R v Bolte - [2010] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOLTE
[2010] SASC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kourakis)
27 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
Appellant was charged with 7 counts of indecent assault and one count of unlawful sexual intercourse against his two step-granddaughters – the case proceeded by consent as a joint trial in relation to both complainants – appellant was convicted by judge alone of 4 counts of indecent assault and one count of unlawful sexual intercourse – judge found the appellant not guilty on count 2 because of differences in the first complainant’s evidence and uncertainty in her recollection – judge found the appellant not guilty on count 8 by reason of a difference in evidence between the second complainant and another witness – whether verdicts unsafe and unsatisfactory – omissions and inconsistencies in the evidence and complaints of the complainants – whether the judge’s finding of not guilty on count 2 ought to have led to findings of not guilty on other counts concerning the first complainant – whether judge’s finding of not guilty on count 8 ought to have led to findings of not-guilty on other counts concerning the second complainant - complainants’ aunt had previously alleged sexual misconduct against the appellant – complainants aware of aunt’s allegations - they had discussed their allegations with each other and with the aunt – contamination of evidence was not expressly put to the complainants at trial – whether judge erred in failing to find a real risk of contamination of the complainants’ accounts – aunt not called at trial – no request by the appellant that aunt be called – whether judge erred in failing to draw an adverse inference against the prosecution for failing to call the aunt – whether failure to call the aunt as a witness gave rise to a miscarriage of justice.
Held:
(per Layton J (Gray and Kourakis JJ concurring)): appeal dismissed – judge gave consideration to inconsistencies and omissions in complaints and evidence – matters involving inconsistencies and unreliability arising on counts 2 and 8 were different from those of other counts – inconsistencies on count 2 did not result from a desire to deceive – uncertainty about count 8 was confined to the circumstances of that count - judge’s findings of guilt beyond reasonable doubt on the charges found proved were open on the evidence – judge adequately dealt with issue of contamination – judge’s finding that there was no contamination was open on the evidence – judge did not err in failing to draw an adverse inference against the prosecution – failure to call the aunt as witness did not give rise to a miscarriage of justice.
(per Gray J): no reason to doubt verdict of guilty by reason of the joint trial – trial was by judge alone – appellant supported joint trial to further his case of concoction by the complainants.
(per Gray J): no basis for drawing adverse inference against the prosecution for failure to call the aunt – statement of aunt provided to appellant prior to trial – appellant made tactical decision not to request the aunt to be called as a witness.
(per Kourakis J): in some circumstances a prosecutor’s duty may extend to require the calling of a witness such as the aunt – in this case the duty did not extend to calling the aunt because a) no request was made by the appellant that the aunt be called; and b) there was no reason to apprehend that the aunt would give admissible evidential support for the defence – even if there was such a duty, failure to call the aunt does not necessarily lead to a reasonable doubt.
M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Police v Kyriacou (2009) 103 SASR 243, applied.
R v Bolte [2009] SADC 97; Jones v Dunkel (1959) 101 CLR 298; Brandi v Mingot (1976) 12 ALR 551, discussed.
Phillips v The Queen (2006) 225 CLR 303; R v Hawkins [2003] SASC 419; R v KGN [2004] SASC 431; RPS v The Queen (2000) 199 CLR 620; Spence v Demasi (1998) 48 SASR 536; Dyres v The Queen (2002) 210 CLR 285; Gillan v Police (2004) 149 A Crim R 354; R v Apostilides (1984) 154 CLR 563; R v Tulisi (2008) 258 LSJS 428, considered.

R v BOLTE
[2010] SASC 112
Court of Criminal Appeal: Gray, Layton and Kourakis JJ
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Raymond John Bolte, was charged with eight counts of sexual offending. Five of the counts related to complainant C and the other three to complainant N. The complainants were sisters. They were step-granddaughters of the defendant. The information alleged that the offending with respect to C commenced when she was about four or five years of age and spanned a period until she was about 12 years of age. The offending against N allegedly occurred over a ten year period commencing when she was about eight years of age.
Following a joint trial by Judge alone, the defendant was convicted on three counts against C, two of indecent assault and one of unlawful sexual intercourse, and was acquitted on the remaining two counts of indecent assault. He was convicted on two counts of indecent assault with respect to N and acquitted on the remaining count of indecent assault.
I respectfully adopt the detailed treatment of the factual background as set out in the judgment of Layton J. I agree that the appeal should be dismissed and I agree with the reasons of Layton J. However, I wish to express my views with respect to two aspects of the appeal.
Joint Trial
At the outset of the trial, the question of whether there should be separate trials with respect to the complaints of C and N was raised. As the Judge observed in his reasons:[1]
There being counts involving separate complainants on the same Information, there arises the question as to whether the counts are properly joined. Before the prosecutor … opened the case for the prosecution, I raised whether it was proposed to be submitted that evidence in relation to a count involving one complainant was admissible in proof of a count involving the other complainant. I was advised that no such submission, that is, of cross‑admissibility, was to be made. I raised that issue having regard to the amendments to s 278 of the Criminal Law Consolidation Act 1935 (SA), particularly the new sub-sec (2a), and my practice of not reading the statements on a trial by judge alone.
It seemed common ground that, notwithstanding no cross-admissibility, all counts could be dealt with at the one trial. [Counsel], who appeared for the accused, expressly said that there was no application for severance. It is common ground that the November 2008 amendments do not apply to this case even though some of the discussion in R v Seigneur[2] would suggest otherwise.
I decided to hear all counts together even though it is a moot point as to whether I could or should do so. Having heard all the evidence, I have come to the conclusion that none of the evidence is cross-admissible.
[1] R v Bolte [2009] SADC 97 at [4]-[6].
[2] R v Seigneur [2009] SASC 59.
Cross-admissibility of evidence is not an essential pre-condition for joinder of counts. As was noted by Mullighan J in Liddy[3] following review of a number of authorities on the question of joinder:
The following propositions relevant to the present case may be discerned from these cases. Offences, including sexual offences, may be of a similar character, although they are different types of offences. Offences may form, or be part of, a series even though they involve different victims and occurred at different places or at different times. Cross-admissibility of evidence would be a sufficient nexus but is not essential. Similar views were expressed by Perry J in R v Smith (1998) 71 SASR 543 at 549.
[3] R v Liddy (2002) 81 SASR 22 at [119].
However, the usual rule, if evidence is not cross-admissible, is that there should be separate trials. As Dawson J observed in De Jesus:[4]
In this case, however, there is no suggestion that the evidence admissible upon one count was admissible in proof of the other. That is because of the ordinary principle that similar fact evidence which shows no more than propensity is to be excluded because of the inevitable prejudice which it carries with it. In cases where the prejudice is such that upon a joint trial it cannot be satisfactorily excluded by a direction to the jury from the trial judge, then separate trials should be required and that is the question to which the trial judge ought to have directed his mind.
I have said that the very nature of some offences is such that, as a general rule, they ought not to be tried together if the evidence on one count is not admissible on another count and I think that sexual offences fall into that class. That was the view taken by the Chief Justice in Sutton v R and it is a view which is acted upon in practice. It is a view which derives support from the majority in R v Boardman [1975] AC 421. I prefer to express myself in a general way rather than categorically, because it is possible to conceive of instances where the high degree of prejudice which can usually be expected to arise from evidence of offences of a sexual nature does not in fact arise or may be adequately overcome by a proper direction. Where, for example, the sole evidence implicating an accused person in a number of offences of rape is the one confession, it may well be that no unfair prejudice will arise from a joint trial of those offences. Cf R v McDonald (1979) 21 SASR 198. But as a general rule sexual offences from a special class of offences which should be tried separately except where the evidence upon one count is admissible upon another count. The trial judge, in looking for some special feature in this case to justify an order for separate trials, failed to have regard to the nature of the offences involved. That, of itself, required the making of the order sought.
[Emphasis added]
[4] De Jesus v R (1986) 22 A Crim R 375 at 390-391.
The need to protect an accused from a risk of prejudice when evidence is not cross-admissible was discussed in Sutton[5] where Brennan J observed:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.
[5] R v Sutton (1984) 152 CLR 528 at 541-542.
It is to be observed that the discretion to sever counts and to direct separate trials is to be exercised having regard to all relevant factors. As King CJ commented in Jacobs:[6]
… This discretion is to be exercised having regard to all relevant factors. Amongst those factors would be the degree of prejudice likely to arise from the existence of the allegations in the various counts and the evidence in support of them being before the jury, the extent to which any such prejudice might be removed by an appropriate direction and the cost and inconvenience involved in separate trials.
[6] Queen v Jacobs (1988) 143 LSJS 14 at 24.
In circumstances where an accused is tried on an Information alleging multiple counts and the evidence in relation to each count is not cross-admissible, there is a real risk that members of a jury may impermissibly reason that guilt is established on one count on satisfaction of guilt on the other. As the observations of Brennan J in Sutton make clear, sometimes a direction to the jury is sufficient to guard against such risk, but where the direction would not be sufficient, separate trials should generally be ordered. The present trial was by Judge alone, and accordingly the risk of impermissible reasoning by a jury did not arise. However, as is evident from the trial Judge’s reasons, when assessing credit, the Judge generally had regard to his views of the credibility and reliability of both complainants and the defendant.
At the outset of the trial, the Judge expressed concerns about there being a joint trial, but noted that notwithstanding an acceptance that the evidence to be led was not cross-admissible, both counsel sought a joint trial. The explanation for the position taken by the defendant was that it was part of the defence case that there had been concoction between C and N. This was said to have arisen without either C or N being necessarily aware that concoction was occurring. It was the defence case that statements made by family members to C and N gave rise to a real risk of contamination and concoction.
The defendant was convicted of the murder of a young girl in 1984. This conviction was said to give rise to concern amongst family members of C and N. These concerns were notwithstanding the conviction being set aside and an order made quashing the conviction.[7] The defendant had also been charged with sexual offending against an aunt of C and N. Following a trial, he was acquitted of the charges. Apparently, adult members of C and N’s family held the view that the defendant was guilty of the above crimes and had escaped conviction through legal technicalities.
[7] The Queen v Geesing (1985) 38 SASR 226 (King CJ, White & Mohr JJ).
On the hearing of the appeal, the Director of Public Prosecutions submitted that notwithstanding the position taken by the prosecution and defence at trial, the evidence of both complainants was cross-admissible. It was suggested that cross-admissibility arose for two reasons. It was said that C was in the vicinity when the two alleged indecent assaults occurred against N. It was contended that this circumstance allowed the consideration that it was unlikely that the defendant would have been so brazen unless he was offending against both complainants and had confidence in the silence of both.[8] It was also contended that the evidence of C and N demonstrated a system or pattern of behaviour on the part of the defendant and that the evidence of each was of such probative force that it bore no reasonable explanation other than the inculpation of the defendant in the charged acts.[9] The evidence, it was claimed, was capable of demonstrating a system or pattern that included the sexual touching of C and N in a similar manner and at the same rural location. It was pointed out that both complainants mentioned as a reason for the absence of complaint at the time concern for C and N’s grandmother.
[8] See R v K,MC [2009] SASC 141 at [24]-[26].
[9] Hoch v R (1988) 165 CLR 292 at 296; Pfennig v R (1994-5) 182 CLR 461 at 483; Phillips v R (2006) 225 CLR 303 at 323; R v Wallace [2008] SASC 47 at [92]; R v Inston [2009] SASC 89 at [88].
I have reached the conclusion that in the circumstances of the within proceeding, a Judge alone trial, where the defendant supported a joint trial to further his case of concoction by the complainants and where in all probability the evidence was cross-admissible in any event, the fact of the joint trial does not give rise to any reason to doubt the correctness of the verdicts of guilty.
As earlier mentioned, the risk of impermissible reasoning by a jury did not arise in the circumstances of a Judge alone trial, and as a consequence the potential prejudice to the defendant that a conclusion of guilt on the one count would infect reasoning as to proof of guilt on the other, did not arise. It is to be observed, that the Judge specifically warned himself against such reasoning. No sufficient prejudice was occasioned by the defendant to warrant a disturbance of the verdicts. Although the Judge generally had regard to his views of the credibility and reliability of both complainants and the defendant, this did not constitute impermissible reasoning occasioning prejudice to the defendant.
The Role of the Prosecutor
As earlier observed, it was the defence case that the aunt of C and N had caused contamination, thereby giving rise to serious questions as to the credibility of C and N and the reliability of their evidence. The aunt was not called as a witness at the trial. The defendant contended on appeal that the aunt should have been called by the prosecution and that in accordance with the principles in Jones v Dunkel,[10] the failure to do so allowed the drawing of an inference that her evidence would not have assisted the prosecution case.
[10] Jones v Dunkel (1959) 101 CLR 298.
Material was placed before this Court that established that the prosecution had disclosed to the defence a statement obtained from the aunt by the police. Further, it was established that there had been no request by the defence for the aunt to be called as a witness by the prosecution or for the aunt to be available for cross-examination. The topic regarding the calling of the aunt to give evidence was not raised before the trial Judge.
According to the statement provided by the prosecution to the defence, the aunt claimed that she had not spoken to either C or N about the allegations of sexual offending towards her the subject of the earlier trial. If the aunt had been called to give evidence and her evidence was consistent with her statement, a key point being made in the defence case, that is, that either C or N or both were inadvertently influenced by information from the aunt, would have been undermined.
The High Court has confirmed that as a general rule, a trial judge should not direct the jury that an accused would be expected to call a witness.[11] That rule flows from the duty of a prosecutor to call all witness who may give material evidence on an issue in dispute, irrespective of whether such evidence is or is not favourable to the prosecution.[12]
[11] Dyers v The Queen (2002) 210 CLR 285 at [12].
[12] Dyers v The Queen (2002) 210 CLR 285 at [11]; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 294; Richardson v The Queen (1974) 131 CLR 116 at 119, Whitehorn v The Queen (1983) 152 CLR 657 at 663-664, 674-675; R v Apostilides (1984) 154 CLR 563 at 575; see the discussion of this in Police v Kyriacou (2009) 103 SASR 243 at [13]-[17].
In Dyers,[13] when discussing the content of the prosecutor’s duty to call all witness who may give material evidence, Gaudron and Hayne JJ observed:
…as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[13] Dyers v The Queen (2002) 210 CLR 285 at [6].

Although it has been pointed out that this statement is obiter,[14] as a general rule it is in my view, correct. If a prosecutor does comply with their duty, there will be no reason to give a Jones v Dunkel direction. If a prosecutor does not comply with his or her duty then, generally speaking, it will be open to give a Jones v Dunkel direction. However, that direction should not be given without the trial judge first inquiring of the prosecutor as to why he or she has not called a witness who it is expected may give material evidence on a fact in issue.[15]
[14] R v Riscuta; R v Riga [2003] NSWCCA 6 at [99]-[103] per Heydon JA, with whom Hulme J and Carruthers AJ agreed.
[15] Dyers v The Queen (2002) 210 CLR 285 at [17]; R v Apostilides (1984) 154 CLR 563 at 575; see also Police v Kyriacou (2009) 103 SASR 243 at [13]-[17].
A Jones v Dunkel inference is only available in circumstances where that inference is the only logical conclusion to be drawn from the failure to call the witness in question. For that inference to arise, it must be within the power of the particular party to call that witness, it must be natural for the particular party to call the witness in question,[16] the witness must be one who should be put in a particular camp rather than being equally available to both sides, there must not be an obvious or proved and satisfactory explanation for the failure to call the witness, and the witness must be one whose evidence is not unimportant, cumulative or inferior to what has already been adduced.[17]
[16] Insurance Commissioner v Joyce (1948) 77 CLR 39; Jones v Dunkel (1959) 101 CLR 298; Brandi v Mingot [1976] 1 NSWLR 191.
[17] Wigmore on Evidence, 3rd Ed Vol II para 285-289; J D Heydon, Cross on Evidence, 6th Ed, [1215]-[1219]; Spence v Demasi (1988) 48 SASR 538 at 547-548; Payne v Parker [1976] 1 NSWLR 191 at 201-202 per Glass JA; Police v Kyriacou (2009) 103 SASR 243 at [13]-[17].
In Dyers[18] Gaudron and Hayne JJ discussed the obligation of the prosecution with respect to the evidence to be adduced at trial. In this respect they observed:
As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.
[Footnotes omitted].
These observations provide a clear indication of the circumstances in which a Jones v Dunkel direction might be open as a consequence of a failure to call a particular witness.
[18] Dyers v The Queen (2002) 210 CLR 285 at [17].
In the circumstances of the present proceeding there was no basis for any inference to be drawn as to whether the aunt’s evidence would have assisted the prosecution case.
As earlier observed, if the aunt had been called to give evidence and her evidence was consistent with her statement, that evidence would have undermined the defendant’s contention that either C or N or both had been influenced by information from the aunt. In these circumstances, the defence had a potential tactical advantage in the aunt not being called to give evidence. As mentioned earlier, there was no request by the defence that the aunt be called as part of the prosecution case. There was no request by the defence that the aunt be presented for cross-examination. There was no application by the defence that the Judge invite the prosecution to consider calling the aunt to give evidence. Given the disclosure of the content of the aunt’s statement prior to trial, it is difficult to understand, if the defence wished the aunt to be called, why a request was not made. The failure to raise the matter before the trial Judge is also telling.
The argument on appeal had the hallmark of the defendant seeking to take a point on appeal that had been, as a result of a tactical decision, not pursued at trial. In the circumstances outlined above, the allegation made on appeal that there had been some breach of prosecutorial duty in not presenting the aunt as a witness, should be rejected. There is no substance to the complaint. There is nothing to suggest any breach of duty by the prosecutor.
Conclusion
I would dismiss the appeal.
LAYTON J:
This is an appeal against conviction on two bases. First, that the learned trial Judge erred in failing to draw any inference adverse to the prosecution by reason of the failure to call Ms A (the Aunt of the complainants). Secondly, that the verdicts were unsafe and unsatisfactory by reason of inconsistencies and omissions in behaviour by both of the complainants, which should have led the trial Judge to conclude that their evidence was not reliable to support any finding of guilt beyond reasonable doubt. Further, with regard to the second ground, that there was a real risk of contamination/reconstruction in respect of the recollections of both complainants.
The appellant was tried by judge alone in respect of eight counts of alleged sexual offending against two sisters who were his step-granddaughters, being daughters of the appellant’s wife’s daughter.
All of the offending occurred on a small farming property at Currency Creek, which is owned by the appellant and his wife.
There was no application for separate trials and the Crown did not proceed on the basis that there was evidence of cross admissibility. The trial Judge proceeded in like manner. There is no complaint in this appeal about the trial proceeding in this manner. It is not necessary to consider whether an application for separate trials would have been granted if sought[19] because, in the context of a trial by Judge alone and the approach taken by the parties, there has not been a miscarriage of justice in this case for the reasons discussed hereafter.
[19] Phillips v The Queen (2006) 225 CLR 303, 327-8 [78]-[79].
The common background which was not the subject of appeal is set out in the trial Judge’s reasons, as follows:[20]
The accused, aged 62 years, is married to Doris Bolte. They have been together for 23 years and married for 21 years. Mrs Bolte’s previous husband died leaving her with four children, the youngest of whom is a daughter, Ms A. Another of Mrs Bolte’s daughters is Ms R and the two complainants, C1 and C2, are her daughters. In other words, the two complainants are step-granddaughters of the accused.
Towards the end of 1988, Mrs Bolte’s daughter Ms A (the accused’s step daughter) complained to the police that the accused had indecently assaulted her. The accused denied the allegations and was acquitted by the jury on all charges. Mrs Bolte believed the accused’s denials and always remained supportive of him. Thereafter, Ms A moved to Queensland and, until close to the time when the present allegations were made to the police, had little to do with Mrs Bolte and the accused. There has been some contact in the past couple of years which the accused tolerates for the sake of his wife. The accused remains wary of Ms A.
Going back further in time, in the early 1980s, the accused, under the surname of Geesing, was charged and convicted with the abduction and murder of a ten year old girl, Louise Bell. On appeal, his conviction was quashed but no order was made for a re-trial (R v Geesing). Upon his release from custody, the accused changed his name, obtained several jobs in a part-time capacity, eventually securing employment at Mitsubishi, Lonsdale, where he met his present wife.
The property at Currency Creek was bought about 15 years ago by the accused and his wife. The accused ceased work at Mitsubishi when aged 54 years due to a work injury. He has only worked on the farm since that time. The farm is about 58 acres and the accused and Mrs Bolte earn money from the various animals that they keep.
There are some other facts that appear to be common ground.
There is no doubt that Mrs Bolte’s grandchildren, C1 and C2 (to her daughter Ms R), visited the farm from a young age until about mid-2007. Generally, C1 and C2 would come with their parents for weekends and perhaps some of the school holidays. Sometimes C1 and C2, as they became a little older, would stay without their parents and sometimes one would stay or visit without the other.
It was very much the case for the defence that Mrs Bolte had a number of knee operations that restricted her mobility. There were a number of them between 1998 and 2008. The initial knee injury was in November 1997.
[Footnotes omitted.]
[20] R v Bolte [2009] SADC 97 (Unreported, District Court of South Australia, Judge Rice, 4 September 2009), [9]-[15].
The Charges:
The short forms of the various charges are as follows:
Count 1, indecent assault against C1
This was an allegation that when C1 was visiting the farm she was having a bath and the appellant touched her indecently on the buttocks and between her legs on the outside of her vagina and rubbed her.
The appellant was found guilty on this count.
Count 2, indecent assault against C1
The alleged offence occurred when C1 was seated on what was referred to as a “love seat”, or “love swing”, being a seat ordinarily designed for two persons. She alleged that the appellant sat down beside her, put his arm around her and touched her on the top of the left breast, until someone came outside.
This count was found not to have been proved beyond reasonable doubt.
Count 3, indecent assault against C1
This was an occasion in which C1 alleged indecent touching on her breast on the outside of her clothing. It was said that this alleged offending took place in an area “where the pigs run”.
There was an entry of a verdict of not guilty on this count at the close of the prosecution case.
Count 4, indecent assault against C1
This offence occurred when C1 was assisting the appellant in taking the lids off bottles and squashing them for recycling. It was alleged that the appellant touched C1 on the upper thighs, between her thighs and on her breast.
The appellant was found guilty on this count.
Count 5, unlawful sexual intercourse against C1
This was alleged to have taken place in a hay shed in which C1 said that the appellant told her to lie down on a hay bail, pulled her underpants down to her ankles and put two fingers in her vagina.
The appellant was found guilty on this count.
Count 6, indecent assault against C2
This was an occasion when C2 was riding a horse on the farm. She said the accused asked her for sex and said he would give her the farm. When she dismounted from being led around on the horse he cupped his hands under her buttocks and squeezed her as she lowered herself down.
The appellant was found guilty on this count.
Count 7, indecent assault against C2
This is an occasion when the appellant was teaching C2 to drive in a utility on the property. C2 gave evidence that C1 was on the tray at the back and that the appellant asked C2 for sex and touched her on the breast area. She gave evidence that she then stopped the car, got out and went on to the tray of the utility.
The appellant was found guilty on this count.
Count 8, indecent assault against C2
This was an allegation by C2, referred to as the “hug incident” and it was alleged to have occurred when C2 visited the farm with a male friend (“PA”) in order to dump a trailer of rubbish, including an old motor car. C2 alleged that when she was saying goodbye, as she put her arms around the appellant’s neck he touched her breast and that she tried pulling and squeezing his hand to get his hand off from her breast. This was the subject also of evidence by PA, who described the incident differently, mainly as to timing. C2 described it as one or two minutes and her using two hands to try and release the grasp. PA said it was only for about 10 to 15 seconds.
The trial Judge, having regard to uncertainty about the evidence and the differences in evidence, was not satisfied beyond reasonable doubt in relation to this offence and found the appellant not guilty.
Ground 2.1
It is convenient to deal with ground of appeal 2 first and then to return to ground 1 later in these reasons.
For an appeal on the ground that the verdict is unreasonable, or it cannot be supported by the evidence, the question to be asked is whether, on the whole of the evidence, it was open to the learned trial Judge to be satisfied beyond reasonable doubt of the appellant’s guilt.[21]
[21] M v The Queen (1994) 181 CLR 487, 492-3; Jones v The Queen (1997) 191 CLR 439, 450-1; R v Hawkins [2003] SASC 419, [36]; R v KGN [2004] SASC 431, [17].
It was apparent in the course of the appellant’s submissions that the criticism of the trial Judge’s decision was that he failed to have sufficient regard, or give sufficient weight to, inconsistencies and omissions in the evidence of the complainants. A verdict returned by a judge sitting alone will not be set aside for the reason only that the judge’s reasons give greater or lesser prominence to aspects of the evidence than that which the appeal court might have expected on a bare reading of the transcript. Only where the different emphasis given by the judge, and consequently his or her verdict, cannot be explained by the advantages enjoyed by the trial court, will the appeal court intervene to give effect to a doubt it entertains on the evidence.
Before traversing each of the counts upon which this argument was put by the appellant, it is necessary to set out background findings which were not the subject of appeal, namely the trial Judge’s findings and treatment of uncharged acts. This is set out in some detail in the trial Judge’s reasons:[22]
On that occasion she said the accused put his hand on her breast. She said there were many occasions that he did that. She said sometimes it was under her clothing but mostly over. Touching such as that was from the ages of seven to 13 (TP20-21).
C1 also said that the accused touched her between the legs “all the time”. He did that “every time he had an opportunity to” (TP21-22).
For the various reasons I refer to below, I am satisfied that the accused committed these uncharged acts.
Although not in the nature of uncharged acts, she said the accused would teach her that “cunt” meant vagina and “fuck” meant sex (TP22). I find that the accused did say those things to C1.
[22] R v Bolte [2009] SADC 97, [52]-[55].
In relation to the potential use of those uncharged acts, the trial Judge indicated:[23]
[23] R v Bolte [2009] SADC 97, [56]-[58]; [60]-[67].
The uncharged acts, once proved, show that the charged acts were not isolated events but part of an extended course of offending. Further, it tends to explain why no complaint was made at an earlier time and is part of what is often referred to as a process of grooming.
I make it plain that the verdicts must relate only to the events charged. It would be erroneous to be satisfied about an uncharged act or acts and transpose that finding to a charged incident about which the requisite proof was lacking.
More needs to be said about the actual use of the uncharged acts that I have found proved. Expressed generally, the whole of the course of events provides a context in which it is said the charged acts occurred. In a sense, the more evidence I have of the interaction between C1 and the accused, the better opportunity I have to evaluate her evidence and determine to what extent, if any, I am prepared to rely upon it. In that way, it can be said that the whole sequence of events throws light on the nature of the relationship which C1 claimed to exist between herself and the accused.
…
The relevance and use of the uncharged acts can be described more specifically. In particular, the prosecution is entitled to point to this evidence as having these uses, each of which I consider is legitimate in this case.
It tends to explain why C1 did not make a complaint when the charged incidents were said to have occurred. This aspect of the case also needs to be considered in the light of the reasons given by C1 as to why no prompt complaint was made. These are dealt with below and are very much related to the family dynamics and the history of the accused.
Uncharged acts or events are also relevant to explain why the accused expected Cl’s co-operation and silence in the face of what was occurring.
They are also relevant to explain why C1 apparently showed no overt shock or distress at what she described as the accused’s conduct on the charged occasions.
Further, they are relevant to explain a certain ambivalence in C1’s feelings towards the accused which may make explicable the displays of affection to him of which I have heard.
Yet further, they explain the background against which the alleged offences or first alleged offence came about where C1’s evidence of the offences charged or the first offence charged may otherwise have been unreal or unintelligible or not fully comprehensible.
Finally, they help to explain why C1 may be unclear about precise dates and details of offences charged. The more there are of these acts, the more details of one merge with others.
These are the only ways I propose to use the evidence.
Correctly, the appellant made no criticism of the approach taken by the trial Judge on the relevance of uncharged acts, or that his findings were not available to him, given the evidence.
The trial Judge expressly noted that it would be wrong for him to conclude from the uncharged acts that the accused was the sort of person who would be likely to commit offences. In a similar vein, it would be quite wrong to conclude that because the accused may be found guilty of a particular count(s), the accused must therefore be guilty of another count.
A further matter to note is that the trial judge made very strong findings on credibility. This was set out as follows:[24]
I propose in due course to examine in detail the evidence on each count, including the evidence of the accused and Mrs Bolte. I make these general observations about each of the complainants.
As for C1, I find that, generally speaking, and subject to what I say about count 2, she had a very good memory of events. She was doing her best to give a truthful and accurate account. Having regard to the content of all the evidence and the fact that I had an extended period to observe her demeanour, I accept she was a truthful and generally accurate witness. She is intelligent, articulate, confident, generally consistent and not given to exaggeration. She was a compelling witness. She had a very good demeanour and some of the spontaneous exchanges in cross‑examination reinforced her credibility.
As for C2, she was a good witness without being as solid as her sister but, at the same time, subject to what I say about count 8, I consider her to be both truthful and generally accurate. I formed that view having regard to the content of all the evidence and the extended period I have to observe her demeanour.
Although these represent my general views of the complainants, there is obviously a need to examine the evidence relevant to the discrete counts.
Evidence of the accused and Mrs Bolte
I found the accused to be a very poor witness, partly due to his demeanour, but I have taken into account the pressure of being charged with such matters. Some of his protestations lacked credibility. For example, his refusal to concede even the possibility that he was alone with C1 in the bathroom whilst she was having a bath, is unbelievable.
Similarly, his assertion that C1 was never in the hayshed the subject of count 5 defies common sense and what I find to be the case concerning this count. C1 and C2 visited this farm numerous times and were young, keen, enthusiastic visitors, eager to help with jobs. I find it unbelievable that they would not have been playing in that area on a regular basis, with and without the accused.
There are many aspects of Mrs Bolte’s evidence that I found to be equally unconvincing. Again, for example, her vehemence that the accused was never alone bathing C1 is quite unbelievable bearing in mind her problems with mobility and bending over/kneeling.
[24] R v Bolte [2009] SADC 97, [71]-[77].

Bearing in mind these overall findings on the uncharged acts and observations made by the trial Judge as to credibility, I turn now to consider each count.
Count 1 – C1, the bathtub incident
The appellant criticised the conclusion by the trial Judge that this count was proved beyond reasonable doubt. First, it was submitted that C1 erred in her evidence that the bathtub incident was the first occasion of offending. This was based on evidence that C1 had told a solicitor in the office of the DPP on an earlier occasion that the “love swing incident”, being Count 2, was the first incident. She mentioned that account in her second statement to police. The point was made that the time difference between the alleged offences was significant and, further, that it would be expected that C1 would remember the first incident and would not be confused about it.
Secondly, it was contended that the trial Judge erred in finding that “the touching was deliberate, unnecessary and prolonged.”[25]
[25] R v Bolte [2009] SADC 97, [79].
Thirdly, it was submitted that the trial Judge was wrong in his approach, indicated in [82] in referring to inconsistencies of each complainant in respect of the evidence of the other complainant. The appellant emphasised that each of the counts was quite separate with regard to each complainant and that they were not cross-admissible against each other and that against this background it was wrong for the trial Judge to use the term “dove-tailed” in [82] in reflecting on the inconsistencies in the evidence of each complainant.
A fourth error with regard to this count was said to be the trial Judge’s reasoning, at [83], in which he described the offending of the appellant as follows:[26]
It was a deliberate and intentional indecent assault. He took advantage of the opportunity to act in this way. Taking her out of the bath did not call for any touching like this. It was unnecessary and opportunistic. I am satisfied that touching like this occurred over a two-to-three year period.
[26] R v Bolte [2009] SADC 97, [83].
The point being made was that it was wrong for the trial Judge to have referred to “touching like this” occurring over a two to three year period, when this was alleged to have been the first offence.
Coming to each of those arguments, the trial Judge specifically directed his attention to the inconsistency of C1 with regard to whether or not the bathtub incident was the first memory of the accused doing something to her, when she had previously given a statement that it was the love seat incident, Count 2, which was the first incident.
His Honour specifically found:[27]
In evidence, she said this occasion represented her first memory of the accused doing something to her. Elsewhere she said the love seat incident (count 2) was the first incident. I do not find that to be a difference of any significance. She had a clear memory of each occasion and simply identified one or the other as the first. The identification of the occasions is the important feature of the evidence.
[27] R v Bolte [2009] SADC 97, [82].
The approach taken by the trial Judge, in my view, was not in error. He specifically dealt with the inconsistency and correctly took the view, that the real importance was whether the alleged acts had occurred as described by C1, rather than precisely when the incident occurred. The trial Judge found that the evidence of C1 was credible. The appellant and his wife both gave evidence that on no occasion did the appellant go into the bathroom with C1. It was open to the trial Judge to reject the evidence of the appellant and his wife. The trial Judge had already found that the appellant and his wife lacked credibility. In particular, the trial Judge found that the appellant’s refusal to concede even the possibility that he was alone with C1 in the bathroom while she was having a bath was “unbelievable”.[28]
[28] R v Bolte [2009] SADC 97, [75].
The finding of the trial Judge that the touching was deliberate, unnecessary and prolonged, must be looked at in the context of an earlier description that C1 had said that the appellant had touched her on the outside of her vagina “rubbing his hand forwards and backwards for a few seconds”.[29] The point being made was that C1’s description could not be explained simply as an accidental touching but was, as his Honour later found, a “deliberate and intentional indecent assault”.[30] No error has been demonstrated.
[29] R v Bolte [2009] SADC 97, [16].
[30] R v Bolte [2009] SADC 97, [83].
As to the third criticism regarding inconsistencies in the evidence of each complainant and the aspect of whether the evidence “dove-tailed”, this must be looked at in its context. The particular paragraph in which this alleged error was said to have occurred was as follows:[31]
I pause here to say something of the cross-examination about prior statements. There clearly were inconsistencies in the evidence of each complainant, but none of it really undermined their credibility and reliability. Inconsistencies within the evidence of each complainant should not be viewed as unusual or unexpected and was not so viewed by me. On the contrary, I would be suspicious if there were none and that the evidence of each dove-tailed without problems. After all, there are almost always elements of reconstruction when recalling events of many years earlier, more so when they involve conduct such as is alleged here. I make it plain I have taken all inconsistencies into account.
[31] R v Bolte [2009] SADC 97, [82].
In relation to this passage I note, first, that this statement is a general observation which the trial Judge makes with regard to inconsistencies of each complainant and is not simply a statement related to Count 1. Secondly, the statement occurs in a context in which the appellant was arguing that there was cross-contamination affecting the recollections of both complainants because it was alleged that they had discussed it with each other and, also, that both complainants had discussed their complaints with their Aunt and that the Aunt had discussed her own complaints with each of them.
The statement set out above appears to be the response by the trial Judge to the submissions that there was cross-contamination. His conclusion was that the inconsistencies in their evidence were capable of innocent explanations and, in my words not those of the trial Judge, inconsistencies to the contrary of those submissions. Such a conclusion by the trial Judge was open and did not indicate that the trial Judge had used the evidence of one complainant’s evidence as being cross-admissible in respect of the other. Further, the evidence of one complainant was not used to fortify the evidence of the other. In the face of the appellant’s submission that the evidence of the complainants was affected by cross-contamination it was necessary to consider whether the way in which their testimony was given supported or contradicted that submission. No error is revealed.
Finally, the sentence that states “I am satisfied that touching like this occurred over a two-to-three year period”[32] is not referring to the particular incident of the bathtub, as the appellant contended, but rather it was touching on the outside of the vagina which, as the trial Judge had found in regard to uncharged acts, occurred “all the time” and “every time he had an opportunity to”.[33]
[32] R v Bolte [2009] SADC 97, [83].
[33] R v Bolte [2009] SADC 97, [53].
Again, no error is revealed.
In summary, there was no foundation for the argument that the verdict of guilty with regard to this count was not open to the trial Judge. Simply because there was material which might have led to a different conclusion is not sufficient to prove that the verdict was unsafe and unsatisfactory.
Count 2 – the love seat incident
This was an alleged offence upon which the trial Judge doubted the accuracy of C1’s recollection. The appellant seeks to rely on that finding in order to put an argument that the trial Judge was wrong in finding in other counts that he was satisfied about the appellant’s guilt, when the alleged inconsistencies were of a similar type.
In my view, this is incorrect reasoning. The conclusion of the trial Judge on Count 2 that it had not been proved beyond reasonable doubt rested on a number of matters peculiar to that count. First, C1’s recollection was uncertain in relation to the timing of this particular incident. She initially thought this was around about when she was aged 7.[34] Later, she linked this to an occasion in Christmas 2002 when she was well over 10 years of age.[35] Second, C1 testified that she was touched on the left breast with an open hand on the top of her chest.[36] In cross-examination she said that the appellant touched her upper thigh, which is what she had told the solicitor from the DPP, and that it was outside of her thigh.[37] Still later in her evidence she said that the accused touched her on the vagina over her clothes, but it was conceded by the prosecution that she had told a solicitor for the DPP that the accused had touched her in the area of her vagina under her clothing.[38]
[34] Trial Transcript (“T”) 11-3.
[35] T 72-8.
[36] T 14.
[37] T 146.
[38] T 152-3.
As the trial Judge noted, these differences in recollection were important. Even though he did not attribute the inconsistencies to a desire to deceive on the part of C1, he nonetheless was not satisfied beyond reasonable doubt on that count.[39]
[39] R v Bolte [2009] SADC 97, [87]-[93].
As will be seen in later discussion of the counts upon which the appellant was found guilty, the alleged inconsistencies in the evidence are minor in those counts in comparison to the inconsistencies in Count 2.
Count 3 – indecent assault – C1
As I indicated earlier, the trial Judge was not satisfied beyond reasonable doubt about that offence. No point was taken in relation to that finding on the appeal with regard to any argument.
Count 4 – indecent assault – the recycling incident
In this incident, C1 said that the appellant had touched her on the upper thighs between her thighs and on her breast. The appellant alleges that the trial Judge should not have been satisfied beyond reasonable doubt as to the occurrence of that incident for the following reasons. First, no allegation of the incident was made to the police at the time of her first statement.[40] Further, it was complained that the complainant explained this omission by reference to her memory difficulties, however there was no corroborating medical evidence. It was suggested that Exhibit D2, being a “Mental Health Care Plan” extracted from the file subpoenaed from her General Practitioner, was to the contrary. More particularly, it was alleged that this incident was complained of after C1 had spoken to her Aunt.
[40] R v Bolte [2009] SADC 97, [96].
The trial Judge accepted that on that occasion the appellant touched C1 by rubbing and moving with his hands on her thighs and by moving his thumb up and down over her breast area. Whilst doing this, he told C1 she was his favourite granddaughter, something he had often told her. In relation to this incident, the appellant had denied any such occasion.
The trial Judge at [95]-[97] appropriately dealt with this count. He specifically noted that C1 had not mentioned this incident in her first police statement, but indicated that he accepted the complainant’s explanation for this. This finding was open to him on the evidence. So far as Exhibit D2 is concerned, the trial Judge dealt also with that and saw nothing in that document to contradict the complainant’s evidence. Again, this finding was open and appropriate.
With regard to the allegation that this complaint had been made after C1 had had contact with her Aunt, this is a matter to which I will address attention separately later in these reasons.
Count 5 – unlawful sexual intercourse – the hayshed incident
In this incident, which is alleged to have occurred in a hayshed on the farm, C1 said that the appellant told her to lie down on a hay bail at which time he pulled her underpants down and inserted two fingers in her vagina. In her statement to police, C1 said that she was wearing tracksuit pants and that the appellant pulled them down,[41] whereas, in evidence, she said that she was sure she was wearing jeans and that the appellant had asked her to remove the jeans after which he pulled down her underpants.[42] The appellant argued that these differences should have led the trial Judge to reflect unfavourably on C1’s reliability. Further, the appellant submitted that C1’s explanation for these inconsistencies, namely that her memory at trial “was more accurate than when [she] gave [her] first statement”,[43] was improbable.
[41] T 85.22.
[42] T 84.19.
[43] T 87.13-.14.
The trial Judge specifically dealt with the inconsistencies at [102] – [103] and regarded them as not being serious “bearing in mind the offending [that] (C1) alleges.”[44] This finding must be considered within the context of his Honour’s more general findings, set out at [57] of these reasons, as to C1’s strong credibility. He underscores the importance of this wider context at [103] where he states:[45]
Having listened to those answers and her evidence over parts of two days, I am satisfied that she was giving an accurate and truthful account.
[44] R v Bolte [2009] SADC 97, [103].
[45] R v Bolte [2009] SADC 97, [103].
The significance of this wider context is further highlighted when his Honour goes on again to contrast the credibility of the accused at [104]:
In reaching that decision, I have considered and rejected the account of the accused. I confirm that I considered him to be a very poor witness. His answers in cross-examination particularly lacked credibility. He played down the size of this shed and found excuses as to why C1 would not be in the shed with him and was never in the shed with him (TP310-312). Similar answers were given in examination-in-chief (TP285‑287).
In the light of these definitive findings on credibility, it was open to the trial Judge to find that the hay shed incident took place, notwithstanding some uncertainty on the part of C1 as to the precise sequence of how the act was committed.
In particular it will have been noticed that C1 consistently maintained that the appellant had pulled down her underpants notwithstanding the uncertainty regarding who removed her jeans or tracksuit pants.
As to the appellant’s submission that C1’s explanation for the differences was improbable, on the contrary, it is understandable that after giving an initial statement, memories of precise details might subsequently be triggered or be sharpened on reflection in preparation for the giving of evidence.
Count 6 – C2 - the horse incident
In this incident, C2 alleged that on an occasion when the accused was leading her around the property on a horse, he asked her to have sex with him in exchange for his leaving her the farm. She alleged that when she dismounted from the horse, he cupped his hands under her buttocks and squeezed as she lowered herself down. C2 would from time to time ride the horse in this manner with the accused leading, but this was the only occasion on which she could remember the accused assaulting her in that way. Normally, the accused would help C2 dismount by placing his hand around C2’s waist.
C2 gave evidence that the incident took place to the west of the house, out of view of the veranda. The appellant submitted that this evidence represents a mistaken recollection by C2 because it is contrary to the evidence of C1 and the girls’ mother to the effect that the horse was walked in view of anyone on the veranda. On this basis, it was submitted that the trial Judge should have found that C2 was mistaken and that her reliability should have been questioned in relation to her allegations of inappropriate touching.
The appellant’s counsel appropriately acknowledged that the accused was not asked about the location. Further, that C2, during cross-examination about the location, when it was suggested she was wrong, answered that she did not remember being out there.[46]
[46] T 191.
Counsel acknowledged that this was not his best appeal point, and indeed he was correct. In many ways, the important point was not whether it occurred at the side of the house or the front, but whether it occurred. C2 may have been mistaken as to where it occurred, or she may have been correct and that her mother and C1 did not see the event. Further, it was the accompanying comments made by the appellant that gave the actions the indecent character.[47] In short, the finding by the trial Judge was open on the evidence and this ground is rejected.
[47] R v Bolte [2009] SADC 97, [141].
The trial Judge did not expressly refer to this discrepancy in location in his reasons, but again dealt with it generally in his overall findings of the credibility of C2 at [73] and of the accused at [75] to [76] as set out in [57] of these reasons. Further, in relation to the accused and this incident specifically, his Honour found at [141]:
In reaching that conclusion, I reject the evidence of the accused. I have concluded and accept that the accused’s actions need to be considered in the light of his sexual talk only a short time before. His actions were deliberate, intended and indecent.
I find no error in these conclusions.
Count 7 – C2 – the driving incident
It was agreed that the accused gave C1 and C2 driving lessons by allowing them to drive an old ute on the farm. The ute had two front bucket seats, a rear bench seat and an outside tray behind that. Count 7 relates to one such occasion where C2 gave evidence that, as she was driving, the accused attempted to grab her breast. After C2 successfully knocked the accused’s hand away several times, he managed to grab hold of her breast, at which time C2 brought the car to a halt, got out and sat in the tray with C1. The trial Judge made a finding, consistent with C2’s evidence, that at the time of the alleged offending, C1 was in the rear tray of the vehicle. This finding was also consistent with C1’s evidence that she did not see the offending. However, C1 also gave evidence of the general seating arrangements when the appellant taught the girls to drive, which the appellant argued was inconsistent with these findings. This evidence was as follows:[48]
[48] T 142.19 -143.7.
Q.    He taught you and [C2] to drive the old ute?
A.    Yes.
Q.      There were times when you and [C2] would be in the car at the same time?
A.      Yes.
Q.      You've seen him teach [C2] when [C2]’s been driving?
A.      Yes.
Q.      The ute had bucket seats at the front?
A.      Yes.
Q.      And a bench seat at the back?
A.      Yes.
Q. Mr Bolte, when he was teaching either of you, would always sit in the passenger seat at the front?
A.      Yes.
Q. Whoever was not driving out of you and [C2] would sit on the bench seat at the back?
A.      In the middle.
Q.      In the middle, leaning forward?
A.      Yes.
Q.So that whoever was at the back was as close to the action as possible, leaning in between the two bucket seats?
A.    Most of the time, yes.
Q.      And if you were driving, that would be [C2] in between the seats and vice versa?
A.      Yes.
Based on this, the appellant argued that the offending alleged by C2 could not have happened without C1 observing it, since C1 and C2 were always in the seating cabin of the car together on the occasions of their driving lessons with the appellant.
I reject this submission. C2 gave very clear and specific evidence about the circumstances in which the incident occurred. Her evidence was that C1 was in the rear tray of the ute. The trial Judge’s finding that C1 was in the tray of the ute is not inconsistent with C1’s evidence of the seating arrangements. Clearly his Honour understood C1’s evidence as describing the general situation rather than every occasion. C1’s words “most of the time” imply this. This left open a finding that on at least one occasion when C2 was learning to drive, C1 travelled in the rear tray. The fact that C1 was not re-examined or recalled on this point, does not lead to the inference that the appellant suggests, namely that C1’s evidence would not corroborate C2’s on this point. The trial Judge was entitled to accept the specific evidence of C2.
Count 8 – C2 – the hug incident

The appellant was found not guilty on this count. Counsel for the appellant made only the brief submission on appeal that the inconsistencies between C2’s evidence and that of another witness to count 8, PA, which gave rise to “a state of uncertainty” on the part of the trial Judge and hence a finding of not guilty, were of a similar nature to the inconsistencies in the other counts on which the appellant was found guilty.[49] On this basis, the same findings of unreliability in respect of count 8 should have been made in respect of the guilty counts. The trial Judge addressed this issue when he stated at [162]:
Being in a state of uncertainty, I find the accused not guilty on this count. I have considered whether this finding affects my view otherwise about C2’s credibility and reliability, and I am satisfied it does not.
[49] Appeal Transcript 37.10-17.
I find that this in the context of his Honour’s overall findings on credibility, which I have earlier set out, sufficiently addresses the appellant’s submission. I find no error.
Knowledge of allegations of the Aunt
A recurrent theme which was interwoven with the appellant’s submissions of alleged inconsistencies and omissions with respect to individual complaints of both complainants, was their awareness of earlier allegations of sexual conduct made by their Aunt against the appellant. There were several inter-related submissions made on this point.
The starting point was that there was evidence that C1 had knowledge of the generality of her Aunt’s allegations from the time she was about 10.[50] This was submitted as being relevant to Count 5 which allegedly occurred when C1 was 12, and potentially also relevant to Count 4, which was alleged to have taken place when C1 was aged 10 or 11.
[50] T 41.21-26.
Secondly, there was a communication between C1 and her Aunt, a few days after C1 had first complained to the police, and it was only after this communication that C1 made her specific allegations in relation to Counts 2 and 4.[51] The suggestion was made that the Aunt had provided information to C1 about her own experience of sexual conduct with the appellant, which in turn had infected the complaints that C1 later made against the appellant.
[51] T 75.26.
Thirdly, in relation to C2, she gave evidence that she first heard about allegations concerning her Aunt and the appellant, from her father. She says that she was told by him that her Aunt had gone to court for "the same thing", that he had “got off” and that he was “lucky”.[52] C2 said that this had occurred after she had made a statement to the police.[53] In her evidence, she initially denied that C1 spoke to her about her Aunt and said that it was only her father.[54] She also initially denied that she had spoken to her Aunt about the topic.[55] On further cross-examination after she had the opportunity of refreshing her memory from a statement which he had given to police, C2 admitted that she had given the police officer information to the effect that C1 had told her about her Aunt and the appellant, and that she had also told the police officer that she had then asked her Aunt about "whether it happened to her" and her Aunt had replied "yes".[56] C2 agreed that this statement differed from her earlier evidence, and admitted that what she had earlier told the police officer was possible, but that her memory now was that it was her father who had told her.[57] C2 was adamant that the first time she had become aware of any information about the appellant and her Aunt, was after she had spoken to her parents.[58] Thus it was submitted by the appellant that her evidence was unreliable.
[52] T 176, 177, 199.
[53] T 176.
[54] T 178, 200.
[55] T 202.
[56] T 203.
[57] T 205.
[58] T 205.
Fourthly, as a consequence of the above three points, it was submitted that the complaints made by both complainants were potentially contaminated by the information given to them about their Aunt. It was not contended that this was conscious and deliberate, but rather that there was a real risk of innocent contamination. The submission continued that the trial Judge in his reasons for decision only considered the counts involving C1, but did not consider it in respect of Counts 6 and 7 of C2.[59] It was thus submitted in ground of appeal 2.2 that the verdicts were unsafe and unsatisfactory by reason of the real risk of contamination and reconstruction.
[59] R v Bolte [2009] SADC 97, [131]-[162].
I observe at the outset that if conscious fabrication is, in accordance with counsel’s concession excluded, it is difficult to imagine the process of unconscious contamination that could have resulted in the accounts given by C1 and C2. Be that as it may, as will shortly be seen, there is no reason to apprehend any miscarriage of justice arising out of the way in which the trial Judge dealt with this matter.
C1 and the Aunt
When considering this argument, the knowledge of C1 about the appellant’s past in connection with her Aunt was that she simply knew that the appellant had previously been to court for sexually abusing her Aunt, but that she did not know what sorts of things had actually happened to the Aunt.[60] She said she was told these things by her father after she had first complained about sexual abuse to her mother, which is in about May 2007. She was told by her father that the appellant had got off on a technicality.[61]
[60] T 41-2, 45-6.
[61] T 44-5.
In addition she also had information from her father that in late 2004-2005 the appellant had been accused of being involved in the “Lousie Bell” matter, but there was no “evidence of anything”.[62] The trial Judge in his reasons set out the relevant transcript evidence. [63]
[62] T 43-4.
[63] R v Bolte [2009] SADC 97, [113].
C1’s first formal statement about the conduct of the appellant was given to the police on 30 May 2007.[64] In that statement, the events the subject of Counts 1, 3 and 5 were disclosed, but not Counts 2 and 3.[65] C1 gave evidence that she had not discussed the Aunt’s allegations with the Aunt prior to making this statement to police. She also stated that she did not tell the Aunt what had happened to her.[66] She said that it was a few days after giving the first statement to the police that the she then spoke to her Aunt.[67]
[64] T 58, 73.
[65] T 74, 81-2.
[66] T 138.
[67] T 138.
The evidence of C1 as to the conversation she had with her Aunt was as follows:[68]
[68] T 137-13-138.15.
Q. What contact have you had with [Ms A] over the years?
A.I don't see much - I don't see any of her now. I have never really had much contact with her. I seen her a couple of times before I made the police report.
Q.Where did you see her when you saw her before you made the police report?
A. I have seen her at her house.
Q.Did you speak to her about any concern of yours with Mr Bolte prior to speaking to the police?
A.No.
Q.When you were speaking to her on those occasions before you spoke to the police, you knew that she had been through the same thing?
A.Yes.
Q.You in fact believed that it had happened to her and he'd got away with it?
A.Yes.
Q.Are you sure you said nothing to her about it?
A.Yes, not until after and then when I did I didn't give her any details. I just told her that I wanted to press charges.
Q.When you spoke to [Ms A] about telling her you wanted to press charges, it was shortly after you had spoken to the police?
A.Yes.
Q.As in days?
A.Yes.
Q.You contacted [Ms A]?
A.I did so, yes.
Q.By telephone?
A.I think so, yes.
Q.Why did you telephone [Ms A] a few days after you spoke to the police and made a complaint?
A.I spoke to her because I knew that she would be someone that would support me and she would understand.
Q.After that telephone call, you had met with [Ms A]?
A.I don't remember. I think I had seen her once.
Q.You have spoken about the court case and the fact that you were bringing charges?
A.I said to her that 'I am pressing charges' and that's all that I can say to her because I can't talk to her.
The trial Judge specifically dealt with the effect of conversations between C1 and the Aunt in the following passages of his reasons:[69]
I propose to explain the nature of what I believe to be the submission and then go to the background evidence. The effect of the submission is that counts 2 and 4 were not included in C1’s first statement and that she has unwittingly and unconsciously later included these allegations following a conversation or conversations with Ms A (who had made sexual allegations against the accused of which he was acquitted).
It seems from the evidence that, before count 5, C1 had some knowledge about what I refer to as the Louise Bell matter and the generality of the allegations made by Ms A. After C1 made her first statement to the police, C1 spoke to Ms A. C1 knew she (Ms A) had been through the same thing and that Ms A “...would be someone that would support me and she would understand” (TP139.08). C1 told Ms A that she was “pressing charges” (TP139). It is said that possibly C1 learned about Ms A’s allegations and unconsciously transported those to herself and subsequently included those in her allegations. In this context it is said that the prosecution should have called Ms A to refute the suggestion or implication.
I do not accept these submissions. Even if there was an obligation upon the prosecution to call Ms A, I am not prepared to draw any inference adverse to the prosecution. Further, I must decide this case upon the evidence before me, not speculation about what might have been said if Ms A was called. Not only is there no detail from C1 about what she believes Ms A’s precise allegations were, I reiterate my finding that C1 was a most compelling witness whose evidence, in the main, I accept beyond reasonable doubt. I reject that C1 has transposed any allegation involving Ms A to her own allegation.
[69] R v Bolte [2009] SADC 97, [126]-[128].
At no point was C1 cross-examined to the effect that, the information she received about the allegations of her Aunt, affected her reliability and recollection of the events which became the subject of the complaints. The trial Judge had the benefit of detailed submissions made by the accused’s counsel on this issue. After considering the evidence and the submissions, the trial Judge found that it did not cause him to doubt the reliability and credibility of C1. I have carefully reviewed the evidence and the submissions and consider that the conclusions of the trial Judge were clearly open to him. His Honour had the benefit of hearing C1’s evidence and he specifically addressed his mind to the issue.
C2 and the Aunt
I now turn to the situation of C2. I start by observing that a similar allegation was made by the appellant’s counsel in respect of the knowledge of C2 regarding the appellant’s alleged conduct towards her Aunt. As previously indicated, the evidence of C2 on the topic was uncertain. To the extent that C2 derived her knowledge about the Aunt from C1 as she had earlier discussed, the knowledge of C1 was limited. To the extent that C2 had then discussed allegations with her Aunt, again there was no specific detail which would have leant itself to that sparse information suggesting a real risk of contamination. Further, C2 said she did not know about the allegations of the Aunt until after she had told her mother about the conduct of the appellant. Finally, I note that she was not cross-examined in any way which suggested that her knowledge of her Aunt’s allegation influenced her complaints against the appellant. As to the allegation of awareness of her Aunt’s allegations against the appellant, C2 initially denied being aware of those allegations until after she had given a statement to police.[70] However, C2 later conceded that she may have been mistaken about this.[71] Further, C2 initially denied speaking to the Aunt about the Aunt’s allegations during visits,[72] but later conceded that she may have spoken about those allegations with her Aunt.[73] The discussion as she described it was very limited and there was no detail provided to her.
[70] T 198-9, 201.
[71] T 204-5.
[72] T 197, 202-3.
[73] T 203-4.
This uncertain evidence of C2 was also to be viewed in combination with the appellant’s criticism of the failure of C2 to make a timely complaint of the appellant’s alleged sexual behaviour. The evidence of C2 was that she first complained of the appellant’s conduct to her partner,[74] then to a friend of her mother and finally to her mother. This was after C1 had complained of the appellant’s conduct to her parents. C2 was cross examined extensively as to why she had not made a complaint and she explained her reasons for not so doing. The trial Judge accepted those reasons and it was open for him to do so.[75]
[74] T 174-5.
[75] R v Bolte [2009] SADC 97, [136], [148].
The appellant’s counsel alleged that the trial Judge did not specifically advert to the potential contamination of C2’s memory as a result of having spoken with her Aunt. This assertion is not correct. In his reasons for judgment the trial Judge stated as follows:[76]
I also warn myself that there is the danger that each of these complainants has separately fabricated a story against the accused and that there is also the danger that they have collaborated to present false accounts against the accused. I am also conscious of the danger that C2 may have inadvertently and innocently contaminated her memory having spoken with an aunt, Ms A, a stepdaughter of the accused. I have considered all of the submissions in this regard even though I have not dealt with them all in these reasons.
[76] R v Bolte [2009] SADC 97, [44].
These were clearly matters to which the trial Judge directed his attention. The conclusions which he drew particularly depended upon his findings as to credibility generally of C2 and, in particular, the lack of credibility of the appellant and his wife. It is clear that both complainants made very specific allegations against the appellant. The specificity and the detail of the circumstances were clearly matters upon which the trial Judge relied in making his overall findings. There is no sound basis upon which it could be said that the trial Judge did not give consideration to this issue. The submissions of the appellant are at best hypothetical inferences sought to be drawn from circumstances in which the complainant gave evidence to the contrary. The findings and conclusion which the trial Judge made were clearly available to him on the evidence. I therefore reject those submissions.
Ground 1
The appellant’s first ground of appeal was that the trial Judge erred in failing to draw any inference adverse to the prosecution by reason of the failure to call the Aunt. Forming the background to this ground of appeal were again the allegations of contamination and reconstruction arising from the complainants’ knowledge about the Aunt’s allegations against the appellant and discussions between the Aunt and the complainants.
The appellant’s counsel referred to the critical elements of this background, namely that the Aunt knew of the complaints made by the complainants to police at a time prior to the arrest of the appellant[77] and that both the complainants had spoken with their Aunt (as discussed earlier). On this basis, it was argued that the Aunt was a material witness and should have been called by the prosecution.
[77] T 322-3.
Four errors of the trial Judge are alleged in respect to his reasons at [127]‑[128], as set out earlier in these reasons at [110]. Those errors were:
1That the trial Judge had considered the absence of the evidence of the Aunt only in relation to C1, but not C2.
2That the trial Judge failed to direct himself that:[78]
the issue is not whether [he] may properly reach conclusions about issues of fact but whether, in the circumstances, [he] should entertain a reasonable doubt about the guilt of the accused.
3Finding there was no obligation upon the prosecution to call the Aunt.
4Declining to draw any inference adverse to the prosecution, “even if there was an obligation to call” the Aunt.
[78] RPS v The Queen (2000) 199 CLR 620, 633 [29].
As to the first alleged error, I have previously referred to the fact that the trial Judge made specific reference[79] to possible contamination of C2’s evidence by the Aunt, as set out earlier at [114] hereof. That passage does not specifically address the issue of any inference to be drawn from the failure of the prosecution to call the Aunt in respect of C2. However, the trial Judge did address that issue in respect of the clearer evidence of C1 as to what she knew from the Aunt, at [127] and [128]. The trial Judge was clearly alive to the issue and, after considering it, he rejected it for the reasons which he gave. The mere fact that the trial Judge did not specifically refer to C2, bearing in mind that her evidence as to what she knew from the Aunt was far less clear than with C1, does not of itself demonstrate an error. Much of the reasoning indicated by the trial Judge in the case of C1 would apply with regard to C2. To pose the issue a different way, if the Aunt was not required to be called having regard to the circumstances of C1, still less would the Aunt have been required to have been called in relation to C2.
[79] R v Bolte [2009] SADC 97, [44].
In short, I consider there is nothing in the first alleged error proffered by the appellant.
Turning now to the second, third and fourth alleged errors. Each of these hinge on whether or not there was an obligation on the prosecutor to call the Aunt.
The inference upon which the appellant relies for the fourth alleged error is that described in Jones v Dunkel.[80] In O’Donnell v Reichard,[81] Newton and Norris JJ explained the inference as follows:[82]
The relevant law has been considered in recent years by appellate courts on a number of occasions: see, for example, Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt1) (NSW) 280; Nuhic v Rail and Road Excavations [1972] 1 NSWLR 204; and Earle v Castlemaine District Community Hospital [1974] VR 722. See also the discussion by Street, J, (as he then was) in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557, at pp. 581-582. It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.
[80] (1959) 101 CLR 298.
[81] [1975] VR 916.
[82] [1975] VR 916, 929.
That enunciation of the inference was approved by Gibbs ACJ, Stephen, Mason and Aickin JJ in by Brandi v Mingot.[83]In deciding whether the inference applied, it is important to emphasise that the case from which the inference derives its name, Jones v Dunkel, was a civil case. In this regard, Sulan J (with whom Gray and Kourakis JJ agreed) in the recent Full Court judgment of Police v Kyriacou (“Kyriacou”),[84], cautioned relevantly:[85]
I consider that the principle in Jones v Dunkel has limited application to criminal trials, and should rarely be given in respect of the prosecution’s failure to call witnesses.
[83] (1976) 12 ALR 551, 559-60.
[84] (2009) 103 SASR 243.
[85] (2009) 103 SASR 243, 259 [62].

Further, Sulan J found that even in circumstances in a criminal case where it is open to the Judge as trier of fact to draw the inference, it is always a matter of discretion as to whether or not it is drawn. That discretion is informed by the particular circumstances of the case. In Kyriacou, the Magistrate at trial declined to draw the inference in a situation where several eyewitnesses to an assault were not called by the prosecution and where there were inconsistencies in the evidence of the prosecution witnesses who were called. The defendant argued that, where the absent witnesses could reasonably be expected to clear up the inconsistencies and where they were not called, the inference should have been drawn. Sulan J found that:[86]
The Magistrate directed himself that it was open to draw the inference that the witnesses not called may not have assisted the case for the prosecution. He declined to draw that inference. He went further in concluding that, had he drawn such inference, it would not have altered his findings nor his conclusion that the case had been proved beyond reasonable doubt.
[86] (2009) 103 SASR 243, 260 [65]
The Full Court found no error in the Magistrate declining to draw the inference. In overturing a single Judge’s decision against the Magistrate on this point, Sulan J said:[87]
The Judge considered that the witnesses who had not been called by the prosecution may have been able to resolve the inconsistencies in the evidence of those witnesses who were called. I cannot agree. The Judge’s conclusion is speculative. The inconsistencies in the evidence will always be inconsistencies. The question is whether, despite the inconsistencies identified, the appellant has shown whether the magistrate erred in concluding that the prosecution had proved the case beyond reasonable doubt. The fact that other persons who were present may or may not have given evidence about what occurred is but a factor to which the Court can have regard in deciding the ultimate question.
[87] Police v Kyriacou (2009) 103 SASR 243, 261 [69].
It is significant that in Kyriacou, the absent witnesses in question were eyewitnesses to the offence, whereas in the present case, the Aunt’s evidence was only indirectly relevant. On this basis, it was clearly open to the trial Judge even if it was the Prosecution’s duty to call her.
Kyriacou also looked at the circumstances or pre-conditions[88] which must be established before a trial Judge even considers whether any inference is required to be drawn or, alternatively, a Jones v Dunkell direction ought to be applied. These are first, that the prosecutor has failed in his duty.[89] Secondly, that the absence of the witness is unexplained.[90] Thirdly, that there is no obvious or proved and satisfactory explanation for the failure to call a witness.[91]
[88] Police v Kyriacou (2009) 103 SASR 243, 248-9 [16]: (Gray J); Sulan J saw these factors as matters “relevant to the Court’s consideration”: at 259 [62].
[89] Police v Kyriacou (2009) 103 SASR 243, 248 [15].
[90] Police v Kyriacou (2009) 103 SASR 243, 248-9 [16]; Spence v Demasi (1998) 48 SASR 536, 547.
[91] Police v Kyriacou (2009) 103 SASR 243, 248-9 [16]; Dyres v The Queen (2002) 210 CLR 285, 295 [17].
In relation to the prosecutor’s duty to call witnesses, Gaudron and Hayne JJ said in Dyers Case:[92]
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[92] Dyres v The Queen (2002) 210 CLR 285, 291 [6]
An important starting point in this case is that there was no request made by the appellant that the Aunt be called. Therefore the trial Judge did not call on the prosecutor to give an explanation for a failure to call the Aunt. This decision of the appellant not to make the request may have been for tactical reasons. The appellant’s solicitor had knowledge that the Aunt had told the investigator that she had not discussed her allegations with either complainant,[93] and that she did not wish to get involved and did not wish to make a statement.
[93] Statement of Agreed Facts filed by the appellant 10 December 2009 and attached DPP letter to appellant’s solicitor dated 4 August 2009.
Further, the alleged error is stated to be one made by the trial Judge. On the information known to the trial Judge at the time, he only knew that the Aunt had refused to give a statement to the police and no more. This would amount to a satisfactory explanation for her absence from the witness box. It could not reasonably have been inferred by the trial Judge as a result of that circumstance, that the Aunt would not have assisted the prosecution case.[94]
[94] Gillan v Police (2004) 149 A Crim R 354, 363-4 [46].
On the contrary, assuming for the purposes of argument that the trial Judge had known what the appellant knew, namely that the Aunt had told the police that she had not made any statement to the complainants about the circumstances of her own case, this factor was unlikely to have assisted the defence in its argument as to alleged contamination of the complainants through discussion with the Aunt. Testimony to the same effect by the Aunt, if she were called, would have seriously undermined the appellant’s submissions about alleged cross contamination between the Aunt and the complainants.
Finally, I refer to the case of R v Apostilides.[95] In that case, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ, in a joint judgment stated the following general propositions in relation to the prosecution’s role and responsibility in relation to calling witnesses: [96]
1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[95] (1984) 154 CLR 563.
[96] (1984) 154 CLR 563, 575.
I find no inconsistency with the application of those propositions in the circumstances of this case. I conclude that in the absence of such a duty and in the circumstances described, the pre-conditions to the trial Judge making a Jones v Dunkel inference did not exist.[97]
[97] Police v Kyriacou (2009) 103 SASR 243, [15]; Spence v Demasi (1998) 48 SASR 536, 547; Dyers v The Queen (2002) 154 CLR 285, [17].
Finally, the issue is whether the failure to call the Aunt could possibly give rise to a miscarriage against the background of the conduct of the trial as a whole.[98] For reasons which I have set out above, I consider that, taking the trial as a whole and in particular the approach taken by the trial Judge, he was correct in [128] of his reasons. He noted that it was not for him to speculate about what might have been said if the Aunt was called and, further, what effect this might have on his strong findings that both C1 and C2 were credible and compelling witnesses. In the overall circumstance, no error has been revealed by the trial Judge with regard to whether any adverse inference should have been drawn and whether or not there was any miscarriage of justice.
[98] R v Apostilides (1984) 154 CLR 563, 575; R v Tulisi (2008) 258 LSJS 428, 434 [39]-[40].
Conclusion
For these reasons, I consider that the appeal should be dismissed on both grounds.
KOURAKIS J: For the reasons given by Layton J, I agree that the appeal should be dismissed on all grounds. However, with respect to the first ground, although I broadly agree with her Honour’s reasons, I wish to elaborate on my decision to dismiss the appeal by making some additional remarks.
Failure to draw inference
The “adverse inference” which can be drawn from the failure of a party to call a witness is not an inference of the sort that is drawn from circumstantial evidence. In Puric v The State of South Australia,[99] I explained the difference in the following way:
The failure to call a witness will not support a positive inference that the witness would have given evidence damaging to the party who omitted to call him or her, and make up for a deficiency in the case of the opposing party. For that reason, to speak of an adverse inference is apt to mislead. The failure to call a witness does not support an inference of guilt in the way that circumstantial evidence does. It cannot be maintained that as a matter of human experience a failure of a party to call a material witness in his or her “camp” makes it more probable that the allegations made against that party are true. The failure to call a witness is not a species of circumstantial evidence; it is an absence of evidence. The only effect of an unexplained failure to call a witness in the party’s “camp” is to “assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party”. Doubts about the reliability of witnesses, or the inferences that can be drawn safely from the evidence, may be more readily discounted in the absence of evidence from a party who might be expected to give or call it.[100] (footnotes omitted)
[99] [2009] SASC 107.
[100] Puric v The State of South Australia [2009] SASC 107 at [77].
The effect of the judgments of the High Court in RPS v The Queen[101] and Dyers v The Queen[102] is that the failure to call a witness will rarely be significant in a criminal trial. In the case of an accused, his or her failure to call a witness cannot reasonably undermine confidence in the defence case or allow greater confidence in the prosecution case because to so reason is inconsistent with the burden of proof. For different reasons, a failure by the prosecution to call a witness will not usually undermine confidence in the prosecution case. Most obviously, in the ordinary course of events, the fact that a witness does not assist the prosecution case will not deter the prosecutor from calling that witness if the witness has material evidence to give. It can be expected that a prosecutor will only refrain from calling a witness because his or her admissible evidence is not materially relevant or because the witness is not a witness of truth.
[101] (2000) 199 CLR 620.
[102] (2002) 210 CLR 285.
In this case, the prosecution explained why the witness A would not be called in a letter written to the appellant’s solicitors in the following terms:
Further to my letter dated 27 July 200 [sic], I correct that point 2 should have stated that the Director will not be calling Ms [A] as she has refused to provide a statement as outlined in the most recent declaration of [W].
I have been advised that when [W] spoke to [A] she stated the following:
·that she never discussed her experience of sexual assault with either complainant
·she was aware that they had made allegations
·she did not believe them
·the reason she did not believe them was that they both continued to visit the farm after they had disclosed.
Given that [A] stated that she did not wish to be involved and refused to provide a statement, the Director will not [be] calling [A].
I also advise, that from the endorsements on the DPP file in which the complainant was [A], it appears that Mr Millstead appeared for the prosecution and that Mr G Barrett appeared for the defendant. Statements on file in relation to this matter and a copy of the sentencing remarks dated 14 April 1983 before Judge Graves.
It can be seen from the letter that the reason the prosecutor did not call A is that, in the absence of greater co-operation from her, the information she had proffered was, as to her disbelief of the complainants, inadmissible and in other respects not material or at least not helpful to the defence. In particular, nothing A had said to the police supported the defence contention that the allegations against the appellant were either consciously or unconsciously influenced by A.
In effect, the position put by the appellant on appeal is that the prosecutor was under a duty to call A so that the possibility that she either coached or unintentionally influenced the complainants could be explored. The prosecutor’s duty may extend on rare occasions to making a witness like A available for cross-examination. However, the duty did not arise in this case for two reasons. First, no such request was made. Secondly, there was no reason to apprehend that A would, under the compulsion of the witness box, provide any admissible evidential support for the defence.
In those circumstances, the appellant’s contention that the prosecutor was duty bound to call A should be rejected.
However, even if the failure to call A was a breach of the prosecutor’s duty, the only consequence is that the trial Judge would then have been entitled, and perhaps even obliged, to consider whether he was prepared to convict on the basis of the prosecution evidence which had been led, having regard to the failure to call A. It is not the case that the failure to call A must necessarily have left a doubt in the mind of the trial Judge.
The trial Judge expressly considered whether or not the failure to call A affected the weight he could give to the evidence of the complainant. The trial Judge addressed the question at [126]-[128] of his reasons, which have been reproduced in the reasons of Layton J at [110].
The conclusion of the trial Judge that the failure to call A would not have affected his confidence in the evidence of the complainant C1 was open to him. In particular, it could not be said that it was an unreasonable position to take. I cannot say that the decision to convict, notwithstanding the failure of the prosecution to call A, was not explicable on the basis of the trial Judge’s assessment of the oral testimony of the complainant.
For the reasons given by Layton J and these additional reasons, I would dismiss the appellant’s appeal on the first ground.