R v Amjad

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AMJAD
[2010] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)
7 December 2010
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - HOW EVIDENCE TO BE GIVEN
Appeal against conviction on charges of rape and indecent assault – whether trial Judge erred in directions to jury concerning use which could be made of complaints by complainant – whether trial Judge in summing up adequately dealt with inconsistencies between complaints and complainant’s evidence at trial – whether trial Judge erred in failing to warn jury not to draw inferences against appellant in relation to special arrangements for taking complainant’s evidence – whether trial Judge gave adequate assistance to jury in relation to assessing expert evidence – whether trial Judge adequately directed the jury as to the element of consent in considering the indecent assault offence – whether trial Judge erroneously commented that question of consent did not arise on the evidence – whether as a result of the contentions in the grounds of appeal the verdicts are unsafe and unsatisfactory and give rise to miscarriage of justice – whether appeal can be dismissed despite complaints in grounds of appeal as no substantial miscarriage of justice has occurred.
HELD: Appeal allowed – convictions set aside – new trial ordered – as to use of complaints the comments of trial Judge in summing up left it open for the jury to use the complaints as evidence of the facts – suggested inconsistency between complaints and complainant’s evidence of limited significance and trial Judge was not bound to canvas issue with jury – order allowing the complainant’s mother to sit alongside her when giving evidence could not be made pursuant to s 69 as the complainant was not a child – order could have been made under s 13 of the Evidence Act 1929 and direction under s13(7) would be required – trial Judge erred in failing to give direction under s 13(7) – failure to give direction was a material irregularity – failure of the trial Judge to direct the jury on the approach to be taken with expert evidence did not result in a miscarriage of justice – while trial Judge did initially fail to refer to the fact that the touching or handling relied upon had to be without consent the element of consent was sufficiently canvassed subsequently – in relation to use of prior complaints the complainant’s credibility was fundamental to the jury’s consideration of the charges – due to comments by trial Judge as to use of the complaints it cannot be said that appellant did not lose chance of acquittal fairly open to him – failure to warn the jury against drawing inferences against appellant in relation to special arrangements for taking the complainant’s evidence is a cumulative factor leading to conclusion that convictions must be set aside.
Evidence Act 1929 (SA) s 34M, s 69, s 13, s 4; Evidence Act 1906 (WA) s 106P; Evidence Act 1977 (Qld) s 21A, s 21AW; Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
R v Seigneur (2009) SASR 207; Kilby v The Queen (1973) 129 CLR 460; Jones v The Queen (1997) 143 ALR 52; Hamilton (1997) 97 A Crim R 373; R v Michael (2008) 181 A Crim R 490; Wilde v The Queen (1988) 164 CLR 365, considered.

R v AMJAD
[2010] SASCFC 68
Court of Criminal Appeal: Duggan, Anderson and David JJ

DUGGAN J: A jury found the appellant guilty of indecent assault and rape. He was sentenced to a single period of six years’ imprisonment with a non-parole period of two years. The appellant now appeals against conviction.
It was alleged that the offences were committed on 27 April 2007 and occurred at the picture framing business where the complainant was employed. She was 18 years of age at the time and a new employee of the business. An hour or so after starting work on 27 April 2007 the complainant found herself working alone in the shop for the first time.
The prosecution case was as follows.
Shortly after the owner of the business left and the complainant was alone, the appellant entered the store. He started a conversation with the complainant by asking to speak with a person called “Marcia”. The complainant did not know the person and, when this became evident, the appellant represented that he was a cosmetic surgeon known by those at the store and a regular customer of the business. He told the complainant about his work as a cosmetic surgeon and throughout the conversation asked the complainant questions of a personal nature. The nature of the questions put the complainant at unease but she kept talking to the appellant as she believed he knew the owners of the business and did not want to cause him offence.
At some point the appellant told the complainant that he had experience in researching the treatment of cellulite and could prescribe cream for treating cellulite. He asked her whether she had cellulite and, in response to her statement that she had cellulite on her thighs, asked to see her complexion. She held out her hand for the appellant to examine but was advised that he needed to see her lower body. He invited her to go into the back of the shop so that she felt more comfortable exposing herself. Once they were at the back of the shop the complainant lifted her jumper slightly and exposed the hip area above her jeans. The appellant said that he needed to see more of her skin and for her to take her pants off. She lowered her jeans to just below her buttocks. The appellant took hold and lowered them further, to mid-thigh level. He touched and pinched her skin at the back of her thighs, saying that she had lots of cellulite. At some point the appellant pulled down or shifted aside her underwear, moved his hand forward from the back of her thigh and pinched her vagina. The complainant described this as being “skin on skin” contact and thought it occurred with the appellant’s right hand, as he was holding her with his left. The incident ended when the complainant moved forward and pulled up her pants. She described herself as tense and shaking throughout the incident. These circumstances formed the basis of the charge of indecent assault.
The appellant then left the shop and, as I will detail later in these reasons, the complainant made telephone calls to her boyfriend, S, and her best friend, M.
The appellant returned a few minutes later while the complainant was talking to M. She ended the telephone conversation and the appellant said that he needed certain measurements and details from the complainant so that he could prescribe cream. The complainant offered to provide them over the telephone and gave the appellant her name and telephone number. Following further conversation about the appellant’s work and study in the area of cosmetic surgery, the appellant asked the complainant whether it hurt her to slap the areas affected by cellulite. He invited her to go into the private area of the shop in order to slap her thighs and let him know whether it hurt. Initially when she went into the back room the appellant remained in the customer area. However, he then entered the back room stating that he needed to look at it. She lowered her jeans and he again lowered them further, to about mid-thigh level, and lowered her underwear. While pinching and slapping her thighs, he moved his hand to her vagina, pinching and penetrating her vagina with his fingers and/or thumb.
The complainant then moved away, pulled up her jeans and underwear and said that she thought a customer was outside. She moved to the front of the store and told the appellant that she had many tasks to complete and was expecting customers to arrive. He said he would return one day next week to collect the rest of the information he needed and then left the store.
The charge of rape relates to the events which are alleged to have occurred on the appellant’s second visit to the shop.
The complainant said that she thought she rang M again after the appellant left the shop the second time. S came into the shop not long after that call and M arrived shortly afterwards.
The conversations with S and M were led at the trial as complaints to establish consistency of conduct on the part of the complainant.
The first ground of appeal complains of the directions which the trial Judge gave to the jury concerning the use which could be made of the complaints to S and M.
The common law relating to recent complaint in sexual cases has now been abolished.[1] However, the information in the present case was filed in the District Court prior to the date on which the relevant provisions in the amending Act came into operation. It follows from the majority view of this Court in R v Seigneur[2] that the common law in relation to evidence of complaint applied to the trial in this matter.
[1] Evidence Act 1929 (SA) s 34M.
[2] (2009) 103 SASR 207.
It is convenient to firstly summarise the evidence of the complaints in more detail.
S gave evidence at the trial. He said that he received a telephone call from the complainant, who sounded upset and said that someone had come into the store and touched her. He then drove to the shop, met with the complainant and observed that she seemed upset. She told him that the man had taken her pants down and touched her. She said he touched her on her genitals but she did not go into great detail. He did not press her for detail.
M also gave evidence. Her evidence was that the complainant rang and told her that a strange man had come into the shop. The man said he was a doctor. After a conversation with the man, the complainant took her pants off and then the man said he was leaving, but would come back because he had something to show her. At this stage she did not say anything about touching having occurred. M did not ask her for any detail, but told the complainant that she would come into the city to be with her. M said that there were a couple of telephone calls between them at this time. M also said she had one further telephone conversation with the complainant after the appellant left the second time. In this conversation the complainant said the man had returned but gave no further detail.
M described the complainant as sounding really upset and scared throughout the telephone conversations. She also said the complainant was crying a lot, saying she was scared, did not want to be alone and did not know what to do.
M said that when she went into the store the complainant seemed shocked and scared. The complainant said that the man had been back and forced her into the back of the shop again. She had to take her pants off and this time he touched her and spent a lot of time behind her.
The trial Judge began his directions on this topic by explaining to the jury the nature of a complaint and its relevance. After referring to the general rule that extra‑curial statements cannot be led in evidence, his Honour said:
It follows that what [the complainant] said to [S] and to [M] is not evidence of what occurred and you must not use it for that. For that, as I have said, so far as what happened is concerned, you must rely on evidence given in this court given by her as part of the trial. What the complaint is relevant to is it is evidence of consistency of conduct and therefore relevant to her credibility or believability. It is not proof of what happened. It is evidence of consistency because if the events occurred as [the complainant] has told you, you would expect her to complain to someone in whom she had trust and confidence at the first reasonable opportunity, someone in whom she could confide, particularly as to matters of a sexual nature.
In other words if you allege, members of the jury, that you have been raped, complaining to someone else does not prove that it happened, but it shows a consistency of conduct on your part because, if you had in fact been raped, as I have said, you would expect the person against whom the offence was alleged to have occurred to make a complaint to someone, particularly if you had a trust and confidence in that person. So that is the relevance and the only relevance of it. In other words, that conduct, making the complaint, is consistent with what [the complainant] alleges.
There could be no criticism of this explanation.
However, when summarising the prosecution case at a later stage in the summing up his Honour said:
Mr Pearce [the prosecutor] considered the matter through the accused’s eyes. He had not been rebuffed, she had not seen the ruse, it must have been obvious, so Mr Pearce put, that she lacked self-confidence and lacked the appropriate personality, at that time, to be assertive about herself. Her response, of course, as you well know and as I have had read out to you this morning was to ring her boyfriend. A legitimate question you might ask yourselves is, was that a spontaneous complaint to the boyfriend and of course then to [M]. You might ask yourselves members of the jury if the occasion was a perfectly innocent occasion, nothing of a sexual nature or nothing untoward happened, why did she make any phone call? Why would she make a phone call to her boyfriend at all? But why would she make any phone call to [M]?
Bear in mind what I said to you earlier that what [the complainant] said to [M] and to [S] cannot be used to prove what happened to her, but it reflects on the prosecution case a consistency of conduct on her part. You should consider it in the terms of the way she spoke to her boyfriend and [M] whether what she said was consistent or inconsistent with what she now alleges the accused did to her.
(Emphasis added)
The directions in the last paragraph of the above passage put the position correctly. However, the criticism in this ground of appeal relates to the italicised words. It is argued that these comments are inconsistent with the other directions on complaints and would be understood by the jurors as permitting them to use the evidence of the complaints as directly relevant to proof of the facts of the alleged incidents.
The basis of admissibility of a complaint in a sexual case was explained by Barwick CJ in Kilby v The Queen:[3]
The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.
[3] (1973) 129 CLR 460 at 472.
In my view, the trial Judge’s remarks in the impugned passage related the complaints directly to the core issue in the case, namely, whether sexual misconduct had taken place. The remarks left it open to the jury to reason from the fact that the complaints were made that sexual misconduct took place. The suggestion was that, if the conduct did not take place, the complainant would not have been complaining in the way in which she did.
The suggested use of the evidence in this way was contrary to the directive that evidence of complaint could not be used as part of the evidence to establish the circumstances of the alleged offence. The questions which the trial Judge raised invited reasoning which is in conflict with the direction given on a number of occasions throughout the summing up that the complaints could not be used as evidence of the facts.
The stark nature of the questions which were posed is likely to have made an impression on the jury. At the very least, the impugned comments were such as to create confusion. The remarks of Brennan CJ, Toohey, Gaudron, McHugh and Kirby JJ in their joint judgment in Jones v The Queen[4] are apposite:
Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained. Unless explained, the evidence might well have played an important part in the jury’s assessment of credibility.
[4] (1997) 143 ALR 52 at 54.
In Jones the trial Judge gave no explanation to the jury as to the use to which the complaint could be put. In the circumstances of the present case the observations made by the trial Judge in the impugned passage were in conflict with the other directions as to the proper use of the evidence. It cannot be assumed that the jury did not use the evidence for an improper purpose.
I will deal with the other grounds of appeal before considering the consequences of the misdirection inherent in the comments made by the trial Judge.
The first ground of appeal also raises a complaint that the trial Judge did not deal adequately in his summing up with inconsistencies in the evidence relating to the complaints. The focus of this part of ground 1 is on the telephone conversations the complainant had with M.
According to the argument there was a discrepancy between what M said she was told by the complainant and what the complainant said she told M. In her evidence M said that the complainant told her the man directed her to take her pants off and she did. The man then left. For her part, the complainant said in evidence that she rang her boyfriend and told him the man had touched her. She said she then rang M and “told her the same thing”.
Mr Vadasz, for the appellant, places emphasis on the last-mentioned comment and contends that “the same thing” must refer to the complaint that the man touched her.
Although M said that the complainant did not tell her that she had been touched, M did say that the complainant told her the man directed her to take her pants off, a statement which is consistent with the complainant’s claim of sexual misbehaviour. A short time later when she arrived at the shop M was told by the complainant that the man had touched her on the second occasion.
It is also relevant that S gave evidence that the complainant told him in a telephone conversation shortly before the complainant rang M that the man had touched her.
The evidence relevant to the complaints was read out to the jury by the trial Judge so that they could Judge for themselves the reliability or otherwise of this evidence.
In my view, the suggested inconsistency is of limited significance and the trial Judge was not bound to canvass this issue with the jury.
The second ground of appeal alleges error on the part of the trial Judge in failing to warn the jury not to draw any inference adverse to the appellant by reason of the fact that special arrangements had been made for the taking of the complainant’s evidence.

At the commencement of the trial, the prosecutor applied under s 69 of the Evidence Act 1929 (SA) (“the Evidence Act”) for the Court to be closed while the complainant gave her evidence. The prosecutor also foreshadowed an application to exclude from any such order, a friend or companion of the complainant.
The trial Judge intimated that in due course he would make an order closing the Court.
After the prosecutor’s opening, the Judge asked if there was a vulnerable witness application on file. He was told that there was no such application. However, the prosecutor asked that the complainant’s mother be excluded from any order closing the Court. The Judge then made the order closing the Court and exempted from it the complainant’s mother. It is an agreed fact that, when the complainant gave evidence, her mother sat next to her.
As at the date of trial the making of special arrangements for the protection of witnesses was regulated by the now repealed s 13 of the Evidence Act. References in these reasons are to the repealed provision.
Insofar as they are relevant to the present matter, s 13 and s 69 of the Evidence Act provided as follows:
13—Protection of witnesses
(1)If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason, the court should, subject to subsections (3) and (4), order that special arrangements be made for taking the evidence of that witness.
(2)The Court may, for example, make orders of the following kinds:
(a)     an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;
(b)     an order that a screen, partition or one-way glass be placed to obscure the witness's view of a party to whom the evidence relates or some other person;
(c)     an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.
…
(6)If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the parties, the judge and (in the case of a trial by jury) the jury while the witness is giving evidence.
(7)If, on a trial by jury, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
…
(9)If evidence is to be given in criminal proceedings by a vulnerable witness, the court should, before evidence is taken in the proceedings from the witness, determine whether an order should be made under this section.
(10)In subsection (9)—
vulnerable witness means—
(a)     a witness who is under 16 years of age; or
(b)     a witness who suffers from an intellectual disability; or
(c)     a witness who is the alleged victim of a sexual offence to which the proceedings relate; or
(d)     a witness who is, in the opinion of the court, at some special disadvantage because of the circumstances of the case, or the circumstances of the witness.
69—Order for clearing the court
(1)Where a court considers it desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to exercise the powers conferred by this section, it may order specified persons, or all persons except those specified, to absent themselves from the place in which the court is being held during the whole or any part of the proceedings before the court.
(1a)Where the alleged victim of a sexual offence is a child and is to give evidence in proceedings related to the offence, an order must be made under subsection (1) requiring all persons except—
(a)     those whose presence is required for the purposes of the proceedings; and
(b)     a person who is present at the request or with the consent of the child to provide emotional support for the child; and
(c)     any other person who, in the opinion of the court, should be allowed to be present,
to absent themselves from the place in which the court is being held while the child is giving evidence.
…
“Child” is defined in s 4 of the Evidence Act as a person under the age of 18 years.
Although the trial Judge exempted the complainant’s mother from the order closing the court, he did not make a formal order permitting her to sit next to the complainant while the complainant gave evidence. Such an order could not be made pursuant to s 69 because the complainant did not come within the definition of a “child” at the time she gave evidence.
An order of this nature could have been made under s 13(2)(c) of the Evidence Act directing that the complainant be accompanied by a relative or friend when giving evidence. However, the trial Judge did not state specifically that an order was being made under this section.
The Director of Public Prosecutions (“the DPP”) submitted that, having made an order closing the court and granting an exemption from that order to the complainant’s mother, it was within the general powers of the Judge to allow her to sit next to the complainant and that, in doing so, it was unnecessary to make an order under s 13.
In my view, this submission should be rejected. The Evidence Act specifically provides for arrangements to be made to protect vulnerable witnesses. Section 13(2)(c) gives, as an example of special arrangements which might be made for a witness, an order that a relative or friend accompany the witness for the purpose of providing emotional support.
In my view, an order made pursuant to s 13 was necessary in order to authorise the complainant’s mother to accompany her while she was giving evidence for the obvious purpose of providing emotional support. This, in turn, would require the trial Judge to give the warning required by s 13 of the Evidence Act.
Here the order was either impliedly made under s 13 or the trial Judge and counsel did not give thought to the making of such an order. I do not think it matters which of these possibilities is correct.
The warning prescribed by s 13(7) is required if the Court makes special arrangements for the taking of the evidence of a witness. In this case special arrangements of the type contemplated by the Act were permitted by the Judge. This is so irrespective of whether he acted under s 13 or without directing his attention to the section. In the latter situation, inadvertence by the Court could not deprive the appellant of the benefit of s 13 and the warning was required.
In Hamilton,[5] a child complainant in a case of alleged sexual abuse gave evidence with the aid of closed circuit television (“CCTV”). Section 106P of the Evidence Act 1906 (WA) requires a trial Judge in these circumstances to direct the jury that evidence by means of CCTV was a routine practice in the Court and that its use could not give rise to any adverse inference against a defendant. The trial Judge failed to direct the jury in accordance with the section.
[5] (1997) 97 A Crim R 373.
Parker J (Ipp and Steytler JJ concurring) said:[6]
An accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed: Mraz (1955) 93 CLR 493 at 514. In this case the statutory procedural requirement of s 106P was not followed. There is, therefore, a miscarriage of justice within the meaning of s 689(1) of the Criminal Code [the proviso]. The ultimate issue to be decided in this case, therefore, is whether there has been no substantial miscarriage of justice.
And later:[7]
… we are concerned here with the failure to warn against a perceived risk that jurors might draw an inference adverse to the applicant because a child’s evidence was given by closed circuit television. Significant as that risk may be in a trial, it is but one of a number and variety of such risks which a trial judge must be alert to and take appropriate steps to negate. In each case the potential significance of the risk must be assessed in the context of all the circumstances of that trial to determine whether the failure of the judge to deal with it, or to deal adequately with it, has led to a substantial miscarriage of justice in the sense identified earlier in these reasons of the loss of a chance of acquittal fairly open to the applicant.
In this case the Crown’s case against the applicant consisted in essence of the evidence of the complainant, a child who was 10 when he came to give evidence. The applicant had not made any admissions of wrongdoing during the investigations and denied the allegations on oath in his evidence before the jury. This was a case which depended critically on the assessment by the jury of the credibility of the complainant and the applicant. In such a case the risk that, in the absence of an appropriate warning or some other alleviating circumstance, the jury might draw an inference adverse to the applicant by virtue of the use of the closed circuit television must be seen as significant, and to be one by which the applicant might well have lost a chance of acquittal otherwise open to him.
The conviction was set aside.
[6] (1997) 97 A Crim R 373 at 375.
[7] (1997) 97 A Crim R 373 at 376.
In R v Michael,[8] the appellant was convicted of a rape which was accompanied by violence. The trial Judge allowed the complainant to have a support person sit in a chair beside the witness box while she gave evidence. Section 21A of the Evidence Act 1977 (Qld) enables the Court in certain circumstances to make an order:
(2)…
(d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness.
[8] (2008) 181 A Crim R 490.
The prosecutor did not seek a declaration that the complainant was a special witness in the terms of s 21A and the trial Judge did not make a finding to that effect before permitting the complainant to be accompanied by a companion. Section 21A requires a warning similar to that required by the Evidence Act (SA) in the event that special arrangements of this nature are made in relation to a witness.
Keane JA (Holmes JA and Mullins J concurring) held that a failure to comply with a provision such as s 21A is an error of law “which renders the trial irregular notwithstanding the failure of Counsel for the accused at trial to seek a direction in conformity with the provision”.[9]
[9] (2008) 181 A Crim R 490 at [36].
After referring to s 21AW of the Evidence Act (Qld) which concerns young complainants giving pre-recorded evidence, Keane JA continued:[10]
On behalf of the respondent, it is argued that the decisions of this Court which emphasise the mandatory nature of the provisions of s 21AW of the Evidence Act, which apply where a jury is considering a complainant’s pre-recorded evidence, do not apply in relation to s 21A. This contention cannot be accepted. The provisions of s 21A(8) are couched in mandatory language. Furthermore, they are clearly informed by the same solicitude for the provision of a fair trial as informs the equivalent provisions of s 21AW. In both cases, the legislation is concerned to ensure that it is made unequivocally clear to the jury that the special arrangements made to assist the complainant should not be taken to reflect adversely upon the accused. The risk of such adverse pre-judgment is at least as strong where a complainant is seen to be afforded support while giving evidence — which might be thought to reflect a justified fear of the accused — as it is in the case where a young complainant is seen to give pre-recorded evidence.
The failure to comply with a mandatory requirement for the giving of the directions contemplated by s 21A(8) means that this Court can uphold the conviction only if it is convinced, upon its own review of the whole of the record, that there has been no substantial miscarriage of justice in terms of s 668E(1A) of the Criminal Code notwithstanding the non-compliance with the law. In the light of the decisions of the High Court in Weiss v The Queen and Darkan v The Queen, and the decision of this Court in R v DM, it must now be accepted that, where there has been a failure to comply with s 21A(8), the proper course for this Court is not to ask whether the non-compliance could have had any adverse effect on the accused’s prospects of acquittal, but whether, the trial being irregular, this Court is able to conclude for itself, upon its own review of the record, that there has been no miscarriage of justice.
(Footnotes omitted)
The conviction was set aside on this ground.
[10] (2008) 181 A Crim R 490 at [37]-[38].
In my view, the failure of the trial Judge in the present case to warn the jury in accordance with s 13 of the Evidence Act was a material irregularity. Whether it occasioned or contributed to a miscarriage of justice is discussed later in these reasons.
The third ground of appeal complains that the trial Judge gave no assistance to the jury as to how the evidence of expert witnesses was to be approached. Counsel for the appellant argued that the trial Judge should have given the directions usually given in relation to expert evidence, namely, that the jurors were not bound to accept such evidence, but that it was to be assessed in the same manner applicable to lay witnesses. The prosecutor submitted that this direction was appropriate, but the trial Judge declined to give the direction.
Two expert witnesses gave evidence. Dr Young, a medical practitioner, examined the complainant on 28 April 2007. She said that she observed an area of redness on the inner surface of the labia majora. She said this was a non‑specific mark which could have been caused by touching, rubbing or some skin condition or irritation. Although it was consistent with pinching, there were other potential causes. The witness also said that microscopic examination revealed a small abrasion within the area of redness. It was about half a centimetre in diameter and had a skin tag attached to it. Dr Young said it could have been caused by friction. Again, it was consistent with a pinching by finger and thumb.
Dr Voorhamme, a forensic scientist attached to the biology department of the Forensic Science Centre, examined DNA profiles from swabs taken from the complainant and the appellant. The DNA profile from swabs from the fingernails of the left hand of the appellant indicated that the appellant was the major contributor to the profile, while the complainant could not be excluded as a contributor to the minor component of the profile. The chance of finding another person unrelated to the complainant with the same DNA profile as that found in the minor source of the DNA was approximately 1 in 2,000.
The views expressed by these two witnesses were not challenged in cross‑examination. In relation to Dr Young’s evidence, an issue which was debated in the final addresses of counsel was whether the abrasion and redness could have been caused by circumstances unconnected with the appellant. In relation to Dr Voorhamme’s evidence the issue was, if the minor component of the DNA on the appellant’s hand did emanate from the complainant, whether there could have been a transfer of DNA resulting from the appellant’s presence in the shop, but unrelated to any sexual contact with the complainant.
In the circumstances, I think it would have been appropriate for the trial Judge to accept the prosecutor’s invitation to direct the jury on the general approach to expert evidence. However, I do not think that the failure to give that direction could have resulted in a miscarriage of justice in the circumstances of the case.
Ground 4 was abandoned on the hearing of the appeal.
Permission was sought to argue ground 5 which complains of the directions on the count of indecent assault.
It was pointed out that, although the trial Judge directed the jury on the legal definition of indecent assault, he did not, at first, refer to the fact that the touching or handling relied upon had to be without consent.
However, the trial Judge went on to say:
The prosecution allege so far as count 1 is concerned not a touching of the hand, or a touching of the arm, or a touching of the leg to test for cellulite, or something like that.
What the prosecution allege here is a touching in the genital area on the outside, skin‑to‑skin, in the area of the labia majora. So that is what is alleged by the prosecution as the indecent assault for the purposes of count 1. So your focus should be whether or not an indecent assault, as thus described by me, as committed on [the complainant] has been proved beyond reasonable doubt to have been committed.
If you took the view that those physical acts were proved, then no question of consent would seem to have arisen on the evidence and it would be a matter for you to determine whether by contemporary community standards that was indecent. The expectation would be then, I think, that if you found those facts proved beyond reasonable doubt, that you may well think that that was undoubtedly indecent but it has to be without her consent and it has to be deliberate. The actions as described by her in respect of count 1, you might think, do not lend themselves easily to an accidental touching but they appear, on her account, to be a deliberate touching after she was tricked in the way in which the prosecution alleges.
Although the trial Judge did not refer to lack of consent in his earlier directions, that element was canvassed in the above passage.
There was a further objection to the comment by the trial Judge in this passage that no question of consent seems to have arisen on the evidence. Whatever might be said about the complainant agreeing with the request to show the appellant the area of her body which was the subject of the discussion relating to cellulite, there was no suggestion at the trial that she consented to him touching her genital area which, as the trial Judge explained to the jury, was the subject of the charge of indecent assault. Although the appellant did not give evidence, the case for the defence was argued on the basis that there was no such touching. The complainant denied the suggestion in cross-examination that the appellant did not touch her vagina.
In these circumstances there can be no criticism of the trial Judge’s directions on this issue. I would refuse permission to appeal on this ground.
The sixth ground of appeal asserts that, as a result of the contentions in the other grounds of appeal, the convictions are unsafe and unsatisfactory and give rise to a miscarriage of justice. It has not been argued that the evidence was insufficient to support the convictions or that they are unsafe and unsatisfactory for reasons not covered by the other grounds of appeal.
In view of my conclusions on the other grounds of appeal, the consequences of those conclusions are more appropriately determined by reference to the proviso which is discussed below.
I have indicated that the grounds relating to the directions on complaints and the failure to warn the jury in accordance with s 13 of the Evidence Act should be upheld.
It is necessary, therefore, to consider whether, notwithstanding that the complaints in these grounds have been established, the appeal can nevertheless be dismissed because no substantial miscarriage of justice has actually occurred.[11]
[11] Criminal Law Consolidation Act 1935 (SA) s 353(1) (The proviso).
In Wilde v The Queen,[12] Brennan, Dawson and Toohey JJ said in their joint judgment:
… the authorities which are customarily cited when it is sought to challenge the application of the proviso were insufficient to found an attack upon the judgment of the Court of Criminal Appeal. Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost “a chance which was fairly open to him of being acquitted” to use the phrase of Fullagar J. in Mraz v. The Queen or “a real chance of acquittal” to use the phrase of Barwick C.J. in Reg. v. Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v. The Queen; Reg. v. Storey; Gallagher v. The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v. The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.
(Footnotes omitted)
[12] (1988) 164 CLR 365 at 371-372.

The case against the appellant depended upon the evidence of the complainant. The assessment of her credibility was fundamental to the jury’s consideration of the charges. It was essential for the jury to understand the precise way in which the evidence of the complaints could be used in the assessment of the complainant’s credibility. Unfortunately, the trial Judge suggested a line of reasoning to the jury which was contrary to the otherwise unexceptionable directions on this topic. In the circumstances it cannot be said that the appellant did not thereby lose a chance of acquittal which was fairly open to him.[13]
[13] Jones v The Queen (1997) 143 ALR 52 at 54.
The requirement to warn the jury not to draw any inference adverse to a defendant by reason of the fact that special arrangements are made for a witness, is a safeguard to ensure the fairness of the trial. The failure to give the warning is an irregularity.
However, in the light of my view that the appeal must be allowed by reason of my conclusion on ground 1, it is unnecessary to consider whether the irregularity involved in the failure to warn the jury would, of itself, lead to the same result. It is sufficient to say that it is a cumulative factor which supports the conclusion that the convictions must be set aside.
I would allow the appeal, set aside the convictions and order a new trial.
ANDERSON J: I would allow the appeal. I agree with the orders proposed by Duggan J and with his reasons.
DAVID J: I agree that the appeal should be allowed for the reasons given by Duggan J. I also agree with the orders he proposes.

[2010] SASCFC 68

7 December 2010

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Consent

Expert Evidence

Sentencing