R v Crafter - [2019] SASCFC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRAFTER
[2019] SASCFC 25
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
21 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
Appeal against conviction – appellant convicted by unanimous verdict of jury of one count of rape – whether the trial Judge failed to direct in accordance with the requirements of section 34M(4) of the Evidence Act 1929 (SA) – whether the trial Judge misdirected the jury in relation to sections 34R and 34P of the Evidence Act 1929 (SA) in respect of the uncharged act – whether evidence given by the complainant of lack of consent was wrongly admitted – whether the trial Judge misdirected the jury in relation to the intoxication of the complainant – whether the failure to direct the jury as to alternative pathways to guilt given the prosecution address gave rise to uncertainty as to whether the verdict was lawfully reached – whether the trial Judge undermined the defence case amounting to a miscarriage of justice – whether the trial Judge misdirected the jury as to the appellant’s right to silence – whether the verdict was unsafe and unsatisfactory.
Held, per Kelly J (Kourakis CJ and Hinton J agreeing):
1. With respect to grounds 1, 2, 3, 7 and 9, the appeal is dismissed.
2. With respect to grounds 4, 5, 6 and 8, permission to appeal is refused.
Held, per Kelly J (Kourakis CJ agreeing):
1. The Judge’s directions must be seen in the light of the actual issues which arose at trial. There was no issue at trial that the complaint related to anything but the act of sexual intercourse that was the subject of the charge. There is no requirement that when directing the jury pursuant to s 34M(4) the Judge must use any particular form of words.
2. The evidence of the uncharged act did not show a propensity to offend. Properly understood, the prosecutor’s remark did not invite the jury to engage in propensity reasoning. The Judge’s direction as to the contextual relevance of the uncharged act was, given the issues at trial, sufficient to explain the relevance to the appellant’s state of mind.
3. The prosecution were required to exclude as any reasonable possibility that the complainant had freely and voluntarily consented prior to the conduct which took place in the bedroom. It was quite proper that evidence from the complainant was elicited that she had not consented at any stage either before or during the events that were the subject of the charge.
4. The directions given with respect to the intoxication of the complainant were adequate.
5. The prosecutor’s closing address was consistent with the way in which the case had been opened and presented to the jury. It did not invite any alternative pathway to conviction, nor did it invite the jury to engage in any propensity reasoning. The jury were not directed that the appellant could be convicted on an alternative basis of continuing with sexual intercourse after withdrawal of consent because that scenario did not arise on the evidence.
6. The summing up was properly balanced. The defence case was properly put. The Judge did not make any error in the examples she chose to illustrate to the jury the difference between evidence and the asking of questions.
7. The Judge’s direction on the appellant’s right to silence simply emphasised that the right not to give evidence is a fundamental right in the criminal justice system and that the burden of proof remained with the prosecution. The use of the words ‘even in those circumstances’ was to do no more than emphasise that the appellant has a right to silence which endures through the whole trial process.
8. The complainant’s account was not inherently implausible. Several aspects of the complainant’s evidence were supported by the observations of other witnesses. The complainant’s account of waking up to feel something in her vagina, if accepted beyond reasonable doubt by the jury, was sufficient to prove the second element of the offence of rape. The core aspects of the complainant’s evidence were consistent with the prosecution case that at all relevant times the complainant was unconscious or asleep and incapable of consenting. The verdict is not unsafe or unsatisfactory.
Evidence Act 1929 (SA) s 34M, 34M(4), 34M(5), 34R, 34P, referred to.
R v P, S (2016) 261 A Crim R 329; [2016] SASCFC 97; M v The Queen (1994) 181 CLR 487; (1994) 126 ALR 325; Libke v The Queen (2007) 230 CLR 559, applied.

R v CRAFTER
[2019] SASCFC 25
Court of Criminal Appeal: Kourakis CJ, Kelly and Hinton JJ
KOURAKIS CJ:

I would dismiss the appeal for the reasons given by Kelly J and for the additional reasons given by Hinton J.
KELLY J:
Introduction
The appellant, Robert James Crafter, was convicted of one count of rape after a trial by jury. He appeals the conviction on nine grounds. A single Judge of this Court granted permission in respect of five grounds and refused permission to appeal in respect of three other grounds. A further ground of appeal was not pressed by the appellant at the permission hearing.
On the appeal, the appellant seeks permission to file an additional ground and seeks permission to appeal in respect of the three grounds refused by the single Judge.
Background
The offence for which the appellant was convicted involved an act of vaginal sexual intercourse committed against the complainant, a woman whom the appellant had met earlier in the evening before the offence occurred.
The complainant was a Canadian national who was in Australia at the relevant time as part of her university studies. She had arranged to rent a room at premises in Tusmore Avenue, Leabrook for a short period of two weeks prior to her travelling to Sydney and then home to Canada.
On the afternoon of 3 September 2016, the complainant arrived in Adelaide from Whyalla by bus. She was picked up and driven back to the house at Tusmore Avenue by one of the residents of that house, Jack King. At the time, three people resided at the house: Jack King, Dylan Wilson and a third male named Jules.
Later that evening, a group of friends of Mr King and Mr Wilson, including the appellant, visited them at the house in Tusmore Avenue, and the group began drinking and socialising during the evening.
The complainant joined in socialising with various people who attended the house that evening. She had not met any of them prior to that evening. She also attended a nightclub, “Jive”, however left before the other members of the group and travelled back to Tusmore Avenue in a taxi on her own.
There is no dispute that by this time she was heavily intoxicated.
During the evening and the early hours of the morning of 4 September 2016, the complainant exchanged a number of text messages with a friend named Kumuena Tekasala. Mr Tekasala was then living in Canada. On 4 September 2016 at 2:03 am she sent Mr Tekasala a message in which she referred to getting a cab home. She did not send any other texts to Mr Tekasala until 10:25 am on 4 September 2016.
The complainant’s evidence was that her memory, after arriving home, was patchy. She recalled stumbling down the hallway towards her bedroom. Her next memory was waking up inside her bedroom, lying on her back on the floor between her bed and a desk. She was wearing sweatpants over the top of two pairs of tights, a pyjama top and a hoodie jumper. She became aware of another person in her room as she could hear breathing coming from her right side.
Whoever was in her room was grabbing at her breast and petting at her vagina over the top of her clothing. The complainant crawled onto her bed. At this stage, she was still heavily intoxicated and had no idea who was inside her bedroom. She then passed out on the bed.
When she awoke for a second time her sweatpants and tights were pulled down underneath her buttocks. She was positioned on the bed on her left side facing the wall. Her legs were on top of one another and she still had the clothing on the top part of her body. She felt thrusting and the sensation that something was penetrating her vagina. Once she became conscious she said “stop”, softly. The thrusting continued and she said “stop” again, with slightly more force. She pushed the person away from her and his penis came out of her vagina. She pulled up her tights and sweatpants and began to cry. The person in the room asked her why she was crying. She responded “I don’t know. I don’t even know who you are”. She was still feeling the effects of the alcohol at this point in time. The complainant said that she then heard snoring and she continued to cry, eventually passing out again.
The complainant said she did not at any time consent to being touched on her breast or vagina or to having her vagina penetrated. She said the penetration had continued only for a short time after she was conscious of what was occurring.
The complainant said she realised that the man who had penetrated her was the appellant when she woke up when it was daylight and found the appellant sleeping in the bed next to her. She was feeling nauseous and left the room to get a drink of water before returning to her bedroom and again lying down next to the appellant. The complainant said the appellant then woke up and tried to put his arm around her as if to cuddle with her. The complainant grabbed his hand and flung it off of her.
Shortly after, the appellant got out of bed and left the room.
The complainant was still feeling sick and went into the kitchen again to get some more water. She saw the appellant in the kitchen and he said good morning to her. The complainant ignored him and returned to her bedroom again. She saw the appellant head towards the back of the house and towards two girls who were outside. She then heard laughter from the appellant and the two girls and heard her own name mentioned.
At that point in time, between 10:25 am and 12:17pm on 4 September 2016, the complainant then sent a series of text messages to her friend back in Canada, Mr Tekasala. Those messages were led as evidence of her initial complaint as to the events which had occurred overnight and were admitted pursuant to s 34M of the Evidence Act 1929 (SA) without objection by the appellant’s counsel. The text messages were set out in a chart which was tendered at the trial as Exhibit P3. It will be necessary to further refer to the text messages later in these reasons.
Later, at about 11pm on 4 September 2016, the complainant attended Yarrow Place and was examined. Sperm were observed in swabs taken from her labia, low and high vagina and on an endocervical swab. A DNA profile that was statistically highly likely to have originated with the appellant was detected on a high endocervical swab. The complainant took the bed sheets and some bunched up tissues from her room and the sweatpants, underwear, socks and two pairs of leggings which she had been wearing to Yarrow Place for forensic analysis. She agreed in cross-examination that she did not take the hoodie jumper and the pyjama top because she had specifically asked whether she should and was told not to bring them or that it was okay not to bring them. She disagreed with the suggestion put to her in cross-examination that she did not bring those items because she was not wearing them at the time of sexual intercourse.
A number of the people present in the house on the evening of 3 September 2016 and the early hours of the morning of 4 September 2016 gave evidence at trial.
One of those people, Frances Peters, gave evidence of her observations when she returned to the house in a cab with others at about 3 to 3:30 am on the morning of 4 September 2016. After she arrived home she briefly went in to the bedroom occupied by the complainant because she wanted to check that the complainant had returned home safely. She opened the door to the bedroom which was slightly ajar and saw the complainant in bed under the covers, facing the wall. The appellant was also in the room on the bed positioned on his knees hunched over the complainant and above the covers. He was fully dressed and his shoes were still on.
Jack King had returned to the house alone at about 2 am. He heard voices of the rest of the group arriving home sometime between 3 and 3:30 am. He said that shortly after that, the appellant entered his bedroom and Mr King told him to leave assuming he was there to use his en suite toilet.
Approximately 15 to 30 minutes after the appellant was seen in the complainant’s bedroom he appeared in the bedroom of Ms Peters and Dylan Wilson and asked for a bed to be made up. Dylan Wilson said he pulled out a sofa bed and put a doona on it for the appellant. The sofa bed did not have any proper covers or pillows.
The appellant did not give evidence at trial. However, there was no issue at trial that sexual intercourse had taken place between the appellant and the complainant. The issues identified on the defence case were consent and the appellant’s knowledge as to whether in fact the complainant had consented.
Two of the women who were present at the house the next morning, Angela Vlachos and Jennifer Blackall, said that they were sitting outside having coffee when they saw the appellant come out of the complainant’s bedroom. He came outside and they asked him whether he had had sex with the complainant. He responded that he had not but that he had tried to put his arm around her and she had pushed him away. Ms Vlachos said the appellant sounded unimpressed by that. Ms Blackall said that the appellant sounded a bit irritated. The appellant said he thought that the girl he was in the room with was in fact a woman named Megan Verschoyle. Ms Verschoyle had been present at the house on the previous evening and had attended the nightclub with the others but had not returned to the Tusmore Avenue house afterwards. Ms Verschoyle gave evidence that there had previously been an occasion where she and her then partner, Louis, had been intending to sleep on a mattress in the lounge. The appellant had climbed onto the mattress with her and her then partner and tried to sleep there and they had told him to “piss off”. This had occurred in the presence of other friends.
Grounds of Appeal
The appellant’s nine complaints on appeal are that the trial Judge:
1Failed to give the mandatory directions required by s 34M(4) of Evidence Act 1929 (SA);
2Misdirected the jury in relation to s 34R and 34P of the Evidence Act 1929 (SA) in respect of the uncharged act;
3Misdirected the jury as to the inferences to be drawn from the complainant’s evidence in relation to the uncharged act on the basis that there was no evidence that it was the appellant who was responsible for that act;
4Wrongly admitted evidence from the complainant that she had not consented to sexual intercourse;
5Misdirected the jury in relation to intoxication of the complainant;
6Failed to direct the jury that there were two pathways to guilt invited on the prosecution address which gave rise to uncertainty as to whether the verdict was lawfully reached;
7Undermined the defence case as to the complainant’s failure to provide her upper body clothing for forensic assessment at Yarrow Place thereby causing a miscarriage of justice;
8Misdirected the jury in relation to the appellant’s right to silence;
9The verdict was unsafe and unsatisfactory as no jury, properly directed, would have been satisfied of the appellant’s guilt.
Ground 1 – Failure to direct in accordance with the requirements of s 34M(4) of the Evidence Act
Three main complaints are made under this ground. The first, that the Judge failed to give the mandatory direction insofar as she did not direct the jury in the words of the section that, “there may be varied reasons why [the victim] has made a complaint of the offence at a particular time or to a particular person”, and that it was otherwise a matter for them to determine the significance, if any, of the evidence in the circumstances of the case.
Second, it was argued that as the evidence of complaint was more consistent with the uncharged act, that the Judge’s directions were erroneous in that she did not direct the jury to examine the contents of the complaint evidence as against the complainant’s evidence at trial. A consequence of that failure, in the appellant’s submission, was that the jury may have convicted the appellant on the basis of the uncharged act instead of the charge of rape for which he stood trial.
Third, it was argued by the appellant that the Judge’s direction removed from proper jury consideration the question whether the text messages tendered as the complaint, were in fact capable of constituting a complaint.
This ground of appeal raises for consideration the terms of the complaint admitted as evidence of recent complaint under s 34M of the Evidence Act 1929 (SA) and the directions which the Judge gave in relation to the complaint.
The complainant said that her reason for sending the text messages to her friend in Canada, Mr Tekasala, was:
Kumuena had been a friend, I was out in Australia on my own, and so I had had many conversations with him already, someone I trusted, and it was easy to send him messages as opposed to get up and talk to anyone else...I was feeling really sick, and I was falling in and out of sleep throughout that day, so it was easy to…text someone back home that I trusted, I knew. As opposed to getting up when I was feeling so unwell.
In cross-examination, it was put to the complainant that she only complained to Mr Tekasala after she became aware that others in the house knew that she had had sex with the appellant and she became concerned as to what others in the house may think of her. It was put to her directly in cross-examination that she might have regretted it after or felt embarrassed or wished it never happened. The complainant denied that was the reason for making the complaint.
It was against that background that the trial Judge gave the following directions in relation to the complaint.
Members of the jury, you do not usually hear evidence in a criminal case about what somebody told someone else about an event, after it happened, where the conversation or communication occurred outside the court and not in the presence of the accused. This is what we call hearsay evidence and it is not usually admitted. There are a number of reasons why in this case you heard this evidence and I need to give you a specific direction of law about that.
First, you heard the evidence to inform you as to how [the complainant’s] allegations came to light. The evidence was led to give you a more complete picture of her account.
Second, it was led so that you can consider whether this evidence demonstrates consistency of conduct on her part. Here you may ask yourself; do the circumstances of these communications to Mr Tekasala appear consistent with the events [the complainant] alleges occurred and told you about when giving her evidence?
Matters of consistency include both the terms of what was said by her in those communications, as well as when they were said. Does this evidence fit, in your view, with how you might expect a person to have acted in the circumstances as explained by [the complainant]?
However, as Ms Dunlop told you, it is important to remember that this evidence is not admitted as evidence of the truth of the allegations made by [the complainant]. It cannot be used as some form of independent evidence to prove what happened in that bedroom a few hours earlier. Only [the complainant’s] evidence is capable of proving that.
However, when considering [the complainant’s] credibility or truthfulness about those matters you may take into consideration that she complained about them as demonstrating consistency of conduct or behaviour on her part. But it is important that you only use the evidence in the ways I have described, and not as evidence which somehow bolsters or goes to the truth of [the complainant’s] account.
Now, I am just going to take you back to a part of Ms Dunlop's closing address. She mentioned that it was suggested by some of the questions that were asked in cross-examination of [the complainant] that she had a motive to lie about what happened to her that night, being that she was somehow embarrassed as to what had happened, or concerned about what other people in the house may have thought about her, or that maybe she had regretted what she had done.
Now, this suggestion arose from the line of questioning where [the complainant] agreed that in the morning she had got up to get a glass of water at a time when Mr Crafter was in the kitchen and the two girls were outside chatting.
In cross-examination she said that as she walked back into her room she heard her name being spoken between Mr Crafter and the two girls and she heard some laughing. She agreed she initially thought that she was being ridiculed or disrespected by them. She did not hear what was being said between them, but she thought that they were making fun of her. And you heard that it was only after that she had heard this that she sent the messages to Mr Tekasala, which are on Exhibit P3.
You also heard about some more text messages that [the complainant] sent later, and these are referred to in the agreed facts, being the messages that she sent to Mr Tekasala wherein she stated, ‘I'm pretty sure in the morning he was making fun of me and talking about me to the other friends who had slept over’. And another message ‘I just heard him say my name and heard them laughing’.
Now, Ms Dunlop submitted that any suggestion that [the complainant] may have been motivated to lie due to embarrassment, or regret, or concern at what others may have you thought of her should be put to bed when you consider a number of matters; and she listed them to include [the complainant’s] acknowledged imperfect memory of the events of that night, the fact she had only just met the people in the house, she was intending to shortly return to Canada, and she said more importantly that the fact that she told Mr Tekasala was inconsistent with that. He was a person she was keen to start a relationship with, and he was a person who she did care what he thought of her.
Now, you will have to consider the possibility of a motive for [the complainant] to lie, as a motive to lie is relevant to the credibility of [the complainant’s] evidence.
If you were to reject any alleged motive for [the complainant] to lie that does not mean that you are to conclude that [the complainant] must be telling the truth.
The absence of a motive to lie does not strengthen the prosecution case, rather the position remains neutral. Lies can be told for no apparent reason. It is not for Mr Crafter to provide a motive for [the complainant] to lie. Remember, at all times the prosecution bears the onus of proof beyond reasonable doubt and Mr Crafter does not need to prove anything. The prosecution must satisfy you beyond reasonable doubt that [the complainant] is telling the truth.

It may be accepted that the terms of a complaint must be referable to the charged offence. A convenient summary of the principles which apply to this aspect of recent complaint is to be found in R v P, S:[1]
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count.
(Citations omitted)
[1] (2016) 261 A Crim R 329; [2016] SASCFC 97, 7 [23] (Nicholson and Lovell JJ).
Discussion on Ground 1
As to the first complaint relevant to this ground of appeal, the Judge’s directions must be seen in the light of the actual issues which arose at the trial. There is no requirement that when directing the jury pursuant to s 34M(4) the Judge must use any particular form of words.[2] The Judge directed the jury specifically as to the reasons which had arisen on the evidence at trial as to why the complainant might have complained. Later in the summing up, the jury were also reminded of the reasons suggested why the complainant may not have complained when she first woke up:
Finally, Mr Algie suggested when [the complainant] followed Mr Crafter out of the room into the kitchen a little later, he had said ‘Good morning’ to her. He hadn’t apologised or whispered to her ‘Don’t tell anyone’ and that it was then when she heard her name mentioned and the laughter shortly thereafter and that this was the catalyst for her to send the first message to Mr Tekasala and from there, as he said, the ball started rolling and didn’t stop.
[2] Evidence Act 1929 (SA) s 34M(5).
I observe at the outset that the appellant’s reliance on s 34M(4) of the Evidence Act is paradoxical. The directions are calculated to ensure that a complainant’s testimony is not mistakenly discounted because the emotional social and psychological barriers to making an early complaint of sexual offending are not understood. It is difficult to see how a defendant can be disadvantaged by a failure to give those directions.
Where, as in this case, reasons were given by the complainant why she complained to a particular person (Mr Tekasala) in those particular circumstances, there was no requirement to direct the jury to consider potential reasons which might have supported the complainant’s credibility in complaining to him.
Furthermore, it is apparent from the whole of the Judge’s directions on the topic of complaint, that the jury could not have failed to be aware that the significance of the complaint evidence was a matter for them.
The Judge’s series of rhetorical questions in the complaint directions makes it plain that the relevance and weight of the complaint evidence was a matter for them. Although she did not direct in the exact words of the subsection, she was not required to.
Similarly, in relation to the second complaint relevant to this ground of appeal, there was no issue as to whether the complaint was referable to the charged conduct. No submission was made at trial that the complaint related to anything but the act of sexual intercourse which was the subject of the charge. In fact, the appellant in his conduct of the trial accepted, for the purpose of cross-examining the complainant, that the complaint was about the sexual intercourse and that the catalyst for her complaint was her belief at the time that others knew she had had sexual intercourse with the appellant.
Contrary to the appellant’s submission on the appeal, the terms of the complaint are, in fact, objectively, equally consistent with the charged act. In fact, the complainant’s recounting of events in the messages – insofar as she refers to telling the appellant to stop, but that the act continued and that she pushed him off of her and started to cry – were only consistent with what happened during the charged act of sexual intercourse.
The third complaint, namely that the Judge failed to direct the jury to consider whether the text messages forming part of Exhibit P3 were in fact capable of amounting to a complaint, may be dealt with briefly. Whether or not words amount to a complaint at all for the purposes of s 34M is a question of law and not a matter which is properly left to the jury. There was no objection at trial by counsel then acting for the appellant to the admission of those text messages as evidence of recent complaint.
The Judge’s directions were tailored to the actual issues which arose on the trial. No miscarriage of justice has resulted from the failure of the Judge to follow the precise words of the section. I would dismiss this ground of appeal.
Grounds 2 and 3 – Failure to direct adequately or at all pursuant to s 34R of the Evidence Act and inadequate directions as to the uncharged act
It is convenient to deal with both of these grounds together. These grounds raise the issue of whether the conduct which the complainant alleged occurred on the floor of her bedroom before she awoke to find that someone was penetrating her vagina, is correctly characterised as ‘uncharged conduct’ for the purpose of s 34P.
There are two preliminary points which need to be made about the state of the evidence concerning the earlier conduct. On the prosecution case, it was more likely that the act of sexual intercourse did not occur until after the others in the house had gone to bed. It was the prosecution case that the appellant had entered the complainant’s bedroom, committed the earlier conduct, and then left to ask for a bed to be made up for him before returning to the complainant’s bedroom and committing the charged act. On the defence case, the sexual intercourse took place as part of a single (consensual) course of conduct which commenced and was completed between the time when Frances Peters saw the appellant on top of the bed with the complainant under the covers and when he emerged from the bedroom 20 or 30 minutes later.
The state of the evidence was such that either inference was open. However, on either view of the evidence, the two acts took place in a fairly short space of time and, in reality, amounted to one course of conduct on a single occasion.
This is not to say that the prior indecent assault by the touching of the breasts and vagina outside the clothing is not correctly characterised as an uncharged act. In my view it was. However, it informs the context in which the direction pursuant to s 34R needed to be given.
The direction given by the Judge about the uncharged act is set out below.
Now, this evidence was only led for you to understand the full context of what occurred on the prosecution case and you can and should take these acts into account if you are satisfied that they did in fact happen.
But it is important to remember again, you can only find the accused guilty of the offence of rape if you are satisfied beyond reasonable doubt of the three elements that I have just outlined. It is not enough to say ‘Well, obviously something went on between the two of them’ and just find him guilty. You must be satisfied beyond reasonable doubt of the three elements of the offence to find Mr Crafter guilty.
The appellant makes two complaints about that direction. First, it was submitted that the trial Judge failed to direct the jury specifically that it should be satisfied that the act alleged did in fact occur and that it was the appellant who committed the act. Second, that the failure of the trial Judge to direct the jury (with respect to the uncharged act), that they should not reason that the appellant was more likely to have committed the offence charged because he had engaged in discreditable conduct, has caused a miscarriage of justice.
As to the first complaint, there was no issue at trial that anyone other than the appellant was ever in the bedroom with the complainant. Although on the evidence there was a theoretical possibility that one of the occupants, Mr Jack King, was in the house alone with the complainant after she arrived home alone in the taxi before the others, there was in fact no realistic possibility that anyone other than the appellant ever went into her bedroom.
All of the people who returned home to Tusmore Avenue that night, including Mr King, gave evidence at trial. Apart from Ms Peters’ momentary entrance to the complainant’s room, no-one else was seen to enter or leave her bedroom that night. Not one witness, including Mr King, was questioned in a manner to suggest that anyone else had ever gone in there.
The evidence of the eye witnesses was consistent only with the appellant going into the complainant’s room shortly after arrival at the house and that was the basis on which both counsel addressed the jury. He was then seen later briefly asking for a bed to be made up and was next seen leaving the complainant’s bedroom the following morning.
In these circumstances, any possibility that the appellant was not responsible for the uncharged act was simply absurd. Counsel could not and did not suggest otherwise.
For that reason, I consider that the trial Judge’s directions as to the uncharged act, confined as they were to the need for the jury to be satisfied that those events did in fact happen, were quite sufficient. Although the complainant never purported to identify the perpetrator of either the uncharged or charged act until the next morning when she awoke to find the appellant in her bed, the real issue at trial was the reliability of her account of what had happened, in regards to both the incident on the floor and the circumstances surrounding the sexual intercourse (which was admitted) on the bed.
The two events were so closely connected in time that the realistic prospect of anyone other than the appellant being the perpetrator was not open on the evidence.
I turn next to the complaint that the Judge failed to give directions pursuant to s 34R. The relevance of the evidence of the uncharged act was that it was capable of proving that the appellant knew that the complainant was so heavily intoxicated and that her consciousness and capacity to defend herself were compromised. That knowledge could explain why he was prepared to subsequently have sexual intercourse with her even though others were present in the house and was capable of proving that he couldn’t have mistaken a lack of resistance as consent. The evidence of the uncharged act did not show a propensity to offend and it is most improbable, having regard to the evidence and forensic issues, that the jury so reasoned. The Judge’s direction as to the contextual relevance of the uncharged act was, given the issues in the trial, sufficient to explain the relevance to the appellant’s state of mind. Any elaboration could only have been adverse to the appellant.
During the course of her address to the jury, the prosecutor stated:
I suggest to you in the same brazen way he went in there to touch her in the first instance, in the same brazen way that he is having sex with her, with an unconscious woman, he is brazenly at it again. What else can he do?
The appellant submitted that this remark was to invite the jury to engage in propensity reasoning, namely that because he was the type of person who was prepared to brazenly assault an intoxicated woman, he was more likely to have raped her. Properly understood, I do not consider that the prosecutor’s remark did invite the jury to engage in any propensity reasoning.
Given the close connection between the uncharged act and the charged act, it was relevant to explain why he proceeded to have sexual intercourse with the complainant in that state. In my view, the prosecutor’s reference to the brazen behaviour earlier that night presented only one danger which was that the jury may reason that something must have happened between them, therefore he should be found guilty of the charged offence. In my view that was the only real risk which arose on the evidence and was all the jury needed to be warned about. There is an air of artificiality about the suggestion that an initial sexual advance separated by no more than an hour or so on either view of the evidence could give rise to any realistic possibility that the jury engaged in propensity reasoning. The real issue for the jury was whether the events which occurred in that short space of time occurred as alleged by the complainant.
The prosecutor’s reference to brazen behaviour in the address to the jury therefore did no more than explain why, having observed the complainant’s failure to react to his advances earlier, the appellant was emboldened to continue. In that sense, it was a relevant contextual aspect in which the charged act occurred.
In those circumstances, the jury were adequately directed to the necessity of finding beyond reasonable doubt the elements of the charged offence and not to reason that because earlier conduct occurred, they could convict him anyway.
Once again, this direction was given in the context of the real issues which arose at trial. It is significant as well in this context that senior counsel did not complain about that aspect of the prosecutor’s address or the Judge’s summing up on that topic later.
For these reasons, I consider that the Judge’s directions pursuant to s 34R were, in all of the circumstances, adequate.
I would dismiss these grounds of appeal.
Ground 4 – Wrongful admission of evidence from the complainant that she had not consented to sexual intercourse
This ground is a complaint that the trial Judge wrongly admitted evidence of the complainant that she did not consent to sexual intercourse. The impugned evidence elicited from the complainant was:
QAt any stage during that incident that you’ve just described did you consent to that person putting their penis in your vagina.
ANo.
QAnd in relation to the earlier incident that you’ve talked about, being touched on the breast and touched on the vagina, at any stage did you consent to being touched on the breast.
ANo.
QAt any stage did you consent to being touched on your vagina.
ANo.
The appellant complains that, as the prosecution case was always that the complainant was incapable of consenting and not that she did not consent, these questions should not have been permitted.
This ground can be dealt with briefly.
The prosecution were required to exclude as any reasonable possibility that the complainant had freely and voluntarily consented prior to the conduct which took place in the bedroom. Moreover, the evidence of the complainant revealed that at some stages during the relevant period in the bedroom she did wake up or was awake. Therefore, it was quite proper that evidence from the complainant was elicited that she had not consented at any stage either before or during the events that were the subject of the charge.
There is no substance in this ground and I would refuse permission to appeal.
I turn now to ground 5.
Ground 5 – Misdirection as to intoxication of the complainant
By this ground the appellant complains that at no stage in her directions to the jury did the Judge address the critical question on the defence case which was whether the complainant had lost her inhibitions and was now either unwilling or unable, as a result of intoxication or for some other reason, to positively admit her conduct. The appellant complained that the direction on intoxication was limited to the impact of the complainant’s intoxication in respect of her credibility and reliability and that the Judge at no stage squarely directed the jury to consider the effect of intoxication on the complainant’s own conduct that night. In the same context as this complaint, the appellant also complains that the Judge misdirected the jury about the defence case as to whether the complainant was lying.
The directions which the Judge gave on this topic were extensive.
As I said just then, [the complainant], Mr Crafter and the other witnesses who you heard from who had been at Tusmore Avenue that evening had been drinking alcohol in the hours immediately prior to the alleged offending. Indeed, all of those people had been drinking quite a bit. Some were more intoxicated than others. I will go into this in a little more detail later on but at this stage I need to tell you this; the intoxication of a witness by alcohol may affect the proper assessment of his or her reliability as a witness. It is a matter for you to make findings based on the evidence you have heard as to the extent to which a witness may have been affected by alcohol.
It is common experience that intoxication can have an adverse bearing on a witness’s recollection of events. It is also a common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the intoxication of a witness is relevant to your consideration of their evidence and your assessment of their credibility and most importantly, their reliability.
It is a common experience that intoxication may reduce a person’s inhibitions, may cause them to be more relaxed and outgoing and, in certain circumstances, it may cause them to do things they would not do if they were not intoxicated.
As you heard Mr Algie say, you may know of occasions of drunkenness where a person doesn’t remember a thing the next day of what they said or can remember some things and not others. When you are considering what weight to give the evidence of [the complainant], and indeed the other witnesses who you find were intoxicated on the night, bear in mind those general principles and ask yourself whether the intoxification [sic] of the witness impacts on what they said in their evidence and the reliability of that evidence and indeed, what they did that night.
As I said before, it is for you to decide these matters, that is to what extent any witness was intoxicated and if so, what effect that has had on their general reliability when recounting the events that occurred or on their behaviour on that night. It is particularly important in the case of [the complainant’s] evidence because, as I said, her evidence is critical to the prosecution case.
The defence case was that the complainant consented but due to intoxication cannot now remember consenting. The possibility now raised on appeal (that she knew she had consented but was not willing or able to admit it) was never part of the defence case. Such a proposition necessarily implies that for one reason or another the complainant must now be lying if she remembers consenting. Counsel explicitly eschewed such a suggestion.
In his address to the jury, counsel for the appellant said:
Of course, the other effect of alcohol, and this members of the jury if you like, could I commend to you as deserving of your critical attention in this case, is the effects of alcohol on the capacity of people to remember.
Now there is some evidence in this case from [the complainant] that even she recognised that on other occasions when she had been drinking it would have an impact on her memory. She conceded that she understood the concept of blacking out, and that is a very important issue in this case members of the jury, because during the course of the evidence and in particular the evidence of [the complainant], you might have heard numerous answers where in response to questions put, not only by me, but more particularly by the learned prosecutor, their answers were ‘I can’t remember’. ‘I can’t remember’. My learned instructing solicitor went through part of the transcript. I suggest there was at least 80 times where her answers were ‘I can’t remember.’ ‘I don’t remember’. Now there is nothing insidious or wrong about that as such, because you would all know members of the jury that if you drink alcohol to a certain point, the memory is impacted and sometimes can be impacted to the point where you genuinely do not remember what you said or did the night before.
…So bringing it home to [the complainant] when she gives her evidence here the two days ago, she may well have been telling you what she believed to be the absolute truth. It is your job to determine not whether she was telling you what she believed to be the truth, but to determine whether what she was telling you was accurate or reliable such that you can act upon it beyond a reasonable doubt.
…So your job in this case is to look very carefully at her evidence, particularly with respect to the allegation that she wasn’t consenting, and to determine whether it is accurate and reliable to the point where you can act on it beyond a reasonable doubt. It is not the defence case, it was never put to her at any stage that she was lying. I mean obviously if you thought she was lying that would be the end of it but it’s not the defence case she was lying. It’s the defence case that what she says and where she tries to suggest she was not consenting, you shouldn’t accept that and you should at least have a reasonable doubt about it.

That was the basis on which the defence case was put and that was the basis on which the trial Judge directed the jury on the potential impact of any intoxication on the reliability and credibility of the complainant.
Moreover, the direction which the appellant says should have been given was in fact given by the Judge in the course of the general directions which she gave. It is not insignificant that she completed those directions as to the impact of intoxication on a witness’s credibility and reliability with emphasis on the complainant’s evidence:
It is particularly important in the case of [the complainant’s] evidence because, as I said, her evidence is critical to the prosecution case.
The directions which the trial Judge gave on this topic were adequate. Nothing further was required. I would refuse permission in respect of this ground.
I move now to ground 6.
Ground 6 – Failure to direct the jury as to alternative pathways to guilt suggested by the prosecutor in her final address
This ground of appeal is a complaint which arises from a comment made by the prosecutor in her closing address to the following effect:
Lest there be any suggestion that that’s not how mechanical sex could have happened, ladies and gentlemen, I suggest there’s been a few obstacles already with him having sexual intercourse with her but where there’s a will there’s a way, and we are talking about sex from behind here, nothing particularly out the mechanics of ordinary, and although a drunk unconscious person might not be able to assist in that way, you may object, his penis is in her vagina, how long after that happened we can’t really say, we only know that [the complainant] wakes to that object already in her vagina. ‘Stop’, she says. He doesn’t. Why not? If you accept [the complainant’s] evidence, why not? Why not? Because he didn’t care what [the complainant] did or didn’t want. Not then, not earlier, not ever.
(My emphasis)
The complaint which is made of those words italicised above, is that the prosecutor effectively invited the jury to convict the appellant on an alternative basis rather than the one on which the prosecutor had opened.
In my view, the appellant’s complaint is misconceived.
The prosecutor’s address was in fact consistent with the way in which the case had been opened and presented to the jury. In her opening to the jury the prosecutor said:
[The complainant] was unconscious, either asleep or passed out from the alcohol and, on the prosecution case, Robert Crafter took advantage of that situation…

The first thing she knows of sexual intercourse taking place is waking up and feeling something in her vagina.
Later, in the course of addressing the jury as to the legal elements of the offence, the prosecutor said:
On the prosecution case [the complainant] was out of it, asleep, unconscious, it doesn’t matter; she was not in a position to consent. A person does not freely and voluntarily consent to sexual intercourse if they are asleep. That person does not freely and voluntarily consent to sexual intercourse if they are unconscious. A person does not freely and voluntarily consent to sexual activity if they are so drunk that they are not capable of consenting to sexual intercourse.
Early on in the closing address the prosecutor said:
Contrast that with her evidence in relation to the charge of rape. She may not remember what happened before. She may not remember what happened afterwards, obviously because on the prosecution case she was unconscious, she was out to it, before she suddenly came to and felt something in her vagina.
But she’s [sic] remembers all of those things that I have been through with you when she does suddenly come to. She remembers all of those things and she said them to you very clearly, layer upon layer, what she saw or rather couldn’t see, what she heard, what she could feel on her body, what she could feel in her body, what she was thinking, what she was feeling, what she did and what she said. Those are the things that she can remember.
They build up a very clear picture of what it is that happened in that bedroom when she came to at that moment, and it is a very clear picture because that is what happened.
Ladies and gentlemen, I say to you that you can accept [the complainant’s] account of what she told you happened in the circumstances of the bedroom, when she woke up to find that something, that penis was in her vagina. Despite her lapses in memory about other stages in the night, that is not one of those times. She doesn’t remember what happened before. She doesn’t remember what happened afterwards. But in those moments when she’s wakes up with that sensation, when she wakes up with that happening to her, that is not unclear. She is not unsure. That is the truth of what happened.
When the Judge came to direct the jury, the jury were directed on that basis:
A person is taken not to have freely and voluntarily agreed to sexual activity if the activity occurs while the person is asleep, or while the person is unconscious, or while the person is intoxicated, whether by alcohol, or any other substance, or a combination of substances, to the point that they are incapable of freely and voluntarily agreeing to the activity.
So, in the circumstances of this case, if the prosecution has proved beyond reasonable doubt that sexual intercourse occurred, either when [the complainant] was asleep, or when she passed out unconscious, or when she was intoxicated to the point of being incapable of freely and voluntarily agreeing to the activity, then this element will be proved.
It can be seen from the foregoing that the directions were based on the complainant’s evidence that she was asleep or unconscious or intoxicated to the point of being incapable of freely and voluntarily agreeing to the activity.
The jury were not directed that the appellant could be convicted on an alternative basis of continuing with sexual intercourse after withdrawal of consent because that scenario did not arise on the evidence.
The prosecutor’s comments did not have the effect of altering the prosecution case. All that the prosecutor did was emphasise that the appellant in effect did not care whether the complainant consented or did not consent when he initiated sexual intercourse whilst she was asleep or unconscious, nor did he care when she woke up and said to stop. It was a manner of emphasising that the appellant’s behaviour had been consistent throughout the incident. In my view, it did not invite any alternative pathway to conviction, nor did it invite the jury to engage in any propensity reasoning.
I do not consider that this ground is reasonably arguable and I would refuse permission.
I move now to ground 7.
Ground 7 – The trial miscarried because the Judge undermined the defence case as to the complainant’s failure to provide her upper body clothing for forensic assessment at Yarrow Place
This ground of appeal is a complaint that the Judge undermined the defence case about the complainant’s failure to provide her upper body clothing, which she said she was wearing at the time of the rape, by using the cross-examination of the complainant on that topic to illustrate to the jury the difference between evidence and the asking of questions which did not amount to evidence.
The appellant complains, in light of the importance attached to that issue on the defence case, that it was an error for the Judge to have used that topic as an example, and was in any event a mischaracterisation of the evidence given Dr Shi’s evidence on that topic. Thus, it is argued the trial miscarried because of the prejudice to the appellant.
The impugned direction is as follows:
What is the evidence? As with most trials, the evidence falls into three broad categories. We have the testimonies of the witnesses. That is simply what they said under oath or affirmation in response to the questions that were put to them before you in this trial. As you heard both counsel say, it is important that you bear in mind that the questions of counsel are not evidence. It is only the answers that witnesses give that are evidence. If counsel put something to a particular witness and the witness denied it, then unless another witness has given evidence on the topic of those denials there is no evidence on that topic.
For example, Mr Algie put to [the complainant] in cross-examination the reason she did not take her hoodie and pyjama top to Yarrow Place for analysis was because she wasn’t wearing them at the time she had sexual intercourse with Mr Crafter. [The complainant] denied this and she said ‘No, I was wearing the hoodie and the pyjama top’. There is evidence from Ms Shi that the items of clothing taken by [the complainant] to Yarrow Place did not include the hoodie and the pyjama top but there is no evidence before you that at the time [the complainant] had sexual intercourse with Mr Crafter that [the complainant] was not wearing her hoodie or pyjama top because [the complainant] denied that. The only evidence before you as to whether or not [the complainant] was wearing her hoodie or pyjama top at the time was that of [the complainant], being in denial that she was not wearing those items.
Don’t fall into the trap of mixing up what is evidence with what are mere allegations that have no status in the trial except and insofar as the reactions of the witness or the admissions of the witness are admissible evidence in this trial.
Later in the summing up, when discussing the complainant’s response to a question put in cross-examination suggesting that the appellant had given her tissues to wipe herself (her response being, ‘I don’t remember that at all’), the Judge reiterated the direction about the difference between evidence and merely the putting of questions.
She reminded the jury:
Now, I need to remind you again of what you have heard earlier, a proposition put to a witness or a statement made by counsel is not evidence, only the witness’s answer is evidence. And in the absence of there being some other evidence to support the proposition as put, then there is no evidence on that topic other than [the complainant’s] response to the proposition put, and in that case it was ‘I don’t remember that at all’.
Those directions were accurate. When senior counsel for the appellant raised the topic midway through the summing up during a break and requested that the Judge refer to inferences which might be drawn from that evidence in the course of putting the defence case the Judge acceded to that request. Later, the Judge specifically referred to the defence case on that topic.
He asked you to consider why it was [the complainant] didn’t take her hoodie and pyjama top to Yarrow Place and suggested from this you could infer that there must be a reasonable possibility that she did not do so as she wasn’t wearing those items when she had sexual intercourse with Mr Crafter. He said, again, it was consistent with that sex being consensual.
It can be seen from the foregoing that the summing up was properly balanced. The defence case was properly put. I do not consider the Judge made any error in the examples she chose to illustrate an important point to the jury. I would dismiss this ground of appeal.
I turn now to ground 8.
Ground 8 – The Judge erred in directing the jury as to the appellant’s right to silence
This ground is a complaint that the Judge undermined the appellant’s right to silence by giving the following direction on that topic:
Members of the jury, a particularly important issue I must raise with you is, as I am sure you noticed, Mr Crafter exercised his right not to give evidence in these proceedings. Now, as Mr Algie pointed out, everyone has that right. It is a fundamental right of our criminal justice system. Everyone who has been charged with a criminal offence has a right to silence. They have a right to elect not to give evidence, they have a right to elect, for example, not to speak to the police if interviewed about an incident. No-one can be forced to give evidence in their own trial. Should they not wish to give evidence they are entitled to put the prosecution to proof. If the prosecution is unable to prove the case then the accused is in entitled to a verdict of not guilty even in those circumstances.
A particular complaint was made about the last four words in that paragraph: ‘even in those circumstances’.
The appellant complains that, by adding the words ‘even in those circumstances’, the trial Judge was conveying improperly to the jury that this was abnormal, unusual or extraordinary.
The appellant complains that it was particularly prejudicial to the appellant in light of the prosecutor’s opening line in her closing address to the jury:
Ladies and gentlemen, two people know what happened in that room. Two people. [The complainant] and Robert Crafter.
The appellant complained that the prosecutor’s comment combined with the Judge’s later direction was an invitation to the jury to reason that it was unusual for the appellant not to have given evidence, that he knew what happened in the room, and that his decision not to give evidence was because he was aware that what happened in the room was unhelpful to him.
In this way, the appellant says that his right to silence was impermissibly undermined.
I do not accept the appellant’s submissions. In my view, the use of the words ‘even in those circumstances’ was to do no more than emphasise that the appellant has a right to silence which endures through the whole trial process.
The Judge made it clear both prior to giving that direction and immediately after it that no adverse inference could be drawn against the appellant for exercising the right to silence and that the decision not to give evidence did not cause the prosecution case to be any stronger.
In my view, the Judge’s direction simply emphasised that the right not to give evidence is a fundamental right in the criminal justice system and that the burden of proof remained with the prosecution.
I would refuse permission in respect of this ground.
Ground 9 – The verdict is unsafe and unsatisfactory
By this ground the appellant contends that the verdict of guilty was not open to the jury. The appellant submits that the complainant’s evidence was not sufficiently reliable to support a verdict of guilty, in that her account of the events that evening was inherently implausible. The complainant’s account was uncorroborated and at times contradicted by other objective evidence independent of her. For this reason, the appellant submitted the jury ought to have had a reasonable doubt whether the complainant had consented.
The test to be applied in determining whether a verdict is unsafe and unsatisfactory was explained by the High Court in M v The Queen.[3]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted)
[3] (1994) 181 CLR 487, 493; (1994) 126 ALR 325, 328-329.
The Court in Libke v The Queen[4] added the following:
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(Citations omitted)
[4] (2007) 230 CLR 559, 596-597 [113] (Hayne J) (Gleeson CJ and Heydon J agreeing).
I cannot accept the appellant’s submission that the complainant’s account was inherently implausible. To the contrary, her evidence that she had no interest in the appellant, of a sexual nature or otherwise, was supported by the observations of every other witness who saw them interacting during the course of the evening.
The complainant’s description of the extent of her intoxication was also supported by the other witnesses who observed her during that evening. Indeed, two of them, Ms Verschoyle and Ms Blackall, were so concerned about the complainant’s condition that they ensured that she went in a taxi for the journey back home to Tusmore Avenue.
The complainant’s evidence that someone was in the bedroom with her when the light was off and she was in the bed facing the wall was also supported by the observations of Ms Peters, who went to check that the complainant had arrived safely home.
Finally, the account of the complainant that she woke up to feel a penis in her vagina was supported by the presence of sperm on the swabs taken from in and around her vagina and by the presence of DNA evidence consistent with that of the appellant located on a high endocervical swab.
In fact, the core aspects of the complainant’s evidence, that she passed out on the floor and later, after she had climbed into the bed, fell asleep and woke up to feel her vagina being penetrated, were consistent with the prosecution case that at all relevant times the complainant was unconscious or asleep and incapable of consenting.
Contrary to the appellant’s submission that the questions asked of the complainant as to whether she at any stage consented, were irrelevant, they were in fact necessary as the prosecution was required to prove that the complainant had not at any time before or during the events about which she complained consented to any sexual activity with the appellant.
The complainant’s account of waking up to feel something in her vagina, if accepted beyond reasonable doubt by the jury, was sufficient to prove the second element of the offence of rape.
I would dismiss this ground of appeal.
Conclusion
In my view, the appellant has not identified any error of fact or law which requires this Court to intervene. After conducting my own independent assessment of the evidence, I am satisfied that it was open to convict the appellant of the charge of rape.
I would therefore dismiss the appeal
HINTON J:
I have had the benefit of reading the judgment of Kelly J in draft for which I am grateful.
I agree with Kelly J that the first ground of appeal is not made out. I add; this was not a case where the jury had to consider the significance of delay in the making of a complaint to the credibility of the complainant. The “varied reasons” to which s 34M(4)(c) refers are those that human experience has taught cause people not to complain at the first reasonable opportunity and only to do so sometime in the future, often a considerable time in the future, when no longer burdened by the sorts of barriers to which Kelly J refers. The purpose of s 34M(4)(c) is to remind the jury to bring to the evaluation of the complaint that knowledge of human experience. In the present case delay and the associated “varied reasons” were not and could not have been the issue. Rather, this was a case where the jury had to consider why the complainant made the complaint she did, to whom she did and the circumstances in which it was made. This was not a case where the evidence left room for the complaint to be evaluated in the light of human experience regarding the barriers that may result in a complaint being delayed. To have given the jury a direction in the terms of s 34M(4)(c) would not have served the statutory purpose but could only have invited the jury to speculate. To do so would also have served to undermine the basis upon which issue was joined between the appellant and the prosecution.

If s 34M(4) is to be construed as mandatory and to be complied with strictly, irrespective of the evidence and the nature of the forensic contest, and that therefore an error of law has occurred in this case, I would apply the proviso.
With respect to grounds two and three, the nature of the forensic contest was such that there was no basis upon which the jury could accept the complainant as truthful and reliable in relation to the petting incident but unreliable or untruthful in relation to the act of sexual intercourse. The evidence of the petting incident was really part of the one event which extended to include the sexual intercourse and thus was truly contextual. There is a very real question as to whether s 34P was engaged at all. The complainant’s evidence did not allow the jury to conclude that any significant period of time passed between the two incidents such as to support some form of sequential reasoning. It being impossible to separate out one event from the other, and not possible to reason permissibly from one incident to the other, the only risk of impermissible reasoning lay in the temptation to convict on the basis that something must have happened without proceeding to determine whether each element of the offence had been proved beyond reasonable doubt. In these circumstances I consider the trial Judge’s directions as set out in Kelly J’s reasons at [48] adequate and sufficiently compliant with s 34R.
I agree with Kelly J for the reasons she gives that it was unnecessary in the circumstances of the present case for the trial Judge to tell the jury that they had to be satisfied that the petting incident did in fact occur and that it was the appellant who was responsible for that act. I also agree with Kelly J that the prosecutor’s remark did not invite the jury to engage in propensity reasoning. In my view grounds two and three should be dismissed.
I agree with Kelly J for the reasons she gives that grounds seven, eight and nine should be dismissed. I also agree with Kelly J for the reasons she gives that permission to appeal on grounds four, five and six should be refused.
I would dismiss the appeal.