that were not the subject of charges.  As to the latter, I have already mentioned the inconsistences in the evidence as to the complainant’s treatment by Mr and Mrs N, and as to the complainant’s allegation that she had had sexual intercourse with their son.

2. In relation to her treatment by Mr and Mrs N, the complainant described them as very harsh parents, with Mr N in particular being regularly physically abusive towards her, and Mrs N having to reprimand him for going too far.  Mrs N denied this, saying that neither she nor her husband were ever physically abusive towards their children other than perhaps occasionally “tapping” them on their bottoms. 

3. The defence case also sought to contrast the complainant’s evidence as to the treatment of her by Mr and Mrs N with a couple of letters that she had subsequently written to Mrs N, which were in terms that suggested a positive view of her treatment by Mrs N.  The complainant, however, said that the positive terms of her letters were explained by the fact that Mrs N was looking after her child and so she had good reason to keep Mrs N onside.  

4. There was also a dispute between the evidence of the complainant and Mrs N as to the circumstances of her leaving the foster care of Mr and Mrs N.

5. There was also evidence led from both Mrs N and the appellant (through his evidence from the previous trial) to the effect that the complainant was a very difficult child, with a number of behavioural issues.  While the complainant accepted that she was a difficult child, it is fair to say that she did not acknowledge the full force of the evidence given by Mrs N and the appellant as to the extent of her behavioural issues.

6. There was also some evidence to the effect that the complainant had made an application for an ex gratia payment under the victims of crime compensation scheme.  It would appear that this evidence was intended to suggest that the complainant might have had some motive to lie. 

7. Finally, I note that the complainant gave evidence to the effect that the appellant was uncircumcised.  While it was an agreed fact that the appellant was in fact uncircumcised, there was also some evidence at trial to suggest that the complainant may have learned this fact from conversations with the appellant’s wife.

8. The above is not an exhaustive summary of the matters emerging out the evidence that bore on the credibility or reliability of the evidence of the complainant or the appellant.  However, having read the transcript of the trial, including the addresses of both parties and the summing up, they are the matters that received the most attention in the conduct of the trial.  And they were the matters that were the focus of the parties’ submissions on appeal.

   Analysis

9. As adverted to in my earlier discussion of Pell v The Queen, the usual starting point in considering a challenge to the reasonableness of a verdict is that the jury found the complainant’s evidence to be credible and reliable as to the conduct the subject of the relevant guilty verdict.  While that must also be the starting point in the present case, there is the rider that it is apparent from the jury’s acquittal on the Count 1 charge of indecent assault that the jury nonetheless had at least some reservations in relation to the complainant’s evidence as to the conduct the subject of that charge.

10. It may be that this was one of those cases – often referred to in the context of appeals on the basis of inconsistent verdicts – where the jury was prepared to accept the general credibility and reliability of the complainant’s evidence, but were not prepared to conclude beyond reasonable doubt that events occurred as she alleged in the absence of some corroborating evidence.[25] 

    [25]   MFA v The Queen (2002) 213 CLR 606 at [34]-[35] (Gleeson CJ, Hayne and Callinan JJ).

11. In the case of the complainant’s allegation that the appellant indecently assaulted her in the shower, there was a challenge to various aspects of the complainant’s narrative of that incident, and no evidence to corroborate that narrative.  The prosecution case was entirely dependent upon the complainant’s evidence.

12. However, in the case of the complainant’s allegation that the appellant had unlawful sexual intercourse with her in a motel room in Murray Bridge, there was a challenge to various aspects of the complainant’s narrative of that incident, but also some evidence to corroborate some aspects of it.

13. The evidence of Mr Strydom about the Olympic Motel and its records, and the evidence from Mr Heading, undoubtedly provided some corroboration of the complainant’s narrative as to the circumstances surrounding Count 2.

14. As to Mr Strydom’s evidence, and as explained earlier, it permitted an inference that someone using the name Patterson attended the motel on Saturday, 27 January 2001, checked in, received the key for room 12 and paid cash for the room.  While the names appearing in the relevant dairy entry were “Mr and Mrs [Patterson]”, it would not be surprising (even on the complainant’s version of events) if the appellant chose to book the room in those names.  It is also significant that the complainant correctly described the location of the motel, and identified their room as being in the wing of the motel to the right of reception (which accorded with Mr Strydom’s description of the motel). 

15. Of course, as also mentioned earlier in these reasons, the appellant sought to explain the booking at the Olympic Motel through his evidence from the previous trial to the effect that his wife had made a booking for them to stay at that motel after seeing a Ron Wade concert at the Murray Bridge Community Centre.  The evidence at trial included an advertisement for this concert which the appellant had located in The Murray Valley Standard.

16. As to Mr Heading’s evidence, it supported the complainant’s evidence to the effect that she and the appellant were walking through Murray Bridge one evening in early 2001.  Mr Heading had a plausible reason for being able to remember the approximate date of their encounter, with his estimate of the date coinciding with the date appearing in the motel diary.  The gap between the two encounters recalled by Mr Heading was also consistent with the complainant and the appellant having seen a movie in the interim.

17. The appellant sought to meet this evidence by suggesting, through his counsel, that Mr Heading, by reason of his friendship with the complainant, might have been inclined to give evidence to assist the complainant.  He also relied upon his own evidence from the previous trial to the effect that there was an occasion when he was required to collect the complainant from Murray Bridge, and might have met Mr Heading.

18. While the jury was required to consider the appellant’s response to the evidence from Mr Strydom and Mr Heading that was potentially corroborative of aspects of the general narrative of the complainant’s evidence, they were entitled to attach some weight to this evidence in considering the credibility and reliability of the complainant’s evidence. 

19. At the same time, this evidence only corroborated the complainant’s general narrative, as opposed to her evidence of the offending itself.  And there were other aspects of the evidence that were inconsistent with her general narrative.

20. The first, and perhaps most striking, of these inconsistencies was in relation to the complainant’s evidence that she and the appellant saw different movies.  This evidence was unable to be reconciled with the agreed facts to the effect that the Murray Bridge cinema only had one screen, and that not only were the two movies she mentioned never screening at the same time at that cinema, but also neither was screening as at 27 January 2001.

21. Whilst this inconsistency in the evidence was striking, I do not think it was, on its own, fatal.  The jury might reasonably have taken the view that this was merely an illustration of how a person’s memory may let them down from time to time, perhaps reconstructing or extrapolating from certain details that are able to be recalled, or transposing memories from other occasions.  The jury might have taken the view that while unreliable, the complainant’s evidence on this topic was nevertheless an honest but mistaken extrapolation from a memory about a conversation or debate with the appellant about the movie they might see on the occasion she was describing, and an honest transposition of aspects of her recollections of a movie she saw on another occasion.  Indeed, during cross-examination on this topic, the complainant frankly acknowledged that her memory about what they saw “must be wrong”, but maintained that they went to the movies.

22. While obviously warranting careful consideration by the jury, it is significant that this difficulty with the complainant’s evidence related to her general narrative leading up to the conduct the subject of Count 2, rather than her evidence as to the charged conduct itself.  Considered on its own, I do not think that the apparent unreliability of the complainant’s evidence as to the movie(s) they saw was fatal to the credibility or reliability of her evidence as to the charged conduct.

23. The second aspect of the complainant’s evidence as to the narrative leading up to the conduct the subject of Count 2 that was inconsistent with other evidence was her evidence as to her encounter with Mr Heading.  There were several inconsistencies between her account of this encounter and the evidence of Mr Heading. 

24. The complainant only recalled one conversation (on the walk back to the motel from the cinema), whereas Mr Heading recalled two conversations a couple of hours apart (albeit in about the same location).  (It is noteworthy in this respect that the complainant could not recall how she and the appellant got to the cinema, which might explain why she had no separate recollection of a conversation on the way to the cinema.)  The complainant recalled Mr Heading attracting her attention by wolf-whistling, whereas Mr Heading recalled the complainant calling out to him.  The complainant said that she introduced the appellant as her father, whereas Mr Heading said that she introduced the man she was with as her foster father.  (I note in this respect that the evidence suggested that Mr Heading was later informed by the complainant that she lived with foster parents, and so it is possible he ascertained this information this way rather than from their encounter(s) in Murray Bridge.)  While Mr Heading’s estimate of the age of the man the complainant was with was close to the appellant’s age, he described the appellant as about his own height (five feet and eleven inches) when in fact he was quite short (five feet and two and a half inches).

25. Again, I do not think these discrepancies in the evidence as to the complainant’s encounter(s) with Mr Heading were of great significance.  The jury were, in my view, entitled to treat them as the sort of discrepancies as to matters of detail that one might expect given the effluxion of time and the fairly incidental and unremarkable nature of their interactions that evening.  To the extent that they reflected at all upon the complainant’s credibility or reliability, they related to matters of general narrative rather than the charged conduct.

26. The third aspect of the complainant’s evidence which was contradicted by other evidence was, in my view, more significant.  It concerned the complainant’s evidence to the effect that there was only one bed in the motel room where she and the appellant stayed.  This was significant because it was integral to her explanation for how she ended up in the bed with the appellant on the occasion that she alleged that he had sexual intercourse with her.  I have set out the relevant passage from the complainant’s evidence earlier in these reasons.  While the topic was not addressed at any great length in the complainant’s evidence, her evidence was clear and consistent.  When first asked to describe the motel room, she only mentioned one bed, and then, when she was asked (in the context of her evidence in relation to Count 2) whether she got into the bed where the appellant was, she said “Yeah, there was nowhere else to sleep”. 

27. This evidence was directly contradicted by Mr Strydom’s evidence to the effect that there were two or more beds in each motel room (other than room 7), and that there were two beds in room 12.  Although one might not ordinarily have expected Mr Strydom to be able to recall the configuration of individual rooms approximately 20 years prior to his giving evidence, it was perhaps not surprising given that it was a small motel (14 rooms in total) that had been run by his family since the 1960s. In any event, his evidence on this topic was clear and unchallenged.

28. In my view, this discrepancy in the evidence was significant.  It was not merely a discrepancy in the complainant’s recollection of the layout or configuration of a motel in which they stayed – which would have been entirely understandable, and of limited significance.  It was a discrepancy that went to the opportunity for, and commencement of, the very conduct the subject of Count 2.  If, as the evidence of Mr Strydom suggested, there was another bed in the motel room, then it is difficult to understand (without an explanation) why she would have got into the appellant’s bed, or why they otherwise ended up in the same bed.  Her only explanation for how this came to be (namely, that “there was nowhere else to sleep”) would be inaccurate.

29. In my view, this discrepancy in the evidence was problematic for the credibility and/or reliability of a critical aspect of the complainant’s evidence so far as Count 2 was concerned. 

30. I accept that the jury might have been able to resolve, or otherwise put aside, the other matters relied upon by the defence as casting doubt upon the credibility and reliability of the complainant’s evidence as to the Count 2 (including not only the matters addressed immediately above, but also the more general challenges to her evidence mentioned earlier).  They might have done so having regard to the relatively peripheral nature of the matters in issue, the inherent likelihood of such discrepancies given the time that had passed since the events occurred, and their impression of the complainant and other witnesses having seen them give evidence. 

31. In so reasoning, I have not overlooked the forensic disadvantage under which the appellant was labouring at trial.  As explained in the context of Ground 3, this disadvantage manifested in several ways and was appropriately the subject of careful directions by the trial judge.  It was a relevant consideration in assessing various aspects of the forensic contest at trial.  However, in the context of my consideration of the Ground 1 allegation that the verdict of guilty on Count 2 was unreasonable, I am not persuaded that this disadvantage operated to prevent the jury putting aside these discrepancies in the evidence as not undermining the credibility or reliability of the complainant’s evidence in relation to the critical issues at trial.

32. But I have difficulty in accepting that the jury could reasonably have resolved, or put to one side, the discrepancy in the complainant’s evidence as to the number of beds in the motel room and hence as to how the conduct the subject of Count 2 came to occur.  Once the jury accepted – as I consider they were reasonably required to do – that the complainant was wrong about this, then there was a critical flaw or gap in her evidence.  There was no explanation for how she came to be in bed with the appellant, or for how the conduct the subject of Count 2 came to occur.  At the very least, when considered in combination with all the other matters relied upon in the defence case, this difficulty with the complainant’s evidence ought to have caused the jury to doubt whether the conduct the subject of Count 2 occurred on the occasion, and in the circumstances, described by the complainant.

33. I acknowledge that the defence case was not that the complainant was mistaken as to the precise mechanics of how the charged conduct occurred.  The defence case was that the complainant and appellant never stayed together in the motel.  In other words, the focus in the present case was not upon how the alleged conduct occurred, but rather whether it occurred at all.  That said, these are necessarily related matters at least to some extent.

34. I also acknowledge that it is possible that the complainant might have forgotten, or have otherwise been mistaken, as to whether there was another bed in the motel room, and as to how she came to be in the same bed as the appellant.  It is possible that the alleged offending otherwise occurred as alleged by the complainant.  But as the High Court emphasised in Pell v The Queen, that is not the issue.  The issue is whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the appellant’s guilt.

35. In the ultimate analysis, I do not think that the evidence established beyond reasonable doubt that the appellant committed the offence of unlawful sexual intercourse on the occasion, and in the circumstances, the complainant described.  While it is, on the evidence, possible that the appellant did have sexual intercourse with the complainant, the difficulties with her evidence as to the narrative leading up to the alleged offending, including her evidence as to how she came to be in the same bed as the appellant, leave a reasonable doubt about the credibility and reliability of her evidence as to the conduct the subject of Count 2.  It is a doubt that I, as an appellate judge, have experienced upon reading the evidence and which, in my view, ought to have been experienced by the jury.  Further, it is a doubt that in my view was not able to be resolved or overcome by the jury’s advantage in having heard and seen the complainant give evidence, and in having had the opportunity to receive and consider that evidence in the context and atmosphere of the trial as it unfolded.  The difficulties with the complainant’s evidence as to Count 2 were such that a reasonable jury ought to have experienced a reasonable doubt about the appellant’s guilt of the offence charged.  It was not, in my view, open to them to conclude beyond reasonable doubt that he was guilty of that offence.

36. For these reasons, I would allow the appeal on Ground 1.

    Ground 2:  failure to adequately summarise the defence case

37. In Ground 2, the appellant complains that trial judge failed to draw the jury’s attention to certain aspects of the evidence upon which the defence case placed reliance, and otherwise failed to properly summarise the defence case.  The essence of the complaint is that the trial judge did not make adequate reference to the defence challenges to the credibility and reliability of the complainant’s evidence in relation to Count 2 based upon the difficulties with her evidence summarised in the context of Ground 1; that is, in relation to the movie(s) she and the appellant saw, her encounter(s) with Mr Heading, and the number of beds in the motel room where they stayed.

38. The principles governing a trial judge’s obligations to adequately summarise the defence case were recently summarised by this Court in Roberts v The Queen.[26]  As explained in that case, while the trial judge must summarise the key aspects of the defence case, and ensure an appropriate balance between the parties’ cases, the trial judge is not required to address every aspect or detail of the defence case.  As King CJ explained in R v Perks:[27]

    Each judge has his own style of summing up.  It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence.  But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution.  What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge.  Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence.  In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge.  Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge.

    [26]   Roberts v The Queen [2022] SASCA 36 at [212]-[217] (Doyle JA, Livesey P and David JA agreeing).

    [27]   R v Perks (1986) 43 SASR 112 at 116 (King CJ).

1. It is significant in the context of the present case that the trial was a relatively short one.  Evidence was taken over the course of four days, being a Tuesday through to Friday.  Closing addresses were given on the following Tuesday, and were immediately followed by the summing up.  This was not a case where the jury would have required extensive reminding of the issues or the evidence at trial.  Those matters would have been fresh in their minds.

2. It is also important to bear in mind that a trial judge is to be afforded significant flexibility as to the structure of his or her summing up.  In the present case, the trial judge adopted a structure which entailed making various references to the defence case across several sections of the summing up.  His references to the defence case were not confined to a single summary of defence counsel’s address.

3. The trial judge made it abundantly clear throughout his summing up that the focus of the defence case was a challenge to the credibility and reliability of the complainant’s evidence.  His Honour made numerous references to the aspects of the evidence relied upon by the defence in this respect.

4. Turning to the specifics of the complaints made on appeal, it is convenient to address the three topics of complaint in turn.

5. Addressing first the difficulty with the complainant’s evidence as to the movie(s) that they saw, this was a matter addressed in various places by the trial judge.  It was addressed at some length when summarising the complaint’s evidence:

   After checking in to the motel, they went to the Cameo Cinema and her evidence was that they attended at separate movies and that the cinema had two screens. She thought that she saw the Star Wars movie with the character Jar Jar Binks in it, but that the accused saw Erin Brockovich which she did not want to see and you will recall she gave some evidence about being a bit concerned about the suggestion of Erin Brockovich in any event because she was 15 and it was rated for children over the age of 15. Ladies and gentlemen, that part of the evidence may have seemed relatively innocuous to you when you first heard it but, of course, on the defence case and the underlying facts as agreed by the prosecution, that description of events is a matter that goes directly to [the applicant’s] credit and your ability to rely on her as a witness of truth. It is an agreed fact and this is what I meant the prosecution agreed to, that between 1999 and 2002, the Cameo Cinema in Murray Bridge had only one screen. Furthermore, the relevant Star Wars movie only played at that cinema between June and July of 1999, whereas the movie Erin Brockovich played at the cinema only between 25 May 2000 and 10 June 2000. These events are alleged to have occurred in early 2001. How does that sit with Mr Heading's evidence that he met [the applicant] in January 2001? The significance of that inconsistency between [the applicant’s] recollection of an event that was inextricably associated with her account of the occasion on which she says the accused had sexual intercourse with her and what is agreed by the prosecution to be an undisputed fact about the single screen Cameo Cinema will not be lost on you. The agreed facts suggest the events at the cinema as she described them cannot have occurred in the way the witness said. But, of course, her evidence linked the cinema episode very clearly as the prelude to walking back to the Central Olympic Motel and the prelude to what she says happened at the Central Olympic Motel.

6. His Honour also mentioned the issue when summarising the prosecutor’s closing address.  When later summarising defence counsel’s closing address, his Honour’s reference to the issue was relatively fleeting.  His Honour merely noted that counsel had “emphasised heavily that business about there only being one screen at the Murray Bridge cinema.”  However, against the background of the earlier passage from the summing up to which I have already referred, I do not accept that there was any inadequacy in the trial judge’s summary of this issue.

7. The trial judge also adequately addressed the discrepancies between the evidence of the complainant and Mr Heading.  When summarising the complainant’s evidence, the trial judge included a paragraph summarising her evidence in chief as to her encounter with Mr Heading on the walk back from the cinema.  His Honour also included a couple of paragraphs summarising the effect of the complainant’s evidence during cross-examination on this topic.  The trial judge’s summing up later included five paragraphs summarising Mr Heading’s evidence.  The discrepancies relied upon by the defence were apparent from a comparison of these two summaries, and were to some extent emphasised through the trial judge’s summary of the cross-examinations of the complainant and Mr Heading on this topic.

8. It is true that, when summarising the defence case, and closing address, the trial judge did not make any further reference to the discrepancies between the evidence of the complainant and Mr Heading.  His only reference to Mr Heading’s evidence was to mention defence counsel’s submission that there was “about a half a foot difference” between the height of the man described by Mr Heading, and the appellant’s actual height.  In my view, there was no need for the trial judge to have said anything further in relation to the discrepancies between the evidence of the complainant and Mr Heading, given that their evidence (and hence the discrepancies between the evidence) had been addressed during his Honour’s summary of the evidence given by each.

9. The third topic of complaint under this ground of appeal is that the trial judge did not adequately address the discrepancy between the complainant’s evidence that there was only one bed in the motel room in which she and the appellant stayed, and the evidence of Mr Strydom that there were two beds in that room.

10. When summarising the complainant’s evidence, the trial judge mentioned her evidence to the effect that “the room had a king size or double bed in it, but that there was only one bed in the bedroom”.  His Honour also mentioned her evidence that “she got onto the bed with the accused because there was nowhere else for her to sleep”.

11. It is true that, when summarising Mr Strydom’s evidence, the trial judge did not mention his evidence to the effect that there were two beds in the room that the records indicated had been booked for “Mr and Mrs [Patterson]”.  However, the trial judge did return to the issue, and identify the discrepancy in the evidence, when summarising the prosecutor’s address:

    … it was put to you that the fact that there was only one bed in the hotel, her evidence that there was only one bed when there was more than one in the hotel room, was not a matter of great detail.

12. Ideally the judge should have reminded the jury of the evidence given by Mr Strydom on this topic, and have included reference to it in his summary of defence counsel’s closing address.  However, given the other references in the summing up to the relevant evidence, and the discrepancy arising on that evidence, I do not consider that the appellant has established any miscarriage of justice. 

13. In summary, I am not satisfied that any of the appellant’s complaint under this ground of appeal has been made out.  The trial judge’s summing up was balanced and, in my view, adequately summarised the evidence and issues at trial.  It is relevant in this regard that defence counsel did not make any contemporaneous complaint to the trial judge about his failure to adequately summarise his challenges to the credibility and reliability of the complainant’s evidence.

    Ground 3:  directions as to forensic disadvantage

14. Ground 3 involves a contention that the trial judge’s directions as to forensic disadvantage were deficient, and incorporated an impermissible reference to disadvantage that accrued on the prosecution case.

15. Prior to commencing his summing up, the trial judge accepted the defence submission, and ruled, that a forensic disadvantage direction under s 34CB of the Evidence Act 1929 (SA) was appropriate. Defence counsel contended, and the trial judge accepted, that there were several issues in the case that warranted such a direction.

16. The directions given by the trial judge were in the following terms:[28]

    [1]As you are aware, this trial concerns events that are said to have occurred between October 1999 and May 2001 with respect to the first count, indecent assault and between May 2000 and May 2001 with respect to the second count, unlawful sexual intercourse. That means, obviously, that you are looking at events between 20 and 22 years old. This delay has meant that some people who might otherwise have been called as witnesses have died. Merv Blenkiron, who used to transport [the complainant] to and from respite care and who might have given evidence about the occasion when the accused says he picked up [the complainant] from Murray Bridge. We don't have that evidence.

    [2]The man who was smoking at the Ron Wade concert and who might have given evidence in this matter, it is the accused's understanding that he is now deceased. Mr Strydom senior, who took the booking and made the entry in the hotel register for 27 January 2001, might have been able to give evidence on the topic of taking the booking, the circumstances surrounding taking the booking and the topic of whether the booking was cancelled or not, and whether he had any interactions with [the accused’s wife]. He might have been able to give evidence on the topic of whether or not there was a child with the accused or, indeed, whether he saw the accused at all. None of that evidence could be called by the accused because those people are deceased.

    [3]Secondly, the delay between the alleged offence and the allegations being brought to the attention of the accused was something that defence counsel mentioned to you. That is a relevant matter too. He was not arrested until 15 September, a period during which he said that he had had no contact at all with [the complainant]. That has meant that, as you would expect, memories of specific matters fade in the minds of witnesses, and in this case the complainant … which makes it harder to test the detail and possibly find fault in the detail of her allegations against the accused.

    [4]For example, [the complainant] could not recall the day, date, or month, or precisely the year of the allegation of the uncharged act that the accused looked at her through the shower window. That means the accused could not, for example, challenge that evidence by some potential evidence of his movements or whereabouts on that day.

    [5]The same applies for the evidence about the indecent assault. You will recall that he was pressed for fine detail in the cross-examination and that on many topics his answers were simply that he did not know, or that he could no longer, remember because the events occurred so long ago. In that sense it may be that he suffered the disadvantage of not being able to give more precise evidence which might have added to the weight that you would be inclined to give to his account.

    [6]For example, he now says that he actually cannot recall seeing Mr Heading at all on the occasion when he picked [the complainant] up from Murray Bridge. He could not say for certain what night of the week it was that he picked up [the complainant]. Further, there is the inherent difficulty of his not being able to give an exact chronological account of his movements so long ago. This delay has had a significant impact on [the accused’s] ability to respond to these allegations and to test the case against him.

    [7]Due to the passage of time, witnesses do not have good memories of all the details. This has impeded the ability of the defence to challenge witnesses on matters of detail or expose where a witness has been inconsistent or wrong. We cannot know what evidence the accused may have been able to call, and you must not speculate about what other evidence he may have been able to call, but you must take these disadvantages into account when you are scrutinising the evidence from the prosecution witnesses.

    [28]   Numbering inserted for ease of reference.

17. The history and purpose, and practical operation, of s 34CB have been considered in several decisions of this Court[29] and so need not be addressed in any detail.

    [29]   In particular, R v Cassebohm (2011) 109 SASR 465 at [14]-[32] (Doyle CJ, White and Peek JJ agreeing); R v Maiolo (No 2) (2013) 117 SASR 1 at [172]-[201] (Peek J, Kourakis CJ and Stanley J agreeing); R v W, PK [2016] SASCFC 5 at [34]-[47] (Kourakis CJ, Kelly and Nicholson JJ agreeing); see also R v T, S (2017) 128 SASR 66 at [98]-[106] (Hinton J) albeit dissenting (at [107]-[122]) from the approach of the majority (Kelly and Nicholson JJ at [8]-[22]) in applying the principles to the directions given in that case.

18. It is sufficient for present purposes to observe that s 34CB requires more than a general explanation of the difficulties occasioned by the lapse in time in defending allegations of criminal conduct. It requires directions that are tailored to the facts and circumstances of the particular case.[30]  In R v Cassebohm,[31] Doyle CJ outlined the requirements of a warning pursuant to s 34CB, emphasising the need for specificity:[32]

    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) [“dangerous or unsafe to convict”].

    [30]   R v W, PK [2016] SASCFC 5 at [42] (Kourakis CJ, Kelly and Nicholson JJ agreeing).

    [31]   R v Cassebohm (2011) 109 SASR 465.

    [32]   R v Cassebohm (2011) 109 SASR 465 at [32] (Doyle CJ, White and Peek JJ agreeing); see also R v W, PK [2016] SASCFC 5 at [35]-[36] (Kourakis CJ, Kelly and Nicholson JJ agreeing).

19. Importantly, the rationale for, and purpose of, a warning under s 34CB is to warn the jury of the forensic disadvantage suffered by the defendant. The warning is intended to operate as a safeguard against a wrongful conviction of the defendant.[33]  As such, references to the impact of delay upon the prosecution case or witnesses may result in the directions becoming “skewed and inadequate” or otherwise productive of a miscarriage of justice.[34]

    [33]   R v Maiolo (No 2) (2013) 117 SASR 1 at [187], [192]-[201] (Peek J, Kourakis CJ and Stanley J agreeing).

    [34]   R v Maiolo (No 2) (2013) 117 SASR 1 at [201] (Peek J, Kourakis CJ and Stanley J agreeing).

20. In challenging the adequacy of the forensic disadvantage directions given in the present case, the appellant contended that the directions were lacking in clarity, marked by ambiguity, and tended to explain and excuse deficiencies in the prosecution case.  In support of this general submission, the appellant criticised four aspects of the forensic disadvantage directions given by the trial judge.

21. The first criticism was directed to the trial judge’s reference in paragraph [2] of his forensic disadvantage directions to the disadvantage occasioned by Mr Strydom senior’s death.  In particular, the appellant contended that by stating that Mr Strydom senior “might have been able to give evidence on the topic of whether or not there was a child with the accused or, indeed, whether he saw the accused at all”, the trial judge invited the jury to speculate as to the evidence Mr Strydom senior might have given, and indeed to do so in a way that was potentially favourable to the prosecution case.

22. It is useful in this context to bear in mind the directions that Kourakis CJ suggested would have been suitable in R v W, PK.[35]His Honour contemplated that those directions might set out the three topics as to which the relevant witnesses might have been able to give evidence, and then be followed with a direction to the effect:

    Ladies and gentlemen, we cannot know what L and the accused’s mother would have said if called to testify.  You are not to speculate about what they might or might not have said.  However, in considering whether or not you accept S’s testimony and whether the offence has been proved beyond reasonable doubt, you should consider whether you can be so satisfied in the absence of any evidence from the accused’s mother or L.

    [35]   R v W, PK [2016] SASCFC 5 at [47] (Kourakis CJ, Kelly and Nicholson JJ agreeing); see also R v T, S (2017) 128 SASR 66 at [105] (Hinton J).

23. A direction along these lines would have provided the jury in the present case with greater clarity as to the relevance of forensic delay to their task.  That said, I do not think that the trial judge’s directions in relation to Mr Strydom senior were inadequate or occasioned any miscarriage.  His Honour accurately identified the topics that Mr Strydom senior might have been able to address.  While his Honour did not expressly warn against speculating as to what Mr Strydom senior’s evidence might have been, his Honour did not encourage any speculation in favour of the prosecution.  His Honour made it plain through his last sentence in paragraph [2], and the balance of his directions on forensic disadvantage, that the disadvantage to be borne in mind by the jury was disadvantage to the defence case and not the prosecution case.

24. The second criticism involved a complaint that the forensic disadvantage directions did not address the appellant’s difficulty in meeting the prosecution cross-examination and submissions suggesting that he had manufactured his evidence to meet the prosecution case, or had “worked backwards to invent a story”.

25. I do not accept this criticism of the trial judge’s directions.  Each of paragraphs [3] to [7] were directed towards the disadvantage to the appellant in giving his evidence given the lapse of time.  While not put expressly in terms of reducing the appellant’s ability to meet the suggestion that he had manufactured his evidence, or worked backwards to invent a story, that was the effect of the directions given.  I am satisfied that the jury would have understood that this disadvantage was relevant to their assessment of the criticisms and submissions relating to the generality of the appellant’s evidence (and the consequential or related submission that his evidence was manufactured or invented to meet the prosecution case).

26. The third criticism fastened upon the trial judge’s reference in paragraph [3] to the complainant’s memory having faded.  The appellant contended that the trial judge erred in directing in a manner that tended to excuse the uncertainty that attended the evidence of the complainant, and thereby assist the prosecution case.

27. As Peek J explained in R v Maiolo (No 2),[36] trial judges must be careful to avoid highlighting the ways in which delay might have disadvantaged the prosecution case.  But read in context, I do not think that the trial judge’s reference to the complainant’s evidence in paragraph [3] suffered from this vice.  Read in context, the reference to the memories of witnesses (including the complainant) having faded was in order to make the point that the resulting generality of the evidence had disadvantaged the defence in that it made “it harder to test the detail and possibly find fault in the detail of her allegations against the accused.”

    [36]   R v Maiolo (No 2) (2013) 117 SASR 1 at [192]-[201] (Peek J, Kourakis CJ and Stanley J agreeing).

28. The fourth criticism related to the trial judge’s reference in paragraph [6] to the appellant not being able to recall seeing Mr Heading on the occasion he said he picked up the complainant from Murray Bridge.  (The appellant had proffered this occasion as a possible explanation for Mr Heading’s recollection that he saw the complainant in Murray Bridge in company with an older man who was introduced to him as the complainant’s foster father.)  The appellant complains that this direction was problematic because it carried the inference that the appellant did meet Mr Heading in circumstances where that issue was firmly in contest.

1. I reject this fourth criticism of the trial judge’s forensic disadvantage directions.  The trial judge had elsewhere in his directions made it abundantly clear that the defence case involved a challenge to Mr Heading’s evidence, and I am confident the jury would not have lost sight of this.  At the same time, the defence case also encompassed a positive suggestion to the effect that the occasion the appellant went to collect the complainant from Murray Bridge might provide an explanation for Mr Heading’s evidence, were it to be accepted.  In that context it was appropriate that the trial judge explain that the vagueness of the appellant’s evidence in support of this occasion – and his inability to say whether in fact he saw Mr Heading on this occasion – was an illustration of the forensic disadvantage suffered by the appellant.

2. Having rejected these specific complaints about the trial judge’s forensic disadvantage directions, I also reject the appellant’s more general attack upon his Honour’s directions addressing this issue. In my view, the trial judge’s forensic disadvantage directions were appropriate in their content and detail. They were appropriately tailored to the facts and circumstances of the case, and adequately discharged the trial judge’s obligations under s 34CB.

   Ground 4:  the jury question and Liberato direction

3. In Ground 4, the appellant contends that the trial judge erred in refusing to give a further Liberato direction to the jury in light of their apparent focus upon the evidence of the accused (as evidenced by the jury questions).

4. The trial judge’s summing up contained several references to the criminal standard of proof, and the application of this standard in the context of a prosecution case that was both dependent upon the evidence of the complainant and answered by denials and other explanations given by the defendant.[37]

   [37]   That is, through the receipt in evidence of the transcript of his evidence on the previous trial.

5. In particular, the trial judge commenced his summing up with references to the need for the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.[38]  His Honour reiterated the applicability of this burden and standard of proof in their consideration of the evidence of the complainant and the defendant.[39] The trial judge reminded the jury of the requirement of proof beyond reasonable doubt on several subsequent occasions, including in the context of their consideration of the evidence of the uncharged acts,[40] and the evidence of Ms N.[41]

   [38]   Summing up (SUP), page 1, paragraph 5.

   [39]   SUP, page 3, paragraph 1; SUP, page 4, paragraphs 1 and 4.

   [40]   SUP, page 7, paragraph 3.

   [41]   SUP, page 25, paragraph 2.

6. Importantly, towards the end of his summing up, the trial judge gave a direction along the lines of the direction contemplated by Liberato v The Queen.[42]  His Honour said:[43]

   If you believe the accused's evidence in relation to this matter, then you must acquit. Even if you do not accept that evidence, but you consider that there is a reasonable possibility that it is true, then you must acquit. On the other hand, if you reject the accused's evidence, you should put that evidence to one side. However, the question will still remain, has the prosecution, on the basis of the evidence that you do accept, proven the guilt of the accused beyond reasonable doubt? A rejection of the accused's evidence does not mean that the prosecution has proven its case beyond reasonable doubt.

   [42]   Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J).

   [43]   SUP, page 29, paragraph 7.

7. The appellant makes no complaint about the adequacy of the trial judge’s directions to this point in the summing up.  However, after retiring to consider their verdict, the jury asked a question that related to the appellant’s evidence. The question was as follows:

   We are wanting to confirm what [the appellant] said in his transcript in regard to check-in at the Olympic Hotel.  Can we have this read out to us again? This is prior to the Ron Wade show.

8. After conferring with counsel, the trial judge answered this question by re-reading to the jury the relevant extracts from the transcript of the appellant’s evidence at the first trial.

9. Later during the jury’s deliberations, defence counsel requested that the judge give a further Liberato direction.  In support of this request, counsel relied upon what he contended was a focus by the jury upon the evidence given by the appellant, as demonstrated by the jury’s question.  He contended that this focus was a matter of concern, and gave rise to the risk intended to be addressed by a Liberato direction; namely, that the jury might mistakenly consider their task to be one of choosing between the evidence of the complainant and the appellant.

10. The trial judge declined to give a further Liberato direction, or to otherwise give any additional direction as to the burden or standard of proof.

11. On appeal, the appellant’s counsel repeated the submission made below.  He supplemented this with reference to an earlier jury question, asked during the course of the evidence, that in effect sought more detail as to the specifics of the appellant’s evidence (from the previous trial) as to the occasion when he collected the complainant from Murray Bridge.  As explained earlier in these reasons, this occasion had been proffered as an occasion when the appellant might have met Mr Heading.

12. It is true that the jury questions revealed an interest by the jury in the evidence that had been given by the appellant.  But there was nothing unexpected or untoward about this. There was nothing in the questions that revealed any inappropriate pre-occupation with that evidence, or that otherwise suggested that the jury had not understood the directions they had been given in relation to the burden and standard of proof, including the Liberato direction that they had been given.  In my view, there was no reason in the present case for the trial judge to have given an additional Liberato direction.

13. In rejecting a similar submission in Martin v The Queen,[44] Redlich JA said:[45]

    The trial judge had previously given a Liberato direction about which there is no complaint. No part of the jury question gives rise to any concern that the jury misunderstood that direction. The judge’s answer to the jury’s question was not directed to a comparative weighing of the evidence of the complainant against the answers given by the applicant in his record of interview. The question did not enliven a risk that the jury would treat their task as one of making a “choice” between the witnesses as concluding the question whether the prosecution had proved the charges beyond reasonable doubt.

    [44]   Martin v The Queen (2013) 46 VR 537.

    [45]   Martin v The Queen (2013) 46 VR 537 at [93] (Redlich JA, Mawell P and Neave JA agreeing) (omitting citation).

14. Similar reasoning is apposite in the present case.

15. I would reject this ground of appeal.

    Conclusion

16. For the reasons given, I would grant permission to appeal on Grounds 1 to 4.  I would allow the appeal on Ground 1.  I would therefore set aside the conviction on Count 2 and substitute an acquittal on that count.