R v B, P - [2006] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v B, P
[2006] SASC 229
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
3 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant charged with two counts of unlawful sexual intercourse and two counts of indecent assault - appellant convicted by jury of alternative of indecent assault on first count of unlawful sexual intercourse - appellant convicted by jury on other three counts as presented - concession on appeal that indecent assault not a true alternative - conviction on first count quashed - whether flawed direction leaving alternative on first count tainted convictions on other counts - whether implicit rejection of part of complainant's evidence on first count was inconsistent with conviction on other grounds - whether trial judge required to direct jury that failure to be satisfied by evidence of complainant on one count should be carried into deliberations on other counts - no such direction required - verdicts not shown to be inconsistent.
Benbolt v The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196; Jones v The Queen (1997) 191 CLR 439; R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82; R v Liddy (2002) 81 SASR 22; Longman v The Queen (1989) 168 CLR 79; R v PMT (2003) 8 VR 50; MacKenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - STRIKING OUT AND WARNING TO JURY TO DISREGARD EVIDENCE
Appellant gave evidence in own defence - appellant revealed during cross-examination that he had been in prison soon after the more recent charges - counsel for accused applied for discharge of jury - trial judge refused to discharge jury - trial judge gave direction to jury to disregard the answer - whether miscarriage of justice occurred.
Maric v The Queen (1978) ALJR 631; Webb & Hay v The Queen (1994) 181 CLR 41; R v Miller (1980) 25 SASR 170; Van de Wiel v The Queen (unreported, 3 August 1995, judgment no. S5202), considered.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE
Evidence of complainant making an initial complaint - initial complaint did not set out subsequent allegations with particularity - trial judge directed that evidence of initial complaint went to prove consistency of complainant's evidence and hence to credit - appellant challenged admissibility of evidence of recent complaint - lack of detail and inconsistencies between initial complaint and subsequent evidence did not render evidence inadmissible.
Evidence of distress of complainant when giving initial statement to police and when giving evidence - whether trial judge required to warn jury that signs of distress could be referable to other causes - whether trial judge required to warn jury that complainant's distress should not be taken as support for allegations - no such direction required.
R v Yates [1970] SASR 302; R v Pitman (1985) 38 SASR 566; R v Schlaefer (1984) 37 SASR 207; R v Henderson (1983) 37 SASR 288, distinguished.
R v Lillyman [1896] 2 QB 167; Kilby v The Queen (1973) 129 CLR 460; Reppas v The Queen (1998) 20 WAR 178; R v Wannan [2006] SASC 151, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Complainant alleged that there were various touchings immediately prior to the first charged touching - whether these were uncharged acts in the relevant sense - whether judge required to give specific directions in relation to these uncharged "preparatory" touchings - no special directions required.
R v IK (2004) 89 SASR 406, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
Trial judge gave brief summary of prosecution and defence cases when summing up to jury - trial judge summarised main arguments of counsel in summing up to jury - inconsistencies in complainant's evidence analysed in detail during defence address - complaint by appellant that trial judge failed to put defence case to jury in a fair and balanced manner - whether trial judge required to highlight specific contradictions in complainant's evidence during summing up - defence case adequately put - appeal dismissed.
R v Whittingham (1988) 49 SASR 67; R v Von Einem (1985) 38 SASR 207; R v Perks (1986) 43 SASR 112, considered.

R v B, P
[2006] SASC 229
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: I would dismiss the appeal against the convictions recorded in the Supreme Court, other than the conviction on count 1. The conviction on that count was set aside during the course of the hearing of the appeal.
I agree with the reasons given by Vanstone J for dismissing the appeal in relation to the three counts based on the events of 11 February 2001. There is only one thing that I wish to add.
I agree with Vanstone J that there was no inconsistency between, on the one hand, the not guilty verdict on the first count alleging unlawful sexual intercourse, and the guilty verdict on the alternative of indecent assault, and on the other hand the guilty verdict on the remaining three counts. The different verdicts are explicable for the reasons given by Vanstone J.
It follows that the not guilty verdict on the first count did not, in the circumstances, do such damage to the credibility or reliability of the complainant as to lead to the conclusion that, acting reasonably, the jury should have entertained a reasonable doubt as to the appellant’s guilt on the remaining counts. That conclusion rests on the circumstances of the particular case, as it always must. In the circumstances, the reasoning of the High Court in Jones v The Queen (1997) 191 CLR 439 does not apply to the present case.
Nor is this a case that required a direction from the Judge to the jury to the effect that if they were not satisfied as to the credibility and reliability of the complainant when considering one count, that lack of satisfaction should or might carry over to the consideration of other counts. On that point I agree generally with the observations of Mullighan J in R v Liddy [2002] SASC 19; (2002) 81 SASR 22 to which Vanstone J refers. Williams J expressed a similar view at [520]-[521] and Gray J appears to have taken a similar view at [556].
The Judge had told the jury, in the usual terms, to consider the evidence on each count separately. He told the jury that they could accept part of what a witness said, and reject another part. I would expect the jury to realise that a doubt about the reliability of the complainant’s evidence on a particular count could be taken into account when considering other counts. In the circumstances of the case, the Judge was not required to direct the jury to that effect, let alone direct the jury that a doubt about reliability on one count must give rise to a doubt about reliability on another count. The present case was not one of those cases that required the trial Judge, in order to give appropriate directions to assist the jury, to give such a direction. On that point it suffices to refer again to what Mullighan J said in Liddy in particular at [190]-[193]. There is good reason not to direct the jury unnecessarily along these lines, because there is a danger of suggesting to the jury that a finding of not guilty on one count should or must lead to the same result on other counts.
I do not consider that there is any difference in principle between the views expressed in R v KWG [2000] SASC 398 and in R v Liddy. If there is, it is not necessary to deal with it in this case. This case can be decided by applying well established principles relating to a complaint of inconsistency as between verdicts.
GRAY J: I would dismiss the appeal insofar as it concerns the convictions on counts 2, 3 and 4. I do not wish to add to the reasons of the other members of the Court.
VANSTONE J:
Introduction
The appellant was charged with two counts of unlawful sexual intercourse and two counts of indecent assault said to have been committed upon the same complainant, a girl then aged 14 years. The first such count was alleged to have occurred on the last day of the year 2000 at a New Year’s Eve party. The balance of the charges related to an occasion about six weeks later when the appellant attended at the complainant’s home and stayed overnight. The appellant was tried before a judge and jury in this Court. In respect of the first count he was convicted of an alternative verdict of indecent assault. He was convicted of the other three charges, as presented. He appeals, with leave, against all four convictions on a number of grounds.
Grounds 1 and 2 – Disclosure of time in prison
The appellant gave evidence in his own defence. During cross-examination by the prosecutor he revealed that he had been in prison not long after the occasion of the more recent charges. That evidence emerged in this way:
PROSECUTOR: Did it surprise you that [the complainant] never came to your house again?
APPELLANT: I don’t know, I was in prison.
Having reviewed the interchange leading up to that answer I consider that this was no more than a mishap. The appellant could have directly answered the question without reference to prison, but it cannot be said that the answer was entirely unresponsive. On the other hand, I do not think that the prosecutor could have been expected to anticipate the answer. This is not, then, one of those cases where the attribution of responsibility for the disclosure would have an impact on whether the jury should be discharged.
In the event it appears that the questioning proceeded without interruption and the matter was not raised until the accused’s evidence and the defence case had concluded. After defence counsel had an opportunity to seek instructions, he applied for discharge of the jury. Following further discussion the Judge expressed the view that a direction by him would in practical terms exclude the possibility of impermissible prejudice to the accused. He then brought the jury back into court and gave them a strong direction that they disregard the answer as being irrelevant. Immediately thereafter the prosecutor addressed the jury. A similar direction was given in the course of the Judge’s summing up.
The question to be determined is not whether the Judge’s refusal to discharge the jury was correct. Rather, it is whether, having regard to all the circumstances of the case, including the terms of the direction given, this Court can be satisfied that no substantial miscarriage of justice occurred: Maric v The Queen (1978) 52 ALJR 631 per Gibbs ACJ at 634-5; Webb & Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89-90. Consequently, ground 2, which complains of the Judge’s decision not to discharge the jury, is misconceived.
It is noteworthy that there was no information before the jury as to the reason for the appellant’s incarceration – whether he was on remand or serving a sentence – or as to the nature of the offence alleged. Often enough this Court has dealt with a complaint to the effect that a like disclosure has led to a miscarriage of justice. Examples include R v Miller (1980) 25 SASR 170, 209-211, and Van de Wiel v The Queen (unreported, 3 August 1995, judgment no. S5202). Having regard to the very limited information placed before the jury and the timely and appropriate directions given to the jury by the trial Judge, I consider that this is a case where it can confidently be said that the disclosure would not have had any impact on the verdicts rendered.
Grounds 3 and 5 – Complaint of inconsistent verdicts
In relation to the first and third counts, being unlawful sexual intercourse, the judge left to the jury the alternative verdict of indecent assault. The leaving of that alternative had been foreshadowed to counsel by the Judge. Counsel had not protested at that time. In respect of count 1 it was upon the alternative that the jury convicted. The way in which the alternative to count 1 was left gave rise to a separate ground of appeal, to the effect that the ambit of the conduct encompassed in the alternative went beyond that on which the charge itself was based. If that were so, the alternative would not be a viable alternative, so much as a different transaction: Benbolt v The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196. The Director properly conceded in this Court that the ground was made out and that in those circumstances the lesser verdict could not stand. Accordingly, the Court allowed the appeal to that extent at the close of argument. Notwithstanding that course of events it was still open to the appellant to argue that the acquittal on count 1 as charged was inconsistent with the verdicts returned on the remaining counts.
There were two aspects to this argument. Counsel first put that because of the concession as to the flawed direction leaving the alternative to count 1, the convictions on the other counts were tainted. He said that occurred because the Judge had directed the jury that they were entitled to make use, in a way he specified, of “any adverse finding” as to the first occasion in their deliberations on the other counts.
I cannot accept that submission. The direction was flawed because the conduct left was not a true alternative. That does not alter the jury’s factual finding that some indecent conduct, short of the type of offence charged, occurred as alleged. As will be seen in the discussion of ground 7, I consider that the jury was entitled to take that finding into their consideration of the other counts.
I turn to the second aspect of this ground. The particulars of the first count specifically alleged penetration of the complainant’s labia by the appellant’s finger. This was said to have occurred in the course of the New Year’s Eve party, as the appellant sat next to two fellow guests, with the complainant on his lap. A factor which the jury could have seen as weakening the allegation was that when the complainant gave a statement to the police about it, she did not mention penetration. Added to that was the rather unlikely spectre of the appellant penetrating the girl in the immediate presence of two other people. Perhaps for those reasons the judge determined to leave the alternative verdict.
It was suggested, though, that the implicit rejection of at least part of the complainant’s evidence on count 1 should have led to a refusal to be satisfied of her evidence as to the other counts. Mr Niarchos suggested that just as the complainant’s evidence as to count 1 was weakened by the improbability of anyone sexually assaulting her in the presence of witnesses, so her evidence on the remaining counts was undermined by her being grossly intoxicated at the time she was put to bed by her mother, only a few hours before she claimed the remaining offences occurred.
Allied to that submission was a contention (ground 5) that the Judge should have warned the jury that a failure to achieve a state of satisfaction in respect of any one count should be carried into their consideration of other counts. I deal first with that issue.
In support of his submission, Mr Niarchos relied on Jones v The Queen (1997) 191 CLR 439, R v KWG [2000] SASC 398 and R v Markuleski [2001] NSWCCA 290, (2001) 52 NSWLR 82.
Jones was a case in which the High Court quashed convictions for sexual offences on the basis that the acquittal on one count was inconsistent with the convictions on the other two counts. The appellant was a gym instructor and the complainant a pupil. The offences were said to have happened after classes. His denial included a claim that there had never been an occasion when he was alone with the victim. The case very much turned on the failure to warn the jury of the impact on the appellant’s defence of the long delay between the occasions of the charges and the trial.
The Court (by majority) quashed the convictions. As I read the judgments though, no new requirement is established whereby a trial judge must instruct a jury that a failure to be satisfied about one allegation made by a complainant should be carried into deliberations with relation to other counts. However, in a line of cases which followed, such a requirement was suggested. R v KWG [2000] SASC 398 and Markuleski [2001] NSWCCA 290, (2001) 52 NSWLR 82 are two of those.
In KWG Martin J (with whose reasons Wicks J agreed) and Lander J expressed the view (at [82] and [7] respectively) that, in a case involving charges of a sexual nature resting only on the evidence of a single complainant, and in circumstances where there was no material reason to discriminate between the evidence going to each count, a jury should be warned that if it doubted the complainant’s evidence with respect to one count it should take that into account in determining whether it is prepared to accept the same witness’s evidence on other counts.
A similar view was expressed in New South Wales in Markuleski by Spigelman CJ at [186]-[191] and Wood CJ at CL at [256]-[265], Simpson J and Carruthers A-J agreeing; cf. Grove J at [279]-[280].
In R v Liddy [2002] SASC 19, (2002) 81 SASR 22, at 66-73, Mullighan J considered this line of cases. He concluded at [190] that if any such warning were required it was an incident of the general duty of a trial judge to give such directions as are appropriate in the circumstances of the case. His Honour cited Deane J in Longman v The Queen (1989) 168 CLR 79 at 95:
A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury.
Reference could also be made to Brennan, Dawson & Toohey JJ in Longman at 86:
Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v The Queen (1986) 161 CLR 315 at 319, 323-325; Carr v The Queen (1988) 165 CLR 314 at 330.
Mullighan J expressed this view at [190]:
As these decisions demonstrate, there may be cases when one of the possible directions suggested by Spigelman CJ in Markuleski or by Lander J or Martin J in KWG could be required in order to ensure that the accused has a fair trial and that the jury are given the assistance to which they are entitled in order to use evidence properly and to reason in a permissible way. An obvious case would be where the same alibi defence related to all charges, but there is no rule of law or practice that requires such a direction to be given in all cases with multiple counts involving the same complainant. Furthermore, there is no special rule in such cases involving sexual offending. I reject the contention that the law has developed to the stage that a direction for which the appellant contends must be given in all cases where there is one alleged victim and multiple charges or that the law should now be taken to that stage.
Williams J similarly held at [515]-[523] that neither Jones nor KWG established any new principle requiring a direction of the type referred to in Markuleski. I respectfully agree with their Honours’ analysis of the authorities and theirconclusion.

A similar view has been taken in Victoria. In R v PMT [2003] VSCA 200, (2003) 8 VR 50 the Court of Appeal declined to follow Markuleski. The main judgment was given by Buchanan JA. His Honour pointed out that if such a direction were to be given it would need to be qualified, since an acquittal on one count might be due to factors other than veracity, and might not have relevance to other counts. Furthermore, he observed that the rationale for the suggested direction would dictate that, as a matter of balance, the jury also be told that a finding that the complainant was truthful as to one count could be relevant to the consideration of other counts. Chernov JA, agreeing with Buchanan AJ, expressed the view [34] that ordinarily the giving of such a direction would be “fraught with difficulties and should be avoided”. Charles JA agreed with the views of both judges.
Mr Niarchos submitted that, irrespective of whether such a direction should have been given, the convictions should be quashed as being inconsistent and therefore unsafe and unsatisfactory. He relied on MacKenzie v The Queen (1996) 190 CLR 348 at 366ff, where Gaudron, Gummow and Kirby JJ set out general propositions concerning the type of inconsistency of verdicts which might lead to an appellate court quashing a conviction on the basis of it being unsafe. There the majority approved the statement of King CJ in R v Kirkman (1987) 44 SASR 591, 593 as to the need to employ caution before setting aside verdicts which, although adequately supported by evidence, were difficult to reconcile in logic. The majority set apart those cases where the verdicts suggested confusion in the minds of the jurors or a misunderstanding of their function or of the directions given them.
There are several factors in this case which bear on the evaluation of the suggested inconsistency. Here there was no technical inconsistency between the verdicts. Moreover, the jury was instructed by the Judge to consider each count separately. The Judge said:
I emphasise that you must consider the evidence with respect to each charge separately. You may convict on one or other, and acquit on one or more, depending on the view you take of the evidence which relates to each of the counts.
As has been seen, the later three counts on the information occurred over the space of several hours at a different time and place. The complaint followed the fourth count and so was made within a short time of the last alleged offence. The incident giving rise to count 1 had occurred about six weeks previously. It is noteworthy that the complainant’s evidence on count 1 was that penetration was limited to part only of the labia majora. Although the alternative offence was left on a basis encompassing other conduct, the jury’s verdict could well have turned on uncertainty about penetration. The finding of guilt on the lesser charge meant there was no wholesale rejection of the complainant’s evidence as to that incident.
My conclusion is that the different verdicts are quite explicable. There is no relevant inconsistency.
Ground 4 – Complaint of lack of direction on uncharged acts
On the prosecution case count 1 was preceded by the appellant drawing the complainant onto his lap and then caressing her bottom and upper thigh. Eye-witnesses saw something less than all of these things. What they saw arguably fell short of indecent conduct, but certainly provided some general support for the interaction as described by the complainant. These touchings were referred to by counsel for the appellant as “uncharged acts”. As I understand the complaint, it was that there should have been a direction to the jury members that even if they were satisfied there were indecent touchings which were not charged, they should not reason from those that the appellant was the type of person likely to commit the four charged offences. That is usually referred to as a warning against propensity reasoning.
The immediate answer to that submission is that it appears the jury did not follow such a process of reasoning, as it acquitted of count 1 as charged. But there is a more comprehensive answer. The touchings referred to by counsel were, it is true, not specifically charged. (To have charged each of them would have amounted to “overloading” the information.) But they were part of the first incident, which did give rise to count 1. Therefore they were not uncharged acts in the sense that this expression is used in the cases, at least in this jurisdiction. Accordingly, the rationale for requiring directions as to proper use of the evidence and directions to prevent misuse did not apply. I attempted to make the same point in R v IK [2004] SASC 280, (2004) 89 SASR 406 at [156]-[157]. For these reasons I reject the submission that any particular direction as to such preparatory acts and inferences flowing from them was required.
Ground 7 – Use of evidence relating to one incident elsewhere
The appellant also complains that the Judge permitted the jury to reason from a finding of indecent handling in respect of the first occasion to guilt of the subsequent counts.
It is true that his Honour directed the jury that they could take an adverse finding in respect of the earlier incident into their consideration of the subsequent counts. Several uses for that evidence unrelated to propensity were left for the jury’s consideration. The Judge also said the jury could view the earlier incident as showing “sexual attraction on [the appellant’s] part” which could be used in proof of the other counts. I consider that direction was correct. Once the jury was satisfied beyond reasonable doubt of an indecent dealing on the earlier occasion (supported as it was, to a degree, by independent witnesses) it was entitled to use that fact in proof of the later allegations. In this context it is not to the point that this Court has quashed the conviction on count 1. The fact remains that the jury were entitled to make use a clear finding of indecency in respect of that first allegation in its deliberations on the other counts.
Ground 8 – Putting of defence case
The appellant complains that the way in which the defence case was put to the jury by the Judge lacked fairness and balance. In particular it was submitted that the Judge failed to highlight the contradiction between the complainant and her mother as to whether her head had been on the appellant’s shoulder during the evening of count 1; that there was a contradiction between the complainant and her sister on the one hand and their mother on the other as to whether the sisters were with the appellant alone in the house on the occasion of count 4; and further, that the Judge did not take the jury seriatim through various statements made by the complainant to the police which gave different accounts of the nature and extent of the touchings on the two occasions.
The extent to which a Judge must descend to detail in putting the defence varies depending on the circumstances of the trial. As a general rule the Judge must identify the critical evidence and explain its bearing on the legal issues so that the jury fully understand the way in which issue is joined with the prosecution case: R v Whittingham (1988) 49 SASR 67, 69-70. But the Judge is not obliged to repeat all the defence arguments: R v Von Einem (1985) 38 SASR 207, 216 per King CJ; R v Perks (1986) 43 SASR 112, 116.
The trial of these charges was relatively short, occupying four days. The only evidence in the defence case was that of the appellant.
The Judge gave appropriate directions concerning the use of prior inconsistent statements of the complainant, the fact that the appellant was not obliged to give evidence, the prejudicial effect that the delayed complaint would have had upon the defence and the relevance of intoxication in the case. Each of these was relevant to the presentation of the defence case.
The Judge gave a brief summary of the cases of the prosecution and defence. He also summarised the main arguments of each counsel. The inconsistencies between the various statements of the complainant as against her evidence were the subject of lengthy cross-examination and of detailed analysis in defence counsel’s address to the jury. The contradictions were proved by way of admissions or agreed facts, which were in written form and before the jury as an exhibit.
In all the circumstances I cannot accept that the substance of the defence was not clearly left to the jury.
Grounds 9 and 10 – Recent complaint
These grounds challenged the admissibility and directions given as to evidence of recent complaint. The complaint was made soon after the incident which was count 4 on the information. Upon appeal the evidence was said not to demonstrate the required consistency so as to justify its admission. In the initial complaint the complainant did not set out with any particularity the allegations she later made. Counsel upon the appeal pointed not only to the lack of detail, but also to inconsistencies between the complainant’s and her mother’s respective accounts of the relevant conversation.
The Judge directed the jury to the effect that the complaint evidence went to prove consistency in the “evidence of the person making the complaint” and that therefore it went to credit. He then pointed out that inasmuch as the complaint lacked detail, it had limited use for that purpose. The Judge also warned the jury that it was not evidence of the facts asserted.
The consistency which evidence of recent complaint primarily goes to prove is consistency of conduct – raising the hue and cry – rather than a precise coincidence of accounts as between the initial complaint and the evidence later given: R v Lillyman [1896] 2 QB 167; Kilby v The Queen (1973) 129 CLR 460, 466 ff.; Reppas v The Queen (1998) 20 WAR 178; R v Wannan [2006] SASC 151.Such deficiencies or inconsistencies as there are in the original account are matters for the jury to assess, as opposed to matters affecting admissibility. Much the same can be said of inconsistency between accounts given by the parties to the conversation. Indeed the recent complaint can still be attested to even where the complainant is not asked about it or, presumably, where he or she has forgotten it.
In my view the recent complaint in this case was properly admitted and the directions given to the jury were adequate. In particular, it was not necessary to instruct the jury to first apply the test for admissibility to the evidence and, unless it met the prerequisites, to ignore it. As always, admissibility is for the Judge.
Ground 11 – Use of evidence of distress
The final ground complained of directions given to the jury as to signs of distress said to have been exhibited when the complainant gave her initial statement to a police officer and also when giving evidence.
Counsel ultimately resiled from a submission that the evidence was inadmissible. The authorities referred to in that connection, eg., R v Yates [1970] SASR 302; R v Pitman (1985) 38 SASR 566; R v Schlaefer (1984) 37 SASR 207; R v Henderson (1983) 37 SASR 288, were concerned with the question of the circumstances in which evidence of distress could amount to corroboration of a witness’s evidence of sexual assault. Counsel maintained a complaint that the trial judge should have warned the jury that signs of distress could be referable to other causes and should not be taken as support for the allegations.
So far as distress exhibited in court is concerned, it is part of a witness’s demeanour. To instruct a jury to ignore it would be to trespass on the jury’s role. Much the same applies to a demeanour displayed outside court on occasions properly the subject of evidence. Such evidence might be admitted at the instance of either side, either as reinforcing or undermining the witness’s evidence. Whilst a description of a person’s state might not be of much moment, I know of no rule rendering it inadmissible, or requiring that a specific direction be given as to treatment of it. Nor was there any particular reason why such a direction was needed in this case. The ground is without substance.
Conclusion
In my view the appellant has not made good any of his further grounds of appeal.
For the reasons given I would dismiss the appeal insofar as it concerns the convictions on counts 2, 3 and 4.