R v Baltensperger - [2004] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BALTENSPERGER
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
2 December 2004
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL OF NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
Appeal against conviction - appellant found guilty by jury of five counts of rape.
Discussion of section 74D and section 74E of the Summary Offences Act 1953 (SA) - consideration of admissibility of police interview - consideration of intoxication direction - consideration of direction regarding recent complaint and distress - consideration of direction regarding inconsistent statements - discussion of section 48 of the Criminal Law (Consolidation) Act 1935 (SA) and mental element of the offence of rape - consideration of direction concerning appellant's attitude towards women.
Held - breach of section 74D of the Summary Offences Act - trial Judge erred in admitting conversation into evidence - erred in failing to direct as to ambiguity in defendant's answers - failed to adequately direct as to intoxication of complainant - failed to adequately direct as to distress - element of propensity reasoning implicit in the comment of the trial Judge as to appellant’s attitude towards women - risk of miscarriage of justice - appeal allowed - retrial ordered.
Summary Offences Act 1953 (SA) s 74D, s 74E, s 79A; Criminal Law (Consolidation) Act 1935 (SA), referred to.
R v Karger (2003) 83 SASR 135; R v Bueti (1997) 70 SASR 370; R v Day (2002) SASR 85; R v Mekic (2004) 88 SASR 387; R v Flanigan (1997) 190 LSJS 499; R v Harris (1995) 64 SASR 85; Bedi v The Queen (1993-1994) 61 SASR 269; R v Lillyman [1896] 2 QB 167; Kilby v R (1973) CLR 460; Crofts v R (1996) 186 CLR 427; R v Corkin (No 2) (1989) 50 SASR 580; R v Green [2001] SASC 25; R v Osborne [1905] NB 551; R v Peake (1974) 9 SASR 458; R v Corkin (No 2) (1989) 50 SASR 580; R v Papakosmas (1999) 196 CLR 297; R v Pahuja (No 2) (1989) 50 SASR 551; R v Zorad [1979] 2 NSWLR 764; R v Knight (1966) 50 Cr App R 122; R v Wozniak (1977) 16 SASR 67; R v Neiterink (1999) 76 SASR 56; R v Davies & Hyland (1995) 183 LSJS 186; Driscoll v R (1997) 137 CLR 517, considered.

R v BALTENSPERGER
[2004] SASC 392
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ I have read the reasons of Gray J. I agree that the Judge erred in admitting in evidence the conversation between the appellant and Detective Bee, that is dealt with by Gray J in his reasons. I agree also that in several respects, identified by Gray J, the directions that the Judge gave to the jury were, in all the circumstances, inadequate. These matters in combination give rise to an unacceptable risk of a miscarriage of justice, as a result of the jury having considered the issues that they had to decide on an incorrect basis, or without proper guidance as to the use that might be made by them of the items of evidence in question. In addition, the jury had before them evidence of a conversation which should not have been admitted.
For those reasons I joined in an order allowing the appeal, setting aside the convictions and ordering a retrial.
BLEBY J. I agree with the reasons of Gray J for allowing this appeal.
GRAY J
Following a trial in the District Court the appellant, Anthony Baltensperger, was found guilty by jury verdict of five counts of rape. On 4 November 2004 the appeal was allowed, the convictions set aside and a retrial ordered. My reasons for joining in the order of the court follow.
Background
It was alleged that the rapes occurred on 21 April 2002 at Murray Bridge or another place. Four counts alleged vaginal sexual intercourse and one alleged oral sexual intercourse with the female complainant.
The prosecution case was that the complainant had become intoxicated whilst attending nightclubs in Adelaide on the night of 20 April 2002 and the early morning of 21 April 2002. She was “picked up” from a city street by the appellant who was driving past in his panel van. The appellant and the complainant had not previously met.
The appellant then drove toward Murray Bridge. It was the complainant’s evidence that she had no recollection of events between leaving a city nightclub and waking some time later in the rear of the appellant’s panel van with the appellant touching her. She became aware that the panel van was in a country location. It was the prosecution case that at about 7.30 am on 21 April 2002 at that location the appellant raped the complainant vaginally once. Following the alleged rape a passing motorist offered assistance. The complainant did not take up the offer.
The prosecution alleged that the appellant then drove to another location about 500-600 metres from where he had first stopped. The prosecution also said that the appellant threatened the complainant with a .22 rifle and at this location raped her orally once and vaginally on three occasions.
The prosecution case was that the appellant then drove with the complainant to his home at Murray Bridge where he went inside whilst the complainant remained in the vehicle. The appellant returned to the vehicle and drove with the complainant to Adelaide. He left her at a suburban intersection at about 1.00 pm. The complainant telephoned her mother and complained that she had been threatened with a gun. She also complained to her brother. They both described the complainant as being distressed.
The complainant’s mother then telephoned the police who attended and observed the complainant to be distressed. She complained of rape to the police at about 1.10 pm on 21 April 2002. Police inquiries led to the appellant who was arrested at about 7.40 am on 22 April 2002 at his home at Murray Bridge.
The prosecution called the complainant, who gave evidence with respect to each count of rape. She said that each act was without her consent. The complainant said that at one stage the appellant dragged her back into the van and threatened to break her arm. A little later he produced a rifle without its stock. He loaded the rifle in front of her and threatened to shoot her. Any compliance by the complainant with the appellant’s demands was due to fear for her safety resulting from the threats that had been made. Constables Elliot and Brain, who attended to the complainant following the mother’s telephone report, gave evidence of the complainant’s distress and upset. The appellant was subsequently arrested.
The prosecution led evidence of the police search of the appellant’s home, sheds and panel van. The search of premises led to the recovery of a balaclava and the stock of a .22 calibre semi-automatic rifle.
Evidence was led from Detective Alison Bee of her interviews with the accused on 22 April 2002. The prosecution also tendered a letter written to Detective Bee by the appellant when in custody in which the appellant provided a detailed account of what he claimed occurred. Evidence was led by the prosecution of a medical examination of the complainant conducted by Dr Jones.
The appellant gave evidence in which he admitted having engaged in acts of sexual intercourse, including oral sexual intercourse, with the complainant. His account was that she was a willing and consenting party to each act.
As earlier observed, the appellant was convicted on all counts.
Issues on Appeal
On appeal it was contended that the trial Judge:
-erred in admitting in evidence the conversation between the appellant and Detective Bee that occurred between 11:54 am and midday on 22 April 2002.
-       misdirected the jury as to the intoxication of the complainant:
·    by failing to direct the jury that intoxication was relevant to consent;
·    by stating that the complainant “recounted the events and conversations to you in considerable detail albeit in an emotional and upset state, suggesting her memory of the events was not marred by intoxication.” when the complainant’s account and memory of the events and the conversations was a matter that could not be assumed to be true and was in dispute;
·    by failing to direct the jury that the complainant’s intoxication was relevant to her reliability and might have affected the accuracy of her perception at the time of the events which gave rise to the charges;
-misdirected the jury as to reckless indifference in the mental element of rape by directing them that the mental element was satisfied by proof that the appellant had no knowledge or belief that the complainant was not consenting;
-erred in failing to direct the jury to consider the possibility the complainant’s distress might have been attributable to something other than the commission of the alleged offences;
-erred in permitting the prosecutor to re-examine Dr Young about statements made by the complainant to Dr Jones when:
·    the topic was not a proper topic for re-examination,
·    the statement was not a recent complaint,
·    the evidence was hearsay,
·    the evidence was self-serving of the evidence of the complainant, and
·    the evidence was in any event irrelevant;
-to the extent that the evidence of statements made by the complainant to Dr Jones were in any way admissible, erred in failing to direct the jury as to the permissible uses that could be made of those statements and in any event erred in directing the jury that they could not use the said statements as evidence of their truth;
-erred in failing to direct the jury as to the use that could be made of inconsistent statements made by the complainant to various persons;
-misdirected the jury in repeating without criticism or disapproval an argument of the prosecutor to the effect that the jury could have regard to the applicant’s attitude towards his mother and Detective Bee as being insightful; whereas any evidence of the appellant’s attitude towards those women was irrelevant and prejudicial.
The Admissibility of the Interview
As earlier observed, the appellant was arrested at 7.40 am on 22 April 2002 and taken to the Murray Bridge Police Station. At 10.29 am a video taped interview was conducted between Detective Bee during which the following exchanges occurred:
Detective Bee             … Now when you were arrested this morning at 7.40am were you advised of your rights to make a telephone call, have a solicitor, relative or friend present during any interview or interrogation, refrain from answering any questions and have the assistance of an interpreter is that correct?
The appellant             Ah, just repeat them.
Detective Bee             Were you advised of your right to make a telephone call?
The appellant             Yeh.
Detective Bee             Were you advised of your right to have a solicitor, relative, or friend present during any interview or interrogation? Could you speak your answer please?
The appellant             Yes.
Detective Bee             Were you advised of your rights to refrain from answering any questions?
The appellant             Yes.
Detective Bee             And have the assistance of an interpreter?
The appellant             Yes, I think so, but I don’t …
Detective Bee             I must again warn you that anything you say will be recorded and may be used in evidence. Do you understand?
… .
Detective Bee             Anthony, I am going to ask you some questions in relation to some allegations of rape that have been made. You are not obliged to answer those questions if you don’t want to, but anything that you do say will be recorded, and may be later used in evidence. Do you understand?
The appellant             Yes.
Detective Bee             Are you the owner of a white Ford panel van UEL 789
The appellant             No comment, that’s all I’m going to tell you.
Detective Bee             Is it correct that you are indicating to me you don’t wish to answer any questions in relation to this matter?
The appellant             Yes.
Detective Bee             Okay, I won’t asking [sic] you any further questions. You will be taken back down to the cell area, where you will be formally charged with 4 counts of rape, and unlawful detention, do you understand that?
The appellant             Yes.
Detective Bee             Is there any further statement you wish to make?
The appellant             No
Detective Bee             Okay the time is 10.39 and that concludes this record of interview.
At about 11.49 am on 22 April 2002 Detective Bee removed the appellant from the cells for the purpose of a forensic procedure. The appellant was taken to the same room as had been used for the earlier videotaped interview. The appellant was not cautioned again. The interview was not videotaped or audio recorded. Detective Bee made handwritten notes. The appellant questioned the need for the forensic procedure. During the course of this discussion Detective Bee said that the following conversation occurred:
The accused               Why, I’ve been charged, haven’t I
Detective Bee   You’ve been accused of those offences. We now have to prove it beyond reasonable doubt?
The accused               I will just go to court and plead guilty or not guilty.
Detective Bee   Well, that’s up to you, are you suggesting you will plead guilty?
The accused               Well, I did it, so, yeah.
Detective Bee did not make any response to that comment and the accused then added:
The accused  I’ve never raped anyone in my life but now I have, some of it wasn’t even like that.
At 11.54 am, immediately after the unrecorded conversation, Detective Bee conducted a second videotaped interview with the appellant. Detective Bee in the course of this interview referred in part to the unrecorded conversation between herself and the appellant. The interview contained the following exchange:
Detective Bee said,      The time is 11.54am still on Monday the 22^nd of April 2002, do you agree that approximately 3-4 minutes ago I again removed you from the cells?
The appellant said,       [No audible reply]
Detective Bee said,      Yeh, and brought you back up to the interview room. Is that correct?
The appellant said,              Yep.
Detective Bee said,              Is it correct, that when we got to the interview room I said to you, what I intended to do with you now?
The appellant said,       Yep.
Detective Bee said,              Anthony can I just get you please to sit up and speak up, thank you. Now upon arrival here I just explained to you that I needed to run through a couple of more things with you and then I explained to you, that I would be asking for your consent in relation to a Forensic Procedure, which may afford evidence to our investigation. And upon me explaining that to you, I just wish to put to you a conversation that we have just had, while the tapes were not running. Now I’ll again warn you again that you are not obliged to say anything if you don’t want to, but the recording equipment has been activated and it will record your responses. You said to me, after I had explained that, you said, Why I I‘ve been charged haven’t I? And I said, you have been accused of those offences, but it’s our job now to prove it beyond reasonable doubt. And you said, I’ll just go to court and plead guilty or not guilty, and I said, well that’s up to you, are you suggesting you would plead guilty.
The appellant said,              I didn’t mean it like that.
Detective Bee said,      What did you mean?
The appellant said,              I’ve been charged and technically when I go to court and it’s like you say it plead guilty or not guilty.
Detective Bee said,      Yeh, and I just said to you, well that’s up to you, and I said are you suggesting that you would plead guilty. And you said, ‘well I did it so yeh’. And then you later made a comment whilst I was writing, ‘I’ve never raped anyone in my life, but now I have some of it wasn’t even like that.’
The appellant said,              Technically it wasn’t rape.
Detective Bee said,      Did you make those comments to me?
The appellant said,              Mm.
Detective Bee said,      Anthony could you please sit up and speak up for me?
The appellant said,              No comment.
During the 11.54 am videotaped interview it is apparent that Detective Bee endeavoured to obtain the appellant’s confirmation of the accuracy of her account of the earlier unrecorded conversation. At this time Detective Bee imperfectly cautioned the appellant. She did not inform him that anything he may say may be used in evidence.
At the trial the prosecutor tendered the 11.54 am videotaped interview which contained reference to the earlier unrecorded conversation. It was played to the jury in its entirety. The prosecution then had Detective Bee confirm that she had made accurate hand-written notes of the earlier conversation and had accurately repeated that conversation during the course of the subsequent 11.54 am tape interview. Direct evidence of the unrecorded conversation was not led.
On appeal counsel for the appellant submitted that the provisions of sections 74D and 79A of the Summary Offences Act 1953 (SA) had not been complied with. Counsel contended that the unrecorded conversation should have been video-recorded in accordance with the statutory requirements. Counsel claimed that the evidence of the interview was, as a result, in breach of section 74D and inadmissible in accordance with the terms of section 74E.
In the alternative, counsel for the appellant submitted that in the circumstances the evidence of the unrecorded interview should have been rejected as a matter of discretion. Counsel claimed that it was unfair to admit the evidence having regard to:
-the absence of any proper explanation from Detective Bee for her failure to record the conversation at the time and the earlier assertion by the appellant that he did not wish to make a statement;
-the failure to provide any caution during the unrecorded conversation;
-her failure to provide a proper caution during the conversation recorded at 11.54 am; and
- the inherent ambiguity in the appellant’s statements.
Counsel contended that the cumulative effect of these factors created an overwhelming case for the exclusion of the evidence as a matter of fairness.
Section 74D of the Summary Offences Act relevantly provides:
(1)An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)     if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b)     if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c)     if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2)If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point.
(3)In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a)     the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b)     mechanical failure of recording equipment;
(c)     a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)     any other relevant matter.
(4)As soon as practicable after a videotape or an audiotape recording is made under this Part, the investigating officer must give the suspect a written statement of the suspect's right—
(a)     if a videotape recording was made—
(i)to have the videotape played over to the suspect or the suspect's legal adviser (or both); and
(ii)to obtain an audiotape recording of the sound track of the videotape; or
(b)     if an audiotape recording (but no videotape recording) of the interview was made—to obtain a copy of the audiotape.
(5)Arrangements must be made, at the request of a suspect, for the playing of a videotape at a reasonable time and place to be nominated by an appropriate investigating officer.
(6)A suspect must be provided, on request and on payment of the fee fixed by regulation, with—
(a)     an audiotape of the sound track of a videotape recording of an interview with the suspect under this Part; or
(b)     a copy of an audiotape recording of an interview with the suspect under this Part.

In R v Karger[1] it was held that section 74D should be given a broad interpretation. It was said that the word ‘interview’ should not be given a restricted meaning:
Counsel for the Crown was unable to identify any criteria by which an assessment could be made of whether the intended conversation was a proposal to interview. Counsel said that it was a question of fact, circumstance and degree. There was no guiding criterion. It was said that if Parliament had intended the provisions to apply to every conversation between an investigating officer and a suspect then it would have said so. It was contended that the provisions could not have been intended to apply to all words spoken between an investigating officer and a suspect and that the meaning of “interview” must necessarily be restricted.
There is no reason in principle why the legislative provisions should not have a broad application or why “interview” as used in s74D(1) should be accorded a restricted meaning. A broad interpretation of the definition of interview does not appear to be contrary to the legislative intention. Having regard to the mischief being addressed by ss74C-E there is every reason to give a broad interpretation to the legislative scheme. In the event that recording equipment is not available the obligation of the investigating officer is to make a written record as soon as practicable of the conversation. There is no requirement for a verbatim record. On the ensuing videotape recorded interview the written record must be read to the suspect who then has the opportunity to point out any error or omission. Such a procedure is not unduly burdensome. It is directed towards meeting the concerns of the court in McKinney v The Queen. The submission that the meaning of “interview” should necessarily be restricted must be rejected.
[1] (2003) 83 SASR 135 at 165; see also R v Bueti (1997) 70 SASR 370; R v Day (2002) 82 SASR 85; R v Mekic (2004) 88 SASR 387
It is evident that Detective Bee intended to have a conversation with the accused during the course of the forensic procedure interview in circumstances when she had formed the suspicion that he was guilty of the offences of rape. The provisions of section 74D were enlivened. Detective Bee was an investigating officer who suspected the appellant of having committed an indictable offence. Detective Bee proposed to ask the appellant whether he intended to plead guilty. She wanted the appellant to answer her question. In this respect, “to interview” is defined to include a conversation.
Detective Bee may not have expected the forensic procedure conversation to develop in the way that it did. It may not have been reasonably practicable to record that part of the conversation as it developed. However, it was common ground that the conversation took place in a video interview room. Subject only to arranging for the operation of a tape, it would appear to have been practicable almost immediately to video-record the whole conversation that Detective Bee proposed to have with the appellant. Furthermore, the confessional answers on which the prosecution relied were given in response to a question by Detective Bee. If she regarded the conversation as something merely preparatory to a more formal interview to be recorded then she should not, without going through the procedure of section 74D, have asked this question.
In the circumstances there was a breach of section 74D(1)(a). It follows from the terms of section 74E that the conversation that ensued at the time of the forensic procedure process relating to alleged admissions by the appellant was inadmissible. If the prosecution wished to lead the evidence, it was necessary to make an application under section 74E for the court to exercise its discretion to admit the evidence.
Counsel for the prosecution accepted that although the point was not taken at trial, it was necessary for this court to review the admissibility of the evidence and the appropriateness of non-compliance with the provisions of section 74D.
Section 74E provides:
(1)In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—
(a)     the investigating officer complied with this Part; or
(b)     the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)     draw the jury's attention to the non-compliance by the investigating officer; and
(b)     give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.
Counsel for the prosecution submitted that it was inevitable that the court would have concluded that Detective Bee’s failure to comply with section 74D was an oversight and that in the circumstances the evidence would inevitably have been admitted. Accordingly counsel claimed that no injustice arose.
A number of difficulties confront this submission. The breach of section 74D rendered the evidence of the impugned conversation inadmissible. As earlier observed the prosecution had to satisfy the Judge that as a matter of discretion the evidence should be admitted.
Had the section been complied with, the conversation would in the circumstances of the present case have been video-tape recorded. The conversation took place in the video recording room. The only delay would have been to prepare the video recorder. During the 11.54 am video recorded interview Detective Bee failed to comply with the further requirements of section 74A and in particular sub sections 74D(1)(c) (iii), (iv), (v) and (vi).
The appellant had previously indicated that he did not wish to answer questions in regard to the allegations. Before further questions were asked it was necessary for the appellant to be advised of his rights and for it to be made clear to him that he was altering his position. As Cox J observed in Flanigan[2]:
A suspect’s stated intention not to answer questions is not as a matter of law irreversible, although there will be cases in which a stated or implied change of mind should be treated with reserve and not acted upon without at least careful explicit warning, possibly more.
These remarks are apposite. In the present case a careful and explicit warning was required. It was not given.
[2] (1997) 190 LSJS 499 at 502; see also Harris (1995) 64 SASR 85
There was ambiguity in the appellant’s responses. As counsel for the appellant submitted, the appellant’s understanding of the crime of rape was unclear. Was he merely admitting the acts of sexual intercourse, thereby rendering the taking of DNA samples superfluous? Was it the case that he accepted that the complainant did not consent but was asserting that at the time he believed that she did? The questions of mistaken belief and reckless indifference were simply not canvassed. It is unclear whether the appellant at the time had any appreciation of the elements of the alleged crimes. It is also unclear precisely to what he was admitting. The trial Judge in the course of his summing up did not discuss any of these concerns.
For the foregoing reasons, in the circumstances the evidence should not have been admitted. The breach of section 74D rendered the evidence inadmissible. Further, the cumulative effect of the breaches of section 74D, the failure to provide a careful and explicit warning, the failure to caution and the ambiguity in the appellant’s statement made it unfair to admit the evidence.
Intoxication
The complainant had been drinking at nightclubs on the evening of 20 April 2002. In evidence she described herself as “getting pretty drunk” on leaving one nightclub, and as being “pretty drunk” when she left the last of the nightclubs. The complainant’s female companion described the complainant as affected by alcohol. She said that the complainant “had drunk a fair bit”.
Analysis of a urine sample taken from the complainant at 4.30 pm on 21 April 2002 disclosed a concentration of 0.05 per cent of alcohol. This allowed the conclusion that the complainant could have had a blood alcohol concentration in the order of 0.2 to 0.21 per cent at about 3.00 am on 21 April 2002.
The evidence suggested that at the time of the incidents the subject of the charges the complainant must have had a significant blood alcohol concentration. The level would necessarily have been somewhere between 0.05 per cent and 0.21 per cent.
The trial Judge addressed the issue of the complainant’s state of sobriety in a number of passages in the summing up:
[The complainant’s female companion] said that [the complainant], like her, was a bit tipsy when they left the Cigar Lounge. However, when they left the Church nightclub at about 2.30 to 3.00 a.m. [the complainant] – to use [the companion’s] words – “had drunk a fair bit”.
…
[The complainant] told you of the birthday party. She said that upon leaving the Cigar Lounge she was “getting pretty drunk”, to use her words. She recalled leaving the Church but had no specific memory of being put in a taxi. She recalled that she did not want to go home and accepted that she was pretty drunk.
…
As to the alcohol level, Mr Felgate said that given that [the complainant] took her last drink at about 3 a.m. on Sunday morning, 21 April, and given the testing of the urine at 4.30 p.m. on that day, the level at 3 am would have been in the broad order of 0.2, 0.21%.
…
… The accused said that he did not then get any impression that she was affected by alcohol.
The trial Judge then directed the jury:
I want to say something to you about intoxication, members of the jury. There has been considerable evidence and discussion about the level of [the complainant’s] intoxication. The forensic science witness, Mr Felgate, as I indicated to you, suggested that at about 3 am [the complainant] might have had a blood alcohol reading of 0.2 or 0.21. The accused said he left Adelaide with [the complainant] at about 4 am and that first sexual activity took place some time after 7.30am. It seems that it spanned several hours thereafter.
[The complainant] herself said that when she awoke she was not drunk. She made the point that she was drunk when she was resisting the police and assaulting the police[3], but not when she awoke in the van in the back blocks of Murray Bridge.
She recounted the events and the conversations to you in considerable detail, albeit in an emotional and upset state, suggesting that her memory of the events was not marred by intoxication.
It is really a matter for you, members of the jury, but you might conclude that [the complainant] had slept off the substantial effects of her intake of liquor by the time she awoke at what was called the first place. The accused’s own account of what transpired you may think does not suggest that [the complainant’s] behaviour was influenced by an intoxicated state.
So it is a matter for you but there is no positive suggestion in this case that, by reason of an intoxicated state, she gave misleading messages to the accused that she was consenting when she wasn’t. She in her evidence, if you accept it, makes it clear that she at the beginning was rebuffing him verbally and physically. She tried to escape from the car, she continually asked to be taken home. She succumbed eventually, she said, to the threat and to the gun.
It is a matter for you, members of the jury, the question of intoxication. But I ask you to consider whether or not there was any vagueness or ambiguity on either side which could be ascribed to [the complainant] being adversely affected by liquor. Ask yourself then whether any intoxication has a material part to play in the case.
[3] This direction related to the evidence of the complainant’s conduct before the appellant had any contact with her.
The Judge then added when discussing defence counsel’s address:
He said that [the complainant] must have been intoxicated and it must therefore affect the cogency of her evidence of what occurred on that day. He emphasised that in relation to the first act of intercourse. He said that [the complainant] had no memory of it so you could not exclude as a reasonable possibility that she had consented, perhaps under the influence of liquor.
Counsel for the appellant submitted that the trial Judge misdirected the jury. Counsel contended that the fact that the complainant was able to recount the events and conversations to the jury in considerable detail was beside the point. The issue was whether her evidence of her recollections was accurate. The Judge’s direction presumed that the complainant’s recollections were accurate. The fact that she recounted events in detail did not establish that her memory of the events was not affected by her consumption of alcohol. Counsel argued that the detailed recollections that she claimed at the time of the trial were not probative of her state of intoxication at the time of the events. In any event counsel claimed that the trial Judge overlooked the vagueness and inconsistency of the complainant’s evidence about the first alleged vaginal rape.
The trial Judge had a duty to direct the jury with respect to intoxication. In Bedi v The Queen[4], Duggan J observed:
It is clear that the intoxication of an accused person, whether induced by alcohol, drugs, or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence to the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. It may well be that for one reason or another the defence case does not wish to rely on evidence of intoxication, but that does not relieve the trial judge of giving the jury appropriate directions.
[4] (1993-94) 61 SASR 269 at 273.
The evidence established that the complainant had consumed a substantial quantity of alcohol on the night of 20 and morning of 21 April 2002. The complainant’s consumption of alcohol could be expected in the ordinary course to have materially affected her faculties at the time of sexual intercourse.
The trial Judge did not adequately direct the jury about this evidence. It was open to the jury to conclude that, when coupled with the complainant’s vagueness and inconsistencies, intoxication may have relevance to issues in the trial.
The trial Judge’s directions concerning the complainant’s sobriety were dismissive. The Judge did not identify the evidence of the complainant’s intoxication and relate that evidence to the issues in the case with appropriate directions on the law. The jury should have been directed that the evidence concerning the intoxication of the complainant had a bearing on the facts in issue in the case, most importantly on the reliability of the complainant’s evidence. The jury should have been directed that they could use the evidence of intoxication, if they considered it to be proved, to draw adverse inferences against the credibility and reliability of the complainant.
The evidence of the complainant’s intoxication was relevant. It was an item of evidence relevant to the question of consent, that is, of the complainant’s state of mind. It was also relevant to a consideration of whether the complainant conducted herself in a manner that may have sent “wrong signals” to the appellant. Was the appellant aware that she was not consenting? Did the complainant behave in a manner that would have led the appellant to think that she was or may have been consenting? What was to be made of the complainant’s dismissive reaction to the man who stopped in a passing vehicle? Did her state of intoxication allow a conclusion to be drawn about whether the appellant was recklessly indifferent about whether she was consenting or not?
The summing up on the issue of intoxication was materially deficient. The jury did not receive the assistance they required.
Recent Complaint and Distress
Counsel for the appellant submitted that the evidence established that at the time the complainant made her complaint to the police she must have been affected by alcohol to some degree. She was late for work at that time. She had been involved in a number of sexual acts with a stranger. She had been picked up by that stranger in unusual circumstances. Counsel contended that there were competing plausible explanations for the complainant’s distressed condition consistent with consent. Counsel suggested that the evidence supported the conclusion that she regretted her behaviour. Counsel emphasised that on the complainant’s own evidence she had become “pretty drunk” to the point where she had little or no recollection as to how she came to be in a stranger’s motor vehicle in the country.
It is an established exception to the hearsay rule that evidence of the first complaint of a sexual assault, made as soon as could reasonably be expected, may be admissible evidence.[5] It is an essential requirement that for evidence of complaint to be admissible, it should be made speedily and at the first reasonable opportunity.[6]
[5] See for example R v Lillyman [1896] 2 QB 167; Kilby v R (1973) CLR 460; Crofts v R (1996) 186 CLR 427; R v Corkin (No 2) (1989) 50 SASR 580; R v Green [2001] SASC 25.
[6] R v Osborne [1905] KB 551; R v Peake (1974) 9 SASR 458.
Evidence of a recent complaint can provide evidence of consistency and credibility and is admissible for that limited purpose. Evidence of recent complaint may show consistency of conduct of the complainant with the evidence given at trial, as well as consistency of the statement or statements made by the complainant at the first reasonable opportunity with the evidence given in court.[7] As observed by the High Court in R v Crofts[8] and R v Papakosmas,[9] evidence of a recent complaint may be used to negate any effect the complainant’s silence might have on his or her credibility. However, evidence of a complaint is not evidence of the facts alleged in the complaint and the jury is not entitled to use evidence of recent complaint of itself as going to prove any fact in issue, including consent.[10]
[7] R v Corkin (No 2) (1989) 50 SASR 580
[8] (1996) 186 CLR 427
[9] (1999) 196 CLR 297
[10] Papakosmas (1999) 196 CLR 297
As observed in R v Zorad,[11] when assessing a complainant’s credibility the jury is entitled to consider whether she or he has made a complaint, the nature of the complaint, when the complaint was made and the state of the complainant at the time in order to determine the credit or worth of evidence given in court. [12]
[11] [1979] 2 NSWLR 764
[12] R v Zorad [1979] 2 NSWLR 764
Similarly, evidence of the complainant’s distressed state immediately after an alleged offence is admissible for the limited purpose of evidencing consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It may be used as evidence relevant to a complainant’s credibility; however, it cannot be used as evidence of guilt. As observed in Pahuja (No 2), [13] evidence of complaint and distress is not probative but may assist a jury in determining the credibility of the complainant. In the case of R v Knight,[14] referred to by Olsson J in R v Green,[15] the court warned against over-emphasising the probative value of evidence of distress, reiterating that evidence of distress will normally only be admissible as evidence of consistency of behaviour.
[13] R v Pahuja (No 2) (1989) 50 SASR 551 at 575. See also R v Kilby (1973) 129 CLR 460 at 468 and R v Green [2001] SASC 25
[14] (1966) 50 CR App R 122
[15] [2001] SASC 25 at [145]

In the present case the trial Judge gave the following direction about the evidence of recent complaint:
I now turn to the complaint to those three witnesses I mentioned before and the evidence of threat and what use you make of it. In this case the Crown led what is known as evidence of complaint from three witnesses, [the complainant’s mother and brother] and Constable Lee Elliot. I need to tell you how to use that evidence, members of the jury.
What [the complainant] said to her mother, her brother and to the third police officer on the scene is characterised as a complaint. She told them at this first opportunity, or complained to them at this first opportunity, something of what she claimed to have happened to her.
Her complaints to those three people come before you from those three witnesses because it is considered that the making of a prompt complaint at the first reasonable opportunity is relevant in assessing the truth of the alleged victim’s evidence in court. A complaint itself, as you would accept, does not provide the truth of the event complained of. But it can be used by you as evidence tending to reinforce the credibility or believability of the person complaining. In other words, you would expect someone in [the complainant’s] position to complain about what happened to her as soon as possible after the event. So in that way the fact that she did so can be used by you as tending to support her credibility. It has the capacity to supports [sic] the credibility and consistency of her testimony.
It is for you, however, to consider whether you accept the evidence of complaint and, if so, what weight you attach to it.
The appellant did not complain about this direction.
However, the trial Judge also referred to the evidence of distress and directed the jury that they had to assess the reliability and credibility of the complainant with care. The Judge then went on to say:
What was also led from the same three witnesses was evidence of [the complainant’s] distressed demeanour at the time of complaining.
Again, this evidence of her demeanour was placed before you on the same basis. From these witnesses it has the capacity, if you accept it, of being evidence which supports the credibility, believability and consistency of [the complainant’s] testimony about what happened. Again you would expect that a person who has been through the ordeal [the complainant] claims she had been through would be upset.
….
In doing so you will take into account what I have said about intoxication. You will take into account what I have said about how you use the evidence of complaints and her distressed demeanour at Myrtle Bank.
The difficulty with this direction is that, as earlier observed, the trial Judge had not correctly addressed the issue of intoxication. Accordingly, to link what the Judge said about intoxication when discussing distress was an inadequate direction. If there was a reasonable possibility that the complainant’s distress was caused by such matters as regrets about her conduct on the previous night, or concern about having had sexual activity with a complete stranger, or concern about being late for work, then the jury could not use that evidence as tending to confirm the complainant’s credit. The Judge’s summing up in this respect was deficient.
The Mental Element in the Crime of Rape
Section 48 of the Criminal Law Consolidation Act 1935 (SA) provides:
A person who has sexual intercourse with another person without the consent of that other person—
(a) knowing that that other person does not consent to sexual intercourse with him; or
(b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,
shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life.
It is to be observed that section 48(a) is concerned with actual knowledge that the other person was not consenting. Section 48(b) is predicated on a lack of knowledge that the other person does not consent and addresses a state of mind of reckless indifference as to whether that other person does consent.
The term “recklessly indifferent” requires proof of a certain state of mind on the part of the appellant. The absence of a belief that there was consent may constitute some evidence of reckless indifference but it does not constitute reckless indifference in itself.
The trial Judge instructed the jury about the mental element as follows:
The third element is that it must be proved that the accused knew that the alleged victim - here [the complainant] - was not consenting, or was recklessly indifferent as to whether she was consenting.
If you find that the prosecution have proved beyond reasonable doubt that the accused knew [the complainant] was not consenting then this element will be proved.
Alternatively, if you are not convinced that specific knowledge has been proved but, rather, you are satisfied that it has been proved either that
·he had no knowledge that she was consenting, or –
·realised that she might not be consenting but proceeded nonetheless to have sexual intercourse with her not caring about whether she was consenting or not, in that event you will conclude that he was recklessly indifferent and the third element will be made out.
I have provided you with a summary definition of ‘recklessly indifferent’ at the bottom of the summary. So a person would be recklessly indifferent if, having no belief or realising that the alleged victim might not be consenting, he proceeded to have sexual intercourse with her anyway, not caring. [emphasis in original]
The accompanying written document provided:
Elements of the Offence of Rape
The Crown must prove the following three elements to your satisfaction beyond reasonable doubt in respect of each of the five counts:
1.firstly, it must be proved that the accused intentionally had sexual intercourse with [the complainant];
2.secondly, it must be proved that the sexual intercourse was without the consent of [the complainant];
3.thirdly, it must be proved that the accused knew that [the complainant] was not consenting or was recklessly indifferent to whether she was consenting.[16]
“Sexual intercourse” includes the penetration of the labia majora of the vagina by the penis and also includes fellatio that is the putting or the taking of the penis in the mouth.
Being “recklessly indifferent” as to whether another person is consenting to sexual intercourse means that a person having no belief that another is consenting to sexual intercourse or realising that the person might not be consenting, proceeds anyway to have sexual intercourse not caring about the other person’s non consent.
[16] Section 48 of the Criminal Law Consolidation Act 1935 (SA)
The trial Judge’s oral formulation does not appear to meet the express terms of sections 48(a) or (b). However, it is possible that the confusion appearing in the Judge’s oral direction may merely be the result of the paragraph formatting of the transcript of the summing up.
The prosecution had to prove beyond reasonable doubt either that the appellant knew that the complainant was not consenting or alternatively that the appellant was recklessly indifferent as to whether the complainant consented or not. The trial Judge was obliged to direct the jury on the issue of reckless indifference. As Bray CJ observed in R v Wozniak & Pendry:[17]
Logically, perhaps, mens rea in general and mens rea by recklessness in particular should be the same concept no matter what the crime. This, however, is not always so. And there is a difference, it seems to me, between foresight of the future consequences of an act about to be committed and belief in a present state of facts. If the necessary mental element in rape at common law and in South Australia before the 1976 amendment is, as I thought in Brown’s case, an intention to have intercourse without consent or irrespective of consent, then the accused has that intention if he has intercourse realizing that the girl might not be consenting. If it is, as I have suggested on reflection might be a preferable test, an intention to have intercourse without any belief in consent, then that belief is lacking if he realizes that she might not be consenting but nevertheless proceeds with intercourse. If, as Wells J. suggested in Brown’s case and Lord Hailsham in Morgan’s case, it is an intention to have intercourse knowing that she is not consenting or recklessly indifferent as to whether she is consenting or not (Wells J.) or, alternatively, willy nilly not caring whether she consents or not (Lord Hailsham), then a man who determines to have intercourse realizing that she might not be consenting answers those requirements. He does not fail to answer them if he thinks that there is only a 49 per cent chance that she is not consenting.
Although the Judge’s oral direction lacked the necessary precision and clarity, it is to be recalled that the jury had the assistance of the written memorandum.
[17] (1977) 16 SASR 67 at 74
When a trial Judge provides a written memorandum detailing the elements of the offence, it is important when giving additional oral directions that care is taken not to use terminology departing to any material degree from the terms of the written memorandum. The use of different language may create confusion. In this case, the oral direction of the Judge on the issue of the mental element of the crime of rape differed to some degree from the written memorandum. The use of the word ‘knowledge’ instead of ‘belief’ when addressing section 48(b) is one example. This difference had a tendency to confuse. However, when the totality of the direction on the mental element is considered the direction was adequate.
Evidence of Complainant in Re-examination
Dr Jones, a medical practitioner, examined the complainant between 4.00 pm and 4.55 pm on 21 April 2002. This was some three to four hours after her initial complaint to her family and then the police. Dr Jones conducted a physical examination and took a history from the complainant.
At the time of trial Dr Jones was not available to give evidence. However, Dr Young gave secondary evidence of the examination conducted by Dr Jones from Dr Jones’ contemporaneous notes. This was done with the consent of the appellant.
Prior to Dr Young giving evidence, the complainant had been cross-examined about her conversation with Dr Jones. Counsel for the appellant suggested that the complainant had told Dr Jones that there had been three acts of vaginal intercourse and one act of oral intercourse. This account of the complainant was then contrasted by counsel to the complainant’s evidence in court that there had been four acts of vaginal intercourse and one act of oral intercourse. The complainant had answered that she did not remember what she had said to Dr Jones.
The evidence-in-chief of Dr Young was confined to a description of the physical examination conducted by Dr Jones, together with an expert medical interpretation of the observation that had been made.
Counsel cross-examined Dr Young and elicited that Dr Jones had recorded the following history from the complainant:
… [the complainant] said that he forced her to have oral sex, penis in mouth, kept swearing at her and then put his penis in her vagina, pulled out and ejaculated on her pants. She said he had his penis in her vagina, intercourse with her three times, and kissed her neck.
The point of the cross-examination of Dr Young was to confirm that an inconsistent account had been given to Dr Jones about the number of vaginal rapes.
Over the objection of defence counsel, the prosecutor was permitted to re-examine Dr Young about the further history taken by Dr Jones. That further history included the following:
-That the complainant had no memory of anything prior to waking up in the van;
-That she had “come around” in the middle of the bush with an unknown male;
-That she had tried to get away but that the man had dragged her back into the back of the car and had said he would break her arm;
-That the assailant had asked the complainant if he could have sex again, taken out a gun and been very aggressive and that she had thought he would shoot her. She then said that the man had forced her to have oral sex;
-That the man had washed her with water that he had in his car.
Counsel for the appellant contended that the statements attributed to the complainant by Dr Jones, as recounted by Dr Young in re-examination, went directly to matters relevant to the issue of consent. Particular reference was made to the gun, the threat to the breaking of the complainant’s arm and her fear of being shot.
Counsel for the appellant submitted that this evidence could not legitimately rehabilitate the credibility of the complainant. The inconsistency related to the number of times the complainant had said that vaginal intercourse had taken place. However, the other parts of the history given to Dr Jones that went to the issue of consent were said to be no more than out-of-court evidence of complaint.
Counsel for the appellant submitted that the re-examination elicited inadmissible self-serving statements. It was contended that there was a natural tendency for the jury to use these statements as evidence of the truth of their contents or even as some form of corroborative or confirmatory evidence.
Counsel for the appellant complained that the trial Judge had failed to give any direction about the use to which this evidence could be put. Counsel observed that this would have been difficult as there was no legitimate use that could be identified. In particular counsel said that the Judge failed to give a direction that this material could not be used as evidence of the truth of its contents.
Counsel for the appellant submitted that this alleged failure should be contrasted with the direction that the trial Judge gave concerning the evidence of recent complaint by the complainant to her family members and to Constable Elliot. The Judge gave a careful direction about those complaints and directed the jury that those matters did not prove the truth of the complaint.
The evidence of the further history was relevant and admissible in re-examination. Defence counsel in cross-examination of the complainant had merged the different occasions when the acts of sexual intercourse were said to have taken place. The point of the re-examination was to suggest that the history related to the second stage during which the acts of sexual intercourse occurred.
The jury were entitled to have the suggested inconsistent statement put in its proper context. However, the admission of the evidence called for a clear direction during the summing up about the proper use to which the jury could put that evidence. At most it could be used to place the alleged inconsistency in context. The evidence could not be used as evidence of the truth of the self-serving out-of-court assertion. The absence of such a direction was compounded by the earlier direction given concerning the limited use of the evidence of recent complaint. The failure to provide a similar warning about the complaint to Dr Jones may have led the jury to make wider use of the statement.
Inconsistent Statements
Counsel for the appellant submitted that the trial Judge failed to give adequate and appropriate directions to the jury concerning alleged prior inconsistent statements of the complainant. Counsel said that the Judge did not give the jury any instruction as to the relevance of prior inconsistent statements made by the complainant on the issue of her credibility; and secondly, that the Judge did not give a direction that out-of-court statements made by the complainant could not be used as evidence of their truth.
Counsel for the appellant contended that at trial the defendant had demonstrated that the complainant had made a number of out-of-court statements that were inconsistent with her testimony. The inconsistency between the complainant’s evidence and her statements to Dr Jones has already been discussed. Other examples of inconsistency were said to include:
-the complainant told Constable Elliot that there had been two acts of vaginal sexual intercourse and one act of oral intercourse. At trial she gave evidence that there were four counts of vaginal sexual intercourse and one of oral;
-the complainant told Constable Elliot that the appellant ejaculated inside her. At trial she testified that he did not.
It was contended by counsel for the appellant that these inconsistencies were material and required a warning the jury that such inconsistencies, if accepted, might undermine the complainant’s credibility and cause doubts about the reliability of her evidence.
Counsel for the respondent submitted that the prior inconsistent statements by the complainant became inconsequential as the appellant gave evidence that the same number of acts of vaginal intercourse took place as had been deposed by the complainant.
When a witness is cross-examined in relation to inconsistencies between evidence given in court and out-of-court statements on matters material and relevant to the issues at trial, a Judge should direct the jury to consider such inconsistencies as relevant to witness credibility and relevant to deciding whether to accept the witness’ evidence in court.[18] Similarly, if a witness denies or equivocates about statements to persons out of court which are proved to have been made, the jury should be directed that this may be a relevant factor in assessing the witness’ overall truthfulness.[19] The Judge should also direct a jury that they ought not to use out of court statements as evidence as to the truth of their contents.[20]
[18] R v Neiterink (1999) 76 SASR 56
[19] R v Davis & Hyland (1995) 183 LSJS 186 at 192
[20] Driscoll v R (1977) 137 CLR 517 at 536
In the present case the trial Judge should have directed the jury about the inconsistent statements. They had a general relevance to the complainant’s credibility. However, alone, the lack of a direction would not have led to a miscarriage of justice.
The Direction with Respect to the Appellant’s Attitude Towards Women.
In the course of summing up, the trial Judge told the jury that they could have regard to the appellant’s attitude towards his mother and Detective Bee as being insightful.
The suggestion from the evidence was that the applicant lost his temper and became intolerant and rude when women disagreed with him. The implication of the trial Judge’s comment was that, because of the incidents involving the appellant’s mother and Detective Bee, the jury might infer that the appellant would behave in an angry manner if he had been challenged by the complainant.
The incident concerning the appellant’s mother related to her having discarded the complainant’s driver’s licence that had been given to the appellant. The appellant apparently considered this to be an important item of evidence in support of his defence.
The appellant was angry with Detective Bee. This was evidenced by his letter written from prison in which he complained that she set out, single-mindedly, to secure a conviction. The letter included the following:
To Alison Bee
Hello im [sic] Anthony Baltensperger. Do you remember me? Im [sic] the person you charged with rape! I am letting you know where you went wrong and I am asking you to help me prove she set me up. Your first mistake was being a bitch and making me out to be guilty. Your second was pissing me off. And you [sic] third was charging me your job wasn’t to prove beyond reasonable ground it was to use anything I say against me! When I said well I did it so yeah, I didn’t mean I raped her I meant I had sex with her so yeah what can I say. I also said I have never raped anyone in my life (which I hadn’t). But now I have as in what you were saying and the supposed [sic] victim obviously said I did. And some of it wasn’t even like that I thought mabe [sic] she said I raped her over the first time because it felt like I might have took advantage of her because she was still waking up! Another mistake you made was treating me like any other male you’d interview. If you would have been nice and talked to me like one of your friends I would have told you about it but I really didn’t like your attitude.

The appellant’s attitude to his mother and Detective Bee was not probative or relevant to proving the charges. This was not a case where this evidence was relevant to an assessment of any relationship with the complainant. There was an element of propensity reasoning implicit in the comment of the trial Judge. The trial Judge misdirected the jury in this respect.
Conclusion
The wrongful admission of statements made in the course of the forensic procedure process and the misdirection as to intoxication, had the capacity to have caused considerable prejudice. There is a risk that a miscarriage of justice occurred. The other errors discussed in these reasons add to that risk.