R v BOTTEN - [2017] SASCFC 73

Supreme Court of South Australia
(Court of Criminal Appeal)
R v BOTTEN
[2017] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice Chivell)
28 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - GENERALLY
Appeal against convictions.
On 7 February 2017 in the District Court a jury found the appellant guilty of two counts of unlawful sexual intercourse and three counts of indecent assault. He was acquitted of one count of unlawful sexual intercourse following a submission by his counsel that there was no case to answer in respect of that count.
The abuse occurred over a period of several months in 2013. At that time the appellant was aged 21-22 years and the complainant was aged 14. The appellant was in a relationship with the complainant’s sister and would often spend time, including staying overnight, at the complainant's house.
The first count (of which the appellant was acquitted) was an act of fellatio said to have occurred in the stairwell of some flats the two passed through on their way home. Count 2 was an act of anal sexual intercourse which occurred in the stairwell immediately after the allegations which gave rise to the first count. The remaining offences, counts 3, 4, 5 and 6 occurred on various occasions thereafter in the form of either indecent assaults or, in one instance, an act of fellatio.
The appellant appeals on eight grounds.
First, the appellant complains that the Judge erred in not directing the jury as to the use to be made of the appellant’s acquittal in respect of count 1 and that this error was compounded by the Judge directing the jury that the evidence led in respect of count 1 was to be treated as an uncharged act. Second, the appellant complains about the Judge’s directions to the jury in relation to the oath belief rule. Third and fourth, the appellant complains about comments made by the prosecutor that a defence witness, Ms Hoban, had been provided with details so that she could then provide them in court and that the Judge failed to adequately address the prejudice caused thereby. Fifth, the appellant complains that the Judge erred by commenting to the jury that there was no actual evidence before them as to how drugs may affect an individual, which the appellant says depreciated the effect of the defence submission that the complainant took drugs. Sixth, the appellant complains that the prosecutor, in commenting on the complainant’s reluctance to complain to others, breached s 34M(2) of the Evidence Act 1929 (SA). Seventh and eighth, the appellant complains that the prosecutor contravened the principle in Palmer v The Queen (1998) 193 CLR 1 and that the Judge failed to adequately cure any prejudice caused thereby.
Held per Kelly J (Stanley J and Chivell AJ agreeing) refusing permission to appeal on grounds 1, 2 and 5 and dismissing the appeal on the remaining grounds:
1.      The Judge made it clear when directing the jury to acquit on count 1 that the verdict of not guilty was required because the complainant had said in evidence something different to what was alleged in the particulars on count 1 and on which the prosecution had opened. The Judge’s directions when summing up as to the permissible use of the uncharged acts, of which the incident in the stairwell preceding the offence in count 2 was one, were not the subject of any complaint on appeal. In the circumstances nothing further was required.
2.      There was nothing objectionable about the Judge’s remarks in relation to the oath belief rule.
3.      Although the prosecutor’s submission about the witness Ms Hoban being provided with details so that she could provide them in court was somewhat clumsy, no prejudice to the appellant could have been caused by it. The Judge’s concise and clear direction to the jury eliminated any potential misunderstanding or prejudice to the appellant.
4.      The Judge correctly directed the jury that what they made of the complainant’s drug taking and its effect upon her reliability was for them to determine.
5. In light of the cross-examination of the complainant and the direction which the Judge was required to give pursuant to s 34M(4) of the Evidence Act 1929 (SA) the prosecutor’s comments concerning the complainant’s reluctance to complain to others were both explicable and permissible.
6.      The prosecutor’s comments concerning any motive to lie did not transgress the principle enunciated in Palmer v The Queen.
Evidence Act 1929 (SA) s 34M, referred to.
Palmer v The Queen (1998) 193 CLR 1; R v MAS (2013) 118 SASR 160, distinguished.
Perara-Cathcart v The Queen (2017) 91 ALJR 411, considered.

R v BOTTEN
[2017] SASCFC 73
Court of Criminal Appeal: Kelly, Stanley JJ and Chivell AJ
KELLY J.

On 7 February 2017, following a trial by jury in the District Court, the appellant was found guilty of two counts of unlawful sexual intercourse and three counts of indecent assault.
The appellant was acquitted of the first count of unlawful sexual intercourse by way of a directed acquittal after a successful submission by the appellant that there was no case to answer in respect of that count.
The appellant appeals the convictions on eight grounds.
Background
The prosecution case at trial alleged that the appellant sexually abused the then 14 year old complainant on multiple occasions over a period of several months in 2013. At that time the appellant was 21 years old and in a relationship with the complainant’s older sister. As a consequence he would often spend time, including overnight, at the complainant’s house. The abuse commenced at around the time that the complainant’s sister, JL, was pregnant to the appellant. The initial acts of abuse were said to have occurred in the early hours one morning after the appellant and the complainant had been walking around the suburbs together.
The first count (of which the appellant was acquitted) was an act of fellatio said to have occurred in the stairwell of some flats the two passed through on their way home. Count 2 was an act of anal sexual intercourse which occurred in the stairwell immediately after the allegations which gave rise to the first count. The remaining offences, counts 3, 4, 5 and 6, occurred on various occasions thereafter in the form of either indecent assaults or, in one instance, an act of fellatio when the appellant inserted his penis into the complainant’s mouth.
At trial, the prosecution called the complainant, Kelly Berg (to whom the initial complaint was made), and the complainant’s mother. In the course of her examination-in-chief, the complainant said in respect of the first count on the information, which was an allegation that the appellant placed his penis into her mouth, that the appellant’s penis touched the side of her head rather than penetrating the mouth.
The appellant did not give evidence. However the defence called a woman named Samantha Hoban who gave evidence relevant to the first two counts on the information, being the night that the first two counts were allegedly committed. Her evidence had the capacity to contradict some of the events recounted by the complainant leading up to the incident in the stairwell at the units. JL, the complainant’s sister, gave evidence that her sister was not to be believed on oath. That evidence was the genesis of the second ground of appeal.
The first ground of appeal is a complaint that the Judge erred in not directing the jury as to the use to be made of the appellant’s acquittal in respect of count 1. The appellant complains that this error was compounded by the Judge directing the jury that the evidence led in respect of the first count was to be treated as an uncharged act.
The second ground of appeal is a complaint that the Judge erred in directions to the jury about the oath belief evidence rule.
The fifth ground of appeal is a complaint about a comment made by the Judge in the course of the summing up that there was no evidence before them as to the effect of drugs on a person. The appellant complains this was an implied criticism of the defence.
The remaining grounds of appeal, 3, 4, 6, 7, and 8, are complaints about comments made by the prosecutor in her closing address to the jury allied with complaints that the Judge failed to adequately address the prejudice caused by those comments. The appellant submits that the cumulative effect of these failures has caused a miscarriage of justice.
Permission to appeal was granted in respect of grounds 3, 4, 6, 7 and 8. The remaining three grounds of appeal were referred to this Court for permission.
Ground 1: Complaints about the directions to the jury as to the use to be made of the appellant’s acquittal in respect of count 1 and directing the jury that the evidence in respect of that count was to be treated as an uncharged act
The first ground of appeal is a complaint that the Judge erred in failing to direct the jury as to the proper use that could be made of the appellant’s acquittal on the first count of unlawful sexual intercourse and, in addition, by leaving the evidence that formed the basis of the first count as an uncharged act which the jury could consider along with the other uncharged acts led by the prosecution.
In order to understand the appellant’s submission on this ground it is necessary to set out what transpired at trial. In opening to the jury the prosecutor said in relation to the first and second counts on the information:
On the prosecution case these two charges relate to what I have referred to as the initial incident that occurred in the stairwell of a block of flats when [the complainant] and the accused were walking home together.
Count 1 relates to an act of oral sex of the accused inserting his penis into [the complainant’s] mouth, and count 2 relates to an act of anal sex, the accused inserting his penis into [the complainant’s] anus.
The complainant’s evidence in chief about the first incident was as follows:
Q.Whereabouts did he put your head down.
A.Towards his penis.
Q.And did your head touch his penis.
A.Yes.
Q.And how did your head touch his penis.
A.It was my - because from when he was sitting and I was sitting next to him and from him grabbing my head and - because I didn’t put my mouth towards it and I’ve moved my head, my head touched his erect penis (DEMONSTRATES).
Q.Did his penis go into your mouth.
A.Not at the flats.
There was no cross-examination of the complainant about whether she had ever on an earlier occasion said anything different about what had happened in the stairwell.
In due course the appellant’s counsel made a submission that there was no case to answer in respect of the unlawful sexual intercourse charged on count 1 and the trial Judge directed the jury to acquit.
In the circumstances it is necessary to set out what the trial Judge said to the jury at the time when she directed them to acquit in relation to count 1:
Now, ladies and gentlemen, this brings us to a formal application in relation to the course of the trial and in particular in relation to count 1 on the information. Do you have the information that was given to you by the prosecutor in the course of her opening? Count 1 on the information is a charge of unlawful sexual intercourse with a person under the age of 17 years. It’s been particularised in the information as being an event that occurred between 1 August and 31 August 2013, when it was alleged that the accused put his penis in the mouth of [the complainant]. During the course of the opening, you may recall that [the prosecutor] said that this particular count related to the events that occurred in the stairwell of the flats in Oaklands Park. During the course of the evidence that was given to you by [the complainant], [the complainant] said that the accused’s penis had not actually gone into her mouth, rather, that he had exposed his penis to her and that it touched her, you might recall, on the side of the head and she demonstrated to you where that was.
In relation to count 1, a charge of unlawful sexual intercourse can only be proven by the prosecution if two elements are proven beyond reasonable doubt. The first of these elements is that sexual intercourse occurred. The law of our State is that sexual intercourse includes an act of fellatio, that is, placing the penis inside the mouth, in addition to acts of vaginal sexual intercourse and anal sexual intercourse. But, in order to prove this, there has to be evidence before you that the penis went into her mouth and clearly there is no evidence before you that the penis went into her mouth on that occasion.
In that event, there is no case, as a matter of law, in relation to the first count on the information and I need to direct you, and I do direct you, that as a result of there being no evidence that could satisfy the elements of this offence at law, that you must return a verdict of not guilty in respect of count 1 on the information.
The jury then returned a verdict of not guilty and her Honour made the following comments:
As I’ll come to in due course, it doesn’t mean, the verdict of not guilty, that you ignore the conduct at all in relation to the allegation that was made by the complainant. What it means is that when you come to consider your verdicts in relation to the balance of the information, that that conduct becomes a part of what we call the uncharged acts. So you can still take into account the conduct if you are satisfied that that conduct did, in fact, occur when you consider the balance of the counts, but it means that that conduct is no longer the subject of a charged count, being count 1.
It probably illustrates for you quite well the difference between what we call the charged counts and the uncharged conduct in a case and, as I’ll come to in the summing up, there are other examples in this case of uncharged conduct, that is, sexual conduct that is not the subject of counts on the information and I’ll tell you how you can use it and how you can’t use it in due course.
When it came time to sum up to the jury the trial Judge returned to the topic of uncharged acts and directed the jury as follows:
I now want to move to the topic of uncharged acts. In this trial you have heard evidence of other acts, conduct or events such as the incident in the stairwell before the alleged act of anal intercourse, touching the complainant on her breasts, the dry humping on the fence, the incident with the cigarette lighter and the sticky tape in the hair, an occasion when the accused tried to put his penis into her mouth but she closed her mouth and he hit her teeth instead with his penis, occasions when he would masturbate, or as the complainant said ‘wank’ in front of her.
The direction the trial Judge gave in relation to uncharged acts is not the subject of any complaint. However, the appellant submitted that in the event that it was appropriate to leave the incident which had been the subject of count 1 to the jury as an uncharged act, then it was incumbent on the Judge to draw to the jury’s attention the “inconsistency” between the particulars provided by the prosecutor in opening to the jury and the evidence given by the complainant in chief which led to the successful submission of no case to answer.
In making that submission the appellant relied on what fell from this Court in R v MAS.[1]
[1] (2013) 118 SASR 160 at [91].
In MAS there were numerous inconsistencies which had been established by cross-examination of the complainant. Those inconsistencies included the making of positive statements of fact at trial which differed from a previous statement which she had made to police on the same topic, and making positive statements of fact which had not been made on a previous occasions to police on the same topic. The number and extent of those inconsistencies, some of which were proved by evidence independent of the complainant, were such that this Court held in MAS that the Judge should have given a direction to the jury that the cumulative effect of those inconsistencies was such that they were entitled to take the view that the complainant’s evidence was not sufficiently reliable to support guilty verdicts.
The Court held that the lack of such a direction having been given was also compounded by the Judge’s direction to the jury to ignore completely a charge on which the jury had acquitted the appellant in light of the complainant’s evidence which did not include any evidence at all about the subject count.
It can be seen that the facts here are very different. In this case there was no cross-examination of the complainant as to any prior inconsistent statements. That is understandable perhaps as the evidence led at trial from the complainant disclosed at best an indecent assault upon the complainant. It did not support the charge of unlawful sexual intercourse by committing fellatio.
When the Judge directed the jury to acquit the appellant of count 1 she did so in terms which highlighted the difference between the particulars on the information and the prosecutor’s opening compared with the complainant’s evidence that there had been no actual penetration inside the mouth. The jury could not have been unaware of the inconsistency as that inconsistency was the very basis for the directed acquittal. Second, the Judge directed the jury that all of the evidence, including the evidence which had been the basis of the first count, was part of the material which they had to consider.
It is significant that the appellant’s counsel conceded there were no relevant inconsistencies established in the complainant’s evidence and neither counsel sought any direction of the kind which the appellant now suggests should have been given. Of course, as the High Court recently reiterated in Perara-Cathcart v The Queen,[2] the manner in which the case was conducted for the defence does not relieve a trial judge of the duty to give adequate directions to the jury as to the use of the evidence before them, but the absence of an application by counsel at the time for a further direction affords some practical indication that the judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task.[3]
[2] (2017) 91 ALJR 411.
[3] Perara-Cathcart v The Queen (2017) 91 ALJR 411 at [60].
In my view the Judge made it abundantly clear when directing the jury to acquit that the verdict of not guilty was required because the complainant had said in evidence something different to the particulars alleged in count 1 and upon which the prosecution had opened. Her later directions when summing up as to the permissible use of the uncharged acts, of which the incident in the stairwell preceding the offence in count 2 was one, were not the subject of any complaint on appeal. In the circumstances nothing further was required.
I would refuse permission to appeal on this ground.
Ground 2: The directions concerning the oath belief rule
The appellant complains that the trial Judge undermined the direction which she gave to the jury about the oath belief rule by referring to it as “an ancient rule of evidence that had its origins in medieval England” and compounded that by adding “in our State this rule still exists although it is not used very often”.

In my view there was nothing objectionable about her Honour’s remarks. She was obliged to give some explanation to the jury about the oath belief rule, as ordinarily opinion evidence from lay witnesses is not admissible. Some explanation as to how the jury could use that evidence was necessary. Her Honour’s remarks were factual. Although not relevant to the disposition of this appeal, the fact that in the time between the trial and the date the appeal was heard the oath belief rule was legislatively abolished in this State only underscores the accuracy of the trial Judge’s comments. There is nothing implicitly undermining about revealing the source of a law as having originated in medieval England. Indeed, much of the common law derives from medieval England. Nevertheless, her Honour’s directions to the jury as to how they might use the evidence were impeccable.
I consider there is no substance in this ground and I would refuse permission to appeal on this ground.
Grounds 3 and 4: Impugned comments of the trial prosecutor and Judge’s failure to adequately address prejudice caused thereby
These grounds of appeal relate to the evidence of a witness, Ms Samantha Hoban. Ms Hoban was called for the defence. She said that on one of two occasions when the appellant visited her, he turned up with a group of friends, one of whom included a young girl. When Ms Hoban discovered that the girl was only 14 years old she asked them all to leave as she did not want to have responsibility for an underage girl drinking in her home. The complainant denied ever attending Ms Hoban’s home, consuming alcohol or being asked to leave the house which she said she went to with the appellant and others on the night one of the offences occurred.
In the course of the cross-examination of Ms Hoban, the prosecutor questioned her about her attendance at the office of the appellant’s solicitor. The cross-examination was on the topic of exploring whether Ms Hoban’s recall of events which had occurred some three years earlier was an independent recollection or whether she had been assisted in the sense that her memory had been prompted by questions or statements from others. In her cross-examination Ms Hoban conceded that she had been given some details about the night in question. That was the context in which the prosecutor made the comment.
In the course of her address, the prosecutor submitted “Ladies and gentlemen, in my submission, she [Ms Hoban] was provided a lot of these details so that she could provide them in court”.
Immediately after the prosecution address, counsel for the appellant sought a mistrial on the basis that the prosecutor’s comment implied some impropriety on the part of the defence solicitor.
The prosecutor’s submission about that concession might have been somewhat clumsy and one which I doubt a more experienced advocate would have made. However, I do not consider that any prejudice could have been caused to the appellant by those remarks.
In any event, her Honour removed any potential misunderstanding as to the tenor of the prosecutor’s submission when she directed the jury as follows:
I want to say something to you now about the evidence given in this court by Samantha Hoban. She gave evidence there was an occasion she thought during 2013, when the accused and others came to her home. She was not sure exactly when this had occurred. On the occasion she said he came with a number of other people. This group included a girl and it is suggested by the defence this is [the complainant]. During the course of Ms Hoban’s evidence it appeared she had been given some details of this case by another person. Exactly what she was told was not clear. However, she gave a statement to the accused’s solicitor, Mr Ben Sale, in December 2016 and then presented evidence in this court. It is for you to assess the evidence that she gave and to consider what weight, if any, you are prepared to place on it. As with all factual matters, these are matters for you.
You will need to consider whether the evidence of Ms Hoban leads you to doubt the evidence of [the complainant] that on the particular night in question when [the complainant] went to the flats with the accused she did not go to the home of somebody she thought was Ms Hoban. In order to make this assessment you need to carefully consider the evidence of Ms Hoban, including determining questions such as whether you accept her evidence that a group of people, including the accused and a girl, went to her home at all. If they did go to her home, was it on the same occasion as described by the complainant and, was the complainant a part of the group that went there?
Please remember that at no stage is it necessary for the accused to prove any matters beyond reasonable doubt. If you form the view that it is reasonably possibly true that on the night in question the complainant went to Ms Hoban’s house with the accused and other men, was drinking alcohol and left that house about 12 o’clock, then you will have to consider whether this causes you to doubt the reliability of [the complainant] as to the offence that she recounted occurring in the stairwell on the way home and whether it affects her credibility in relation to what happened generally. Does it make it less believable that the offence happened in the stairwell on the way home?
If you were to conclude that if affects her reliability or credibility then you will need to consider whether it creates a reasonable doubt about whether the accused committed the act of anal intercourse on the complainant in the stairwell of the block of flats. If you were to be concerned about the complainant’s reliability or credibility in relation to this count, then it may have an impact upon your assessment of her credibility and reliability on the remaining counts on the information. This is a matter for you to determine.
I want to add in relation to this that there is no suggestion that the accused’s solicitors have acted improperly in relation to any information given to Ms Hoban prior to her giving evidence in this court.
In my view that concise and clear direction to the jury eliminated the potential for there to be any misunderstanding and therefore prejudice to the appellant on that topic.
For these reasons I would dismiss grounds 3 and 4.
Ground 5: Complaint that trial Judge erred by commenting to jury that there was no actual evidence before them as to how drugs may affect an individual
Ground 5 is a complaint that a remark by the trial Judge in the course of her summing up undermined the effect of the defence submission that the complainant took drugs. Her Honour directed the jury as follows on this topic:
In this case you heard evidence that [the complainant] has used drugs from a very early age, probably around the age of 11. She continued to use illicit drugs until she went into rehab last year. It seems her sister, [JL], also used drugs. In addition to this, you heard evidence that she had truanted from school. This appears to have been a regular occurrence for her over a number of years. You may have strong views in relation to taking illicit drugs and truanting from school but, as I told you at the commencement of this trial, this trial is to be determined on the evidence that you hear in this court and nothing else. You must put your personal views to one side in relation to those matters and determine the trial on the evidence that is before you.
A submission has been made to you by [defence counsel] that the taking of drugs such as the complainant was doing at this time, may affect her reliability. That is a matter for you to determine. You have no actual evidence before you as to how these drugs may affect an individual. On the other hand, it may be that the taking of drugs and the family dynamics in this particular case was simply a feature of [the complainant’s] life and the life of her sister, [JL], at that stage. It is a matter for you to determine and give such weight to these issues as you think appropriate.
That direction was given against the background of the defence submission about the complainant’s drug taking in the course of which counsel for the appellant said to the jury:
You’ve heard no evidence whatsoever on the prosecution case about the effect of ice or marijuana on an individual in a case like this so you have no evidence to operate on in this particular regard. You might well think that from at least what you know about the use of those drugs that they can affect you in a negative way, it’s a matter for you. I would simply ask you to assess [the complainant’s] evidence with her admitted regular and you might think significant use of pretty powerful drugs and how that might affect her reliability in terms of her memory.
It can be seen that the trial Judge’s direction reflected this very same point made by defence counsel in his address to the jury. Her Honour then correctly directed the jury that what they made of the complainant’s drug taking and its effect upon her reliability was for them to determine.
The submission that somehow the remarks made by the trial Judge by implication criticised the failure on the part of the appellant to call a witness such as a toxicologist or a pharmacologist should be rejected.
I would refuse permission to appeal on this ground.
Ground 6: 34M(2) of the Evidence Act 1929 (SA)
Ground 6 is a complaint that the prosecutor, in commenting on the complainant’s reluctance to complain to others who she felt would not believe her, thereby breached the prohibition in s 34M(2) of the Evidence Act 1929 (SA) (Evidence Act).
That section prohibits any suggestion or statement to a jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.[4]
[4] Section 34M(2) of the Evidence Act provides:
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.
However, by virtue of s 34M(4) a judge must direct the jury that a complaint, if admitted, is done so for a number of reasons including that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance, if any, of the evidence in the circumstances of the particular case.[5]
[5] Section 34M(4) of the Evidence Act provides:
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
Section 34M of the Evidence Act, while prohibiting any attack on the credibility of an alleged victim of a sexual offence by reason of a delayed complaint, does not however prohibit any explanation of the reason or reasons proffered by a complainant as to why he or she did not make a complaint to a particular person or at a particular time when common experience might tend to suggest that he or she would have.
In my view, in placing an obligation on a trial judge to explain that there are a number of reasons why in any particular case a complainant might delay in or fail to complain, the Parliament has not prohibited the ability of either party to proffer the actual reason or reasons as to why a complainant failed to or delayed in making a complaint. Nor does the section prohibit any examination of the veracity of an explanation if one is proffered.
In other words, the section does not prohibit cross-examination as to the truth of any explanation which might be proffered for the failure to complain or the delay in complaining. What is not permitted is any comment on the actual delay.
This point was made by Kourakis J (as he then was) in R v H, T:[6]
Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
[6] (2010) 108 SASR 86 at [107].
Here the complainant was led in examination-in-chief on the topic of whether she had complained to anyone and why she had not complained to her mother or her sister, with whom she was living at the time.
During cross-examination of the complainant, counsel for the appellant devoted quite some time to cross-examining the complainant, not as to the veracity of her explanation but as to the timing of why she did or did not do certain things. The cross-examination seemed to be generally directed towards the fact of the delay.
There was, for instance, no cross-examination on the complainant’s evidence that she was not close to her mother or her sister. In these circumstances it is understandable why the trial Judge found it necessary to intervene and, in the absence of the jury, query counsel for the appellant as to where the cross-examination was heading. At the conclusion of that discussion her Honour invited the appellant’s counsel to raise it with her again if there was some relevance. The appellant’s counsel chose not to do so.
It was against that background that the prosecutor commented during the course of her address to the jury on the facts and circumstances in which the complainant came to complain to Ms Berg and not to her mother and sister. Given the course of the evidence, I consider that the comments of the prosecutor, properly understood, amount to no more than clarification, in this case, of the particular reasons why she did not complain to her mother and sister.
The trial Judge had an obligation to direct the jury in relation to the complaint which was made in terms of the requirements of s 34M. This she did.
Finally, the Judge specifically directed the jury in terms of the requirements of s 34M(4) as follows:
Finally, on this topic, as you are aware it is alleged the first of the charged offences occurred in about August 2013. The report was not made to the police until November 2013. I direct you there may be many reasons why an alleged victim of a sexual offence makes a complaint about the offence at a particular time and to a particular person. In this case you have heard the complainant chose not to make a complaint to her mother or to her sister because of the relationships that existed in her house at that time. The law recognises there may be varied reasons why an alleged victim of a sexual offence makes a complaint about that offence at a particular time and to a particular person as I have said. It is for you to determine the significance, if any, of the evidence of the complaint bearing in mind the circumstances of this case.
It is in the context of the cross-examination of the complainant and the direction which the trial Judge was obliged to give pursuant to s 34M(4) that I consider the prosecutor’s remarks were both explicable and permissible.
I would dismiss this ground of appeal.
Grounds 7 and 8: Complaints that the prosecutor contravened the principle in R v Palmer and that the trial Judge failed to adequately cure any prejudice caused thereby
Grounds 7 and 8 are further complaints about another comment of the prosecutor during her address and what were said to be inadequate directions of the trial Judge on that same topic.
During her closing address the prosecutor commented upon the suggested motive the complainant had to fabricate her allegations. It was put directly to the complainant in cross-examination that she lied because she wished to obtain a Centrelink benefit.
Thus when the prosecutor addressed the jury she said “If that was the end goal in 2013 why are we all still here today over three years later?”
Counsel for the appellant submits that in asking that rhetorical question, the prosecutor transgressed the principle enunciated in Palmer v The Queen.[7] Counsel identified that principle from a passage in the majority judgment which states:[8]
In such a case, to ask an accused the question: “Why would the complainant lie?” is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused. …
[7] (1998) 193 CLR 1.
[8] Palmer v The Queen (1998) 193 CLR 1 at [8].
It is only necessary to look at the facts in Palmer to grasp why that submission is misconceived. Palmer was a case in which the appellant was asked in cross-examination why the complainant would invent allegations against him. That was the context in which Palmer was decided. It is well established that it is not for the accused to prove that a complainant has a motive to lie. However, in circumstances where it has been directly put to a complainant that she has a motive to lie, there is no prohibition on either party commenting on the plausibility or otherwise of the motive to lie which was advanced.
The prosecutor, in addressing the jury, prefaced her remarks by making it clear to the jury that there was no onus on the accused to prove the motive. Counsel for the appellant, also in the course of his address, put the contrary argument and reminded the jury of the same topic.
In summing up to the jury, her Honour said:
Ladies and gentlemen, I want to move on now to the topic of motive. In this case it has been suggested that there is evidence from which you might infer that the complainant had a motive for making false allegations against the accused. It was put to the complainant that she made up the allegations in order to be able to get benefits from Centrelink so that she could move out of home. It was suggested to her that in November 2013, at about the time she reported the allegations to the police, she was also attempting to get special benefits from Centrelink. She agreed that she was trying to get special benefits from Centrelink to live away from home. She agreed that one of the reasons she gave to Centrelink was because of what the accused had to [sic] done to her but added that it was also because she believed her mother had picked her sister over her.
When the suggestion was made to [the complainant] that she made up the story in order to get the benefits she said ‘No, nope, that’s not true. I disagree’. When her mother was asked whether she was aware that the complainant was trying to get special benefits allowance from Centrelink at about that time she said when she was asked that she was not sure about that.
Ladies and gentlemen, you will have to consider the possibility of a motive for the complainant to lie. A motive to lie is relevant to the credibility of [the complainant]. However, even if you were [to] reject the alleged motive for her to lie, that does not mean that you would find that she is being truthful. The absence of evidence of a motive does not strengthen the prosecution case. It is neutral.
Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for [the complainant] to lie. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that [the complainant] was telling the truth before you can find the accused guilty of any of the offences with which he is charged.

Those directions made it plain to the jury that there was no onus upon the appellant to prove any motive to lie. Nothing further was required.
For these reasons I consider that the complaints in grounds 7 and 8 are misconceived.
For the reasons I have given I would refuse permission to appeal on grounds 1, 2 and 5 and dismiss the appeal on the remaining grounds.
STANLEY J: I agree with the reasons of Kelly J and the orders she proposes.
CHIVELL AJ: I agree with the reasons of Kelly J. I would refuse permission to appeal on grounds 1, 2 and 5, and dismiss the appeal on the remaining grounds.