R v C, CA - [2015] SASCFC 143

Supreme Court of South Australia
(Court of Criminal Appeal)
R v C, CA
[2015] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
30 September 2015
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
The appellant was convicted after a trial by jury of 10 counts of unlawful sexual intercourse, three counts of indecent assault and one act of gross indecency. The offending related to two boys who were friends with the appellant’s children.
The appellant appeals against the convictions on a number of grounds related to the directions given to the jury by the learned trial Judge and the presentation of the defence case in the summing up.
Whether the learned trial Judge erred in directing the jury regarding possible collusion and concoction. Whether the learned trial Judge failed to identify relevant dissimilarities in the accounts given by the complainants. Whether the learned trial Judge erred in directing the jury as to the permissible use of complaints. Whether the learned trial Judge unfairly bolstered the complainants’ credibility and reliability in his summing up to the jury. Whether the learned trial Judge failed to adequately present the defence case in summing up to the jury. Whether the learned adequately directed the jury in relation to the issue of forensic disadvantage.
Held per Kelly J (dismissing the appeal) (Vanstone J and David AJ agreeing):
1.      The learned trial Judge’s directions adequately conveyed to the jury that the possibility of concoction or collusion was relevant to the credibility of both complainants, and that this would impact whether they were satisfied beyond reasonable doubt that the complainants gave truthful and reliable evidence.
2.      It was not for the learned trial Judge to compose a list of matters which he considered constituted dissimilarities. In inviting the jury to evaluate the evidence of the complainants it is plain that his Honour was directing the jury’s attention towards possible dissimilarities.
3.      The effect of the trial Judge’s directions as a whole was to convey to the jury that the differences between accounts needed to be considered. The jury could not have failed to be aware that inconsistency in the complaint evidence was relevant to the complainants’ credibility. The learned trial Judge’s directions to the jury as to the limited way that it could use the complaint evidence did not take that issue away from the jury.
4.      It has not been demonstrated that the learned trial Judge’s summing up left the jury with the impression that there was nothing for them to decide. The learned trial Judge’s comments on the facts made it plain that factual matters were for the jury to decide, and were made at the end of a summing up in which the prosecution and defence cases were fairly summarised.
5.      The learned trial Judge gave the jury a fair and balanced presentation of the salient features of both the prosecution and defence cases.
6. The learned trial Judge discharged his obligations under s 34CB of the Evidence Act 1929 (SA). In the circumstances of the case it was not necessary for his Honour to give further and more detailed directions in relation to the prejudice suffered by the appellant.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56, s 58; Evidence Act 1929 (SA) s 34M, s 34CB, referred to.
R v Cassebohm (2011) 109 SASR 465; R v D (1997) 68 SASR 571; R v M, BJ (2011) 110 SASR 1; R v N, RC (2012) 112 SASR 399, applied.
R v C, CA [2013] SASCFC 137, discussed.

R v C, CA
[2015] SASCFC 143
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons written by Kelly J.
KELLY J:
The appellant was convicted after a trial by jury of three counts of indecent assault,[1] 10 counts of unlawful sexual intercourse[2] and one act of gross indecency.[3] These convictions relate to offences against two boys, to whom I shall refer as “V1” and “V2”. V1 was a friend of the appellant’s son, who I will call “KC”. V2 was a friend of the appellant’s step-daughter.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] Contrary to s 49(1) of the CLCA.
[3] Contrary to s 58 of the CLCA.
The appellant appeals against his convictions on six grounds. They relate to the directions given to the jury by the learned trial Judge and the presentation of the defence case in the Judge’s summing up to the jury. The appellant was granted permission to appeal against ground 2 of his Notice of Appeal by a single Judge of this Court. He seeks permission to appeal on ground 1, and ground 3 to 6. Insofar as it is necessary I would grant permission to appeal on these grounds. However, I would dismiss the appeal. My reasons follow.
Background
At trial the appellant faced 25 charges (including alternative charges) for offending alleged to have taken place between approximately February 2001 and January 2007. There was also evidence of an additional 25 uncharged acts of discreditable conduct by the appellant at trial.
V1
Between June 2000 and June 2003, the appellant and his wife ran the States Park Equestrian Centre in the Onkaparinga Hills. V1’s family agisted horses there and it was through his family’s involvement with the States Park that V1 became friends with KC and consequently met the appellant. The prosecution case regarding the offending against V1 was that on a number of occasions at the appellant’s various residences, a holiday shack and other public locations, the appellant engaged in sexual acts with V1. V1 was between nine and 15 years old during the period of the alleged offending.
The acts with respect to V1 for which the appellant was convicted were:
1Unlawful sexual intercourse – when he was approximately 10 years old, V1 was called into the office at the States Park by the appellant. The appellant pulled down his own pants and began to touch his genitals and then pulled down V1’s pants and masturbated himself and V1. The appellant performed fellatio on V1 while masturbating himself (Count 1);
2Indecent assault – while V1 was hiding in a closet during a game of hide and seek the appellant pulled down V1’s pants and underwear and touched V1’s genitals and his own genitals simultaneously (Count 2);
3Unlawful sexual intercourse – during the first sleepover V1 had at the appellant’s home, the appellant was alone with V1 in the lounge room and touched V1’s genitals and his genitals and performed fellatio on V1 while masturbating himself (Count 3);
4Indecent assault – the appellant took V1 into a small shed on the States Park property, pulled down V1’s pants and underwear and touched V1’s genitals with his hand and with a wire brush (Count 5);
5Unlawful sexual intercourse – when V1 was 14 or 15 years old the appellant entered V1’s cubicle in the toilets at the Noarlunga Swimming Centre and touched V1’s genitals and his own genitals both through their bathers, after they had taken their bathers off, and then performed fellatio on V1 (Count 6);
6Unlawful sexual intercourse – at the appellant’s Hackham residence the appellant entered the bathroom while V1 was showering, took off his clothes and sat next to V1 on the floor of the shower. The appellant touched his own genitals and suggested that V1 wanted to engage in sexual activity. The appellant touched his genitals and V1’s genitals and performed fellatio on V1 while masturbating himself (Count 16);
7Unlawful sexual intercourse – during a sleepover in the lounge room of the appellant’s Hackham residence, the appellant touched his and V1’s genitals, before suggesting that he and V1 fellate each other at the same time. The appellant and V1 started to fellate each other before stopping. The appellant then fellated V1 while masturbating himself (Count 18);
8Unlawful sexual intercourse – when driving V1 home from the Noarlunga Swimming Centre, the appellant parked his utility and touched his and V1’s genitals before fellating V1 while masturbating himself (Count 20);
9Gross indecency – the appellant took V1 into some stables at his Meadows residence and touched V1’s genitals and his own before fellating V1 while masturbating himself (Count 23);[4] and
10Unlawful sexual intercourse – on a trip to a cottage in Victor Harbor the appellant played a game of “strip jack” with V1 during which V1 was required to masturbate and perform fellatio on the appellant, and the appellant masturbated and performed fellatio on V1. At the end of the game the appellant rubbed his penis against V1’s genitals and anus (Count 24).
[4] Count 23 was an alternative to Count 22, a charge of unlawful sexual intercourse. The trial Judge directed the jury in his summing up that if it was satisfied that the act of sexual intercourse took place, but was not satisfied that it took place before 15 May 2006, a verdict of not guilty should be reached for unlawful sexual intercourse and a verdict of guilty to the alternative charge should be reached.
V1 also gave evidence of a number of uncharged acts regarding the appellant. These included other occasions in the States Park office when the “same thing” happened, and sexual conduct occurring “most nights” that V1 slept at the States Park residence; the appellant instigating a game in which he, KC and V1 would remove their clothing; further instances of the sexual activity between the appellant and V1 in the shower and in a shed; the appellant touching V1’s genitals and anus while skinny dipping at a Reynella swimming pool with V1 and KC after hours; the appellant exposing his genitals under water in the spa at the Noarlunga Swimming Centre and encouraging V1 to do the same; the appellant discussing engaging in anal sexual intercourse with V1; the appellant asking V1 if he would like to engage in sexual activity with another (unspecified) person; and the appellant discussing gay pornography with V1.
V1 also gave evidence that the appellant’s penis is circumcised, with a “skin tag-type thing on it.” This evidence was corroborated by the evidence of Mr William Ducrou, a police medical officer, who confirmed that the appellant’s penis was circumcised and had a papule.
V1 ceased contact with the appellant when he was 15 or 16 years old.
V2
The prosecution’s case regarding V2 was as follows. V2 met the appellant’s step-daughter in Year 5 at school, and they later started dating. Towards the end of Year 5, V2 visited the appellant’s home at the States Park about once every two weeks, and stayed overnight approximately once a month. V2 gave evidence that the appellant engaged him in a number of sexual activities at the appellant’s Hackham home. He was aged between 12 and 15 years old during the period of the alleged offending.
Those acts for which the appellant was convicted were:
1Indecent assault – after a trip to Maslin Beach, the appellant, KC, V2 and V2’s brother showered at the appellant’s Hackham residence. While V2 showered the appellant stayed in the bathroom and after the shower rubbed lotion on V2’s chest and masturbated V2 (Count 8);
2Unlawful sexual intercourse – V2 went into one of the sheds at the Hackham residence with the appellant and the appellant masturbated V2 before fellating V2 and simultaneously masturbating himself. At the appellant’s request V2 then performed fellatio on the appellant (Count 9);
3Unlawful sexual intercourse – when he was about 15 years old V2 stayed at the appellant’s Hackham residence. The appellant took V2 into one of the sheds on the property for the stated purpose of showing him something, and then performed fellatio on V2 while masturbating himself. V2 then performed fellatio on the appellant (Count 12); and
4Unlawful sexual intercourse – while V2 and the appellant were alone at the Hackham residence, the appellant and V2 went into the lounge room. The appellant performed fellatio on V2 while masturbating himself and asked if V2 had ever tried, and would like to have, anal sexual intercourse. V2 agreed and the appellant inserted his fingers into V2’s anus while masturbating himself and then inserted his penis into V2’s anus (Count 14).
V2 also gave evidence of uncharged acts involving the appellant. These included skinny dipping with the appellant, V2’s brother and KC at the State Swim centre in Reynella, at the appellant’s suggestion; the appellant skinny dipping with KC at Maslin Beach and suggesting that V2 also swim naked; and the appellant suggesting that he and V2 meet after a period of non-contact, showing V2 gay pornography, suggesting that they have anal sexual intercourse and the appellant and V2 then engaging in anal sexual intercourse in the appellant’s work truck.
During the above incident when the appellant and V2 engaged in anal sexual intercourse in the appellant’s work truck, the appellant asked V2 if he had “done this” with other boys, to which he replied no. V2 then asked the appellant if he had “done it with any other boys”. The appellant mentioned a 15 year old boy from the States Park Equestrian Centre, and also a boy with the same first name as V1, who V2 knew to be a friend of KC.
It was V2’s evidence that he did not know V1, but knew V1’s sister. He had never spoken to V1 directly and did not socialise with him. He did not tell V1’s sister about the appellant’s conduct.
Defence case at trial
The appellant elected to give evidence. He denied ever having sexual contact with V1 or V2, or making sexual advances towards them. Specifically his evidence included that:
·To his knowledge, V1 did not shower at the States Park house. The appellant did not shower with V1 or KC, or watch them shower;
·When V1 stayed over at the States Park house or the Hackham residence the appellant was never alone with him as KC would also sleep in the lounge room with V1. V2 slept at the Hackham residence on about three occasions and also always slept in the lounge room with KC;
·He took V1 and KC to the Reynella swimming pool on one occasion when he performed maintenance but he did not swim with them or suggest that they swim naked. There was never sexual contact between V1 and the appellant at the Reynella swimming pool. He never took V2 to the Reynella swimming pool;
·He had variously taken KC, his step-daughter, V1, V2 and another child to the Noarlunga Swimming Centre but never took V1 or V2 alone;
·There was an innocent explanation for V1 knowing about the papule on his penis as V1 was present on an occasion at the Noarlunga Swimming Centre when KC asked the appellant about it while the appellant was drying himself off after swimming;
·He took V1 to a shack at Hindmarsh Island own by his brother, “BC”, on one occasion, while KC and BC were also there. He never took V1 to stay at Victor Harbor and the game of “strip jack” never happened;
·He never took V2 to Hindmarsh Island or Victor Harbor;
·The appellant never took V1 into the stables at his property in Meadows, or to the beach;
·The appellant never took V2 to Maslin Beach but did take him to a beach at Port Noarlunga or Moana. There was no sexual contact with V2 after a beach trip;
·The appellant never showed V2 pornography or told V2 about a boy with V1’s first name; and
·KC was an active and short tempered child who would not go away when told.
The appellant’s wife, step-daughter, KC and BC gave evidence, as did a friend of the appellant’s wife who spent time at the States Park residence.
Complaints on appeal
Grounds 1 and 2 – Directions regarding collusion, concoction and similarity of account
The appellant argues six grounds of appeal. I will consider them in turn.
It is convenient to deal with the first two grounds of appeal together as they raise different aspects of the same issue. These complaints concern the directions that the learned trial Judge gave on the topic of collusion and concoction. The appellant complains that the trial Judge failed to provide sufficient direction to the jury when considering the issue of the possible collusion between the two complainants (ground 1), and further that he failed to identify any relevant dissimilarities in the accounts given by the complainants after having highlighted and identified the similarities relied on by the prosecution (ground 2).
The appellant also complains that the trial Judge did not sufficiently direct the jury as to the similar errors or lies said to be replicated on the evidence of the two complainants, or about the evidence given by the appellant and the defence witnesses, in the context that the similarity of accounts between the complainants could itself be demonstrative of collusion.
It is important to understand the approach taken by the appellant’s counsel at trial on the issues of both similarity and collusion when assessing the complaints made regarding the adequacy of the trial Judge’s directions. He did not suggest to the jury that there was insufficient similarity between the two complainants’ accounts such that the account of one complainant might not be probative of the other. On the topic of concoction there was no attempt to challenge or contest the evidence led by the prosecution which, if accepted, established that the two complainants had never spoken.
There was no direct evidence at trial that either complainant knew the other or knew of each other’s allegations, let alone in sufficient detail to relate such similar accounts. The evidence of the only people to whom V1 and V2 had spoken about the offending prior to police investigations, Ms Whitton and Ms Unger respectively, was that they did not disclose the very little that they knew of the allegations made by the complainants. The lead investigator also gave evidence that she had not shared the contents of any statements with other witnesses. That evidence was not contested.
In his closing address at trial, the only basis on which counsel for the appellant invited the jury to consider whether there had been an opportunity for the complainants to concoct their versions of the allegations against the appellant was the fact that they had attended the same school and that both of their families had a relationship with the appellant’s family.
Against that background the trial Judge directed the jury on the issue of concoction and possible collusion as follows:
Let me start by saying this, if two people independently make complaints about an accused, which complaints are similar in nature and in detail, then as a matter of logic, common sense and experience the only explanation for the similarities in the stories are these: first, that the allegations must all be true, or second, that the allegations have arisen from a cause common to both complainants such as concoction - making up a story - or that the similarities in their accounts or stories are the product of pure coincidence.
I am going to repeat that, but before I repeat it, I say this: when I say ‘concoction’ in the circumstances of this case, I mean that [V1] and [V2] have either put their heads together, that is, spoken with each other and made up similar stories, or that, while not actually speaking to each other, they have made up false stories based on what each of one of them has heard that the other has said.
I think that is what Mr Healy was referring to, that possibility that they may not have actually met or spoken to each other directly but one or other of them had heard what the other had said and, on that basis, they concocted a story.
So that is what I mean by ‘concoction’, both getting together and putting their heads together and making up stories, or without speaking to each other, but basing them on information from other people about what they had heard.
So let me repeat: If two people independently make complaints about an accused and those complaints are similar in nature and detail, then as a matter of logic, common sense and experience, the explanations for the similarities are that the allegations are all true, that the allegations are the result of concoction, or that the similarities is simply the product of coincidence.
In a case where two complainants, here [V1] and [V2], give similar evidence about what they say happened to them, and the prosecution excludes beyond reasonable doubt the possibility that the similarities are the product of concoction or coincidence, then the similarities in the accounts or stories of the two complainants might provide some degree of support for the essential aspects of their evidence.
The basis of this line of reasoning is the improbability of both complainants telling similar lies and the line of reasoning is perhaps best explained by the use of a pretty simple example: If a young teenager makes a complaint of sexual abuse against that teenager by a particular man, then that teenager may well be indulging in fantasy. If another young teenager makes a complaint of sexual abuse by the same man, then that may well be mere coincidence. But if two young teenagers make complaints of sexual abuse by the same man and their complaints are similar in nature and in detail, and if they had not got their heads together or if they had not concocted a story which both of them tell, then it may well be that coincidence can be excluded and that the degree of similarity disclosed gives rise to the inference, to the exclusion of all other possibilities, that the two accounts are true and the reality is that the man in question has, in fact, abused both young teenagers.
I have talked about young teenagers; the same is exactly true if they are young men talking about what they say happened to them when they were teenagers. So let me put it this way; if two men make complaints of sexual abuse against them by the same man and their complaints are similar in nature and in detail and they have not concocted a story which both of them have told, then it may well be that coincidence can be excluded and that the degree of similarity disclosed by their stories gives rise to the inference to the exclusion of all other possibilities that the two accounts are true and the reality is that the man in question has in fact abused both of them.
Assuming that it can be concluded beyond reasonable doubt that the men have not concocted a story, then the question of whether the similarities in the accounts that each of them gives can provide support for what each of them says is a matter of fact and degree.
Again assuming that they have not concocted a story, the more unusual the account they give and the more similarities there are between the accounts, then the more improbable it becomes that they might have, independently of each other, made up their respective stories and the more likely it becomes that the similarities exist because both of them are telling the truth.
If the only explanation for the similarities is that both men are telling the truth, then the similarities might have the capacity to provide a degree of support for what each of them says and this is the approach that Mr Nitschke is inviting you to take when he points to what are similarities in his submission in the accounts given by [V1] and [V2] of what happened to them, between each of them and the accused.
Before you could engage in this improbability reasoning about which I am speaking you must first be satisfied beyond reasonable doubt that the prosecution has excluded the possibility that [V1] and [V2] have concocted a story, including any similarities which you might find to exist. If you are satisfied that the prosecution has excluded beyond reasonable doubt the possibility that [V1] and [V2] have concocted a story, then you have to go on and consider whether the evidence which they have given is sufficiently similar to give rise to the inference that it is improbable that they have independently made up similar lies.
Are their accounts of what they say the accused did to them similar or not similar? Are there threads of similar and unusual features running through their accounts or are their accounts simply ordinary and thus easily imagined accounts, easily imagined independently of each other? Is there a degree of unity underlying their respective accounts of what they say happened to them at the hands of the accused? Do their accounts reveal a pattern of similar conduct on the accused’s part? Is it so improbable that they could have independently imagined or independently made up accounts containing so many parallels and particularity of detail that they must both be telling the truth? Or are their accounts lacking such parallels and particularity of detail such that the similarities could be just coincidence?

Later, the trial Judge specifically drew to the jury’s attention the appellant’s submissions on the topic of concoction. He said:
Mr Healy particularly relied, when addressing you on the similarity or the asserted similarity of [V1’s] and [V2’s] accounts of [V2’s] evidence, on the fact that the accused had told him about being with a boy at Victor Harbor, giving that boy alcohol, getting that boy to run around the house with his pants down and how he ejaculated into that boy’s hand.
Mr Healy’s submission was, first, that the use of the description ‘Victor Harbor’ is a giveaway. Surely if it was the accused who was speaking about the shack, he would have said ‘Hindmarsh Island’ and not ‘Victor Harbor’. Further, [V1] gave no evidence of having been given alcohol or running around the house with his pants down or of the accused ejaculating into his hands. Does the account that [V2] gave using the term ‘Victor Harbor’ suggest that he, [V2], has somehow come into possession of some information, having found out [V1’s] story and got confused?
Mr Healy also relies upon what Emily Unger said [V2] had said to her many years ago during a conversation when both were at school. In that conversation Emily said that [V2] had told her that the man who was touching him was the partner of his mother. [V2] told her that he had come back from Victor Harbor and that the man had asked to have a shower with him. In cross-examination Ms Unger said that [V2] told her that the sexual behaviour occurred only at the shack at Victor Harbor. So Mr Healy relies upon the fact that [V2] has given no evidence about anything having happened at Victor Harbor between him and the accused. Does all of this mentioning of Victor Harbor suggest that there has been some transfer of information which [V2] has received and then got a bit confused? Does that evidence raise the possibility that the boys have, in fact, made up their stories? Even if they have not got together and put their heads together, have they received information from other sources and based their accounts on such information?
Contrary to the appellant’s submissions on appeal, it can be seen that in the passages extracted above the learned trial Judge specifically addressed the issue of similar errors and lies, and repeatedly stated that one of the possibilities to be equally considered along with the other two was that the similarity of accounts given by the complainants could of itself demonstrate collusion.
In addition, during the appellant’s case evidence was led which was directly relevant to the issue of whether the two boys had concocted their accounts. That evidence was summarised by the trial Judge at length before he concluded with the rhetorical questions concerning the specific criticisms made by the appellant’s counsel concerning the evidence of the offences which occurred at the Hindmarsh Island shack.
While the trial Judge did not specifically direct the jury in the context of giving the directions on concoction that, if the possibility of concoction and or collusion was not excluded, it may be difficult to rely on the complainants at all, the Judge reminded the jury on more than one occasion that the issue in the case was whether the conduct as alleged ever happened at all and further that the prosecution needed to satisfy the jury beyond reasonable doubt that both V1 and V2 had told the truth.
In another context he also reminded the jury to consider, if not satisfied of the reliability of V1 and V2 with respect to any one count, whether that lack of reliability would cause them to doubt the reliability of that particular complainant on any of the other counts.
Although the trial Judge only reminded the jury of the defence submissions on the topic of collusion towards the end of the summing up, I cannot think that makes any difference. On the contrary, it can hardly have been disadvantageous to the appellant that the jury was reminded of the defence submission shortly before being sent out to retire.
In my view the directions as a whole adequately conveyed to the jury that any possibility of concoction or collusion would be relevant to the overall credibility of both complainants and would, as a matter of plain common sense, impact upon the critical issue of whether they were satisfied beyond reasonable doubt that each complainant gave truthful and reliable evidence.
The comments of Vanstone J in R v M, BJ,[5] where a similar complaint was made, are apposite in this regard:[6]
Plainly the jury would not convict on the evidence of a witness where it entertained doubt about the witness’ honesty, whether due to concoction, contamination or simple dishonesty. However, here, where concoction had been raised, I acknowledge it would have been better had the judge addressed it, at least in brief terms, as having the capacity to rob the similar sexual allegations of their probative value. In respect of the offences of violence, where one child gave eyewitness evidence in support of another, again, the relevance of the suggested concoction should have been explained, if only in the context of putting the defence case. However, I consider the issues for the jury were plain.
[5] (2011) 110 SASR 1.
[6] R v M, BJ (2011) 110 SASR 1 at [65].
For these reasons I would dismiss the appeal in respect of ground 1.
I turn now to ground 2, the complaint that the trial Judge failed to give a balanced direction on the dissimilarities in the accounts of the two complainants, in light of the direction previously given as to the similarities relied on by the prosecution to support its case that the accounts of V1 and V2 were so similar as to raise the improbability, excluding collusion, of the allegations having been fabricated. In my view the complaint is unjustified.
The purpose of identifying the similarities in the complainants’ accounts in the course of the summing up was to assist the jury to assess and decide whether the accounts of the two complainants were of such a similar nature as to exclude, absent concoction or collusion, the possibility of coincidence. If there was not sufficient similarity in the accounts then the jury needed to be directed as to how to use the evidence of each complainant and, most importantly, how not to use it. Thus, it was inevitable that the Judge would direct the jury to assess the evidence of each complainant with that requirement in mind. A direction to consider whether sufficient similarity exists, as a matter of common sense, draws to the attention of the jury the need to take into account relevant dissimilarity. That this was recognised by the trial Judge is evident in the direction he gave:
Before you could engage in this improbability reasoning about which I am speaking you must first be satisfied beyond reasonable doubt that the prosecution has excluded the possibility that [V1] and [V2] have concocted a story, including any similarities which you might find to exist. If you are satisfied that the prosecution has excluded beyond reasonable doubt the possibility that [V1] and [V2] have concocted a story, then you have to go on and consider whether the evidence which they have given is sufficiently similar to give rise to the inference that it is improbable that they have independently made up similar lies.
Are their accounts of what they say the accused did to them similar or not similar? Are there threads of similar and unusual features running through their accounts or are their accounts simply ordinary and thus easily imagined accounts, easily imagined independently of each other? Is there a degree of unity underlying their respective accounts of what they say happened to them at the hands of the accused? Do their accounts reveal a pattern of similar conduct on the accused’s part? Is it so improbable that they could have independently imagined or independently made up accounts containing so many parallels and particularity of detail that they must both be telling the truth? Or are their accounts lacking such parallels and particularity of detail such that the similarities could be just coincidence?
[emphasis added]
In inviting the jury to critically evaluate the evidence of both complainants by asking them to consider whether the accounts were similar or dissimilar, it is plain that his Honour was directing the jury’s attention to any possible dissimilarities. It was not for the trial Judge to make up a list of matters which he considered constituted dissimilarities. This was particularly so given that in his conduct of the trial the appellant did not submit to the jury that the accounts of the charged and uncharged acts relevant to each complainant contained any relevant dissimilarities.
In any event, some of the alleged dissimilarities which are now raised on appeal are not in fact dissimilarities or, if they are, they are not material. For example, the duration of particular sexual contact between the appellant and each complainant is not a relevant matter as on some occasions the appellant’s conduct was abruptly terminated when someone approached or there was a fear that someone would approach. Nor does it matter whether the incident the subject of count 18 involved an incident of the appellant and V1 fellating each other simultaneously, whereas the incidents of fellatio alleged by V2 were never simultaneous. It is true that the appellant only engaged in anal intercourse with V2, however there was evidence that he had raised the topic with V1 but had been refused.
For these reasons I consider that this complaint is misconceived and I would dismiss ground 2.
Ground 3 – Directions regarding permissible use of complaint evidence
I turn now to the complaint that the trial Judge erred in directing the jury as to the permissible use of the complaints which were admitted under s 34M of the Evidence Act 1929 (SA) (Evidence Act).
The appellant argues that the trial Judge improperly restricted the use of the complaints to the detriment of the appellant. This complaint arises from the following passage in the summing up when the Judge was directing the jury as to the permissible use of the complaint evidence:
Ladies and gentlemen, you may use the evidence of what [V1] said to Monique and what [V2] said to Emily Unger if you see fit only in the way in which I am about to direct you. I begin with this: the evidence of those complaints to Monique Whitton and to Emily Unger are not before you to demonstrate the truth of what [V1] and [V2] said when they made those complaints, if you find that they made the complaints. You must have regard to what each of [V1] and [V2] said in court for that purpose. You may use the evidence of their complaints only in this way: when considering the similarity in their accounts, if you see fit to do so, you may take into account when considering the topic of concoction the fact that they first complained that any sexual contact with the accused some years before they told the police and each of them spoke to the police for the first time in 2011. You may use the evidence in that way, if you see fit. You must not use the evidence for any other purpose. So that is, in considering whether or not they made up their stories, concocted them in more recent years, you are entitled to take into account, if you see fit, the fact that they mentioned sexual activity with the accused to other people well before 2011, being the year when they spoke to Senior Constable Murphy.
I repeat: you must not use the evidence that they told other people about any sexual relationship with the accused for any other purpose and, again, you must not use the evidence of what they may have said to those other people, Monique Whitton and Emily Unger, as truth of what they asserted in those statements.
The appellant does not complain that the complaint evidence was inadmissible. Rather, the complaint is that the trial Judge failed to direct in accordance with the requirements of the section. It is argued that the effect of these directions was to prohibit the jury from using the evidence to assess the consistency or inconsistency of the details disclosed by each complaint when evaluating the credit of each complainant. This was said to be particularly detrimental given that the evidence of Ms Unger showed inconsistency with V2’s evidence.
This complaint needs to be evaluated in the light of the evidence of complaint led from both the complainants and two witnesses, Ms Whitton and Ms Unger, and then viewed in the context of the trial Judge’s directions as a whole.
V1 said that the first person he told was his cousin, Ms Whitton, when he was in high school and after he had ceased contact with the appellant. He communicated with his cousin online and gave her “an outline” but said he could not remember exactly what he had told her. His evidence was that he told her the appellant had “done sexual things” to him and given her the “time frame”. He said his contact with the appellant ceased when he was about 15 or 16. V1 turned 15 on 31 July 2006.
Ms Whitton confirmed the online conversation in which V1 told her the appellant had touched him. She was unable to recount the exact words used by V1 nor could she recall the exact year but she thought it was around 2005. She told no one else.
V2 said that the first person he told was his school friend, Ms Unger. He was then 16 years old and in year 9. He turned 16 on 22 September 2005. He said he first raised the topic with Ms Unger at school. He wrote a note that his ex-girlfriend’s dad had molested him and he gave that note to Ms Unger. After school they spoke at a park near the school. He told her the appellant’s name and the detail he gave was limited to saying he “was molested and touched up” by his ex-girlfriend’s father.
Ms Unger’s evidence was different. She said she and V2 had been class mates and that he had made a complaint to her in Year 10 which she thought was 2005. She said they were both at the Noarlunga TAFE at the time when the complaint was made and it was not on school grounds. She said nothing about any note being written however she was not specifically asked about that aspect in cross-examination. She said that she was told by V2 that the conduct occurred when he was going to a shack in Victor Harbor. He gave her a name but Ms Unger could not recall it, although she said it was a person involved with horse training. In her evidence in chief she mentioned that she herself knew that the person named by V2 was the partner of V2’s mother. However, in cross-examination she agreed that V2 had described the person to her as the partner of V2’s mother. The appellant was never the partner of V2’s mother. V2 asked Ms Unger not to tell anyone and she did not.
At the conclusion of the trial and before the summing up the trial Judge indicated to counsel he was not inclined to direct with respect to s 34M of the Evidence Act.
In the end, after reminding the jury in some detail of all of the complaint evidence the Judge directed the jury as to the limited use to be made of that evidence in accordance with the passages cited above at paragraph [39].
Both counsel had addressed the jury on the topic of possible collusion or contamination in the evidence. Indeed, the appellant’s counsel invited the jury to accept Ms Unger’s evidence about the complaint in order to make the point that Ms Unger’s evidence was inconsistent with V2’s account. Counsel furthermore made the point that the reference by Ms Unger to Victor Harbor as the location of the relevant offending might be a sign of collusion or contamination in light of the fact that the there was no offending at Victor Harbor against V2.
Nevertheless, the appellant complains that the direction the Judge gave concerning the limited use they could make of the complaint evidence rendered any later reference by the trial Judge to the inconsistencies in the complaint evidence in the context of discussing the complainants’ evidence as ineffective and impotent.
The Judge directed the jury that it could only use the evidence of Ms Whitton and Ms Unger in the manner set out above, that is to say, not to demonstrate the truth of what the complainant said, but only when considering the topic of concoction.
However, having reminded the jury of the differences between the accounts given by the complainants and the persons to whom they complained in the context of that direction, his Honour then specifically referred to the appellant’s argument about the differences when he said:
Mr Healy also relies upon what Emily Unger said [V2] had said to her many years ago during a conversation when both were at school. In that conversation Emily said that [V2] had told her that the man who was touching him was the partner of his mother. [V2] told her that he had come back from Victor Harbor and that the man had asked to have a shower with him. In cross-examination Ms Unger said that [V2] told her that the sexual behaviour occurred only at the shack at Victor Harbor. So Mr Healy relies upon the fact that [V2] has given no evidence about anything having happened at Victor Harbor between him and the accused. Does all of this mentioning of Victor Harbor suggest that there has been some transfer of information which [V2] has received and then got a bit confused? Does that evidence raise the possibility that the boys have, in fact, made up their stories? Even if they have not got together and put their heads together, have they received information from other sources and based their accounts on such information?
In addition, the trial Judge also reminded the jury in the context of directing them as to lies and any possible motive to lie, that they must be satisfied beyond reasonable doubt that each of the complainants V1 and V2 had been truthful in their evidence.
In light of the foregoing, I consider that the jury could not fail to have been aware that one of the issues arising out of the inconsistencies in the complaint was the need to consider whether the complainants were telling the truth.
For these reasons I consider that the effect of the trial Judge’s directions as a whole was to convey to the jury that the differences in the respective accounts was part of the evidence they needed to consider when assessing whether the complainants had told the truth. In my view, the effect of those directions was not to take the issue away from the jury. On the contrary, the Judge reminded them that they needed to take those differences specifically into account when assessing the important issue of whether the complainants had made up their stories or put their heads together. I would dismiss ground 3.
Ground 4 – Direction bolstering the complainants’ credibility and reliability
I turn now to ground 4, which is a complaint that the trial Judge unfairly bolstered the complainants’ credibility by some remarks he made towards the end of the summing up when he said:
You will remember, perhaps, the silly example I gave you of the spilling of the, whatever it was, brandy sauce, I think, at Christmas lunch. So ask yourselves, ladies and gentlemen, do you think that even though our memories are frail and events become distorted, some events are so indelibly impressed upon our memories that we do have an accurate recall of them?
Do you think that an indelibly impressed memory might be the memory that [V2] has of his friend’s father approaching him from behind at the refrigerator, putting his arm around him and saying ‘I love you’? Do you think that it might be a memory indelibly impressed upon [V1’s] mind that his friend’s father brushed his testicles with a wire brush? Now, ladies and gentlemen, those are matters for you, not for me.
The appellant complains that those comments were even more prejudicial as they were made at a critical time in the summing up. As the jury’s assessment of the credibility and reliability of the complainants was critical to the determination of the charges, the Judge’s comments would have left the jury in no doubt as to what the Judge’s views were. Notwithstanding the fact that he told them they were matters for them not for him, the appellant submits that the direction had the effect of unfairly bolstering the credibility and reliability of the complainants and compounding the damage done by the alleged failure to direct the jury in terms of s 34M of the Evidence Act.

The traditional position in relation to the right of a trial Judge to comment on the evidence is contained in R v D[7] in which Cox J summarised the position as follows:[8]
The traditional position, as I understand it, has always been that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, as long as the effect of his remarks is not to overbear the jury.
[7] (1997) 68 SASR 571.
[8] R v D (1997) 68 SASR 571 at 579.
The approach taken by Cox J in R v D represents the current position in this State. A trial Judge has a broad discretion in commenting on the facts. Here the Judge made it plain on more than one occasion that these were matters for the jury and not for him. The impugned comments came at the end of a summing up in which the Judge fairly summarised the prosecution case in the course of instructing the jury as to the law to be applied to each count, and then the defence case in the course of which the trial Judge reminded the jury of the important points made by defence counsel in analysing the defects in the prosecution case and the inconsistencies in the complainants’ accounts. In these circumstances I do not consider that it has been demonstrated that the trial Judge overstepped the mark leaving the jury with the impression that there was nothing for them to decide. I would dismiss this ground of appeal.
Ground 5 – Failure to adequately present the defence case
Ground 5 is a complaint that the Judge failed to put the defence case to the jury or adequately explain the defence case in relation to each of the counts. A related complaint made under this ground of appeal is that the trial Judge also failed to give the jury sufficient assistance in light of the fact that this was a complex trial involving multiple counts of alleged offending and the factual issues arising in respect of those counts.
In support of his submissions the appellant relied on observations made by Kourakis CJ in R v C, CA[9] in the context of making a number of general observations concerning a trial Judge’s responsibility to identify the issues and to apply the law to the issues when summing up. The trial in this matter was in fact the retrial ordered by the Court in C, CA.
[9] [2013] SASCFC 137.
In the course of those observations, Kourakis CJ also remarked in respect of the summing up in the earlier trial that he tended to the view that more assistance should have been given to the jury due to the complexity of the trial and the multiplicity of counts and factual issues that arose. Ultimately, the appeal was allowed on other grounds. His Honour’s remarks appear to have been directed towards providing some assistance to the next trial Judge.
Here, the summing up as a whole does not leave me with the same misgivings his Honour had in relation to the summing up in the earlier trial.
Indeed it might be thought that the trial Judge had the observations of Kourakis CJ in mind when he went through each count on the information, identifying for the jury the evidence the subject of each count and what it was that needed to be proved in respect of that count before the jury could return a verdict of guilty. In the course of directing the jury about these counts the Judge’s directions were both clear and factual.
His Honour then summarised the defence case in the same detail, which included a lengthy summary of the evidence given by the appellant and each of his witnesses, including evidence which plainly contradicted some of the evidence given by the complainants. In that summary his Honour set out for the jury the substance of the defence case, namely that the appellant denied there was ever any sexual activity anywhere between himself and either V1 or V2, specifically pointing out the appellant’s denial that V1 ever slept in the lounge without the witness KC sleeping there, or that there was any sexual contact at the appellant’s home at Hackham with either V1 or V2.
In the course of summarising the evidence, the trial Judge also directed the jury about the need for them to take into account any inconsistencies which they found, and the potential impact of any unreliability found as a consequence of any inconsistencies. In the context of directing the jury about the uncharged acts his Honour explicitly pointed out that the evidence may show unreliability, inconsistency or even improbability. In the context of warning the jury about the consequences of delay, he directed the jury further that the delay itself might cast doubt upon the reliability of the evidence which the jury had heard. The Judge concluded by reminding the jury of each of the salient points made by the appellant’s counsel in his address to the jury.
For these reasons I consider that on any fair reading of the summing up his Honour gave the jury a fair and balanced presentation of the salient features of both the prosecution and defence cases.
For these reasons I do not consider there is any substance in this ground of appeal.
Ground 6 – Directions as to forensic disadvantage
I turn now to the last ground of appeal which is a complaint that the trial Judge did not adequately direct in relation to the issue of forensic disadvantage.
His Honour’s directions in relation to this topic are found in the following paragraphs:
I am about to give you a direction about that delay but first I say this; it is important for you to understand that the delay in making their complaints does not necessarily mean that [V1] and [V2] have made false allegations. There may be many reasons why these two men delayed in making their complaints to the police. You have heard some of their evidence why. I shall not repeat it. Having said that, I say this: first, the overall delay has led to [V1] and [V2] not being able to remember some matters in detail, especially dates. That factor has disadvantaged [the appellant] because he is unable to test their accounts in detail, for example, about some precise dates and precise times. And, ladies and gentlemen, the delay in making the complaint may itself cast some doubt about the reliability of [V1’s] and [V2’s] evidence.
From [the appellant’s] perspective, the delay has disadvantaged him in a number of ways and it may well have disadvantaged the witnesses he called in a number of ways. If there had been prompt complaints, [the appellant] would have been in a position to remember back to the relevant times and remember what, if anything, happened at a particular time, what he was doing or where he was at a particular time. So, too, with the witnesses he called: if there had been prompt complaints, they may have been able to remember where they were and what they were doing. If there had been prompt complaints, again [the appellant] would have been in a position to remember who he was with, so as to be able to produce evidence disproving the evidence of the complainants or either of them although, as I have already directed you and as you must remember, [the appellant] does not have to prove anything. If there had been a prompt complaint or complaints, there would have been an opportunity for [the appellant] to interview potential witnesses or perhaps for scientific examinations to be undertaken.
Here, perhaps, is an example of the possible effects of delay. [V1] told us that on a number of occasions the accused ejaculated onto the floor. On each occasion I think, other than in the stable, he wiped it up with a cloth or a rag. Had [V1] made a prompt complaint about such an occasion, then it may have been possible for there to be DNA testing of the relevant floor area or of the cloth or rag to see if semen or seminal fluid had been deposited there. To take another example, if [V2] had complained earlier about seeing pornography on the accused’s computer, it may have been possible for the accused to produce that computer to refute any suggestion it contained such material. They, ladies and gentlemen, are only two examples of the possible disadvantages of delay to the accused. As I said, there are also possible disadvantages of delay to the witnesses he called. You must take such disadvantages into account in assessing whether the prosecution has proved beyond reasonable doubt all or any of the charges against the accused.
The appellant complains that this direction was inadequate in that it did not draw to the jury’s attention in sufficient detail the evidence of V1 and V2 which might have been more effectively challenged by the defence but for the passage of time. In sum, it was said that the direction given by the trial Judge failed to sheet home to the jury the extent of the forensic disadvantage that existed.
The legislation which governs the direction to be given by a trial Judge is contained in s 34CB of the Evidence Act:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The nature and extent of the direction required has been the subject of a number of decisions in this Court. In R v Cassebohm[10] Doyle CJ said:[11]
[10] (2011) 109 SASR 465.
[11] R v Cassebohm (2011) 109 SASR 465 at [25].
It is desirable to emphasise that a Longman warning is not based simply on the passage of time between the events the subject of the charge and the trial. The need for the warning arises from a forensic disadvantage that an accused person suffers attributable to the passage of time. The disadvantage can be of two broad kinds. It was conveniently summarised by McHugh J in Doggett (at [51]), where his Honour said:
Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
The position was also conveniently summarised by Crennan J in Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 at [181] where her Honour said:
The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of “reasonable contemporaneity”.
(Citations omitted.)
More recently in R v N, RC[12] Gray J, Sulan J agreeing, restated the applicable principles.
[12] (2012) 112 SASR 399.
In this case the appellant complains that further and more detailed directions ought to have been given in relation to the prejudice suffered by the appellant in relation to his inability to obtain employment records for himself during the relevant period, telephone records, detailed statements from some witnesses including BC, statements from persons who attended at the States Park during the period of some of the counts and the uncharged acts, the inability to obtain medical examinations, for example in relation to the allegations of anal intercourse, and more detailed statements from the appellant’s wife and children during the whole of the relevant period.
It should be borne in mind that BC and members of the appellant’s immediate family did give evidence. It does not appear from the transcript that the passage of time had any material affect upon BC’s memory of the weekend concerned. In any event, the directions given by the trial Judge specifically referred to the potential impact on the appellant’s witnesses.
There was no suggestion that V2 suffered any injury as a consequence of the anal intercourse. Lubricant was used and he did not complain of suffering an injury. The absence of telephone records appears to be irrelevant, as there is no evidence that any assignation or liaison was set up by using anybody’s mobile telephone. The only reference to a mobile telephone being used was concerning the contact between V2 and the appellant after the events the subject of the counts had occurred.
In my view, the trial Judge discharged his obligations under the section in light of the actual issues during the trial. I would dismiss this ground of appeal.
Conclusion
In the course of argument the appellant’s counsel placed considerable reliance on some of the comments of Kourakis CJ in C, CA adopting, in my view, isolated observations made in the course of the judgment without having proper regard to the entirety of the judgment or to the context in which the observations were made. It hardly needs to be said that this was a different trial containing fewer counts, with each counsel adopting approaches subtly different from those taken at the earlier trial.
Some of the comments made by Kourakis CJ in C, CA were observations made with a view to assisting a trial Judge in the event of a retrial. As it happens, for the reasons I have given, I consider that the Judge in this trial did endeavour to provide the jury with the assistance they needed to navigate their way through each of the 25 counts on the information. In my view the directions he gave were adequate.
I would dismiss all grounds of appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Kelly J.