R v BAKHUIS - [2012] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAKHUIS
[2012] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Kelly)
18 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against conviction – appellant was found guilty after trial by Judge sitting alone of one count of persistent sexual exploitation of a child pursuant to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of unlawful sexual intercourse pursuant to s 49(3) of the CLCA – where the complainant was aged 14 or under at the time of the charged acts – whether the conduct of the defence counsel at the trial in failing to cross-examine the complainant more extensively than he did regarding alleged inconsistencies in the complainant’s evidence amounted to a miscarriage of justice – whether the trial Judge failed to comply with the requirements of s 34CB of the Evidence Act 1929 (SA) – whether s 34CB applies to a judge sitting alone.
Held: (Kelly J, Doyle CJ and David J concurring): appeal dismissed – there was no possibility of a miscarriage of justice by reason of trial counsel’s conduct at trial – extent of cross-examination necessary a matter of judgment – trial Judge’s findings on complainant’s truthfulness and credibility were comprehensive and made in light of a number of inconsistencies and inaccuracies in complainant’s evidence – even if trial counsel did establish further inconsistencies in complainant’s account by more extensive cross-examination on particular topics that could not have disturbed trial Judge’s ultimate conclusion – the circumstances did not result in a significant forensic disadvantage to the appellant – no direction in accordance with s 34CB(2) of the Evidence Act required – not necessary to decide if s 34CB(2) applies to a judge sitting alone.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50; Evidence Act 1929 (SA) s 34CB, referred to.
B, VN v Police [2011] SASC 151, considered.

R v BAKHUIS
[2012] SASCFC 55
Court of Criminal Appeal: Doyle CJ, David and Kelly JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons of Kelly J.
DAVID J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an appeal against a conviction in the District Court. The appellant was found guilty by a Judge sitting alone of one count of persistent sexual exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of unlawful sexual intercourse contrary to s 49(3) of the Act.
There are two grounds of appeal. The first, that there has been a miscarriage of justice by reason of the conduct of the appellant’s counsel at trial. It was said that the trial Judge’s assessment of the complainant’s evidence may have been different if cross-examination of the complainant at the trial had not been inadequate, and that as the complainant’s credibility was crucial to the findings of guilt, a miscarriage of justice occurred. The second ground of appeal is a complaint that the trial Judge failed to direct himself in accordance with the provisions of s 34CB(2) of the Evidence Act 1929 (SA) (“the Evidence Act”).
Factual Background
The complainant was born on 12 March 1996. The complainant’s sister, L, formed a relationship with, and later married, the appellant.
In late 2004 or early 2005, L, the appellant and their child moved into a residence of their own. The complainant often stayed at the home of the appellant and L on weekends. She was about eight years old at the time and often stayed over at the house with a friend, K. From time to time L and the appellant supplied the complainant and K wine while they were staying over for the weekend. On those weekends the complainant alleged that the appellant would stay up late with her watching television or playing video games in the lounge room of the house. Usually L went to bed earlier than the appellant, leaving the appellant and the complainant alone. On occasions when both K and the complainant stayed over, K would sleep in the back room or the children’s bedroom whilst the complainant usually slept on the couch in the lounge room.
Count 1, the complaint of persistent sexual abuse, relates to a number of sexual acts alleged by the complainant to have occurred between March 2004 and March 2010. The sexual acts relied on by the prosecution to prove count 1 were acts of penile vaginal intercourse with the complainant, and other incidents where the appellant caused the complainant to masturbate him with her hands and feet, and to perform oral sex upon him.
In support of the first count the prosecution led evidence from the complainant that one night, not long after the appellant and L moved into their own house, the complainant was sleeping on the couch in the lounge room of the house when she was awoken by the appellant using her hand to masturbate his exposed penis. The complainant pretended to be asleep and rolled off the couch. The complainant told her friend K about the first incident.
Within the next six to 12 months the appellant, again whilst on the couch in the lounge room at night while L was sleeping in the next room, woke up the complainant when she realised that the appellant was using her feet to masturbate his exposed penis.
Later, when the complainant was aged between nine and 10 years, the appellant made her perform an act of oral sex on him. On that occasion the appellant approached the complainant while she was seated on the couch and forced his erect penis into her mouth. The complainant gave evidence that on the first occasion he did not ejaculate, but there were other occasions when he did ejaculate in the complainant’s mouth.
The complainant said that she was approximately 10 years old when the appellant first engaged in an act of penile vaginal sexual intercourse with her. This act also occurred on the couch in the lounge room. The appellant then began to engage in frequent penile vaginal sexual intercourse with the complainant.
The complainant said that there was one occasion when she was awoken by the appellant falling on top of her after she had been sleeping on the couch. She awoke to see her sister L holding a frying pan over his head and yelling at the appellant “you promised you would never do this again”. The appellant was unconscious on the floor at that time. L, who was called to give evidence on behalf of the appellant, gave evidence about an incident when she hit the appellant on the head with a frying pan, however the version of events which she gave was somewhat at odds with the complainant’s evidence as to what was said between L and the appellant at that time. A couple of days after the frying pan incident the complainant told L about the appellant using her feet to masturbate his penis.
In late 2009 the appellant, L and their children moved into a house in another country town. The complainant continued to visit their home at this address, however not as regularly. K would also occasionally go to the appellant’s home with the complainant. Once again, when the complainant stayed at the appellant’s home she would usually sleep on the couch and K would sleep in a back room.
From the time the appellant moved into the house in the other country town until about March 2010 the appellant continued to engage in sexual activity with the complainant. The complainant gave evidence that on every occasion that she stayed with the appellant during this period some form of sexual contact occurred. At this time the complainant was approximately 12 or 13 years old. The complainant also alleged that two acts of anal intercourse took place in the period between 2004 and 2010.
Count 2 on the Information alleged an act of penile vaginal intercourse which occurred at the house of the appellant and L on 24 July 2010. On 23 July 2010 the complainant, K, and another sister of the complainant’s, were taken to the appellant’s home by the complainant’s parents. The group had dinner together and the complainant’s parents left the three girls in the care of the appellant and L. At this time the complainant was 14 years old. The next day on 24 July 2010 K, L, and the complainant’s younger sister went for a walk. The appellant and the complainant were the only two left at home.
During that time the complainant and the appellant were playing pool in the pool room. The appellant began to touch the complainant on her bottom. This progressed to penile vaginal sexual intercourse which commenced in the hallway on a dressing table and later continued in the appellant’s bedroom. When they got to the bedroom the appellant stopped to get condoms and lubricant. Another act of vaginal sexual intercourse took place in the bedroom followed by an act of anal sexual intercourse.
Immediately upon the others returning from walking the dogs the complainant told K about the sexual intercourse which had just occurred. Later that evening the complainant got upset and locked herself in the bathroom and took 24 Panadol.
The First Ground of Appeal: Miscarriage by Incompetence of Trial Counsel
The first ground of appeal raises the issue of whether a substantial miscarriage of justice occurred by reason of the conduct of counsel who appeared for the appellant at the trial.
In support of this ground, counsel for the appellant on the hearing of the appeal, tendered an affidavit from counsel at the trial.
At the outset, I observe that much of the content of the affidavit sworn by trial counsel contains material that is irrelevant to the issues on this appeal. It would usually be appropriate for counsel to say what he did, or did not do, and whether what he did, or did not do, was the result of a forensic choice made in the conduct of the trial. However, it is not for counsel to express a factual opinion on whether a miscarriage of justice has occurred.
The only matter which this Court can take into account from the affidavit sworn in this matter is that the failure to ask certain questions in cross‑examination was not the result of a forensic choice. However, trial counsel’s opinion as to the competency of his conduct during the trial is irrelevant.
Counsel for the appellant submitted that there were three aspects of the cross-examination of the complainant which were inadequate and thereby gave rise to a miscarriage of justice. The first was said to be the inadequate cross‑examination as to prior statements made by the complainant about an act of anal sexual intercourse following penile vaginal intercourse, the subject of count 2. The second was said to be the inadequate cross-examination on prior statements made by the complainant about the use of condoms by the appellant throughout the whole period. The third matter was the inadequate cross‑examination as to prior statements of the complainant about incidents of hand and feet masturbation.
The failure to further cross-examine the complainant on the topic of what she had said previously to the police concerning the act of anal intercourse after the occasion the subject of count 2, was said to be particularly important because the complainant did not mention to any police officer that there was an act of anal intercourse after the act of penile vaginal intercourse the subject of count 2.
The complainant’s evidence in chief was that the act of anal sexual intercourse took place immediately after the act of vaginal intercourse on 24 July 2010. In cross-examination the complainant admitted that she had previously described the occasion without mentioning that an act of anal sexual intercourse occurred as well. Later, when cross-examined about this by trial counsel, the complainant admitted that she had not mentioned anal sexual intercourse in the first statement which she gave to the police on 12 August 2010. She was asked in re-examination why she had previously described the occasion of count 2 without mentioning that an act of anal intercourse took place and the complainant’s response on two occasions to that was that she felt more comfortable speaking to the female police officer than the male police officer.
In fact, the complainant gave three statements to the police; the first on 12 August 2010 to a male police officer in which she detailed a number of incidents of sexual contact between her and the appellant; the second, a further statement to the same male police officer on 24 August 2010, which appears from its contents to be nothing more than a confirmation that originally when she gave her first statement she did not wish to press charges against the appellant but having considered the matter, and having recovered from the overdose of Panadol, she now wished to proceed; the third statement was made on 22 May 2011 to a female police officer and appears to have occurred, on its face, as a result of a request from a solicitor who proofed the complainant at that time.
Even though the complainant was not challenged about the failure to mention the act of anal intercourse to the female police officer as well as to the male police officer on 12 August 2010, the appellant’s counsel at the trial relied upon her failure to mention the anal intercourse to the police officer on 12 August 2010 as a matter which undermined the credibility of the complainant.
Counsel for the appellant submitted that the failure to mention the anal intercourse was not merely an inconsistency between what the complainant said in court and the first statement, but that in fact she had never said it before. In effect the appellant’s argument was that the forensic significance of the evidence not elicited was the fact that the complainant’s evidence about an act of anal intercourse having occurred on the last occasion was a recent invention.
The trial Judge’s conclusion about this aspect of the evidence is to be found in [85] and [97] of the judgment:
…The circumstances of the taking of the statement in August 2010 are not known but it is reasonable to assume that it was prepared from a series of questions and answers and that it is not simply [the complainant’s] uninterrupted narrative. I accept that she was not completely comfortable at that interview because the interrogating officer was a man rather than a woman and that she was more comfortable when she was interviewed later by a female police officer. She was only 14 years old at the time and given the personal nature of the topics being discussed, I can understand that she would have been unsettled and may not always have conveyed accurately what she meant. It is also understandable that she may not have told the police at that stage about all of her allegations. In the circumstances, I am not persuaded that the inconsistency reflects adversely on the reliability of her evidence.
…
In the course of evidence in chief, [the complainant] said that anal sexual intercourse occurred after the vaginal sexual intercourse that is the subject of Count 2. It was submitted that an inconsistency arises from the fact that in cross-examination (Tx110) she admitted that when speaking to the police on 12 August 2010, she described the events of that day without mentioning that there had been anal sexual intercourse. For reasons I have already given about the circumstances of that interview, I do not accept that submission.
The trial Judge’s overall conclusion about the credibility of the complainant is to be found in [44]:
Although there were some discrepancies and inconsistencies in the evidence given by [the complainant], I consider that she was frank and tried to remember what had happened as well as she could. I shall refer in more detail to inconsistencies in due course but I should say at this stage that overall, despite some deficiencies, I have formed the opinion that she was a reliable witness. In a situation where the activities are such that, in the ordinary course, only the accused and the complainant are likely to have been present, [the complainant’s] evidence must be scrutinized carefully and unless it withstands that scrutiny, there could be no question of a finding of guilt on either count.
In reaching his conclusion about the complainant’s credibility, the trial Judge of course had the whole of the evidence to consider. It is not insignificant, in my view, that even though L was called on behalf of the appellant, L’s evidence in some important respects tended to support the account given by the complainant of a sexual relationship between her (the complainant) and the appellant. For example, L’s evidence about the frying pan incident is significant. L said she saw the complainant asleep on the appellant’s lap underneath a blanket. She saw that the complainant’s feet were moving. Her explanation as to why she then hit the appellant over the head was unconvincing.
Added to that, L’s admission that two days later the complainant complained to her that the appellant was putting his penis on her feet was also evidence capable of supporting the complainant’s evidence on that topic.
In addition to that evidence was the evidence of K, the complainant’s young friend, to whom the complainant complained. In summary, there were aspects of L’s evidence and the evidence of K, which supported the complainant’s account that there was a sexual relationship between her and the appellant.
The appellant’s argument that the failure on the part of trial counsel to go further and specifically put to the complainant her failure to mention the anal intercourse on the last occasion in the final statement she gave to the female police officer is predicated on the assumption that further cross-examination would have established that she did make an inconsistent statement to the police officer on that occasion. Whilst reference to the act of anal intercourse on the last occasion does not appear in the complainant’s last statement to the police, in my view, that goes no further than establish that the complainant omitted to mention it. It does not establish a positive inconsistency in the sense contended for by the appellant. It cannot be assumed that the complainant would not have given an explanation for the inconsistency. In any event, in light of the conclusion of the trial Judge about other inconsistencies in the evidence of the complainant, some of which were equally significant on the defence case, I am satisfied that if a further inconsistency on this particular topic had been established, it could not have disturbed the ultimate conclusion of the trial Judge about the complainant’s credibility.
This was said to be the most important topic in respect of which the complainant had been inconsistent, however, the appellant made two further complaints about the failure of trial counsel to further cross-examine on the topics of the appellant’s use of condoms and the incidents of causing the complainant to masturbate his penis by using her hands and feet.
In the complainant’s first statement to the police she said that the appellant began to use condoms when the complainant was about 13 years old. In her last statement to the police she said she could only be certain that the appellant used a condom for the first time on the last occasion when they had sexual intercourse which was on 24 July 2010. In her evidence in chief the complainant said that the appellant only wore a condom once or twice and that occurred after she had got her period at the age of about 13. When cross-examined she agreed that she had stated on an earlier occasion that the first time the appellant ever used a condom was on 24 July 2010, which was the occasion when count 2 occurred.

It is difficult to understand how any further cross-examination of the complainant on that particular topic could have assisted the appellant given that in the first statement she had already asserted that the appellant began to use condoms when she was about 13. In my view there was no relevant inconsistency between that statement and her evidence in chief. In any event the complainant was consistent in that she said both in court and out of court that she had always entertained a degree of uncertainty about when the appellant first used a condom and how often he used one.
The second topic which the appellant pointed to was the failure to cross‑examine the complainant further on the topic of the allegations that the appellant masturbated his penis by using the complainant’s hands and feet. On this particular topic trial counsel did put a number of inconsistencies between the complainant’s evidence in chief and her previous statements and the trial Judge dealt with those inconsistencies at [77]-[86] of the judgment:
[77]It is an agreed fact that in a statement made to police on 12 August 2010, [the complainant] said that after the first incident, when the accused caused her to rub his penis with her hand, over the next couple of years “he would always just use my hand to rub his penis”. It was submitted that this is inconsistent with evidence said to be to the effect that she only rubbed his penis with her hand once and that the most common type of masturbation was by using her feet. It is instructive to look at the relevant passages of evidence.
[78]As mentioned earlier, [the complainant’s] evidence was that there came a time, probably in the second half of 2009, when she and the accused started “going out”. In the course of evidence in chief about the first incident involving her hand on his penis, the following appears at Tx46:
QYou’ve told us about this first incident. Were there any other occasions when he made you touch him on the penis in that way.
ANo, not with my hands.
[Emphasis in original]
[79]A little later in evidence in chief, dealing with touching his penis with her feet, the following appears at Tx50-51:
QAfter the time of the touching with the feet, how often did it occur that he did that, the feet touching the penis, again.
ALike I said, it was the thing that happened the most.
Q.    Would it occur on every occasion that you stayed over.
A.    Basically, I reckon, yes.
QWhen you were about 9 or 10 and staying over were there ever any occasions when you stayed over and he didn’t touch you sexually in any way.
AI think there was a couple of times when [L] would make him go to bed with her.
QApart from that, how often was the touching.
AMost of the time.
QWith respect to the feet and the penis touching, what time of the day would this occur.
AAt night time.
QWhere were you when it would occur.
AOn the couch.
…
QWhen this type of act occurred were you ever awake when it started or was it something that started once you had gone to sleep.
AYes, sometimes I’d be awake and then I would just pretend to be asleep because he would be touching me and then other times I would wake up halfway through it.
[80]She was cross-examined on these topics (Tx116-117) after her attention was drawn to the statement made to police on 12 August 2010:
QDid you say in that statement ‘I remember over the next couple of years that similar things that I’ve just described happened another couple of times at [the accused and L’s] house. I think that [the accused] thought I was asleep whenever these things happened. He would always just use my hand to rub his penis’.
ADoesn’t it say ‘feet’?
QWhat I am putting to you is what you’ve said was ‘He would always just use my hand to rub his penis’.
AHe used my feet.
…
QCan I broach it this way: have you ever said that, after the first time you had vaginal sexual intercourse, that over the next two or three years you didn’t have sex, but you did give the defendant hand jobs and head jobs.
AYes.
QSo there was a time, after the first time, where you did use your hand.
AYeah, but I – like, it was me. He wasn’t using my hand to rub his own penis.
[Emphasis in original]
[81]A little later (Tx118-119) referring to her feet on his penis there is the following passage:
QIt happened pretty much every time you went over there.
AYes.
QHave you ever said in the past that the defendant using your feet to rub his penis only happened on a couple of occasions.
AWhat was that?
QHave you ever said in the past that the defendant used your feet to rub his penis only on a couple of occasions.
ANo.
[82]Her attention was then drawn to the extract from her statement to the police of 12 August 2010 to which I have just referred, but with the addition of the following: “I remember on a couple of occasions that I would wake up to find [the accused] using my feet to rub his penis” and she agreed that this was not what she had said in her evidence.
[83]While I accept that, on the face of it, there is some inconsistency between what she told the police and what she said in evidence, it is not necessarily as stark as was submitted by Mr Grant.
[84]The first inconsistency is said to arise from a comparison of her evidence in chief with her evidence during cross examination and what she told the police about the accused masturbating with her hand. As indicated by the passages I have emphasized, I consider that a fair reading of what she was saying in both evidence in chief and cross-examination is that there was only one occasion when he made her touch him on the penis with her hand as distinct from other occasions when she did it voluntarily.
[85]Nonetheless, that still leaves the apparent inconsistency between what she said in evidence and what she told the police – i.e., that he would always just use her hand to rub his penis. However, her reaction when that was put to her in cross-examination was immediate; she thought that Mr Grant had made a mistake and asked him whether the statement mentioned her feet being used rather than her hand. The circumstances of the taking of the statement in August 2010 are not known but it is reasonable to assume that it was prepared from a series of questions and answers and that it is not simply [the complainant’s] uninterrupted narrative. I accept that she was not completely comfortable at that interview because the interrogating officer was a man rather than a woman and that she was more comfortable when she was interviewed later by a female police officer. She was only 14 years old at the time and given the personal nature of the topics being discussed, I can understand that she would have been unsettled and may not always have conveyed accurately what she meant. It is also understandable that she may not have told the police at that stage about all of her allegations. In the circumstances, I am not persuaded that the inconsistency reflects adversely on the reliability of her evidence.
[86]The second inconsistency put to her was that, contrary to her evidence, she told the police that the accused used her feet to rub his penis on only a couple of occasions. That is not what she told the police. She told them that on a couple of occasions she “would wake up” to find the accused using her feet. That is not inconsistent with her evidence that sometimes she would be awake when he did this and she would pretend to be asleep, but that there were other times when she “would wake up halfway through it” (Tx51).
As these extracts from the judgment show, the trial Judge’s assessment of the inconsistencies in the complainant’s evidence on this particular topic was comprehensive.
In making his overall findings about the complainant’s reliability and credibility the Judge plainly took into account that there were a number of inconsistencies in the complainant’s account. The trial Judge was impressed overall with the truthfulness and credibility of the complainant, however taking into account her age, the state of the evidence in relation to some of the specific incidents alleged by the complainant and some of the inconsistencies which he specifically touched on, he was not prepared to accept beyond reasonable doubt that the whole of the complainant’s evidence was correct.
Taking into account the whole of the evidence I have reached the conclusion that there is no substance in the complaint that there was a failure by trial counsel to adequately cross-examine the complainant. It must always be a question of degree as to how far defence counsel in cross-examination need to go. It might be observed that in this case whether defence counsel might have asked further questions on any of the specific topics about which complaint has been made, including the complainant’s previous statements concerning anal sexual intercourse, was, in the end, a matter of fine judgment. The fact that another counsel might have taken a different approach perhaps by asking more questions or even possibly fewer questions than trial counsel in this case asked does not in my view establish that the cross-examination of the complainant in this case was incompetent.
There were a number of inconsistencies in the complainant’s evidence about each of the topics in respect of which complaint has been made on appeal. Trial counsel established some of those in cross-examination. It cannot be said that the trial Judge was oblivious to any of those inconsistencies for he dealt with them in some detail. He made the critical finding that overall he found the complainant to be truthful and credible. As I have already said, it is doubtful whether any further inconsistencies which might have been established by any further cross-examination would have altered the trial Judge’s view of the complainant’s overall truthfulness and reliability.
I would dismiss this ground of appeal.
The Second Ground of Appeal: s 34CB of the Evidence Act
The second ground of appeal is a complaint that the trial Judge failed to warn himself in accordance with the terms of s 34CB(2) of the Evidence Act. That section provides as follows:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)     A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)     If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)     An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The circumstances said to give rise to the requirement that the trial Judge direct himself in accordance with that section were the delay between the date of the offences and the date when charges were laid in 2010.
Three issues arise out of this ground of appeal; the first is whether a Judge sitting alone is required to give himself a direction in accordance with s 34CB of the Evidence Act. The second is whether in the circumstances of this case such a direction was required. The third, assuming that a warning was required, is whether the fact that the trial counsel at trial withdrew an application to the trial Judge to direct himself in accordance with s 34CB, negated that obligation.
A separate but related issue which arises in the context of this ground is whether a report from a neuropsychologist, Dr Scamps, dated 26 October 2011, should have been tendered at the trial. Counsel for the appellant on the hearing of the appeal submitted that had that report been before the trial Judge it would have significantly affected his consideration of the evidence and may have led him to come to a different conclusion about the credibility and reliability of the complainant.
The Report of Dr Scamps
As the appellant’s argument on this ground of appeal is predicated on the assumption that the contents of Dr Scamps’ report would have made a significant difference to the trial Judge’s consideration of this issue, it is necessary at the outset to test whether that proposition is correct.
The report of Dr Scamps suggests that the appellant had memory problems and some intellectual difficulties in the sense that he was in the low average intellectual range. It was submitted that these difficulties made it difficult for the appellant to instruct his lawyers.
The neuropsychologist’s report was requested for the purpose of examining the appellant’s mental competence to commit the offence and fitness to stand trial. The opinion of the neuropsychologist is understandably quite general. Dr Scamps concluded that the appellant had the mental competence to commit the offence and that he was currently fit to stand trial. After reporting the results of a number of neuropsychological assessments she administered, the writer concluded that although the appellant had some memory difficulties he had the cognitive ability to understand and follow court processes and to follow proceedings. His memory impairment may have impacted on his ability to encode all of the proceedings but that did not lead the neuropsychologist to assess him as unfit to stand trial.
It is significant that the appellant was never asked about his recall of the events surrounding the charges before the court. Many of the surrounding circumstances led by the prosecution were not in issue at trial, including the fact that the complainant used to regularly stay over at the home of L and the appellant. L, who was called as a witness for the defence, confirmed that fact and also that the complainant almost always slept in the lounge room of the house. Although L denied going to bed earlier as alleged by the complainant, that evidence was before the court and she was cross-examined about it.
As for the second count, there was no dispute that the others at the house on the day in question left the home to walk the dogs as the complainant alleged. There was a dispute as to whether the young children of the appellant were at the house at the time, but there has been no suggestion either at the trial or since that the children were able to be called to give any relevant evidence about that issue. The offences were committed on a weekend. There has been no suggestion, either at trial or since, that the appellant who appears not to have been employed, has been prejudiced by not being able to produce alibi evidence or work records or the like to contradict the complainant’s account.
Dr Scamps did not attempt to measure the appellant’s long-term memory. He was tested in the main about what he could remember about things he had just read or had just been told.
In these circumstances in my view had the report of Dr Scamps been tendered before the trial Judge it would not have made any significant difference to the Judge’s consideration of the evidence before him. In particular I cannot see how it would have affected the trial Judge’s assessment whether or not the matters which call for a direction in accordance with s 34CB(2) of the Evidence Act were such as to place the appellant at a significant forensic disadvantage.
The discussion which took place between trial counsel and the trial Judge at the end of the trial on this topic is significant because neither the trial Judge nor counsel at that time were able to identify any particular factor over and above the time delay which called for the warning. When counsel appearing for the appellant on the hearing of this appeal was asked the same question it is significant again in my view that he was not able to identify any factors beyond those which had been suggested by trial counsel.
In my view the reason for that is because the circumstances of this case did not result in any significant forensic disadvantage to the appellant.
For these reasons, even if the terms of s 34CB(2) of the Evidence Act do apply to a judge sitting without a jury, in the circumstances of this case, the obligation to give the warning did not arise.
I would add, that in my view, the terms of s 34CB(2) of the Evidence Act suggest that the section is not intended to apply to a judge sitting without a jury. This is not to say that the circumstances of a particular case which might give rise to the obligation upon a trial judge to give the warning to a jury are not relevant to the assessment of the evidence by a trial judge sitting without a jury. In a particular case it might be necessary as part of the trial judge’s obligation to give adequate reasons to consider and comment upon circumstances which in the trial judge’s opinion do give rise to a significant forensic disadvantage to the accused. This is probably what Gray J had in mind when he observed in B, VN v Police[1] that s 34CB(2) has relevance to the approach to be taken by a magistrate or a judge sitting without a jury. However, in the circumstances of this case the obligation did not arise, and it is not necessary to finally decide the point or the further point whether trial counsel’s withdrawal of the application before the trial Judge negated the obligation.
[1] B, VN v Police [2011] SASC 151 at [12].
For these reasons I would dismiss the appeal.