R v Dhir - [2019] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DHIR
[2019] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
22 May 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
Appeal against the convictions of the appellant, Mr Dhir, of one count of digital rape, two counts of aggravated assault causing harm, and two alternative counts of aggravated assault. The complainant, S, was the appellant’s wife.
It was alleged that Mr Dhir committed the rape (count 2) by putting his hand under S’s jeans whilst at a train station, and committed the aggravated assault causing harm (count 3) by putting his arm around S’s neck whilst walking away from another train station shortly after the alleged rape. The counts of aggravated assault causing harm were committed in the matrimonial home in the course of an abusive and domineering relationship.
The appellant appeals on the following grounds:
1. The Judge failed to adequately direct the jury in accordance with s 34R of the Evidence Act (SA) as to the permissible and impermissible uses of certain evidence.
2. The Judge failed to adequately direct the jury as to the permissible and impermissible use of evidence of admissions said to have been made by the appellant.
3. The Judge failed to direct the jury as to the permissible and impermissible use of evidence of the complainant’s interaction with two witnesses.
4. The Judge failed to direct the jury as to the permissible and impermissible use of evidence of the complainant’s distress given by four witnesses.
5. The Judge erred in directing the jury to ignore the submission of the appellant at trial to the effect that the complainant had an opportunity to report the allegation of rape after the alleged event, but did not do so.
6. The verdicts on counts 2 and 3 were unsupported by the evidence.
7. The trial miscarried as a result of the wrongful admission of certain evidence.
Held per Kourakis CJ (Stanley and Doyle JJ agreeing), allowing the appeal on grounds 3, 4, 5 and 7, and dismissing the appeal on grounds 1, 2 and 6:
1. Section 34M(2) of the Evidence Act 1929 (SA) does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant’s account, a jury is entitled to have regard to the riskiness of the behaviour or the opportunity that the complainant would have had to immediately complain of an accused’s behaviour, irrespective of whether a complaint was or was not made.
2. By directing the jury to ignore what the defence counsel said about the improbability of S’s conduct at the train station in respect of count 2, the Judge withdrew a legitimate and compelling factual submission from the jury. This misdirection was significant, and, as it affected the assessment of reliability and credibility of S, it is not open to apply the proviso.
3. The evidence of the discreditable conduct engaged in by Mr Dhir was not used for the purposes of improbability reasoning arising out of the similarities between the discreditable acts; it went to the question of the nature of the relationship. The difference between the charge of rape and the other charged and uncharged conduct was therefore not significant.
4. By not expressly extending his warning of the impermissible use of discreditable conduct evidence to cover ‘bad person’ reasoning, the Judge failed to comply with his obligations to direct in relation to impermissible use. However, in the circumstances in which the appeal is to be allowed on other grounds, it is not necessary to consider whether the proviso applies.
5. The admissions of which S gave evidence could not have been directly probative of any offences charged; they were relevant only to the establishment of a hostile relationship, and the Judge should have so directed. However, given the Judge’s cautionary observations, and contradictory evidence of Mr Dhir’s mother, this did not cause a miscarriage of justice.
6. The Judge ought to have given directions explaining that the evidence of distress: was limited to the particular offences to which it was temporally related; was capable of many alternative explanations; and did not corroborate S’s evidence about the background circumstances. The Judge should also have directed the jury to ignore references to S being the victim of domestic violence. As a result of the failure to give these directions, a miscarriage of justice has occurred.
7. In relation to count 2, the inconsistencies and improbabilities on which Mr Dhir relies are quintessentially matters for the jury. The nature and extent of the inconsistencies are not such as to deny the jury the ability to conclude to Mr Dhir’s guilt.
8. In relation to count 3, any inconsistency relating to whether S had her handbag with her is capable of being resolved by the jury’s advantage in hearing and assessing her testimony.
Evidence Act 1929 (SA) 34M(2); 34R, referred to.
R v Byczko (No 2) (1977) 17 SASR 460; R v Flannery [1969] VR 586; R v Rogers (2008) VSCA 125; Flora v The Queen (2013) 233 A Crim R 320; R v Mitrovic [1999] SASC 478; R v Schlaefer (1984) 37 SASR 207, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Permissible and impermissible use of evidence", "miscarriage of justice"

R v DHIR
[2019] SASCFC 55
Court of Criminal Appeal: Kourakis CJ, Stanley and Doyle JJ

KOURAKIS CJ: The appellant, Mr Arun Dhir, was charged with one count of digital rape (count 2) and four counts of aggravated assault causing harm (counts 1, 3, 4 and 5). The complainant was the appellant’s wife, S. Mr Dhir was convicted of the alternative offence of aggravated assault on count 1 and count 3, and was convicted as charged on the remaining counts.
It was alleged that Mr Dhir committed the rape by putting his hand under S’s jeans at the platform of the Showgrounds train station. The assault, the subject of count 3, was alleged to have been comitted whilst walking from the Ascot Park train station to their home after the rape. The remaining offences were committed in the matrimonial home in the course of an abusive and domineering relationship. In addition to direct evidence of the offences charged, the prosecution adduced evidence of other acts of violence and verbal abuse.
Mr Dhir has appealed against the convictions.
Mr Dhir proceeds on the basis that the various grounds of appeal raise the following questions:
1Did the Judge comply with the obligation imposed upon him by s 34R of the Evidence Act 1929 (SA) (Evidence Act) and satisfactorily direct the jury as to the impermissible use of the discreditable conduct evidence? (Ground 1.2).
2Did the Judge direct the jury as to the permissible and impermissible use of evidence of one count in relation to each other count, particularly given that count 2, unlike the other counts, charged a sexual assault, an allegation of a different species to counts 1, 3, 4 and 5? (Ground 1.1).
3As to evidence from the complainant of admissions of generalised violence apparently made by the applicant in the course of telephone conversations with the complainant's father and the applicant's mother, was it incumbent on the Judge to direct the jury as to the limited use that could be made of alleged admissions to acting violently because they were not referable to any particular charged act? (Ground 2).
4Was the evidence that the complainant was observed to be in a distressed and upset state after the events said to comprise counts 4 and 5, admissible and, if so, was it necessary for the Judge to direct the jury as to the circumstances in which it could be used? (Grounds 3, 4 and 7).
5Did the trial Judge err in directing the jury to ignore a submission made by defence counsel about the improbability that the appellant would have committed the offence of rape charged in count 2 because of the risk that his wife would complain to others at the train station? (Ground 5).
6Finally, in light of particular nuances of the complainant's evidence going to counts 2 and 3, must the jury have had a doubt as to whether the prosecution had proved its case? Further, as to count 3, is the verdict bad for uncertainty? (Ground 6).
I would reject the contentions underlying issues 1, 2 and 3 and therefore dismiss grounds 1 and 2. I uphold the contention on issue 4 that the Judge ought to have directed the jury on the limited use of the evidence of distress. I would also uphold the contention on issue 5 and therefore allow the appeal on grounds 3, 4, 5 and 7 and order a new trial. I would reject the contention that the verdicts on counts 2 and 3 were unreasonable and therefore dismiss ground 6.
The evidence
The appellant and S are of Indian ethnicity. They married in February 2016 in India. The marriage was arranged through their parents. Mr Dhir returned to Australia after the wedding, but S remained in India until December 2016.
S testified that Mr Dhir verbally abused her from shortly after her arrival. She testified that the abuse occurred on a daily basis and became progressively worse. On New Year’s Eve 2016, Mr Dhir assaulted her for the first time. According to S, Mr Dhir frequently slapped and bit her, and controlled every aspect of her life after that time.
Mr Dhir did not give evidence, but the defence case as established in cross‑examination and closing addresses was that S had manufactured the allegations because of their failing relationship and because she realised that by claiming to be a victim of domestic violence she might obtain permanent residency status in Australia.
Count 1 alleged that Mr Dhir had assaulted S by slapping her on 25 February 2017. S testified that Mr Dhir returned from the gym at about 10.00am. S said she could sense that Mr Dhir had consumed alcohol and asked him if he had been drinking. Mr Dhir shouted at her and forced her onto the dining table. Mr Dhir licked, kissed and poured water on her face, and slapped her more than 50 times over the course of several hours.
Later that day, S and Mr Dhir went shopping in the city centre. They then travelled to the Showgrounds to catch a train to their home in Ascot Park. They arrived at the Showgrounds train station between 3.00pm and 4.00pm. S cried whilst waiting on a bench at the train station because Mr Dhir had forced her ‘to come with him’. S testified that whilst seated on the bench, Mr Dhir aggressively held her tightly around her neck and pushed her, hurting her ribs. He again slapped and licked her face and tried to kiss her on the lips. Mr Dhir also put his hand into S’s pants, telling her that he was ‘making love’. S complained that what he was doing was ‘not love-making’ and that they were in a public place. Mr Dhir was angry and did not listen to her. He touched S very roughly and he inserted his fingers into her vagina. S told him to stop and tried to get away but Mr Dhir pulled her back onto the bench. That conduct is the subject of count 2, the charge of rape.
S testified that, after digitally raping her, Mr Dhir tried to force her to accompany him home. S refused and remained at the train station as he walked away. Mr Dhir returned a short time later. He shouted at her and ‘tried to push me with his feet’. Mr Dhir grabbed and pulled her, demanding that she ‘go home with me’. He dragged S onto the next train to Ascot Park.
In cross‑examination, S confirmed that she was seated on the bench at the train station when she was digitally raped. She described Mr Dhir putting his left hand down the back of her pants. She said ‘he started from back and then he came in front’. Her pants were stretchy jeans with a button on the waist and a zip. S also testified that Mr Dhir digitally raped her a second time whilst she was standing at the Showgrounds train station. S was pressed about inconsistencies between her testimony and her statement to Detective Brevet Sergeant Roberts given on 9 March 2017. In particular, it was put to her she had only disclosed one assault to police and had claimed that it was committed whilst she was standing. It was also put to S that she told Detective Roberts only that Mr Dhir had touched her roughly and not that he had digitally penetrated her.
S was also cross-examined in relation to a note made by a police officer, Detective Richard Leonard, which recorded that the digital rape occurred on 5 March 2017 at the Ascot Park train station. However, Detective Leonard testified that he did not interview S. He stated that he only sat in briefly on part of the initial interview conducted by Senior Constable Frisby and Constable Vonow when S first attended at Sturt Police Station. Detective Leonard confirmed that he made the note but he was not asked about the source of the information recorded on it. In particular, it was not put to him that he heard S provide that information in the short time he sat in on the interview. Police officers Frisby and Vonow were not called to give evidence. Moreover, the formal interview of S was conducted by Detective Roberts on 9 March 2017. As I earlier observed, S was cross‑examined about inconsistent statements made in that interview. It was never put to S that she told officers Frisby or Vonow, or Detective Roberts, that the rape was committed at the Ascot Park train station.
S testified that after boarding the train at the Showgrounds station, she and Mr Dhir alighted at the Ascot Park train station. S gave evidence that Mr Dhir was still angry as the pair walked home. He held her tightly around the neck and pushed her into a fence. He then took her handbag and removed her house keys before throwing her handbag to the ground and walking off. S remained in the area of the Ascot Park train station for an hour or so and then returned home. The assault charged in count 3 relates to Mr Dhir’s conduct of putting his arm around S’s neck and dragging her along the footpath.
S was cross-examined on whether she had her handbag with her on the occasion of the assault charged by count 3, because none was visible on the CCTV footage of the Showgrounds train station. After viewing the CCTV footage S agreed that she did not.
On appeal, Mr Dhir contends that S then explained that inconsistency in her evidence by testifying that the assault she had described may have occurred on another day altogether. Plainly enough, if that is so, the prosecution cannot have proved count 3 as particularised beyond reasonable doubt. However, the Director contends that S conceded only that she was mistaken about whether she had her handbag with her on that occasion, explaining that there were many other occasions when she was assaulted whilst holding a handbag. The Director contends that both counsel and the Judge so understood her evidence and for that reason did not take that point at trial. As discussed below, that the Director’s contention is factually correct.
The prosecution case on the assault charged in count 4 was that it was committed on 6 March 2017 after an argument between S and Mr Dhir about food. S testified that in the last week of February 2017, she and Mr Dhir argued because Mr Dhir ‘didn’t like the food I cooked’. According to S, the argument occurred between 6.30pm and 7.00pm. She testified that she could not remember the specific date because it happened ‘all the time’, but recalled that Mr Dhir started screaming at her and hit her repeatedly. She gave evidence that she tried to get away from him, but he trapped her in the kitchen and bit her left ear. That was the assault charged in count 4.
After the assault, S left her home and went for a walk. In the course of that walk S met the witness Sue Hixson, with whom she had a short conversation. Ms Hixson left and then returned with a piece of paper containing some contact details as to where S may get help. A photograph of that note was received into evidence and identified by both S and Ms Hixson as the note they exchanged.
Ms Hixson testified that at about 7.30pm on 6 March 2017, she went for a run in the Edwardstown area next to the train line. She came across an Indian woman who asked ‘can you help me’. Ms Hixson described the woman’s demeanour as follows:
... She was a very timid sort of person, sort of bent sort of awkward and didn't really, you know, express a confidence about herself and she sort of didn't really - some people look - look the world in the face and she was definitely not. The exact opposite of that is the way I'd describe her ... once I'd started speaking with her, then she started crying.
Ms Hixson explained that after she went home her interaction with the woman was ‘weighing on my mind so much, it just didn't sit right with me’. She testified that she found some information about where the woman might go for help and took a note with contact details back to her.
Ms Hixson had a further conversation with the woman and gave her the note. In cross-examination, Ms Hixson testified that she did not see any injuries on the woman, but that the woman told her that she had been injured. It is by reference to Ms Hixson’s evidence that the date of the assault charged in count 4 is fixed.
On the following day, 7 March 2017, S followed the suggestion of Ms Hixson and attended the Edwardstown branch of Child and Family Health Clinic (the Clinic) to ‘... get some help’. She spoke with two women, whom she later described as nurses, who were ‘asking ... from me about what’s happening and they - and they saw the scars on my face and on other parts and they told me it’s not okay and they took photographs from my phone’. One of the women to whom S spoke was Maryanne Fearon.
Ms Fearon testified that she spoke to S on that day. S appeared to be ‘quite upset and distressed’. Ms Fearon led her to a private area where they could speak discreetly. Ms Fearon expanded on her observations as follows:
She appeared quite nervous, and by that I mean initially there wasn't a lot of eye contact, she spoke very quickly, she repeated herself, she was fidgeting with her hands and she - when we were in the private area, she was crying as well.
Ms Fearon testified that she took photographs of S on S’s smart phone because of advice she received when she telephoned a domestic violence service. Ms Fearon testified that there was bruising on S’s face, arms and legs. The photographs taken by Ms Fearon were received into evidence.
After speaking with the nurses at the Clinic and having the photographs taken, S returned home. She sought Mr Dhir’s permission to speak to her parents. He agreed and S spoke with her father by telephone in Mr Dhir’s presence. She told her father that Mr Dhir was ‘hitting me all the time’.
According to S, Mr Dhir also spoke with her father and was ‘very abusive’ to him. S testified that later in that conversation Mr Dhir made admissions to her father that he had hit her but justified it ‘because I behave like child’. Mr Dhir told her father ‘this will be happening because she doesn’t do things in right way’.
S testified that, after the phone call concluded, Mr Dhir abused her for informing on him to her parents. S also gave evidence that Mr Dhir later received a phone call from his mother who admonished him, saying ‘you should not be doing that, you should not be hitting [S]’. S testified that Mr Dhir admitted to his mother that ‘he was doing that’.

In cross-examination, it was put to S that Mr Dhir never told her father that he was beating her. S denied that proposition.
S gave evidence that, after her visit to the Clinic on the evening of 7 March 2017, she and Mr Dhir argued again. S testified:
[Mr Dhir] came on top of me and he also bit me on my - I don't remember it was right or left cheek and I scream with the pain. So he put his hand on my mouth just to - just so that no-one can hear that voice, and he was very aggressive and he was on top of me and between my legs and he was trying to have sex with clothes on and I tried to get away because he was very, very angry and - and he was - he was holding my hands as well.
That conduct is the subject of the assault charged in count 5. S asked Mr Dhir why he was behaving as he was. Mr Dhir responded ‘This all will be happening every day with you, you deserve this, you will be - you will be fucked every day this way’.
S gave evidence that on 8 March 2017 she left her home in Ascot Park to attend an appointment at the Royal Adelaide Hospital. On the way there she was in pain and was crying. The two women asked her what was wrong. They called the police. One of the ladies was Kelly Machin.
Ms Machin is a member of the Lifegate Church. She gave evidence in the prosecution case. On 8 March 2017, she arrived at the church at 6.45pm. She then went for a walk to a nearby service station and, on her way back to the church, met an Indian woman. She described the woman as ‘... very distressed’ and ‘very fidgety’. After speaking with the woman for several minutes, Ms Machin called the police, who later arrived and took the woman with them.
S spoke to Detective Leonard, who arranged for photographs of S to be taken. Those photographs were received as exhibit P5. Detective Leonard described S as being ‘quite distressed’ when she was interviewed by police.
Mr Dhir did not give evidence.
Mr Dhir’s mother, Ms Chander Prabha, gave evidence in the defence case. She denied that Mr Dhir had ever admitted assaulting S. Ms Prabha also denied ever seeing S with any marks on her face or any injuries.
As part of the defence case, a number of character witnesses were called to attest to the applicant’s general reputation and speak to other matters tending to rebut aspects of S’s account.
The appellant’s sister‑in‑law, Ms Navdeep Kaur, also gave evidence that tended to undermine discrete aspects of S’s account, including her allegation that Mr Dhir prohibited her from seeking work.
Counsel addresses
The prosecutor told the jury that the evidence of distress corroborated the background circumstances described by S. In relation to the inconsistency as to whether S had a handbag when the assault the subject of count 3 was committed, defence counsel addressed as follows:
She doesn’t have a bag. You have the CCTV footage. It is not unclear. There is no bag. So she is giving you a description of an event with some detail and it is just wrong, and the prosecution want you to rely upon that evidence with respect to count 3 to prove that count beyond a reasonable doubt. That is the evidence of a woman the prosecution says is reliable. Ladies and gentlemen, she is not reliable. Then, to make matters worse, she tells you in cross-examination ‘That might be some other time that that happened’. You need to be satisfied beyond reasonable doubt of the guilt of the accused in this matter and that is an example of where [S] is unreliable. There is no doubt, if you have a look at that film, she does not have a bag. That fundamentally undermines the entire prosecution case.
(Emphasis added)
The underlined sentences show that defence counsel addressed on the basis that S had testified that the grabbing and throwing of the handbag on the ground had occurred on another occasion but that she had maintained that she was assaulted on the charged occasion, when walking home on the day she was raped.
Defence counsel addressed the jury as to the improbability of Mr Dhir raping S at the Showgrounds train station as follows:
Just think about that, if you step back and use your common sense, because there is no prohibition about that in this court as a juror. This is particularly brazen behaviour by him. It may be one thing for them to have an argument at the train station at about 4 o’clock in the afternoon. It may be another thing for Mr Dhir to slap [S] at the train station. I put to [S] that there was never an occasion there was any slapping, but the prosecution says that he raped her there. It is 4 o’clock in the afternoon. It is daylight. This is a public place and you can see there are other people in the film. You can see the man that has got hi-vis clothing in the film. This is risky behaviour. Then he leaves, so [S] has got a perfect opportunity to go and tell somebody what has just happened to her. Why would he possibly do that? Just think about that as to whether that scenario has a ring of truth to it or not.
(Emphasis added)
The underlined sentences show that defence counsel was addressing the improbability of Mr Dhir engaging in ‘risky behaviour’ and the improbability of him leaving S alone if he had just raped her. To the extent this is an implied criticism of S for not immediately complaining, and I doubt that the address can be so understood, it was secondary to the improbability point.
The summing up
On prior inconsistent statements the Judge directed as follows:
Now, this topic of prior inconsistent statements is just one aspect of obviously your assessment of the evidence. Mr Allen points to some topics in this regard that he suggests undermines [S]’s evidence. I will just briefly remind you of them.
Firstly, on 25 February when she says she was assaulted and they went to the market, her evidence was that the assaults finished around 2. She agrees that in her police statement it says 2.40.
Secondly, the incident, I am pretty sure it is count 4, where she says she went for a walk afterwards and bumped into Miss Hixson, the jogger. Her evidence was that she thought she was out of the house for around two hours. She does not dispute that she told the police around four.
Thirdly, as to the allegation of digital rape at the railway station, I think I correctly recall that she agreed that she told police that it happened when she was standing up. Of course, her evidence is it was when she was sitting on the bench. Well, her evidence strictly is that it happened, both. But it is the sitting on the bench one that the prosecution rely on.
There were some other aspects of cross-examination that have not been pursued in submissions because the inconsistency was neither admitted nor proved. So, Mr Allen quite properly did not make submissions about them and I am not dwelling on them. If you are wondering why some of them have been missed that is the reason, an inconsistency has to be proven before it goes in.
There is one more and it is not in terms of a police statement but it comes within the same logical analysis and that is her change between evidence-in-chief, so not from police statement to evidence but evidence-in-chief and cross-examination, about the handbag incident which you will recall she said happened on the way home from the railway station and was part of the incident that comprises count 3 and then she said no, the incident in count 3 happened but the handbag incident must have been on some other occasion. So, that is a change of stance between in chief and cross-examination.
Amongst the ‘inconsistencies’ which were neither proved nor admitted is the penultimate paragraph in the note made by Detective Leonard, and S’s failure to tell police that she had been digitally raped twice at the train station
The Judge directed the jury on the evidence of other violent contact of Mr Dhir which was not charged, as follows:
I am getting towards the end of the general directions which is probably the longest phase of this. Still on the topic of the relationship. As well as these three specific incidents giving rise to the five charges, you heard evidence from [S] that there were numerous other occasions of controlling, aggressive and violent conduct. Other times when she was assaulted, slapped and so forth.
Those other occasions are not the subject of specific charges on the information. So I need to give you a direction about the permissible and impermissible use of that evidence, that uncharged conduct.
Permissible use of that evidence; you can use it – whether you do or do not is up to you, but you may use it, firstly, to put the specific allegations that make out the charges in context rather than just in isolation or out of the blue. So context.
Secondly, to paint a picture of the overall relationship in which this conduct is said to have occurred. So you can use that other conduct, other allegations, to give you insight into the nature of the relationship.
And, thirdly, and this might overlap, but to indicate the accused’s motive, in a sense, because on the prosecution case, they didn’t happen in isolation, they were part of ongoing conduct in controlling his wife and treating her as a chattel or, as she said, an unpaid servant. That is all entirely for you. But you may use the evidence for those purposes.
What is impermissible is to reason: well, we think he did some or all of that other conduct, that makes him a bad man, a nasty individual, so we will convict him of this. You can see the difference. You can’t reason like that: did the other things, so convict him of this.
The Judge warned the jury that the complaint made by S to her parents was not probative of guilt.
Very briefly on a related topic, you heard evidence that [S] complained to her dad on the phone. You cannot use that to prove that the beatings happened and the charges happened.
The only relevance of that is to explain how it came about, on her evidence, that the accused made admissions and, on her evidence, that was in this phone call in which she had told her dad things. So, again, you can see the difference. You cannot use that to prove the truth of what she told her dad. It just puts in context how she says the admissions came about. Otherwise that would make no sense in the whole scenario.
I am going to come back and give you a word of caution about these admissions directly anyway, but that is the only possible relevance of it, what she says she told her dad.
When the Judge returned to the evidence of the admissions he directed the jury as follows:
Firstly, the alleged admissions said to have been made to [S]’s dad by the accused and, indeed, to his own mum. Ladies and gentlemen, I am not buying into your role of fact finding but, of course, there might be an element of circularity there. The only evidence of the admissions is [S]. I suppose, in a sense, that if you accept [S], you don’t really need the admissions. Now, that is not to say whether you will or will not find those alleged admissions credible. I am not buying into that but I am just sort of flagging, well, they rely purely on her evidence and you would have to accept her before you accept the admissions. I suppose, in a sense, if you do, you do not need the admissions. All I am saying there.
The Judge directed the jury to ignore the defence submission concerning the improbability of Mr Dhir engaging in the conduct described by S in a place as open to the public as the Showgrounds train station as follows:
Next, Mr Allen, in his address, said something to the effect of: look, after the accused walked off from the railway station, [S] had an opportunity to go and report the sexual incident which she said had just happened. Well, I direct you to ignore that submission. I will not give you a full tutorial on that. Just trust me that it is best that we just keep it simple. Ignore that submission about, in effect, she could have gone and complained about it then. Put that to one side.
As can be seen, that direction focussed on what I described in [41] as the secondary aspect of the defence submission, and missed the improbability point altogether.
Direction to ignore defence submission
It is convenient to first deal with the fifth issue identified by the appellant because I would allow the appeal on that ground and, because I would reject the appellant’s contentions on the unreasonable verdict ground, order a new trial on all counts.
I accept Mr Dhir’s contention that the defence submission was ‘concerned with plausibility’. The submission was that it would have been a brazen, and hence unlikely, act for the applicant to digitally rape the complainant at a suburban train station, and then leave her by herself because his immediate absence would present the opportunity for her to report the incident. It was not a submission that her failure to immediately report the incident undermined her account.
Although counsel for Mr Dhir at trial conceded that his submission contravened s 34M(2) of the Evidence Act 1929 (SA) (the Evidence Act), I doubt that it did. Be that as it may, s 34M(2) does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant’s account, a jury is entitled to have regard to the riskiness of the behaviour or the opportunity that the complainant would have had to immediately complain of an accused’s behaviour, irrespective of whether a complaint was or was not made. By directing the jury to ignore what counsel had said the Judge withdrew that legitimate, and indeed, compelling factual submission from the jury. While the direction might, in its literal or express terms, have been confined to withdrawing consideration of S’s failure to take the opportunity to complain from the jury’s consideration, its practical effect was not so confined. As the opportunity to complain was an integral part of defence counsel’s broader implausibility submission, it is likely the jury would have understood the Judge’s direction as withdrawing this submission in its entirety from their consideration.
That misdirection was significant. It is not open to apply the proviso because it is a direction which affects the assessment of the reliability and credibility of S. There must be a new trial.
Directions on discreditable conduct
Mr Dhir complains that the Judge did not adequately direct on the permissible and impermissible uses of the evidence of violence in the matrimonial relationship. MrDhir makes two complaints. First, he complains that the direction did not adequately distinguish between the rape count and the other charged and uncharged assaults. I reject that submission. It was not necessary to do so in the circumstances of this case in order to meet the mandate of s 34R of the Evidence Act. The evidence of the discreditable conduct engaged in by Mr Dhir went to the question of the nature of the relationship and addressed what otherwise might have been thought to be the improbability of Mr Dhir acting as he did within the context of a marriage, and therefore, by inference, a loving relationship. The evidence was not used for the purposes of improbability reasoning arising out of the similarities between the discreditable acts. The obvious difference between the conduct charged in count 2 and the other charged and uncharged conduct was therefore not significant.
Mr Dhir also complains that the directions were limited to the use of the evidence of uncharged acts and did not assimilate the evidence of the charged acts into those directions. In the circumstances of this case, there is no reason to think that the jury would not have understood the equivalence between the charged and uncharged acts. In particular, the warning against bad person reasoning, on its face, would readily have been understood as applying to both charged and uncharged acts.
I observe that the evidence of a violent relationship also established an ongoing hostility which itself established a motive for the particular acts charged. While the Judge did not direct as to a permissible use in these terms, a use along these lines was sufficiently encapsulated by his Honour’s reference, in the third permissible use that he identified, to the accused’s inclination to act in a controlling and objectifying manner, providing a motive for his offending.
I accept that the Judge’s warning against the impermissible use was, literally, confined to a warning against convicting of the charged acts, for no other reason than the appellant had at various times committed other serious assaults in the course of the relationship. The warning did not expressly extend to what is often referred to as ‘bad person’ reasoning; namely, reasoning to the effect that because someone has engaged in bad or criminal conduct in the past they are more likely to have committed the charged offence. While the jury may have understood the direction in this way, to ensure compliance with s 34R of the Evidence Act, the Judge ought to have expressly directed the jury not to reason in this way (this being the ‘impermissible use’ described in s 34R(1)(a)).
It is true that it is sometimes difficult to distinguish between a permissible specific propensity use (such as the third permissible use contemplated in this case) and the impermissible general or bare propensity use inherent in bad person reasoning. But that is a reason to ensure clarity in the directions given rather than a reason to omit a direction not to engage in general propensity reasoning. In a case such as the present, where the Judge directed the jury that they could use a form of specific propensity reasoning, there was a risk that they may stray into general propensity reasoning if not warned against doing so.
In my view, the Judge failed to comply with his obligation to direct in relation to impermissible use of the discreditable conduct evidence under s 34R(1). However, in circumstances where the appeal is to be allowed on other grounds, it is unnecessary for me to reach a conclusion as to whether the proviso might have been applied on the basis that this did not occasion any substantial miscarriage of justice.
The admissions
The admissions of which S gave evidence could not have been directly probative of any of the offences charged. The alleged admissions were relevant only to the establishment of a hostile relationship. The Judge should have so directed the jury. However, I am not satisfied that his Honour’s failure to do so caused a miscarriage of justice given the cautionary observations (set out in [45]-[46] above) and given that S’s evidence was contradicted by Ms Prabha, Mr Dhir’s mother, in any event.
It will be a matter for the prosecutor on the new trial to consider whether the evidence added anything material to the prosecution case on the hostility Mr Dhir bore towards S. I acknowledge that the evidence may have another legitimate use. For example the evidence might also explain Mr Dhir’s subsequent conduct and the assault charged in count 5. These are matters which will require the careful consideration of counsel and the judge on a new trial.
Distress
Evidence of distress, like evidence of torn or damaged clothing or a generally dishevelled appearance, is circumstantial evidence of involvement in a physical altercation. The weight of such evidence will vary greatly depending on its contemporaneity, proportionality to the alleged offending, and the opportunity or motive to fabricate the allegation.
It is not a condition of the admission of evidence of distress as circumstantial evidence that all other explanations for the distress can be excluded.
In trials of sexual offences, at a time when corroboration was required as a matter of law or practice, the distressed condition of a victim of a sexual assault was, in limited circumstances, treated as corroboration. In R v Byczko (No 2)[1] Bray CJ commented on the legal history of the evidential use of distress as corroboration as follows:[2]
The vicissitudes of the status of distress on the part of the prosecutrix, as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified.
Bray CJ continued:[3]
Courts of appeal in England and in Australia have become disturbed by this and it has been frequently said that the jury should be warned that except in special circumstances little weight should be given to such evidence …
[1] (1977) 17 SASR 460 at 462.
[2] (1977) 17 SASR 460 at 462.
[3] (1977) 17 SASR 460 at 463.

In order for distress to be used as corroboration of a victim’s account, it must not be reasonably explicable on any basis other than the commission of the offence against the victim. In R v Flannery, the Victorian Court of Appeal held:[4]
In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration.
[4] [1969] VR 586 at 591.
In R v Rogers, Nettle JA considered the interrelationship between the admissibility of distress evidence and its use as corroboration as follows: [5]
As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant’s testimony. Here, in my view, there can be no doubt that it was open to infer that the complainant’s distress was causally connected to the alleged rape. The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight. As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant’s testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant…
(Citations omitted)
[5] (2008) VSCA 125 at [18].
In Flora v The Queen, the Victorian Court of Appeal commented on that passage in the following terms:[6]
[69]The reference to distress evidence being admissible if it is ‘reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant’ appears to be in accord with the approach generally taken to circumstantial evidence and the drawing of inferences. However, it should be noted that Rogers, too, used the language of corroboration, as it related to a pre-UEL trial. It should also be noted that Rogers was a case where there had been only one count on the presentment.
(Citations omitted)
[6] (2013) 233 A Crim R 320 at [69].
Later the Court equated evidence of significant emotional distress observed in the immediate aftermath of non-consensual sex with circumstantial ‘post offence conduct’:[7]
[7]    Flora v The Queen (2013) 233 A Crim R 320 at [72], [79], [81], [82] and [90].
[72]Once distress evidence is seen as a type of circumstantial evidence, which it plainly is, and it is also seen that it can be described as ‘post-offence conduct’ (albeit on the part of the victim), then it should, logically, be subject to the same rules that govern ‘post-offence conduct’ of the accused.
…
[79]As with lies and other post-offence conduct, evidence of distress is circumstantial. One should not lose sight of how circumstantial evidence generally acquires its probative force. It is the totality of the circumstantial evidence which must be considered. As Dawson J stated in Shepherd, ‘the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.’ This was again emphasised in the joint judgment of Gummow, Hayne and Crennan JJ in Hillier who observed that in a circumstantial case it is often the case that:
there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused … As Gibbs CJ and Mason J said in Chamberlain (No 2):
… the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence.
…
[81]In Brooks v The Queen, Weinberg JA considered the authorities, including Ciantar and Butler. He emphasised that, because post-offence conduct was a type of circumstantial evidence, it had to be looked at against the totality of the evidence as a whole.   He said after quoting the above passage from Hillier:
Post-offence conduct is, of course, nothing more than a species of circumstantial evidence.
Returning to the facts of the present case, the ‘big lie’ must be ‘considered in the context of all of the evidence’. When viewed merely as one item of evidence amongst several which might have been used as the basis of an inference of murderous intent, it cannot be said that the ‘big lie’ was intractably neutral. It had to be considered in the context of other evidence including the severity of the wound inflicted, the relationship evidence, and the appellant’s statements to his neighbours and police immediately following Ms Chapple’s death. Having regard to the ‘whole of the material’, as the jury were instructed to do by the trial judge, the ‘big lie’ was significantly more probative of murderous intent than of some lesser intent.
[82]Whether evidence is really intractably neutral must be assessed by reference to the cumulation of circumstantial evidence. The jury was not required to consider the circumstantial evidence of distress in isolation.
…
[90]As recognised in Ciantar, there will be few cases where evidence is truly ‘intractably neutral’.   As there are always degrees of distress, and a jury is in a position to assess whether the distress is of such a severity as to match the crime alleged, it might only be very rarely that distress evidence is ‘intractably neutral’.
(Citations omitted)
The notion that the availability of a competing hypothesis for the distress can be advanced does not deprive the evidence of its admissibility was also explained in R v Mitrovic.[8] Duggan J made the following comments about distress observed proximate to the time of a rape:[9]
[27]The evidence of distress was not rendered inadmissible simply because of competing theories as to its cause. On the other hand, it is necessary in a case such as the present to direct the jury that the evidence of distress can only be used as evidence of consistency if the jury are satisfied that other explanations have been excluded.
[8] [1999] SASC 478.
[9] R v Mitrovic [1999] SASC 478 at [27].
The distinction made by Duggan J between admissibility and a factual finding that the distress is corroborative is important. A trial judge will admit the evidence if it is capable of being corroborative, and it will be capable of being so if a causal inference can be drawn. However, it will not be corroborative unless there is no other apparent explanation other than that it was caused by the offence. So much was usefully explained by King CJ in R v Schlaefer:[10]
Two decisions of the Full Court establish that independent evidence of observed indications of distress may in certain circumstances amount to corroboration: The Queen v. Yates; The Queen v. Henderson. The test to be applied was laid down in Yates, following Reg. v. Flannery, as being whether an inference which the jury could reasonably draw is that there was a causal connexion between the alleged assault and the distressed condition. This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with the sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred. In Yates the Full Court adopted a passage from Flannery in which the Full Court of Victoria said:
‘In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distress condition.’
Clearly, when the Full Court, following Flannery, referred to an inference which the jury could reasonably draw of a causal connection between the alleged assault and the distressed condition, it meant an inference that, having regard to the factors enunciated in the passage cited from Flannery and any other relevant factors, the distressed condition, as a matter of reason and common sense, could only have been caused by a sexual incident of the kind alleged and could not have been simulated, caused by an imagined sexual incident or caused by events which might reasonably have occurred other than the alleged sexual assault.
The role of the trial judge is to determine whether the evidence is capable in law of amounting to corroboration. He must rule whether it is reasonably open to the jury to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault and are not consistent also with having been caused by other events which may reasonably have occurred or by an imagined sexual assault or by simulation. If it is reasonably open to the jury to draw that inference, the evidence should be left as capable of amounting to corroboration. If not, to so leave it to the jury would be appealable error.
(Emphasis added; citations omitted)
[10] (1984) 37 SASR 207 at 216-217.
Ms Hixson saw S within an hour of the assault alleged in count 4. An inference could reasonably be drawn that S was wandering the street in the condition described by Ms Hixson as a reaction to that assault but not to the offences alleged in the first three counts. However it should be observed that the degree of distress Ms Hixson described might have many less traumatic causes than the assault the subject of count 4. Nonetheless, I accept for these purposes that Ms Hixson’s evidence was admissible. Ms Fearon’s evidence of S visiting the clinic the next day is not so temporally proximate and her planned visit to the clinic was qualitatively different than the encounter with Ms Hixson. The admissibility of Ms Fearon’s evidence may be doubted, as may the admissibility of Detective Leonard and Ms Machin’s evidence of distress relative to the offence charged in count 5.
As has been seen, the admissibility of distress as circumstantial evidence is limited to its connection with a charged offence. It follows that it cannot be probative of a violent relationship generally, except through its connection to a particular instance of violence.
There was no objection to the evidence of distress led in this case. Accordingly, the submissions of Mr Dhir on appeal have been framed in the terms of a failure to direct the jury about the obvious limitations on the evidence of distress.
Plainly enough, the evidence is not sufficiently closely connected to any particular count, and in particular to the rape alleged in count 2, for a conclusion to be reached that there was no other reasonable explanation for the distress. However, the Judge did not leave the evidence to the jury as corroboration.
In R v Byczko (No 2),[11] Bray CJ explained that the rule of practice warning juries not to put weight on evidence of distress was limited to cases in which it was left as corroboration:
However, those four cases were cases where distress was left to the jury as potential corroboration. It is in those circumstances, in my view, that the warning is necessary and that failure to give it may lead to the conviction being quashed. Here the alleged distressed condition of the girl was not so left and, as I have said, was impliedly excluded from the potentially corroborative category. It was merely mentioned as one of a number of factual matters for the jury to consider. When dealing with such matters the trial Judge has a wide discretion. Broadly speaking it has never been the practice for appellate courts to intervene simply because the judge has not specifically directed the jury that they should give as much or as little weight to any particular factual matter as the appellate court thinks appropriate. Nor do I think it is desirable that appellate courts, extreme cases apart, should change their practice in this regard.
[11] R v Byczko (No 2) (1977) 17 SASR 460 at 463.
Nonetheless, in the circumstances of this particular case, I would hold that the Judge ought to have given directions explaining that the evidence of distress:
·was limited to the particular offences to which it was temporally related;
·was capable of many alternative explanations; and
·did not corroborate S’s evidence about the background circumstances.
The Judge should also have directed the jury to ignore the references, express or implied, in the evidence of S and Ms Fearon to S being victim of domestic violence. The failure to give these directions has resulted in a miscarriage of justice.
Unreasonable verdicts
Mr Dhir submits that the conviction on count 2 was unreasonable and cannot be supported by the evidence. First, he relies on the inconsistencies in a statement to Detective Roberts concerning whether the appellant touched her vagina roughly or had in fact penetrated it with his fingers. Secondly, Mr Dhir relies on the inconsistencies earlier referred to as to whether there were two instances of digital penetration at the Showgrounds train station, and the difference between the statement in which S only alleged a penetration while standing up and her evidence‑in‑chief where she described penetration whilst sitting down.
To those matters may be added the improbability of Mr Dhir acting as he did in a public place and, what might be thought, to have been some difficulty in doing so by placing his hands inside S’s pants. However, there was no objective or independent evidence about whether or not pants of the kind worn by S would have allowed Mr Dhir to commit the acts she described.
Finally, the appellant relies on the note made by Detective Leonard. That can immediately be put to one side for the reasons earlier canvassed in [13].
The inconsistencies and improbabilities on which Mr Dhir relies are quintessentially matters for the jury and depend critically on its assessment of S’s demeanour and the significance of any inconsistent statement which they found she made. Any doubt arising from a bare reading of the transcript is capable of being resolved by a jury’s advantage in hearing S’s testimony. It was open to a properly directed jury hearing the evidence to have convicted Mr Dhir, notwithstanding the inconsistencies. The inconsistencies were not such as to demand an acquittal because, on an evaluation of the inconsistencies against S’s evidence, a jury was entitled to be satisfied of Mr Dhir’s guilt. The nature and extent of the inconsistencies relied on are not such as to deny the ability of the jury to so conclude.
On count 3, Mr Dhir submits, to which I earlier referred, that S’s evidence was that the assault she described walking home from the Ascot Park train station might have occurred on another day and not on the day particularised as the day on which she was raped.
However, on my reading of S’s testimony, and for the reasons appearing in paragraph [16] above, I accept that the effect of S’s testimony was that she was assaulted on that particular occasion but that she was mistaken about whether she had her handbag with her on that occasion. Accordingly, this was not a matter in which the evidence ultimately led by S had failed to establish the particular assault charged. Rather, the question was whether the jury could still accept S’s evidence that the assault occurred on that occasion even though she was clearly mistaken about whether she had her handbag with her. That was a matter which required an assessment of S’s evidence. Any doubt arising from a reading of the transcript about the significance of that error is capable of being resolved by the jury’s advantage in hearing and assessing her testimony. Again, properly directed, the inconsistency with the proved fact that S did not have her handbag, did not render it unreasonable for the jury to still believe S and to be satisfied of Mr Dhir’s guilt on her evidence.
Finally, I observe that the photographs showed bruising on S which was consistent with the offence charged in count 5 and for which there is no obvious explanation consistent with the innocence of Mr Dhir.
Conclusion
For the above reasons I would dismiss Mr Dhir’s appeal against the verdicts on counts 2 and 3 on the grounds that they are unreasonable and not supported by the evidence. However, I allow his appeal against his convictions on all counts on the grounds that the Judge wrongly withdrew the factual issue concerning the improbability of Mr Dhir acting as described by S at the Showgrounds train station and on the ground that the jury may have given undue weight to the evidence of distress.
Orders
The appeal is allowed. All convictions ordered on the District Court information are quashed and the matter is to be remitted for a new trial.
STANLEY J: I would allow the appeal and remit the matter for a new trial. I agree with the reasons of Kourakis CJ.
DOYLE J: I agree with the reasons and orders of the Chief Justice.