R v Dawson-Ryan - [2009] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAWSON-RYAN
[2009] SASC 259
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice David)
28 August 2009
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against conviction - appellant charged with counts of sexual offences against six complainants - application by appellant prior to trial for separate trial for each complainant - trial Judge received evidence on voir dire - Judge ordered separate trial for two complainants and otherwise dismissed the application - whether Judge erred in failing to order separate trials in relation to the remaining complainants - whether Judge erred by making findings of credibility in relation to witnesses on voir dire - whether Judge's approach to issue of concoction resulted in a misapplication of test for cross-admissibility of uncharged acts - whether errors of Judge on voir dire relevant to appeal - accused convicted by jury of 19 offences - Judge directed jury on cross-admissibility of complainants' evidence - whether Judge erred by directing that internal consistency of evidence could itself be used to support that evidence - whether Judge erred by directing that proof beyond reasonable doubt would be established if the jury was satisfied of an underlying unity between the evidence of the complainants - whether Judge failed to adequately direct the jury with respect to reasonable possibility of concoction - whether Judge misstated the defence case in summing up by stating that the defence case was that there was no pattern or similarity in the complainants' accounts - whether Judge was under a duty to direct the jury that if it were not satisfied that the prosecution had disproved concoction beyond reasonable doubt then it must acquit on all counts - Judge and both counsel erroneously believed that ss 34CB and 34M of the Evidence Act applied at the time of the trial - whether Judge erred in failing to give a direction in compliance with the requirements in Longman v The Queen (1989) 168 CLR 79 and the common law - whether counts 1 and 2 duplicitous and ambiguous - where evidence at trial suggested that there may be one or more dates and one or more locations for offences - whether unfairness arose because of ambiguity and duplicity of charges.
Held: appeal dismissed - Judge did not err by refusing to order separate trials - findings of credibility were not inappropriate on voir dire for admissibility of uncharged acts - Judge did not err in the application of test for cross-admissibility of uncharged acts - decision of Judge on voir dire only indirectly relevant to appeal after trial - Judge's directions to jury were not deficient - comments from directions of Judge that appellant submits to be erroneous are taken out of context - Judge did not direct that internal consistency of evidence could be used to support that evidence - Judge did not direct that a finding of striking similarity or underlying unity of complainants' evidence requires a finding of guilt beyond reasonable doubt in relation to all counts - Judge properly directed the jury on the issue of reasonable possibility of concoction - Judge did not misstate the defence case in summing up - Judge properly directed on the role of concoction in the defence case - defence case regarding similarity of complainants' accounts was appropriately dealt with by the judge - no general duty for Judge to direct that an acquittal must be entered if the jury cannot be satisfied beyond reasonable doubt that there was not concoction - although Judge was under misapprehension that s 34CB applied at the time of trial, Judge's directions satisfied the common law requirements set out in Longman - although Judge was under misapprehension that s 34CB applied at the time of the trial, Judge's directions satisfied the common law requirements relating to recent complaint in sexual cases as supplemented by the former s 34I of the Evidence Act - counts 1 and 2 not duplicitous - prosecution case uniformly alleged a particular date and location for the offences - no fairness to the appellant arose from ambiguity or duplicity - no miscarriage of justice to warrant intervention of appellate court.
Statutes Amendment (Evidence and Procedure) Act 2008 (SA) ; Evidence Act 1929 (SA) s 34CB, 34M and s 34I(6a); Criminal Law Consolidation Act 1935 (SA) ss 352(1)(a) and 353(1), referred to.
R v Inston (2009) 103 SASR 265, applied.
R v Matthews [1999] 1 VR 534; Doggett v The Queen (2001) 208 CLR 343; R v Seigneur (2009) 103 SASR 207; Crofts v The Queen (1996) 186 CLR 427; Phillips v The Queen (2006) 225 CLR 303; HML v The Queen (2008) 235 CLR 334; Martin v Osborne (1936) 55 CLR 367; Longman v The Queen (1989) 168 CLR 79; Kilby v The Queen (1973) 129 CLR 460; R v Dawson-Ryan [2009] SADC 26; Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1998) 165 CLR 292; Sutton v The Queen (1984) 152 CLR 528; R v Frederick [2004] SASC 404; R v Pfitzner (1976) 15 SASR 171; Bromley v The Queen (1986) 161 CLR 315; Johnson v Miller (1937) 59 CLR 467, considered.

R v DAWSON-RYAN
[2009] SASC 259
Court of Criminal Appeal: Gray, Layton and David JJ
THE COURT

This is an appeal against conviction.
Andrew William Dawson-Ryan, the defendant and appellant, was charged with 23 counts of sexual offending against six young male complainants over a period of 16 years from 1972 to 1988. The alleged offences included unlawful sexual intercourse, indecent assault, procuring an act of gross indecency and gross indecency.
The prosecution alleged that the defendant engaged in prolonged sexual offending with respect to four of the complainants. Multiple counts were laid with respect to this offending in respect of each of the four complainants. Individual counts were identified with respect to the other two complainants. The allegations ranged from indecent assault and gross indecency to oral and anal sexual intercourse. The six complainants reported the offending between 1992 and 2004. The accused was arrested in June 2004.
For the purposes of this decision the complainants will be referred to using initials, namely: CD; DD (CD’s brother; together called “the D brothers”); MC; DC (MC’s brother; together called “the C brothers”); KG; and AC.
Prior to the commencement of the trial, the Judge heard an application by the defendant by voir dire seeking severance of the counts with respect to each of the six complainants and an order for separate trials. The six complainants each gave evidence on the voir dire. The Judge ordered separate trials in respect of the two complainants against whom single counts of indecent assault had been alleged, DC (MC’s brother) and KG. The Judge otherwise dismissed the application.
As a consequence of the Judge’s order of partial severance, the trial proceeded as a joint trial before the jury on 21 counts in respect of the remaining four complainants. The defendant was charged with seven counts of indecent assault with respect to complainant CD, alleged to have taken place when CD was between the ages of twelve to fifteen years. The sexual offending with respect to complainant DD (CD’s brother) included charges of indecent assault, procuring an act of gross indecency and gross indecency, when DD was aged between twelve and fifteen years. The sexual offending with respect to complainant MC, included indecent assault, unlawful sexual intercourse, both anal and oral, and gross indecency when MC was aged between 13 and 15 years. The sexual offending with respect to complainant AC, included charges of unlawful anal sexual intercourse and indecent assault when AC was aged 14 years.
During the trial the Judge directed the jury to acquit the defendant on two of the 21 counts on the Information. One of the directed acquittals related to complainant DD and the other to complainant AC. Following the trial the jury returned unanimous guilty verdicts on the 19 remaining counts.
The Trial
The prosecution case was that during the 1970s and 1980s the defendant was involved as a leader of the South Australian Branch of a youth group known as the Church of England Boys’ Society, a nationwide organisation created by the Anglican Church to benefit young boys. The defendant, it was said, had systematically targeted and sexually abused the complainants over a 16-year period between 1972 and 1988. It was alleged that the defendant would get to know their families, gain their trust, provide the boys with transport, give them treats, alcohol and cigarettes and favouritism in respect of CEBS activities. It was said that the defendant maintained his involvement with CEBS to provide him with the opportunity to be alone with the boys.
Each complainant gave evidence at trial of sexual abuse occurring during the course of their relationship with the defendant through CEBS.
The defence case was that none of the alleged sexual misconduct occurred at all. It was said that the complainants had lied in their evidence and that the evidence revealed they had concocted their accounts. It was contended that any similarities in the complaints were explicable on the basis of concoction. The defendant gave sworn evidence denying guilt and explaining some of the common features alleged against him.
The prosecution pointed to numerous common features of the complaints which it alleged combined in a striking and distinctive way and which were said to militate against the defendant’s suggestions of concoction. On the prosecution case, the only explanation for the similarities in the accounts of the four complainants was the truth of them. It was alleged that the complainants allegations were specific and graphic, and were much more substantial than suspicion, gossip and rumour.
The Appeal
This Court’s appellate jurisdiction is found in sections 352(1)(a) and 353(1) of the Criminal Law Consolidation Act 1935 (SA). Those sections relevantly provide:
352(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
…
353(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Severance
On the first ground of appeal, the defendant submitted that the Judge erred in failing to sever the counts with respect to the four complainants CD, DD, MC and AC, both in his earlier ruling on the voir dire and at trial.
Having regard to the provisions of sections 352(1)(a) and 353(1), the correctness of the Judge’s ruling on the voir dire in the exercise of his discretion is only indirectly relevant to the appeal. At issue before this Court is whether the verdicts of guilty should be set aside by reason of some wrong decision on a question of law, material misdirection by the Judge or on the ground that there has been a miscarriage of justice. In these circumstances, the correctness of the Judge’s voir dire ruling does not directly arise.[1] However, in the circumstances of the present trial and this appeal, the defendant contends that separate trials should have been ordered, and that the ruling made by the trial Judge on the voir dire permeated the entire trial. It was alleged that as a consequence of the failure to sever, the verdict of the jury should be set aside because it was wrong in law and/or resulted in a miscarriage of justice.
[1] R v Inston (2009) 103 SASR 265, [25] (Gray J), [86]-[87] (Vanstone J).
As we have mentioned above, the Judge ordered a joint trial in respect of the four complainants, CD, DD, MC and AC. In doing so, his Honour ruled that the evidence revealed a sufficient underlying unity to justify a joint trial and also excluded concoction as a reasonable possibility for the degree of similarity of the complainants’ evidence. However, his Honour did order severance in respect of the remaining two complainants, in respect of whom single counts of indecent assault were alleged. His Honour gave written reasons for that ruling.[2]
[2] R v Dawson-Ryan [2009] SADC 26.
The defendant argued that the Judge had made two errors in relation to his ruling on the voir dire. First, it was submitted that the Judge wrongly approached the topic of concoction by considering the issue prior to, and in isolation from, the question of cross-admissibility. In doing so, it was submitted, that the Judge failed to apply the appropriate test to the issue of cross-admissibility. Second, it was submitted that the Judge, in deciding the question of severability, wrongly made findings as to the credibility of the complainants’ evidence rather than assessing the potential or opportunity for the complainants to talk amongst themselves or receive information as to ‘what other complainants had said. It was therefore submitted that the prosecution had not excluded the reasonable possibility that concoction had taken place between the six complainants and that consequently none of the evidence was cross-admissible and separate trials should have been ordered.
In so submitting, the defendant relied on the following passages of the ruling:[3]
The prosecution seeks to lead evidence of charged acts, and in the case of four of the complainants, uncharged acts. For evidence of offences against other complainants and evidence of uncharged acts I will use the convenient but imprecise term “similar fact”. If it is reasonably possible that the similar fact evidence is explicable on the basis of concoction or infection then the evidence is inadmissible. Applying the test laid down in Pfennig v R, similar fact evidence is admissible in proof of an offence if, taken with all other evidence, it is not susceptible of a reasonable explanation consistent with innocence. The onus is on the prosecution. It is not sufficient that there is a mere possibility of concoction. There must be a real or reasonable possibility of concoction and not merely a fanciful one. The reasonable possibility must be based on some factual foundation. Having said that, because the onus is on the prosecution to negate the reasonable possibility of concoction the court may not admit the similar fact evidence unless it is able to reject concoction as a real or reasonable possibility.
…
There must be severance of complaints involving any complainant where I cannot reject a real or reasonable possibility of concoction. If on the evidence there is a real or reasonable possibility that discussion between two complainants has led to one or both of them making false allegations of sexual abuse against [sic] then the counts involving those two complainants should be heard separately. That reasoning is then applied to the other complainants.
[references omitted]
[3] R v Dawson-Ryan [2009] SADC 26, [10], [52].
As to the second point raised by counsel, the defendant further relied on the following passages of the ruling:[4]
[4] R v Dawson-Ryan [2009] SADC 26, [54]-[55], 59], [62]-[64].
Credibility of witnesses generally
I have heard all six complainants give evidence. There is nothing in their demeanour or manner of giving evidence that suggests that any one of them is lying or deliberately reconstructing.
…
More persuasive indicators of truthfulness are a comparison of the witnesses’ evidence with other evidence which is reliable. Evidence will be more credible if it is consistent with other reliable evidence. The inherent likelihood or unlikelihood of an account is probably a useful indicator of credibility or lack of it. An obvious motive to lie might also help.
Credibility – the C brothers
There is no reason to think that MC has concocted his story as a result of discussions with anyone else.
Credibility – AC
… In those circumstances it seems to me it would be remarkable to concoct a story years later to his girlfriend and then his mother.
…
Credibility – KG
… KG at first denied saying that he would support MC but in cross-examination he acknowledged that he had said that. There is also the contradiction in his evidence about what he said at the reunion. Nevertheless it seems remarkable that he should make such an allegation without having any reason to think that MC would support him in that account. I conclude that there is no reasonable possibility of KG concocting his story.
Credibility – the D brothers
… In independent evidence of family members suggest that the brothers barely spoke to each other. I exclude as a reasonable possibility that either of the D brothers has concocted their stories.
Returning to the first issue, namely that the Judge improperly considered the issue of concoction prior to, and in isolation from, the issue of cross-admissibility, the defendant referred the Court to the paragraphs of the reasons on the voir dire, set out above. It was argued that this extract demonstrated that the Judge considered the issue of concoction at the outset (that is, prior to cross-admissibility), and that this thereby predetermined his Honour’s consideration of cross-admissibility. The defendant says that this resulted in the Judge failing to apply the Pfennig[5] test in relation to the issue of cross-admissibility.
[5] Pfennig v The Queen (1995) 182 CLR 461.
The defendant submitted that the approach of the Judge was neither logical, nor did it accord with the cases. Instead, it was submitted that the cases of Hoch[6] and Pfennig[7] establish that the question of reasonable possibility of concoction only arises after it has been determined that the evidence of one complainant is cross-admissible against another complainant.
[6] Hoch v The Queen (1998) 165 CLR 292.
[7] Pfennig v The Queen (1995) 182 CLR 461.

In our view, it cannot necessarily be inferred from the reasons cited by the defendant of the Judge on the voir dire that the Judge did consider this issue out of sequence, simply by referring to the manner of expression set out in his reasons for decision. The Judge discussed the issue of concoction prior to the issue of cross-admissibility but this does not mean that his Honour afforded it logical superiority. It certainly does not mean that his Honour failed to apply the Pfennig test on the issue of cross-admissibility as the defendant claims. Rather, after considering concoction, the Judge in his reasons for ruling, returned to the broader issue of cross-admissibility and said:[8]
The onus is upon the accused to demonstrate that the discretion to sever counts should be exercised in his favour. Notwithstanding that onus there is an exclusory rule. It arises from the danger of the jury being prejudiced against an accused by hearing evidence of sexual abuse from several complainants. The danger is that the jury will misuse the evidence to reason that the evidence of one complainant discloses a propensity to commit such offences on the part of the accused and therefore has a propensity to commit such offences. The danger is that the jury would, relying only on that propensity, convict of counts relating to other complainants.
The rule excluding evidence which does no more than establish propensity is expressed thus by Mason CJ, Deane and Dawson JJ in Pfennig …
[8] R v Dawson-Ryan [2009] SADC 26, [111] – [112].
In any event, even if the defendant’s submissions were correct, the trial in this matter has taken place. Therefore, consistent with this Court’s decision in Inston,[9] considerations of the safety of the verdict of the trial have superseded issues as to the correctness of the decision on the voir dire. There is no error on this point which transfers to the approach which was taken by the Judge at trial in putting the matters to the jury.
[9] R v Inston (2009) 103 SASR 265, [25] (Gray J), [86]-[87] (Vanstone J).
We turn then to the second point, that it was inappropriate for the Judge to consider the complainants’ credibility as witnesses in determining whether there was a reasonable possibility of concoction.
In Hoch, Brennan and Toohey JJ discussed the role of the Judge when considering concoction on a voir dire hearing:[10]
That is not to say a trial judge should lightly conclude that there is a ‘real chance’ of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must enquire.
[10] Hoch v The Queen (1988) 165 CLR 292, 304.
Thus, a bare possibility of collusion, as opposed to a real or reasonable possibility, is not sufficient to warrant exclusion of the similar fact evidence in the present case. Accordingly it is not sufficient to identify merely that the complainants had a mere opportunity to collude; that they discussed the alleged offences amongst themselves; that one complainant encouraged another to make a complaint to the police; and that witnesses encouraged a complainant to make a complaint to the police. Therefore the possibility of concoction has to be understood as a reasonable possibility based upon a factual foundation and not merely a fanciful possibility.
Counsel for the defendant referred to the observations of Mason CJ, Wilson and Gaudron JJ in Hoch:[11]
Of course there may be cases where an examination on the voir dire is necessary, but it will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.
[11] Hoch v The Queen (1988) 165 CLR 292, 297 (Mason CJ, Wilson and Gaudron JJ).
Counsel relied on this statement for the proposition that it is improper for the Judge to make findings of credibility on a voir dire of this kind. We do not consider that this statement has that effect.
The Court in Hoch was stating the principle that a judge on a voir dire should not make findings of credibility for the purpose of determining the truthfulness of the complainant’s account of the alleged act constituting the offence. Rather, the purpose of receiving evidence from a complainant, or any other witness, on the voir dire is to determine whether there was such a possibility of concoction that it would render the similar fact evidence capable of a reasonable explanation other than guilt. When receiving a complainant’s evidence viva voce for this permissible purpose, an assessment by a judge inevitably involves findings as to credibility.
It is on the issue of reasonable possibility of concoction that the Judge in the present proceeding found it necessary to make findings of credibility of the complainants. His Honour was not considering the credibility of the complainants for the purpose of determining the ultimate issue of whether the complainants’ allegations were truthful. The Judge in his reasons for ruling did not go beyond the observation made by the majority in Hoch[12] by making any preliminary finding as to whether or not there was concoction. Instead, the trial Judge expressly stated:[13]
For the reasons discussed above I exclude as a reasonable possibility the concoction by any of the complainants of the accounts they have given of sexual abuse by the accused. In those circumstances I decline to sever the charges involving each complainant on that ground. It will be a separate question whether there should be severance because of an absence of cross-admissibility between the evidence of the various complainants.
[12] Hoch v The Queen (1998) 165 CLR 292, 297.
[13] R v Dawson-Ryan [2009] SADC 26, [65].
In reaching those conclusions, the Judge correctly identified the relevant legal principles and considered the weight to be given to the evidence of the complainants as witnesses before making his findings on the voir dire. In order to do so, it was necessary for the Judge to assess the reliability and credibility of the complainants’ accounts as to the extent and nature of any relationship between them, as well as the opportunity and motive to lie. Such a process was indispensable to the just resolution of the issues being debated on the voir dire.
The Judge did not err when assessing credibility for the purposes of deciding whether or not there was a reasonable possibility of concoction. The finding that a reasonable possibility of concoction was excluded on the evidence was open to the Judge. He was entitled to proceed with the trial on the basis that the evidence said to be cross-admissible should not be excluded.
Cross-admissibility – General Principles
The defendant complained of alleged errors of the Judge in his directions to the jury on cross-admissibility and concoction.
The defendant asserted that the Judge erred in the following direction:[14]
The third rule is how the evidence may be used. It may be used in this way: you would find in the evidence of one of the complainants about the way he was treated by the accused such an underling unity or system that the evidence cannot be explained by coincidence. You might find that the evidence of the accused’s treatment of the complainants is so similar or that it has about it an underlying unit or system so that the only rational explanation for the evidence of the four complainants is that it is true. It cannot be explained by mere coincidence.
[14] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [78].
It was alleged that the error of the trial Judge occurred because the evidence of one complainant cannot have an underlying unity or system with itself, as this would elevate mere internal consistency to satisfying a concept of underlying unity.
In our view this argument raises no more than a semantic point. The direction of the Judge appears in a context in which his Honour, referring to cross-admissibility of evidence, said this:[15]
It raises this question: what use can you make of the evidence of one complainant when you are considering the evidence of another complainant?
It is quite obvious that the Judge was not referring to mere internal consistency, but was referring to the evidence of one complainant when considering the evidence of another complainant. Thereafter the Judge set out four rules, each relating to this topic, and the particular excerpt complained about is in relation to the third rule. There is nothing in this point raised by the defendant.
[15] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [73].
The defendant complained of the directions given by the Judge as above in conjunction with the following:[16]
The only rational explanation for the similarity of the evidence of the two or three or four of them is that it is true. Not only is it a rational inference, but it is the only rational inference: the accused did do those things. You may be satisfied beyond reasonable doubt that he did those things. You can exclude any other rational explanation.
That is the test for the use of the evidence. I am not suggesting that you do do that but that is the way in which the evidence may be used. It is permissible to use it in that way.
[16] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [79]-[80].
It was submitted that in these directions the Judge failed to inform the jury of how the evidence could properly be used. It was said that his directions were tantamount to giving a direction that proof beyond reasonable doubt would be established if the jury found similarities, or an underlying system or unity, with no other rational explanation other than the guilt of the accused. Further, it was submitted that the Judge did not identify the potential rational explanation consistent with innocence, namely that there was concoction.
Again, these paragraphs of his Honour’s summing up need to be read in the context of the following paragraphs of the summing up:[17]
The prosecutor … says that there is evidence of a system and he drew your attention to the various pieces of evidence which suggest a system. I will deal with the evidence in a little more detail later but Mr Norman points to these matters: the age that the abuse began was similar; the length of the abuse was similar; the frequency of the abuse was similar; the accused got to know the families of the boys and he continued his relationship with them and their families for many years; he attracted the boys by things that boys might like, such as motorbike riding, repairing cars, playing pinball, going camping and so on; he and others permitted the boys to have alcohol and, in some cases, to excess; he gave them, or enabled them to get, cigarettes; there is some similarity in the acts charged against the accused in relation to each boy; there is some similarity in the uncharged acts; there is some similarity in the features of the abuse and the routine adopted with each.
[Counsel for the defendant] says that you will not find a pattern. You will not find an underlying unity. She says that insofar as there are similarities they can be put down to concoction.
That leads me to the fourth and final rule and it is a topic which has been squarely raised in this case. It is this: if you thought it could be that one man’s account has been concocted or made up by using the account of another, then you would not be able to consider their evidence together. If you could not exclude the possibility of, say, [CD] and [DD] putting their heads together to tell a false story, then you would not be able to consider their evidence together. You would have to deal with their evidence quite separately. Similarly, if there was a reasonable possibility of concoction between the [C] brothers as amongst themselves or either of them and [AC], then you would have to deal with [MC]’s evidence separately from [AC]. If there was any direct or indirect concoction between the two groups, then you could not consider them together.
The Crown has to disprove concoction. It has to satisfy you first that the men have not got their heads together to make up false stories and, secondly, it has to satisfy you that even if one man’s story is true then another has not made up a false story simply to support the first. Concoction or contamination could occur in either of those two ways and you would have to exclude both of them before you could consider the men’s evidence together.
[17] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [81]-[84].
Further, it is to be noted that the Judge reinforced in his summing up that “concoction must be excluded beyond reasonable doubt before the evidence of any one complainant can be used in respect of another”.[18] It is also obvious when reading the directions as a whole that this “third rule”, as the Judge described it, was dependent upon satisfaction of what his Honour called the “first rule” and the “fourth rule”. That is, before they could use the evidence of one complainant in consideration of another complainant, the jury must be satisfied beyond reasonable doubt of the evidence and they must exclude the reasonable possibility of concoction.
[18] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [85].
In order to assess whether the Judge’s directions on cross-admissibility were appropriate, it is necessary at the outset to identify the particular issues at trial on which the suggested cross-admissible evidence was sought to be tendered. That is, it must be born in mind when considering the legal principles below, that the defence in this case denied the happening of the events. Thus, the relevant issue to which the similar fact evidence relates is whether the alleged conduct occurred at all.
In considering these submissions, it is necessary to identify the principles which govern the issue of similar fact evidence and cross-admissibility.
In Hoch Mason CJ, Wilson and Gaudron JJ identified the two functions of similar fact evidence:[19]
Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue.
These observations have been reaffirmed in Pfennig,[20] Phillips[21] and HML.[22]
[19] Hoch v The Queen (1988) 165 CLR 292, 296.
[20] Pfennig v The Queen (1995) 182 CLR 461.
[21] Phillips v The Queen (2006) 225 CLR 303.
[22] HML v The Queen (2008) 235 CLR 334.
The value of the proposed evidence may lie in the improbability of each of the complainants giving accounts of happenings having a relevant degree of similarity, unless, in fact, those happenings occurred. As Mason CJ, Wilson and Gaudron JJ observed in Hoch:[23]
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims [[1946] KB 31]) or as corroboration (R. v Kilbourne [[1973] AC 729, at pp. 749, 751, 758]) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman [[1975] AC, at p. 452], per Lord Hailsham and Lord Cross [[1975] AC, at p. 458]; Sutton [(1984) 152 CLR, at pp. 556-557], per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman [[1975 AC, at p. 444]:
“This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.”
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims [[1946] K.B., at p 540]; Boardman [[1975] AC, at pp 439, 459-460]; see also Rupert Cross, “R v Sims in England and the Commonwealth”, Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.
[emphasis added]
[23] Hoch v The Queen (1988) 165 CLR 292, 295.
Evidence proposed to be tendered as being cross-admissible is circumstantial evidence. As Dawson J observed in Sutton:[24]
Similar fact evidence is, of course, only circumstantial evidence but it is circumstantial evidence of a particular kind because of the inevitable prejudice, to use the words of Wilson J., which it carries with it. Although there is no necessary requirement of law or of practice, generally where the evidence in a case is circumstantial some direction ought to be given to that jury that before they convict the accused they must be satisfied that the facts are such as to be inconsistent with any other rational conclusion than the guilt of the accused. See Reg. v. Hodge [(1838) 2 Lewin 227, at p. 228 [168 E.R. 1136] at p. 1137]; Plomp v. The Queen [(1963) 110 C.L.R. 234]; Gant v. The Queen [(1981) 147 C.L.R. 503]. Such a direction is a particular expression of the mandatory direction that guilt must be proved beyond reasonable doubt, but it is appropriate in most cases of circumstantial evidence because it serves to emphasize the special care which must be taken in those cases.
[24] Sutton v The Queen (1984) 152 CLR 528, 564.
Dawson J summarised the general approach to be taken to the reception of similar fact evidence as follows:[25]
The law does not admit evidence tending to show only that an accused person has committed other offences as proof of the commission of a particular offence with which he is charged. This is because mere proof of the other offences can do no more than demonstrate a criminal propensity and the prejudicial nature of evidence of this kind is far greater than any relevance it might have. To admit such evidence would be to invite the jury to proceed upon suspicion rather than proof. If, however, the evidence which tends to prove the commission of other offences has a sufficient additional probative value beyond showing a disposition to commit crime or a particular type of crime, then the evidence is admissible for that reason and not because it may show a criminal propensity. The cases in which similar fact evidence may have sufficient additional relevance to make it admissible are not confined, but recognized instances occur where the evidence is relevant to prove intent or to disprove accident or mistake, to prove identity or to disprove innocent association.
…
The question which arises with similar fact evidence, which because of its prejudicial nature is treated as a special kind of circumstantial evidence, is not only what direction should be given to the jury but whether the evidence is admissible at all. Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence. If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the accused, then he ought not admit it because in those circumstances the evidence cannot be said to have a sufficiently strong probative force. Prejudice may operate where neither logic nor experience necessarily require the answer that the evidence points to the guilt of the accused and that being so the probative force of the evidence will not outweigh or transcend its prejudicial effect.
[emphasis added]
[25] Sutton v The Queen (1984) 152 CLR 528, 563-4.

In Hoch,[26] the High Court addressed the circumstance of several complainants making allegations of sexual abuse against the one defendant. Mason CJ, Wilson and Gaudron JJ drew on the observations of Dixon and Evatt JJ in Martin v Osborne[27] and observed that the basis of admission of similar fact evidence lies in that evidence possessing a particular probative value or cogency by reason that it reveals a pattern of activity, such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. Their Honours then addressed the circumstance, as in the present case, where an accused person disputes the happenings that are said to bear such a sufficient similarity to each other as to make evidence of one happening proof of the others.
[26] Hoch v R (1988) 165 CLR 292.
[27] Martin v Osborne (1936) 55 CLR 367.
Reading the direction as a whole, the Judge appropriately indicated that before the jury could use the evidence of a particular complainant in respect of another complainant, the jury had to first be satisfied beyond reasonable doubt of an individual complainant’s evidence and second, be satisfied beyond reasonable doubt that concoction or contamination had not occurred.
This approach was correct and unambiguous, given the entire context of the direction given by the Judge. There was no error in that direction.
Cross-Admissibility – Pattern and Similarity
The defendant further complained that the Judge erred in the manner in which he discussed the “pattern” and similarity which existed in relation to cross-admissibility.
The defendant contended that the Judge wrongly suggested in his summing up that the defence case was that there had not been a pattern, whereas the defendant in his defence was contending that a “pattern and similarity existed but did so because of concoction”. The defendant submitted that this misstatement of the defence case was evident from the paragraphs set out above and the following paragraph which states: [28]
Separate from that the defence case is that the complainants have got their heads together in one form or another and have concocted their stories. I remind you that while I speak of the defence case, the accused bears no burden of proving anything; the prosecution bears the burden of proof. I am also going to highlight similarities and dissimilarities between the accounts of the four men, so that you can more easily consider whether there is, as the prosecution suggests, an underlying unity or pattern or system adopted by the accused in respect of all of them or whether there is no discernible pattern. I will then summarise the evidence of the accused, which I will then not have covered.
[28] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [124].
It was alleged that this was erroneous because, at trial, a “pattern was common to both theories”. That is, it was submitted that the defence took the approach that there were striking similarities between the stories but that this was due to concoction.
Whilst the grounds of appeal and argument did focus on there being a common pattern, nonetheless some of the features alleged by the prosecutor as being part of the pattern were also challenged by the defendant as not being strikingly similar features. There was therefore, in spite of the rhetoric, a two pronged challenge on the issue of similar fact.
Particular features were identified by the prosecution which, taken as a whole, were said to have established an underlying unity pervading the separate acts. Those common features were that the defendant:
·gained an introduction and formed a relationship with each of the complainants through his voluntary leadership with CEBS;
·gained the trust and affection of the complainants through his voluntary leadership with CEBS;
·gained the trust and respect of the complainants’ parents through his voluntary leadership with CEBS;
·created opportunities and excuses to be alone with the complainants through his voluntary leadership with CEBS;
·provided attractive activities for the complainants such as, camping, car maintenance, and motorcycle riding, through his voluntary leadership with CEBS;
·encouraged the complainants towards illicit activities by providing them with cigarettes, alcohol, and pornography;
·groomed the complainants by providing them variously with gifts, treats, meals, and holidays;
·groomed the complainants by exhibiting favouritism, and preferential treatment towards them;
·commenced abuse of the complainants when the complainants reached the age of 11-13 years;
·used opportunities created through his leadership with CEBS to facilitate abuse of the complainants;
·sustained his abuse of the complainants through an ostensible involvement with CEBS;
·abused the complainants generally in a pattern which exhibited common features such as mutual masturbation, the use of a towel, the use of a sports bag and Vaseline;
·abused the complainants generally in a pattern which exhibited identical features such as the order in which ejaculation occurred;
·abused the complainants generally in a pattern which exhibited at least one strikingly similar feature namely the performance of acts of intercrural or “thigh” sex;
·abused the complainants until they reached the age of 15-16 years;
·deliberately sought to retain a presence and influence in the lives of the complainants and their families after the abuse had finished; and
·generally moved from the abuse of one victim to the next.
With regard to those features, the defendant challenged each individually as not being indicative of striking similarity, but rather exhibiting somewhat ordinary features which were, to use counsel’s expression, “stock in trade” for offences of this type.
This approach of looking at the items on an individual, stand alone basis, as counsel sought to do, is not what is required by the test in Hoch and Pfennig. The striking similarity may come, not simply from looking at individual aspects, but the collective of those aspects which themselves suggest a similarity such as would warrant the evidence being cross-admissible. One particular feature which was alleged by the prosecution to be, in itself, strikingly similar was the act alleged in each case of intercrural or thigh sex. This feature was further amplified by the Director and revealed an activity of similarity which did indeed stand out.
As to the submission that the Judge failed to appreciate that a “pattern was common to both theories”, it is clear from the summing up that the Judge appropriately dealt with this point. In particular, this is reflected in the latter part of the paragraph of which the defendant complains:[29]
[defence counsel] says that you will not find a pattern. You will not find an underlying unity. She says that insofar as there are similarities they can be put down to concoction.
[emphasis added]
[29] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [82].
More specifically his Honour added:[30]
… [defence counsel] said that [DC]’s account was suspiciously similar to [MC]’s account of the incident at Burra. She said the similarity of the accounts and not just [DC]’s might be accounted for by the leaking of the Father Fleming interview details. She said there was a pattern of denial of communications about reports of sexual abuse among the complainants and others and that the only reason there are these denials is that the communications are not innocent at all, they are concoctions.
[30] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [417].
It is therefore clear that, overall and when read in context, the defence case was clearly put to the jury. This ground should be rejected.
Cross Admissibility –Concoction
The defendant submitted that the Judge erred during the summing up in that the jury was not told that if it found that concoction was a reasonable possibility, it was duty bound to acquit the defendant as there would be a reasonable doubt. It was said that the Judge had confused the tests for admissibility and discretionary severance.
The Judge indicated:[31]
That leads me to the fourth and final rule and it is a topic which has been squarely raised in this case. It is this: if you thought it could be that one man’s account has been concocted or made up by using the account of another, then you would not be able to consider their evidence together. If you could not exclude the possibility of, say, [CD] and [DD] putting their heads together to tell a false story, then you would not be able to consider their evidence together. You would have to deal with their evidence quite separately. Similarly, if there was a reasonable possibility of concoction between the [C] brothers as amongst themselves or either of them and [AC], then you would have to deal with [MC]’s evidence separately from [AC]. If there was any direct or indirect concoction between the two groups, then you could not consider them together.
However, again, this particular paragraph must not be read in isolation, but seen in the context of the whole of his Honour’s summing up.[32]
[31] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [83].
[32] See R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [84], [182], [199], [211]-[212] and the defence case set out at [411]‑[429].
In considering the argument of the defendant, it is not necessarily correct for a jury to be told that, if it found concoction was a reasonable possibility, then it was duty bound to acquit as there would necessarily be a reasonable doubt. A reasonable possibility of concoction between two or more complainants might exist without there being invention or, alternatively, with invention from one complainant only. For example a jury may accept one complainant’s account but consider that another complainant had fabricated their complaint after having heard the details of the first complainant’s account. In such circumstances the jury may not use the evidence of one complaint in considering the other, however it does not prevent a finding of guilt with respect to the complaint that is accepted, if that has been proved beyond reasonable doubt. This was in fact put to the jury. The Judge said:[33]
The Crown has to disprove concoction. It has to satisfy you first that the men have not got their heads together to make up false stories and, secondly, it has to satisfy you that even if one man’s story is true then another has not made up a false story simply to support the first. Concoction or contamination could occur in either of those two ways and you would have to exclude both of them before you could consider the men’s evidence together.
[33] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [84].
If the jury arrived at the latter of the two suggested possibilities, then it would not be duty bound to acquit so long as it was satisfied as to the truth of the individual complainant’s account. The simple finding of a reasonable possibility of concoction between multiple complainants does not necessarily determine that a jury is duty bound to acquit an accused on any or all of the individual counts. Regard must be had to the circumstances of concoction in the context of the facts and the charges alleged.
This complaint is rejected.
Sections 34CB and 34M of the Evidence Act
The defendant raised issues concerning an error made by the Judge in applying recent amendments to the Evidence Act introduced by the Statutes Amendment (Evidence and Procedure) Act 2008 (SA) which came into operation on 23 November 2008. In particular, the amendments introduced sections 34CB and 34M which affected the application of Longman[34] (“the Longman warning”), and Kilby[35] and Crofts[36] (“the Kilby direction”).
[34] Longman v The Queen (1989) 168 CLR 79.
[35] Kilby v The Queen (1973) 129 CLR 460.
[36] Crofts v The Queen (1996) 186 CLR 427.
At the time of the trial, all concerned, that is the Judge, the prosecution and the defence, approached the trial on the basis that sections 34CB and 34M had application at the trial. The Judge invited counsel to make submissions about the retrospective operation of the sections. Both counsel declined to put any submission against the retrospective effect of the sections. The Judge conducted the trial on the basis that the sections applied at the time of the trial.
Subsequent to the trial in the present proceedings, this Court delivered its decision in Seigneur.[37] In that decision, all members of the Court characterised sections 34CB and 34M as evidentiary, and to be considered as falling under the rubric of procedure. The earlier common law and statutory provisions were also considered to be procedural in nature. As will be discussed later, the observations of Gleeson CJ in Doggett[38] confirm that these procedural provisions are flexible rules to be adjusted and applied to the circumstances of a particular trial. As was observed in Matthews[39] they are not to be elevated into propositions of law. The effect of Seigneur is that neither section 34CB or section 34M had application at the trial in the present proceedings.
[37] R v Seigneur (2009) 103 SASR 207.
[38] Doggett v The Queen (2001) 208 CLR 343.
[39] R v Matthews [1999] 1 VR 534.
On appeal, both counsel accepted that having regard to the decision in Seigneur, sections 34CB and 34M did not form part of the law applicable at the trial. It was agreed that the Judge should have directed the jury as far as delay was concerned in accordance with relevant common law authority including the High Court decision in Longman[40] and, as far as the evidentiary value of the complaints were concerned, in accordance with the common law and section 34I of the Evidence Act 1929 (SA).
[40] Longman v The Queen (1989) 168 CLR 79.
The defendant submitted that, as the Judge had misapprehended the applicability of the relevant statutory provisions, it necessarily followed that there had been misdirections of law and that in the circumstances, this had led to a risk of miscarriage of justice.
The Director submitted that it did not necessarily follow that the Judge’s directions on either topic were inadequate. In particular the prosecution submitted that, when closely analysed, the directions met the requirements of the law that applied at the time of the trial.
Longman
The purpose of a warning described as a Longman warning is to direct the jury on how it should deal with the fact that criminal proceedings have been brought some considerable time after the charged acts are alleged to have occurred.
The defendant complained that the directions given by the Judge about the substantial delay that had occurred were inadequate to protect the defendant from a risk of a miscarriage of justice. It was submitted that a warning should have been framed as an explicit warning to the effect that it was dangerous to convict on a complainant’s evidence alone unless the jury, when scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
The Judge during his summing up addressed the question of delay in his directions to the jury:[41]
There is another aspect of delay that I must direct you on. It concerns the time that has elapsed between the alleged offending and this trial. It has been a long time in the case of each complainant.
Drawing on the summary of charged acts rather than the information, it is over 33 years in the case of [C], over 31 years in the case of [D], over 21 years in the case of [M] and over 20 years in the case of [A]. This is apt to cause a significant disadvantage for the accused. By forensic – sorry, I should start that sentence again. This is apt to cause a significant forensic disadvantage for the accused. By ‘forensic disadvantage’ I mean that there are difficulties for the accused in giving evidence of matters so old. This applies to prosecution witnesses just as it applies to the accused.
Assume just for the moment that each of the complainants is doing his best to tell the truth about what happened. You can see how difficult it has been for each of the witnesses to accurately recall the detail of what happened, where it happened and when it happened. Every one of the complainants has had difficulties of those sorts and so have other witnesses called by the prosecution.
Of course, the defence says that those difficulties arise from their telling lies. Whatever the cause, the difficulties that the prosecution witnesses have had affects the accused. Assume for the moment that he has been trying to tell the truth about what happened. You can see the difficulties that he has had in being precise about events from so long ago.
I do not need to go into any detail at all with any of the witnesses to illustrate the difficulty that they each had from recalling events from so long ago; it is obvious. Although the accused has been able to produce some photographs and some documents, it is likely that if the complaints were more recent in time, that he would have been in a better position to respond to those allegations. In that way he is at a forensic disadvantage.
I direct you that you must take that forensic disadvantage into account when scrutinising the evidence of the accused and also when you are looking at the evidence of the other witnesses.
[41] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [62]-[67].
As earlier observed, at the time of the summing up, the Judge, not having the benefit of this Court’s decision in Seigneur, was under the misapprehension that section 34CB applied. It is convenient to set out the text of that provision:
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 defendant submitted that the directions fell well short of the requirements of Longman.[42] In particular, it was contended that the directions should have been cast in the form of a warning; should have been emphatic in pointing out the forensic disadvantages facing the defendant; and should have emphasised the danger of convicting on the evidence of a complainant alone.
[42] Longman v The Queen (1989) 168 CLR 79.
The Director pointed out that the requirements for a Longman warning were necessarily governed by the circumstances of the particular case. Attention was drawn to the following observations of Gleeson CJ in Doggett:[43]
Longman v The Queen is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be "dangerous" or "unsafe" to convict on the uncorroborated evidence of the complainant. Furthermore, in the present case, the jury could not reasonably have found that the evidence of the complainant was uncorroborated.
In Longman Deane J, referring to the significance of the delay on its own, said:
"The long effluxion of time (more than twenty years) between alleged offences and complaint and alleged offences and trial is of much greater significance. However, it would not, in my view, suffice of itself to produce the consequence either that it was not open to the learned trial judge to fail to be satisfied that a warning of the kind described in s 36BE(1)(a) was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. True it is that such delay can be disadvantageous to an accused. In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution. Be that as it may, it does not seem to me that those possible disadvantages to an accused necessarily require a warning of the kind described in s 36BE(1)(a). The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences."
When Deane J was referring to "a warning of the kind described in s 36BE(1)(a)" he was referring to a warning to the effect that it is unsafe to convict on the uncorroborated evidence of the complainant. Although it was never made completely clear, that is presumably what counsel for the appellant in the present case meant by "a Longman warning". Deane J was expressly rejecting the need for that kind of warning as a result of delay alone. He went on to refer to a direction that would be appropriate in a case where it could be suggested that there were particular difficulties facing an accused as a result of delay. That, it may be added, would depend upon the nature of the case and the manner in which it was fought.
[43] Doggett v The Queen (2001) 208 CLR 343, 348.

Whether a warning could or should have contained the words “dangerous” or “unsafe to convict” at common law, is to be dictated by the circumstances of the particular case. These circumstances include the nature of the prosecution, the manner of presentation of the prosecution case and whether there is corroboration. Another relevant circumstance is the nature of the defence and how it has been presented. As Gleeson CJ further observed in Doggett:[44]
The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.
[44] Doggett v The Queen (2001) 208 CLR 343, 346.
McHugh J discussed the need for a Longman warning and in that respect commented:[45]
[45] Doggett v The Queen (2001) 208 CLR 343, 364-367.
But the present case is very different. There was no chance of the complainant being mistaken. She was either telling the truth or lying. There was very strong corroborative evidence of her evidence. As a general proposition, it cannot be dangerous to convict on the evidence of a person whose evidence is corroborated. Nor did the jury need to be warned that it was dangerous to convict on her evidence because of delay or the circumstances of the alleged offences. That would be tantamount to introducing a new class of suspect witness into the law. …
It is true that, in Longman, Brennan, Dawson and Toohey JJ said:
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury."
But the passage has to be read in the light of the material facts in Longman including the absence of corroboration of the complainant's evidence in that case. It would be a mistake to think that, in every case where there has been a delay -- even a long delay -- a trial judge is bound as a matter of law to direct the jury that the accused had lost the opportunity of investigating the circumstances surrounding the offences and that it would be dangerous to convict on the complainant's evidence because of that factor. Jurors don't need judges to tell them that the accused is not in as good a position to defend the charge as he or she would have been if the complaint had been made promptly. Nor do they need to be told that they should scrutinise the evidence of the complainant very carefully when there has been a long delay in complaining. As it happens in this case, the trial judge told the jury that, because of the lack of complaint in relation to the first six counts, they "should scrutinise her evidence very carefully". But the judge was not bound as a matter of law to give this direction.
…
In some cases, fixed rules of law require a trial judge to give a direction as to the manner in which a jury must or must not reason. From time to time, new warnings or instructions will arise as the result of judges recognising from the collective experience of the judiciary that some factor which undermines the apparent credibility of testimony may not be readily apparent to juries. In Longman, Deane J said that the responsibility of giving appropriate directions "includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury". A comparatively recent example of such a warning being developed by the judiciary is that concerning prison informer evidence. But ordinarily it is not the duty of a trial judge to direct the jury as to how they examine evidence or reason to a verdict.
A judge may suggest any line of reasoning to the jury that it may use in its deliberations, as long as he or she tells the jury that they can disregard those comments. A trial judge may even express an opinion as to the verdict that the jury should give. But except in the limited classes of case to which I have referred, judges are not bound to direct juries as to how they should examine the evidence or reason to a verdict.
It is relevant to observe that, in the present proceeding, the prosecution case was presented as one including significant corroboration or support arising from the evidence of multiple complainants, multiple counts and an underlying unity. The Judge when summing up reminded the jury of the defence counsel’s submission that:
[Counsel for the defendant] said that the defence did not shirk from the allegation that there had been wicked lies in the case and while they might not have thought out it very carefully when they started their lies and they might not have thought that they were doing very much damage they have nevertheless lied.
[footnotes omitted]
The circumstances of the present proceeding did call for the jury’s attention to be drawn to the forensic disadvantages suffered by the defendant through delay. Although Longman and other authorities speak in terms of a warning, there is no prescription as to the precise words to be used. The question in the particular case is whether what was said by the Judge on the topic adequately safeguarded the defendant against an unfair trial. In other words, in assessing the defence case and when considering the weight to be given to the evidence led by the prosecution, the triers of fact need to understand fully the forensic disadvantages suffered by the defendant.
At trial in the present proceeding, it was not the defence case that there was not the opportunity for the conduct to have occurred. Central to the defence case was the contention that there had been concoction, and the issue of delay was, on the defence case, of particular significance in this respect. As earlier observed, it was the prosecution case that the reasons for delay in reporting were readily explicable and had been explained. As a result of the conduct of the trial, the closing submissions of counsel and the summing up, the jury would have fully understood the significance of the issue of delay.
The directions of the Judge, to which we have referred, informed the jury clearly of the potential prejudice suffered by the defendant as a consequence of delay, and went so far as to direct the jury that the delay was apt to cause a significant forensic disadvantage to the defendant at trial. The Judge specifically referred to the difficulties which the defendant had in “being precise about events from so long ago.” Further, that if the events had been more recent he “would have been in a better position to respond to the allegations” by the production of additional photographs or documents. The Judge’s direction informed the jury that they were to have regard to the forensic disadvantage when scrutinising the evidence of the witnesses in the trial. The Judge’s direction properly assisted the jury as to the way in which they should use the potential significance of the delay.
The above direction as to forensic disadvantage was supplemented and reinforced by the Judge, in his summary of the defence submission, noting that people in the defendant’s position are an “easy target… for false and vague allegations” because the allegations “turn up a long time after the events and that makes it difficult for an accused person to properly answer [them]”.[46]
[46] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [414].
Thus, although the Judge was under the misapprehension that a Longman warning need not be given, the directions of the Judge in the context of the trial provided adequate direction to the jury to satisfy the common law rule.
Kilby Direction
The purpose of a direction described as a Kilby direction is to direct the jury on how it should deal with the fact that the alleged victim of a sexual offence did not report the offending for some time.
At the time of the trial, the Judge was also under the misapprehension that section 34M of the Evidence Act applied in relation to recent complaint in sexual cases. That section provides:
Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)     In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•      when the complaint was made and to whom;
•      the content of the complaint;
•      how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)     It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
However, similarly to the issue of section 34CB, discussed above, at the time of the trial, the law governing recent complaint was determined by the common law, as supplemented by section 34I of the Evidence Act.
In Kilby,[47] Barwick CJ explained the requirement of the common law to be applied by a judge where the evidence established delay in the making of a complaint:
It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.
[47] Kilby v The Queen (1972) 129 CLR 460, 465.
At the relevant time, section 34I of the Evidence Act provided:
Evidence in sexual cases
(1)     In proceedings in which a person is charged with a sexual offence, no question shall be asked or evidence admitted—
(a)as to the sexual reputation of the alleged victim of the offence; or
(b)except with the permission of the judge, as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2)     In deciding whether permission should be granted under subsection (1)(b), the judge shall give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection and shall not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)is of substantial probative value; or
(b)would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3)     Permission shall not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(4)     An application for permission under subsection (1)(b) shall be heard and determined in the absence of the jury (if any).
(5)     In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6)     Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(6a)   If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must—
(a)warn the jury that the alleged victim's failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b)inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.
(7)     In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
sexual activities includes sexual experience or lack of sexual experience.
The Judge, when summing up, directed the jury as follows:[48]
As you know, in the case of each of the complainants there was a passage of many years between the ending of the alleged sexual abuse and the time at which each of them made a report to someone else, including the police. I will deal with the evidence relating to those complainants later in more detail, but I must give you a direction of law on that topic.
After the initial complaint made by each of the complainants, later elaborations were made to others. There are reasons why that evidence has been given in the trial. Those reasons are as follows: first, to inform you – the jury – as to how the allegations first came to light. That gives you a fuller picture of the account by each of the complainants.
Second, so that you may judge whether the complaint that was made is consistent with the conduct that is alleged to have happened. You will have to judge how you weigh up any inconsistency between the conduct that is alleged and the terms of the complaint or complaints that were made about that conduct. Both counsel have touched on that topic and I will refer to it too.
Third, the evidence of the initial complaint or later elaborations is before you not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now alleged.
Fourth and finally you must bear in mind that there are various reasons why a complainant makes a report at a particular time or to a particular person. You have heard from each of the complainants how and why they came to make their complaints. You are entitled to have regard to those reasons when considering their truthfulness and their reliability. That too has been addressed by both counsel and I will turn to that topic.
What I say for the present, though, is that all of the complainants made their initial report to a partner or family member. Each said in one way or another that he decided to bottle up his experience and not tell anyone at the time that the acts occurred. Each said, in one way or another, that the experience was embarrassing. Each said that they found it difficult to talk about.
You will take those explanations into account. On the other hand, the defence submits that these stories are all false and each complainant has chosen, for his own reason, to make a false report and a time and for a purpose that suits him. The defence submits that concoction has occurred in each case. You will judge those matters bearing in mind the purposes for which the evidence of complaints was admitted before you.
[48] R v Dawson-Ryan, trial Judge’s summing up to the jury (4 December 2008) [55]-[61].
The defendant submitted that these directions were inadequate and did not comply with the common law as supplemented by section 34I of the Evidence Act. It was said in particular that the Judge erred in failing to direct the jury that the evidence of late complaint could only be used to undermine the credit of the complainants.It was further submitted that the Judge erred in failing to direct the jury that the recent complaint evidence could not be used to bolster the credit of the complainants.
The Director conceded that the Judge was in error in considering that section 34M applied rather than the common law modified by section 34I(6a). However, counsel submitted that although the Judge had considered that section 34I had been repealed, and that section 34M governed the case, there was no misdirection.
The Director submitted that at common law it was necessary for the Judge to direct the jury that the evidence of a complaint is not evidence of the truth of what was reported; that it can only be used for judging the consistency of the conduct of the complainant; and that in evaluating the evidence of the complainant, the jury can take into account the fact that no complaint was made at the first available opportunity.
The Director pointed out that section 34I(6a) required the Judge to inform or explain to the jury that a complainant’s failure to make a complaint, or a complainant’s delay in making a complaint did not necessarily mean that the allegation was false. The victim of a sexual abuse could have valid reasons for failing to make a complaint or for delay in the making of a complaint. The Director contended therefore that the requirements of section 34M were substantially to the same effect as the previous requirement of the common law as supplemented by statute.
To understand these submissions, it is, in the present proceeding, particularly relevant to note that the defendant requested the prosecution to lead evidence of the complaints. The defendant sought a forensic advantage in this evidence being before the Court. The defendant wished to contend that the delay in the making of complaints went to the credibility of the complainants. Following this request, the prosecution led the evidence of complaint in the trial.
The question of the reasons for the delay of the complaints was central to the defence case on concoction. The complainants and other witnesses were cross-examined as to the reasons for and the timing of their complaints. The evidence concerning the timing of the complaints was extensively canvassed by both counsel in their closing submissions and by the Judge in his summing up. The evidence established, if accepted, reasons for delay and it could not be said that those reasons were either inexplicable or unexplained.

The Director contended that, in the circumstances of this trial, where the evidence of timing and nature of late complaints was led at the request of the defendant and explored by the prosecution and by the defence, the directions of the Judge did not operate so as to prevent the jury from approaching their duty in accordance with the law. It was also correctly pointed out that any consideration of the complainants’ credibility by reference to consistency of the late complaint, necessarily and inevitably involved a consideration as to whether the complaint either supported or undermined the complainants’ credit.
The jury was directed by the Judge in accordance with the defence address that the reasons for and the delay of the complaints were to be taken into account by the jury in assessing the witnesses’ reliability in relation to the issue of concoction. The Judge in the extract to which we have referred directed the jury that the evidence was not and could not be used to demonstrate the truth of the report. The common law did not require any further direction concerning the truth of the report.
The evidence of the complaints, their terms and when they were made, formed part of the body of evidence before the jury. The jury were entitled to have regard to the evidence on those matters, together with the other evidence in the trial, when assessing the credit of the complainants.
Further, directions in a trial are necessarily to be directions appropriate to the facts of a particular case. Their purpose is to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[49] The directions were given by the Judge in a straightforward and meaningful way. They were balanced as between prosecution and defence. Although the Judge was under the misapprehension that the necessary directions were not governed by the common law and the former section 34I, the particular directions of the Judge, when considered in the context of the entire summing up, were adequate to safeguard the defendant against an unfair trial.
[49] Longman v The Queen (1989) 168 CLR 79, 86; Bromley v The Queen (1986) 161 CLR 315, 319, 323-325.
Having regard to the foregoing, no misdirection followed in the particular circumstances of the present proceeding from the Judge’s incorrect understanding that section 34M of the Evidence Act applied in the trial.
Duplicity
The defendant alleged that counts 1 and 2 in the way in which they were particularised, were latently duplicitous or, in the alternative, that the convictions were unsafe and unsatisfactory. This latent duplicity was said to arise because, in the context of the evidence at trial, there were two possible locations at which, and two possible dates upon which, counts 1 and 2 were alleged to have occurred.
Complainant CD gave evidence that the defendant had been living at an address at Inverell Avenue, North Plympton, in 1972 to 1973. Complainant DD gave evidence to a similar effect. CD testified that the defendant began to abuse him after Friday night CEBS meetings in 1972 and gave a detailed account of the circumstances of that first abuse as taking place at Inverell Avenue. CD’s mother corroborated his account. Her evidence was that in 1972 he was regularly returning home late from the Friday night CEBS meetings in the company of the defendant.
The prosecution case was that the abuse of the complainant CD took place at the Inverell Avenue address from 1972 onwards. This allegation was put to the defendant during cross-examination. The prosecution case remained unchanged throughout.
CD also gave evidence that the first count occurred while the defendant was in his flat and that the defendant had been speaking on the telephone.
The defence submission on appeal was that the offence could not have occurred as it had been particularised. That is, the offence could not have occurred in 1972, at Inverell Avenue, when CD was aged 12 years and when the telephone at that property was connected, because these facts could not all be found to be correct.
In his evidence, the defendant said that he grew up “basically” at his mother’s house at Cross Road, Plympton, and moved to Inverell Avenue, North Plympton in 1974 or 1975.
The defence case, as put to the witnesses, was that the defendant had not moved into the Inverell Avenue residence until 1975. The defendant referred to an entry in the telephone directory that was produced at trial, which only displayed the defendant’s name at the Inverell Avenue address after 1974. The defendant said that this lead to the inference that the telephone was only connected at Inverell Avenue in 1974 and to the further inference that the defendant only moved there in 1974.
In his examination-in-chief the defendant gave evidence that he moved in 1974 or 1975. During cross-examination, however, the defendant admitted he had “probably” changed his case as a result of being confronted with evidence that his name appeared in a telephone directory as early as 1974.
The Director submitted that the publication of the defendant’s name in a telephone directory in 1974 could not in and of itself establish the date of the defendant’s first occupation of the premises. A telephone may have already been installed at the time of first occupation. Further, the evidence demonstrated that the defendant had a habit of failing to notify others of his occupation of the Inverell Avenue address at a time and on occasions when that might have ordinarily been expected.
The defendant contended however that no abuse could have occurred in 1972, at Inverell Avenue, with a working phone. Thus, the defendant argued, counts one and two, in effect, alleged that the offending may have taken place, in addition to the circumstances stated on the information, either in 1972 but not at Inverall Avenue; or at Inverall Avenue but after 1974. In this way the defendant suggests that the charges are duplicitous.
It is settled that where a controversy turns on events on a clearly identified occasion to which both parties have directed their cases it does not matter that the actual date has been misstated in the particulars.[50] As earlier observed the prosecution case was that the acts of abuse, the subject of the first two counts, were committed by the defendant against the complainant at Inverell Avenue. The actual date, if misstated, was not the essence of the alleged offences.
[50] R v Pfitzner (1976) 15 SASR 171, 185.
In Frederick,[51] Duggan J reaffirmed the observations of Bray CJ in Pfitzner in the following terms:
It is clear that, as a general rule, averments in an information relating to time and place are immaterial. If it is established that the act or acts relied upon to constitute the offence were within the jurisdiction, the precise location is not an element of the offence except where the definition of the offence requires proof of a particular location such as the offence of larceny in a dwelling house. Allegations as to time will be material in some cases such as in the case of those sexual offences where the age of the complainant is one of the elements of the offence.
[51] R v Frederick [2004] SASC 404, [36].
Duplicity may arise through a latent ambiguity in a count where although the face of the count does not show two separate offences, the facts put forward by the prosecution in support of the count do show two or more separate offences.[52] This type of duplicity is termed latent duplicity. Where it is unclear whether a count alleges more than one offence either the count should be amended or particulars should be given. Duplicity must cause prejudice before the court will act on it.
[52] Johnson v Miller (1937) 59 CLR 467.
Uncertainty in the nature of a charge is approached on the same principles that apply to duplicity. The question is whether there is an unfairness to the defendant. A defendant is entitled to know what charge is being alleged.
In our view there is no substance to these complaints. At all times the prosecution case was that the abuse of the complainant CD took place at the Inverell Avenue address from 1972 onwards. The evidence of CD was to this effect. He testified that the defendant began to abuse him after Friday night CEBS meetings in 1972 and he gave a detailed account of the circumstances of the first abuse as taking place at Inverell Avenue. The prosecution case, as opened and in accordance with the evidence of CD, was put to the defendant. During closing submissions the prosecution case remained as opened and as put in cross-examination. At no time did the prosecution suggest that the first act of abuse occurred at an address other than at Inverell Avenue. In these circumstances no ambiguity of the type referred to in Frederick arose. To the extent that the charge may have related to a date other than that on the Information, this does not render the charge duplicitous as time was not a material particular.
Latent duplicity did not arise. There was no material uncertainty. There was no unfairness to the defendant.
The proviso
Having regard to the reasoning above, it is not necessary to consider the proviso. However to the extent that some error had occurred by reason of the Judge’s wrong application of sections 34CB and 34M, in our view the review of the entire transcript reveals that this did not give rise to any procedural unfairness in the trial or any risk of a miscarriage of justice.
Conclusion
The appeal is dismissed.