R v BCJ No. Sccrm-02-207

R v BCJ
[2002] SASC 393
Court of Criminal Appeal: Doyle CJ, Debelle and Williams JJ

DOYLE CJ: The appellant was convicted on the verdict of a jury on seven counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). Each count alleged an act of intercourse with a young man R. At the time of two counts R was fourteen years of age, at the time of one count fifteen years of age, and at the time of four counts sixteen years of age.
The appellant appeals against the convictions. The grounds of appeal challenge aspects of the directions given to the jury on the evidence before them; complain that the jury should have been warned that it was dangerous to convict in all the circumstances, and challenge the verdicts on the ground that they “are unsafe and cannot be supported” having regard to the state of the evidence, in particular on the ground of conflicts between the evidence of R and other witnesses, and having regard to unsatisfactory aspects of and improbabilities in R’s evidence.
Facts
R had been a ward of the State. From a young age he had lived in boys’ homes and foster homes. In November 1981, aged thirteen years eight months, the appellant’s family began to take R on outings. He stayed with them on weekends. In February 1982 R was placed in the foster care of the appellant.
The appellant was a married man. He had a stepson who was then only four or five years of age.
R gave evidence of what the Prosecutor described as a process of grooming by the appellant. R said the appellant asked him in detail about sexual abuse that R had experienced in institutions. R said that the appellant massaged him, at times when R was only partly clothed. He said the appellant talked in detail about his sexual relationship with his wife. He said that he spent a lot of time alone with the appellant. He described a gradual progression to sexual activity. He described acts not the subject of charges, as well as the charged acts. R said that the appellant developed a practice of giving a signal, by patting R on the back three times. This meant that they were to find an opening to leave the family setting, or other company, usually in the appellant’s motorcar, and go to a place where no-one was around and where sexual acts would occur. Sexual acts also occurred regularly in the home. R said that one reason for submitting to this conduct was that he did not want to be sent back to an institution. R also said that sexual encounters were linked to the appellant giving him money, petrol for his car (when he was older) and other favours.
It is not necessary to describe the particular acts charged. They were part of the pattern described by R. They occurred between February 1983 and March 1985.
There was some support for the prosecution case from the evidence of Ms P, the appellant’s former wife. She said that there were occasions when she went to bed when R and the appellant were still up, watching television in the lounge. She said that on these occasions she would hear the lounge light being switched off. This was consistent with evidence from R about opportunities that the appellant took to engage in sexual acts. On one occasion Ms P said she went out to the lounge, and found the appellant sitting on the lounge in his dressing gown, R lying across his lap face down in his lap. She accused the appellant of being “queer” and left the home. He admitted the occasion, but denied any sexual activity. She also gave evidence that R and the appellant spent a lot of time together, and that there seemed to be a very close attachment between them. There were other matters on which her evidence did not support R, or tended to contradict his evidence.
Other family members were called, including the stepson. On some matters their evidence also did not support the evidence of R.
It is convenient to deal with the grounds of appeal other than in numerical order.
Ground 3
Mr Cuthbertson, counsel for the appellant, submits that the Judge did not adequately warn the jury about the consequences of the delay between the events in question and the making of a complaint and then the trial.
It appears that the police first spoke to the appellant in April 2001, about eighteen years after the first count. The trial was in May 2002.
I reject this ground. It was not pressed at the hearing. The Judge dealt at some length with the delay, with its impact on memories, its possible effect on the jury’s assessment of R’s credibility, and on the fact that the delay meant that the appellant had lost the opportunity to test the allegations that he would have had if a prompt complaint had been made. The summing up was appropriate.
Ground 4
R said that the sexual relationship with the appellant finished in 1987 when he was eighteen years old or nineteen years old. R denied any sexual relationship with the appellant in 1994.
The appellant denied the allegations against him, and denied all suggestions of sexual impropriety in the years in question. But the appellant admitted a brief sexual encounter with R in 1988 (involving mutual masturbation) and a sexual relationship, involving intercourse, over about three months in 1994, both occurring when R was an adult.
The Prosecutor called an employee of the then Department of Family and Community Services (“FACS”). The witness gave evidence of a telephone conversation with R in June 1994. The witness did not know R. R had telephoned a number available to the public who wished to seek assistance from FACS. The conversation began with a request for help in tracing R’s natural mother. It apparently covered a good deal of R’s background, a problem of drug addiction which he had, and the sexual abuse that R claimed to have suffered in various institutions and foster homes. The witness said that R referred to an existing sexual relationship with his foster father, in which R received money for drugs in exchange for sexual acts. R denied saying this. The effect of his evidence seemed to be that in the conversation in question he was talking about what had happened when he was younger, and that the employee of FACS must have misunderstood him.
The matter assumed some significance at trial. The Prosecutor said that this was evidence of a sexual attraction by the appellant to R. The defence argued that the evidence of the FACS officer reflected adversely on the credit of R, because he denied having any relationship with the appellant in 1994.
The Judge properly explained to the jury how an untruthful denial by R of what the FACS officer claimed was said, could reflect on R’s credit. The Judge explained the significance of the fact that this was one matter on which the appellant could test R’s evidence with evidence from a witness independent of the appellant’s family and R’s family. The Judge told the jury that a conclusion that R had lied might be important to an assessment of his credibility.
The complaint is that the Judge directed the jury to consider whether they were satisfied that R was telling a lie. Mr Cuthbertson submits that in light of the Judge’s general directions, the jury would interpret what the Judge said as requiring them to be satisfied beyond reasonable doubt that R had lied, before they drew an inference adverse to his credibility. Mr Cuthbertson submits that an adverse inference could and should be drawn if it was a reasonable possibility that R was not telling the truth on the matter. He cited no authority for this proposition. I have not found any case on point.
The direction given was in a form that I have seen before. The Judge referred to the jury being satisfied that R’s denial of the evidence was untruthful, and to the jury finding that R was untruthful. In the general part of his directions the Judge had told the jury that such expressions referred to proof beyond reasonable doubt, although of course that was in the context of talking of the burden of proof on the prosecution. However, he did not say explicitly that such expressions referred to proof beyond reasonable doubt only when the Judge was referring to matters the prosecution must prove.
I accept the submission by Mr Cuthbertson that it was not necessary for the jury to be satisfied beyond reasonable doubt that R had lied, before they could draw an inference adverse to his credit. They could do so if they thought that he had lied, even though not satisfied of that beyond reasonable doubt, or if they actually doubted R’s veracity on the point in question. I do not agree, however, that it would suffice if they thought it was just a reasonable possibility that R had told a lie. The direction should be premised on the jury deciding that there is a lie, or considering that R’s denial of the evidence of the FACS officer caused them to doubt R’s truthfulness.
I am satisfied that the jury would have understood the direction in this fashion. The Judge made frequent reference to the requirement for the prosecution to prove guilt beyond reasonable doubt, and to the need for the jury to be satisfied of the truthfulness of R’s evidence. One of these came just after the part of the directions now under consideration. The Judge said:
“I remind you of what I said earlier: that you can find the accused guilty of any one or more of these charges only if you are thoroughly satisfied that the evidence of [R] is truthful and accurate in what he said was done to him by the accused.”
Others are set out later in my reasons. Reading the summing up as a whole, I am satisfied that if the jury actually doubted R’s veracity on the point in question, they would have understood that this could and should be considered when assessing the extent to which they were prepared to act on R’s evidence.
Nevertheless, it would be better if Judges avoided the difficulty to which Mr Cuthbertson pointed, by making it clear that the jury might draw an inference adverse to the credit of a prosecution witness if they doubt the witness’s veracity on a particular issue.
Ground 5
R gave evidence that on a number of occasions he and the appellant went into a bedroom where the appellant’s stepson (aged about five years) was sleeping, and that the appellant put his penis into the anus of the sleeping boy, as did R. The stepson, who by the time of trial was about 23 years of age, denied any memory of such incidents, even though R said that on one occasion the stepson awoke.
The Judge reminded the jury of this evidence and, no doubt because of the shameful nature of the conduct, said this to the jury:
“Members of the jury, if you have any doubt or reservation about the evidence of what [R] said was done by him by the accused [sic] to [the stepson], then although it is a matter entirely for you, it is such an infamous allegation that if you think it is not even reasonably possible it occurred, then the credibility of [R] would be set to nought, and consistent with the caution I gave you earlier, you may very well conclude you could not have the necessary thorough trustworthiness in [R’s] evidence to permit you to rely, as you must, on his evidence alone if you are to be satisfied beyond reasonable doubt that the accused is guilty of any of these charges.”
Regrettably, the Judge erred in this passage. As recorded, instead of saying that the jury might think that R’s credit was destroyed if it was possible that the allegation was false, the Judge actually said that R’s credit would be destroyed only if it was not reasonably possible that the incidents had occurred. That is clearly wrong.
However, I am satisfied that the jury would have understood what the Judge said in the former sense, which no doubt is what the Judge intended. Unfortunately, the language is somewhat tangled. But I consider that the general intent is clear. The Judge was saying that to invent such evidence, involving an allegation of such shameful conduct, was so bad that if it was possible that R had invented the evidence, the jury might well regard him as unreliable. I am satisfied that this is how the jury would have understood the passage. I am fortified in that conclusion by the fact that counsel made no comment when, not long after, there was a break for lunch and counsel raised other points arising on what the Judge had said, including the topic dealt with under Ground 4.
Ground 6
R gave evidence that at one stage the family moved to a country town. He said that he and the appellant went there first, and that sexual activity between them increased while they were there alone, before the rest of the family joined them. The stepson gave evidence and said that he went to the country town at the same time as R and the appellant. The appellant’s former wife was unsure whether the stepson had gone to the country town when the appellant first went there.
Mr Cuthbertson submits that this conflict in the evidence called for a specific direction that the evidence of R was or might be discredited on this basis.
I disagree. Whether a specific direction on this topic was called for was a matter for the judgment of the trial Judge. The Judge told the jury several times of the need to consider carefully any contradictions or inconsistencies that they might find, and reminded them several times of the need to consider with care the credibility of R. There is no reason why the Judge had to deal with this topic specifically, for the summing up to be fair and balanced.
Ground 2
Mr Cuthbertson submits that in addition to the cautions and warnings the Judge gave the jury, he should have given them a specific warning that it was dangerous to convict on the evidence of R, and that there was a need for special care before they did so, having regard to R’s claim that he had been subjected to sexual abuse from an early age, and having regard to evidence tending to contradict R’s evidence and having regard to the improbable aspects of R’s evidence, and having regard further to the fact that R’s evidence was unsupported by other evidence.
It is correct that R gave evidence that he had lived in a number of institutions, and had been subject to sexual abuse from an early age. There are aspects of R’s evidence that might be said to be improbable, in the sense that if the appellant did the things alleged, the appellant ran a high risk of being observed by a family member. There was evidence that tended to contradict the evidence of R on a number of material matters. I have touched on most of this evidence. There were other matters on which the appellant’s former wife and his stepson did not support the evidence of R, or tended to contradict his evidence.
Mr Cuthbertson makes the point that while the Judge did alert the jury to the need for caution on several grounds, and gave them a warning in connection with the long delay that had occurred, the Judge did not allude to the suggested inconsistencies, improbabilities and conflicts of evidence as an independent reason for it being dangerous to convict on R’s unsupported evidence, and as an independent reason for acting with great care.
Although not framed as a complaint that the defence case was not fairly put to the jury, the submission could also be regarded in that way.
This criticism of the summing up falls to be assessed in the context of the summing up as a whole.
The Judge gave the jury a number of cautions. The Judge cautioned them by reference to the fact that the prosecution case rested exclusively on the evidence of R. He said:
“The evidence on which the Crown relies to prove each of the offences charged against the accused is exclusively that of [R]. No-one, apart from the accused and [R], was present at the incident relied upon by the prosecution to establish the particular charges. You should be extremely careful when you are being invited to act upon the allegation of one person (to whom in this segment of my summing up I will refer to as the complainant), that the accused has perpetrated an offence where the complainant’s evidence, in large measure, stands alone. Where a complainant gives evidence which lacks independent support, you should scrutinise it with special care and you ought not act upon it unless, after careful scrutiny, you are thoroughly satisfied that the complainant’s evidence can be relied on as truthful and accurate.”
The Judge went on to explain why caution was necessary. In relation to the delay, and the fact that this was a case of the statement of one person against another, the Judge said:
“So I say that you should weigh the evidence of the complainant with special care, and you should not regard it, by itself, as sufficient to justify a finding to your satisfaction that the accused was guilty of the conduct complained of unless you are thoroughly satisfied that the evidence is reliable.”
Having told the jury that there was no independent evidence supporting the evidence of R, the Judge said:
“Members of the jury, the accused, on his oath, has denied he committed any of the offences alleged against him. This then is a case of oath against oath, so you should exercise caution in arriving at a conclusion beyond reasonable doubt as to the guilt of the accused upon the particular charge you are considering.”
The Judge returned to the issue of delay, placing considerable emphasis on the delay that had occurred. For example, he said:
“However, the very great delay between 1982 and the year 2000, and down to this trial, you must weigh very carefully and give serious consideration to in evaluating the evidence of [R] and the other witnesses in the Crown’s case, and to what extent you can rely upon them to arrive at a conclusion beyond reasonable doubt when their evidence is of events which occurred so long ago.”
The Judge emphasised the relevance of delay to credit, and the impact on the appellant. He said:
“In relation to [R], I caution you to carefully consider whether the long delay, before he disclosed to anyone that which he now alleges as an offence, whether that reflects adversely upon his credibility. But, importantly, and although the memory of the accused, like other witnesses, also suffers from the infirmity and other effects of the passage of a long time, the accused has lost the means of testing the complainant’s allegations which would have been open to him had there been no or a minimal delay in the making of the allegations against him.”
And he added:
“As the evidence of [R] could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless you, scrutinising the evidence with great care, considering the circumstances relevant to its consideration and paying heed to the warning, are satisfied as to its truth and accuracy.”
My view is that the Judge very adequately warned the jury on these matters.
It is true that the Judge did not link these cautions and warnings to the matters relied upon by Mr Cuthbertson under this head. It is also true that nowhere else in the summing up is there a caution or warning by reference to the suggested improbabilities, inconsistencies and conflicts of evidence.
But I consider there is no reason to think that the cautions and warnings that the Judge gave would be treated by the jury as tied exclusively to the particular matters to which they were linked. While the warnings and cautions were linked to particular matters, the emphasis was upon the need for great care in considering and acting on the evidence of R. As well, the matters upon which Mr Cuthbertson relies under this head are matters that the jury were well able to assess for themselves. They were issues arising on the evidence before the jury. They did not involve factors that the jury were unlikely fully to appreciate. In that respect they are to be contrasted with a matter such as lengthy delay, and the almost inevitable impact of such delay on the fairness of a trial, something that a jury might not fully appreciate without appropriate guidance: Crampton v The Queen [2000] HCA 60; (2000) 75 ALJR 133 at [39]-[42] Gaudron, Gummow and Callinan JJ.

In this context, it is convenient to repeat what I said in R v Corrigan (1998) 74 SASR 454 at 465-466:
“There is no longer a rule of law or practice that requires a judge to give a warning in the traditional form (set out above) in relation to the evidence of the victim of a sexual offence or in relation to the evidence of a child who gives evidence on oath. That is the result of s 12a and s 34(i)(5) of the Evidence Act 1929 (SA). The effect of these provisions appears from what was said by this Court in Question of Law Reserved (No 1 of 1993) (1993) 59 SASR 214 and from Longman v The Queen (1989) 168 CLR 79. The abolition of the general rule requiring a warning in relation to the evidence of a victim of a sexual offence or of a child, leaves untouched the requirement that the judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case: Longman at 86 Brennan J, Dawson J and Toohey J. On that point I refer also to what King CJ said in Question of Law Reserved (No 1 of 1993) at 217 and in R v Pahuja (1987) 49 SASR 191 at 198-199, and to the helpful remarks of the Court of Appeal in R v Miletic [1997] 1 VR 593 at 605-606.
The effect of the decision of the High Court in Longman is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman at 90-91 per Brennan J, Dawson J and Toohey J; at 100-101 per Deane J; at 107-109 per McHugh J; see also Bromley v The Queen (1986) 161 CLR 315 in particular at 323-325 per Brennan J.
In my respectful opinion the Court should avoid requiring resort to a particular formula. It is better that the warning be tailored to the circumstances of the case. The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury, and whether the overall effect of what the judge says to the jury is adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: cf Longman at 86 per Brennan J, Dawson J and Toohey J. As Longman illustrates, there are cases in which a warning of the traditional kind is called for, but it would be wrong to hold that if some sort of warning or caution is called for, it must always be in the traditional terms.
It must also be borne in mind that, if a warning is to be given, however that warning may be expressed it should not be unbalanced. It is appropriate for the judge to put the warning in context. It is appropriate for the judge, when dealing with matters that give rise to the need for a warning, to deal at the same time with possible explanations or answers.”
There are some matters which, if present in a case, are likely to require a warning. Lengthy delay is one such factor: see Crampton at [42]. The need for a warning may also arise because of the combined effect of a number of factors, none of which in isolation would call for a warning. Everything will depend on the circumstances of the case. It is helpful to bear in mind what Kirby J said in Crampton at [125]-[126]:
“It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of ‘long delay’ it is ‘imperative’, in the sense of obligatory, that the trial judge must give to the jury).
Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (compromising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.”
On the same point I refer also to the observations of Hayne J at [142]. This is an area in which the court should resist any tendency to resort to set formulae, or to fixed rules. Sometimes a comment will suffice, sometimes a warning is needed. What is called for depends on the factors present in the case. And how the Judge puts the matter to the jury may depend on the circumstances. I respectfully adopt the following remarks made by the Court of Appeal of the Supreme Court of Victoria in R v Miletic [1997] 1 VR 593 at 605-606:
“We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.
…
In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge …”. (Citations omitted.)
In the present case, the matters that the jury might not have fully appreciated without guidance from the Judge were the subject of strong comments by the Judge and, in the case of delay, a clear warning. What is left are matters that the jury were well able to assess for themselves, guided by the Judge’s general directions about how to perform their functions, and influenced by the cautions and warnings that they had been given. I add that in summarising the evidence the Judge touched on a number of the factual issues raised by Mr Cuthbertson under this head, and reminded the jury about them. He reminded the jury of the addresses by counsel. He made the point that one of the matters on which the defence relied was the improbability of some aspects of R’s evidence.
In my opinion there was no need for a further warning linked to the matters relied upon by Mr Cuthbertson. The summing up was adequate. As well, the Judge fairly put the defence case in all the circumstances.
Ground 1
Mr Cuthbertson submits that having regard to the matters identified above, the jury could not, acting reasonably, have been satisfied beyond reasonable doubt that the appellant was guilty. He submits that they should have had a reasonable doubt about the reliability of R’s evidence.
This ground requires the Court to make its own assessment of the evidence, making due allowance for the advantage of the jury in seeing the key witnesses give their evidence.
I do not accept the submission.
The matters relied on by Mr Cuthbertson are, to my mind, the kind of conflict and inconsistency and possible improbability that often arise, especially in cases of long delay. I do not regard the evidence of R as inherently improbable. Experience in this area shows that sometimes such offending is marked by considerable audacity and risk-taking, perhaps attributable to the offender’s domination of the victim, and a confidence that others will accept explanations offered for anything untoward that they might happen to observe. As well, there are aspects of the evidence tending to support the evidence of R. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
Conclusion
For those reasons I would reject each ground of appeal, and dismiss the appeal.
DEBELLE J: The facts are recited in the reasons of the Chief Justice and need not be repeated.
As the Chief Justice notes, the grounds of appeal challenge aspects of the directions given to the jury concerning the evidence, complain that the jury should have been warned that it was dangerous to convict in all the circumstances, and challenge the verdicts on the grounds that they are unsafe and cannot be supported having regard to the state of the evidence, in particular, having regard to the conflicts between the evidence of the complainant and other witnesses and having regard to unsatisfactory aspects of and improbabilities of the respondent’s evidence.
Counsel for the respondent conceded that this was a case which called for appropriate warnings but contended that adequate warnings had been given. As the alleged sexual offending was said to have occurred some 15 to 20 years ago, a warning was necessary on the consequences of delay in making the allegations. The trial judge gave an appropriate warning in that respect.
The abolition of the general rule requiring a warning in relation to the evidence of a victim of a sexual offence leaves untouched the requirement that a judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from a particular circumstance of the case: Longman v The Queen (1989) 168 CLR 79; R v Corrigan (1998) 74 SASR 454 and the cases there cited. For the purpose of determining this appeal, it is useful to repeat what was said in Corrigan with particular regard to the passages I have taken the liberty of emphasising:
“ The effect of the decision of the High Court in Longman (supra) is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman (supra) at 90-91 Brennan J, Dawson J and Toohey J; at 100-101 Deane J; at 107-109 McHugh J; see also Bromley v The Queen (1986) 161 CLR 315 in particular at 323-325 Brennan J.
In my respectful opinion the court should avoid requiring resort to a particular formula. It is better that the warning be tailored to the circumstances of the case. The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury, and whether the overall effect of what the judge says to the jury is adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: cf Longman (supra) at 86 Brennan J, Dawson J and Toohey J. As Longman illustrates, there are cases in which a warning of the traditional kind is called for, but it would be wrong to hold that if some sort of warning or caution is called for, it must always be in the traditional terms.
It must also be borne in mind that, if a warning is to be given, however that warning may be expressed it should not be unbalanced. It is appropriate for the judge to put the warning in context. It is appropriate for the judge, when dealing with matters that give rise to the need for a warning, to deal at the same time with possible explanations or answers.”
The two emphasised passages call attention to the need to assist the jury by referring to the considerations which are material to their evaluation of the evidence. On some occasions, that may require a particular warning as indicated in Corrigan. On others, it may require the judge to put the case for the defendant in the form of some analysis or at least a summary of the grounds of the defence attack on the prosecution case: R v Checconi (1988) 34 A Crim R 160 at 173. On some occasions, the task of reminding the jury of the factors relevant to the evaluation of the evidence and the task of fairly putting the defence case may in effect merge into the one task.
This case illustrates how closely related are the tasks of giving appropriate warnings and putting the defendant’s case to the jury. The task of putting the defendant’s case is not discharged by merely restating the evidence given by or on behalf of the defendant. On many occasions, particularly in short trials where the evidence is likely to be fresh in the memory of the jurors, that exercise will have little utility. Instead, it is preferable that the judge identify the issues between the parties and provide some analysis or examination of them. At the very least, a summary of the issues or the attack made on the prosecution case will assist the jury more than a mere recitation of the evidence. In longer trials, it may be necessary to remind the jury of aspects of the evidence and it is the more necessary for the judge to put the defence case, identifying the issues and providing some analysis or examination of them.
For the reasons which follow, I think that the trial judge failed to give adequate directions concerning the conflicts in the evidence and in doing so failed to put the defendant’s case to the jury.
In addition to denying the allegations, the appellant had pointed to facts which, it was submitted, called the complainant’s credibility and his evidence into question. I list the matters on which the appellant chiefly relied.
(1)The evidence of a welfare worker who gave evidence that, in June 1994, the complainant had told her that he was then having a sexual relationship with the appellant. The complainant admitted speaking to the welfare worker but denied that he had said he was then having a sexual relationship with the appellant. The appellant submitted that the inconsistency called the complainant’s evidence into question. The direction concerning the inconsistency between the evidence of the welfare worker and that of the complainant was unhappily expressed. However, I agree with the substance of the remarks of the Chief Justice and do not think there is any substance in this ground.
(2)The complainant alleged that, when the appellant’s family intended to move to live in the South-East, he and the appellant at first moved to Tarpeena and stayed in a caravan where increased sexual misconduct between them occurred because of the added opportunity to do so. However, the appellant’s stepson gave evidence that he had also gone to Tarpeena and had lived in the caravan so that there was no added opportunity for sexual activity between the appellant and the complainant. In addition, in his statement to the police, the complainant had not referred to sexual activity in the caravan at Tarpeena. The failure to remind the jury of the evidence of the appellant’s stepson and the inconsistency in the complainant’s account was a serious omission. The evidence had to be weighed with the allegations made by the complainant. This was an important part of the appellant’s defence and ought to have been mentioned. Although a trial judge is not required to mention every detail of a defendant’s case, the important facts should be included in the direction particularly in a case such as this where the appellant was seeking to point to the improbability of the allegations.
(3)The complainant alleged, in quite graphic terms, that the appellant’s former wife had invited the respondent to have sexual intercourse with her on at least one occasion. The appellant’s former wife said that she could not recall doing so. The failure to refer to the evidence of the appellant’s wife was significant, given the fact that the appellant was asserting the improbability of the complainant’s allegations. I acknowledge that her evidence was not as positive as it might have been. The effect of her evidence was that she could not remember such an incident. It was, however, for the jury to assess the effect of her answer. The trial judge has failed to refer to this significant conflict in the evidence.
(4)The complainant alleged occasions when sexual misconduct had occurred at about 6.30am in the lounge room of the appellant’s house. There was no door to the lounge room and both the appellant’s former wife and stepson were sleeping in the house. It was the appellant’s case that the chance of discovery was so high that it was inherently unlikely that the appellant would have engaged in the alleged conduct. The judge did not direct on the issue. The failure to do so is also significant. Like issues (2) and (3), it is part of the appellant’s case of improbability and should have been mentioned.
(5)The complainant alleged sexual misconduct between both the appellant and himself and the appellant’s stepson. The stepson denied the allegations. It was said that the stepson would have recalled repeated incidents as alleged by the complainant even if he were then very young. The judge indirectly referred to the evidence given by the appellant’s stepson, denying the complainant’s evidence that there was sexual misconduct. However, he failed to give a correct direction. The direction was in these terms:
“Members of the jury, if you have any doubt or reservation about the evidence of what [the complainant] said was done by him by the accused to [the appellant’s son], then although it is a matter entirely for you, it is such an infamous allegation that if you think it is not even reasonably possible it occurred, then the credibility of Evans would be set to nought, and consistent with the caution I gave you earlier, you may very well conclude you could not have the necessary thorough trustworthiness in Evans’ evidence to permit you to rely, as you must, on his evidence alone if you are to be satisfied beyond reasonable doubt that the accused is guilty of any of these charges.”
The direction is incorrect. It completely distorts the onus of proof. The judge ought to have directed the jury that it might think that the complainant’s credit was set at nought if they thought it was reasonably possible that the alleged conduct did not occur. I do not think it is possible to say how the jury would have understood this part of the direction. The fact that no complaint was made by counsel at the conclusion of the direction concerning this part of the direction does not, I think, carry the matter any further.
Thus, the trial judge gave directions concerning the issues in paras 3 and 5 but they were inadequate. He did not mention the matter in paras 2 and 4. To summarise, the judge failed to mention three important features of the appellant’s case and as to the fourth gave the jury a direction which was wrong.
These were matters which ought to have been brought to the attention of the jury. I acknowledge that the trial judge gave a number of other warnings and included a direction in accordance with the model in Calides (1983) 34 SASR 355 at 358 – 359. However, the issues identified above were critical to the defence case and were not sufficiently drawn to the attention of the jury. I am not satisfied that the failure to do so has not resulted in a miscarriage of justice. In all the circumstances, I would allow the appeal and order a new trial.
WILLIAMS J: In my opinion the appeal should be dismissed for the reasons given by the Chief Justice.

[2002] SASC 393

19 December 2002