R v DRG - [2004] SASC 394

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GRAY
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
2 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
Appeal against conviction - Appellant found guilty by jury of four counts of unlawful sexual intercourse, one count of rape and one count of indecent assault - whether trial Judge should have warned the jury that it was unsafe or dangerous to convict on uncorroborated evidence of victim - whether comments made by trial Judge erred in comments made to the jury concerning medical evidence - whether the trial Judge erred in directions to the jury concerning uncharged acts - whether directions were inadequate in the sense of a fair trial - appeal allowed - convictions set aside and retrial ordered.
R v BFB (2003) 87 SASR 278; R v RWB (2003) 87 SASR 256, discussed.
R v IK [2004] SASC 280; R v Neiterink (1999) 76 SASR 56, considered.

R v GRAY
[2004] SASC 394
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Mr Gray, the appellant, was tried before a jury in the District Court on an Information charging six offences. The jury found him guilty of four counts of unlawful sexual intercourse with a person under 12 years of age, one count of rape and one count of indecent assault.
L, a young girl aged 11 at the time of the trial, was the victim in each case. Mr Gray had formed a relationship with her mother, lived with her mother briefly and then married her.
Mr Gray appeals by leave against the convictions that were recorded in the District Court.
He complains that the Judge failed to warn the jury that it would be unsafe or dangerous to convict on the evidence of L. He submits that in the circumstances such a warning was called for.
He also complains about a possible explanation suggested by the Judge for L not complaining to her mother about the alleged offending. He complains about two aspects of the direction that the Judge gave relating to findings when L was medically examined. He complains about the failure of the Judge to explain how evidence of uncharged conduct could be used and could not be used.
Chronology of events
L was born on 19 March 1992.
Her mother gave evidence for the defence. She said that she and L’s father separated in 1994. After that there was not much contact between L and her father. The mother met Mr Gray in May 1998. He moved into her house in a country town about two weeks later. Two other children of the mother returned to live with her first husband in July 1999. In July 1999 Mr Gray obtained employment at a smaller country town. L and her mother stayed there on some occasions, visiting Mr Gray. Her mother married Mr Gray in November 1999. They moved to the other town in December 1999. At different times Mr Gray and L’s mother had employment in that town.
L’s mother separated from Mr Gray in June 2002. However, she remained relatively friendly with him, and at trial said it was possible that they would get back together.
In June or July 2002 L left the smaller country town to go to live with her father in Adelaide.
L said that she had not told anyone about Mr Gray’s conduct. Among other things she said that she was “scared of about what might happen if I told someone”.
After L went to live with her father (she was not asked to say how long after) she told her father’s second wife about the alleged misconduct by Mr Gray. L agreed in cross-examination that this came out after she had had an argument with her father over what program was going to be watched on television. L agreed with the suggestion that her father’s second wife took her aside to explain to L “the rules of this house”, and in the course of this agreed that she had told the second wife about Mr Gray’s conduct. She denied that she said these things to make her father’s second wife feel sorry for her. Later she said that once she was living in Adelaide she thought she would never see Mr Gray again “so why can’t I tell someone?”
She agreed that her stepmother took her to the police, and that she saw a doctor. The doctor said that she examined L on 10 September 2002. Mr Gray was questioned and charged on 26 September 2002.
The trial took place in late June and early July 2003.
The offending conduct
Count one was identified as the first occasion that Mr Gray “did something” to L. The particulars were that the offence occurred between 1 February 1999 and 30 April 1999, when L was about seven years old. She said she was in Grade 2 or Grade 3 at school. L said that she was at home watching television. Her mother and sister were asleep in bed. On this occasion Mr Gray put his finger in her vagina. They were in the lounge at the time. It was in the morning, she had just woken up and was watching cartoons.
L said that this happened again about a month after they moved to the smaller country town. As well, Mr Gray rubbed his penis on her vagina. No charge was laid in relation to this incident. L said that it happened in her bedroom, her mother was asleep at the time. She went on to say that this happened “from time to time”. She said that it happened two or three times a week, and indicated that usually Mr Gray rubbed his penis on her vagina or in that area, and less often put his finger in her vagina. This conduct continued until about June 2002. She said that he also put his penis in her mouth five or six times over this period, licked her vagina and sometimes inserted his penis into her vagina. She said these things mainly happened in her bedroom at night, when no one else was home. She said that sometimes she noticed blood coming from her vagina. Sometimes she noticed a liquid coming from her vagina that was likely to be semen because she linked it to occasions when Mr Gray placed his penis in her vagina. She said that sometimes he followed her into the toilet and then would sit her on his lap, facing him, and would rub his penis against her vagina or put his penis in her vagina. That is a summary of the uncharged conduct that she alleged.
Count two was a charge of rape, alleged to have been committed between 1 December 1990 and 31 December 2000. It was alleged to have been committed when they were staying or living in the smaller country town. Very briefly, L described an incident in which Mr Gray tied her arms behind her with rope, blindfolded her, and then put his penis in her mouth. He had a knife near at hand, and she said that she was scared.
Count three was alleged to have occurred between 1 June 1999 and 9 August 1999. L identified this as an occasion in her bedroom when her mother was at home, and Mr Gray said they were going to read books in the bedroom. She said that he went to the bedroom with her, took her pants off and placed her on the floor and then rubbed his penis on her vagina. She further identified the occasion as one when her mother knocked on the door and interrupted Mr Gray. L quickly pulled her pants up and Mr Gray pretended he was reading a book.
Count four was alleged to have occurred on 26 March 2002. L identified it as having occurred on or very close to her birthday. It was an occasion when a friend of the family visited them. Her mother drove the friend home, a journey that took some time. She said that while her mother was driving the friend home Mr Gray took her clothes off, put her on her bed and put his penis in her vagina.
Count five was alleged to have occurred on 13 April 2002. L identified it as a Saturday in the Easter holidays, apparently the day on which she was due to be collected by her natural father for the purpose of a holiday in Adelaide. L’s mother was at work, but her younger sister was at home. L said that Mr Gray told her to tidy up her room, then he came into her room, took her pants off and put his penis into her vagina. On this occasion she observed bleeding from her vagina, and she thought some of it was on the sheet of her bed. Mr Gray told her to have a shower, which she did. There was just a “little tiny bit of blood” on the sheet. Apparently the family went to visit some friends, and while she was there she noticed that she was bleeding through her pants, but the bleeding stopped after a while. She put her pants underneath her bed, and did not put them in the wash.
Count six, the final count, was alleged to have occurred between 1 June 2002 and 21 June 2002. L identified this as an occasion when her mother had gone to a fire safety course at night. It was common ground that her mother had done that. L said that she was at home with Mr Gray and her sisters. He took her to her bedroom, took her pants off, placed her on the bed and inserted his penis in her vagina. L said it was a Tuesday night, sometime after half past eight.
Each incident the subject of a charge was described in some detail by L. In particular, as to each such incident she was able to say where it happened and what the circumstances were. However, there was no precision in her evidence as to the date of the events the subject of the first three counts. The events the subject of the last three counts were linked to a specific date or event. The evidence as to the uncharged conduct was quite general as to when and where the conduct occurred.
The effect of her evidence was that Mr Gray had an opportunity to offend, and that was not really denied by Mr Gray, as it hardly could be.
The evidence from the doctor who examined L was significant. She found signs of “old trauma to the hymen”, which she described as one of the worst she had seen in examining children of this age. By that she meant worst in terms of the amount of hymen that was lost, and the amount of scarring. What she observed could only have been caused by some penetration of the hymen. She said this would have caused bleeding. If what she observed was the result of many small injuries, the bleeding would be for a single day. A swab disclosed the presence of bacterial vaginosis, which she said was unusual in a “pre-pubertal child”. The doctor said that she had seen this condition only in pre-pubertal girls who had been sexually abused, but that it had been reported as occurring in girls who had not been sexually abused.
The damage to the hymen could have been caused by an erect adult penis, or by some other blunt object. What she observed could have occurred accidentally, but she said that in that event it was “usually a catastrophic traumatic event” that resulted in an emergency admission.
Mr Gray’s defence was a complete denial of any misconduct. He gave evidence of a normal family relationship between himself and L. In this he was supported by L’s mother. L said that she took particular care for her children, and especially her female children, because she was well aware of the risk of sexual abuse, and “always had my suspicions about everybody.” She said that she had been sexually abused herself as a child, and that it made her particularly careful. She also gave evidence of a normal affectionate relationship between L and Mr Gray. She said that L never complained to her of any bleeding from the vagina, nor did she any sign of that.
At trial counsel for Mr Gray told the Judge that he did not ask the Judge to warn the jury that, in the circumstances, it would be dangerous for them to convict Mr Gray on the basis of L’s evidence. He said that he accepted that a direction that reminded the jury that L was a young child, and that they should carefully scrutinise her evidence, would be an appropriate direction.
Grounds 1 and 2 – The failure to give a warning
Mr Schapel, counsel for the appellant, submits that in the circumstances the Judge should have warned the jury it was unsafe or dangerous to convict on the uncorroborated evidence of L.
He submits that such a warning was called for by reason of L’s age (she was 7 years old when the offending began), the time that had elapsed between the first incident and Mr Gray being spoken to by the police (less than four years and only about six months between the last incident and his arrest), the lack of particularity as to when the conduct the subject of the first three counts occurred, the lack of particularity as to the time when the uncharged conduct occurred, and the circumstance that as it was undeniable that Mr Gray had the opportunity to offend in circumstances like those described by L, it was impossible for the defence to test L’s evidence in any meaningful way, particularly having regard to the lapse of time.
The submission raises yet again the difficult question of when a warning should be given, and in what terms it should be given. I refer here to a warning along the lines that having regard to delay in particular, it was unsafe or dangerous to convict on the uncorroborated evidence of L.
I recently considered this matter in R v BFB [2003] SASC 411; (2003) 87 SASR 278. Although it is a lengthy passage, I set out here what I said at [34]‑[41]:
“In Longman v The Queen (1989) 168 CLR 79 the High Court reminded trial judges that a warning must be given to a jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”: Longman (at 86) per Brennan, Dawson and Toohey JJ. In that case it was held that the circumstances called for a warning.
Since then a number of cases have come before the High Court in which the justices of the court have had occasion to consider, in the context of sexual offences, when it would be sufficient for a trial judge to merely comment on, or bring the attention of the jury to, an aspect of a case that calls for some caution, and when it will be necessary to warn the jury that it would be dangerous or unsafe to convict on the evidence of the victim alone, unless the jury, scrutinising the evidence with great care, and considering the relevant circumstances and the warning, were satisfied of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343.
These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
I add that there are other circumstances in such cases that may call for a warning. In the present case the concern is with delay, coupled with forensic disadvantage to the accused, and I confine my attention to that topic.
The difficulty that trial judges are experiencing in this area is probably due to the fact that there are no hard and fast lines to be drawn. The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage. Sometimes a relatively short lapse of time will put the accused at a disadvantage. Sometimes a lengthy lapse of time will not put the accused at a disadvantage. It all depends on the circumstances. Alternatively, there may be a factor that calls for a comment rather than a warning. These are matters on which views can differ. Views have differed in appeal courts. Nor can trial judges resort to the easy course of giving a warning when there is a possibility that one might be called for. The giving of excessive and inappropriate warnings will be unfair to complainants, contrary to the public interest in a regularly conducted trial process, confusing to juries and runs the risk of returning this aspect of the law to an approach from which Parliament endeavoured to extract it, when Parliament enacted provisions such as s 34I(5) of the Evidence Act 1929 (SA).
It remains the task of trial judges, and of intermediate courts of appeal, to do their best to steer the right path in this area. It remains necessary to consider the time that has elapsed between the incident in question and notice to the accused person that a complaint has been made, or between that time and the commencement of the trial, the impact of that delay on the ability of the accused to present a defence, the nature of the prosecution case, and whether it rests substantially on the unsupported evidence of the complainant.
In R v BWT (2002) 54 NSWLR 241 the Court of Criminal Appeal of New South Wales gave careful consideration to the case law. In the course of his reasons, Sully J formulated some propositions for the assistance of trial judges: at [95]. These propositions were supported by Wood CJ at CL: at [4]. Dowd J agreed also: at [119]. In particular, Sully J said:
It seems to me that, as matters stand, a trial judge would be well advised to give a Longman direction unless it is possible to conclude reasonably; first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47), “far-fetched or fanciful”.
In my respectful view that overstates things. I fully appreciate the desirability of giving clear guidance to trial judges, but it would be regrettable if courts responded by giving inappropriate and unnecessary warnings.
In this context I mention also the helpful review of authorities by Heydon JA in R v GPP (2001) 129 A Crim R 1 at [18]-[80].”
At about the same time a differently constituted court considered the same matter in R v RWB [2003] SASC 420; (2003) 87 SASR 256. As I understand the reasons of their Honours in that case, they took the same approach as I took in BFB. By way of illustration I refer to the following passages from the reasons of Besanko J at [48] and [52] with whom Bleby J agreed:
“The starting point is that the warning is given to avoid a perceptible risk of miscarriage of justice. Whether there is such a risk depends upon the circumstances of the case. The warning involves telling the jury that the complainant’s evidence could not be adequately tested after the passage of, in this case, over two years, and that it would be dangerous to convict the accused unless they carried out the process previously identified. The warning asserts a fact, namely, that the complainant’s evidence cannot be adequately tested. In cases of substantial delay that fact is presumed to be correct irrespective of the particular evidence in the case. That is certainly so in cases of delay in the order of 20 years.
There is no authority which requires this Court to hold that a period of two years is a period of substantial delay thereby necessitating a Longman warning. I would not reach such a conclusion because I do not think it should be assumed, without regard to the circumstances of the case, that the evidence of the complainant cannot be adequately tested after two years.”

I refer also to the reasons of Sulan J at [79]:
“I agree with the observations of Mullighan J in R v T that, in most cases of substantial delay, the potential of prejudice to a defendant in the presentation of the defence will be obvious. However, there are circumstances in which there might have been lengthy delay in the making of a complaint, yet the potential for prejudice is not so obvious. There may also be cases in which there has been a relatively short delay in the making of a complaint, and a defendant who denies being present at the time of the incident, or incidents, may be prejudiced because of an inability to recall in detail earlier movements. There may be identifiable prejudice. A defendant may wish to call a witness in whose company he was at the time, but that witness is no longer available. In such a case, a direction in accordance with the warning in Longman may well be required. In other circumstances a comment, short of a full Longman warning, would be sufficient.” (footnote omitted)
In his directions to the jury, the Judge gave them a clear chronology, similar to the one that I have provided earlier in these reasons. Having done that, he said:
“In order to find any count proved it is not merely sufficient for you to prefer the evidence of [L] to that of the accused, if that be your view. You can only convict if all of the elements of the offence are proved to you beyond reasonable doubt on the whole of the evidence which you accept.
You should carefully scrutinise the evidence of [L] before accepting it, if you are minded to do so, as sufficient proof on any count.
[L] is now 11 years of age. During the time of the alleged offences she was aged between about 7 to 10 years. She was only a child and is still now not even a teenager. She was unable to give details about dates of various events, but you may think that is consistent with her limited degree of intellectual development.”
He then gave the jury directions about assessing the evidence of a child, made some comments on the evidence and referred to the medical evidence. He then said:
“On all six counts you need to consider what, if any, weight you can give to the denials of the accused that he had sexual intercourse with [L]. If he did not commit these offences what more could he do in his own defence than deny them to you on oath as he has done?”
I do not agree that the circumstances of this case made a warning of the kind suggested, related to the effect of delay, essential. The fact that counsel for Mr Gray agreed that such a warning was not required supports the conclusion that the circumstances did not call for it. The time that elapsed from the beginning of the alleged course of conduct to the time when Mr Gray was spoken to by the police was less than four years. This is not a case in which the lapse of time is such that memories are likely to have become frail. Nor is it a case in which it would have been difficult to make inquiries of potential witnesses, such as L’s mother and her sisters, because of the lapse of time. As well, L gave her evidence in considerable detail, and a number of the incidents that she described were clearly identified by reference to events that had occurred. A reading of L’s evidence, supported by a comment made by the Judge to the jury, indicates that she was articulate and gave her evidence quite clearly. The lapse of time did not make it difficult to test her evidence by cross examining her on the details of her evidence.
But although a warning that it was dangerous to convict on L’s evidence was not called for, it was necessary to bring home to the jury, quite clearly, the difficulty faced by the defence in a case like this in testing the allegations made against the accused. The generality of the evidence made in relation to the first three counts, and of the evidence of uncharged conduct, meant that it was very difficult to test that evidence. The problem lay not so much in the lapse of time, as in the fact that if the occasion could not be identified with reasonable precision, it became impossible to deny the existence of the opportunity to offend or the possibility of the offence having been committed at the time in question. As well, on the occasions that were identified with reasonable precision, the fact that Mr Gray had the opportunity to commit the offences meant that there was nothing he could do other than deny having taken that opportunity. In this respect, the present case is rather like BFB. The jury might not have appreciated the difficulty that the defence faced, and that is a reason why that difficulty needed to be brought home to them. It needed to be brought home clearly, and as based on the experience of the courts.
I consider that the direction that the Judge gave to the jury was not adequate in this respect. The passages that I have set out above, the only portions of the summing up that bear on the point, would not have brought home to the jury the difficulty that the defence faced in this respect. The jury might not have appreciated, in considering the fairly detailed evidence given by L, and the undeniable opportunity to offend, that there was not a great deal that Mr Gray could provide by way of answer, and that this made it necessary to scrutinise the evidence of L with care, and, more importantly, to bear in mind the difficulty that the defence faced in testing her allegations. As it happened, in the course of his address to the jury the prosecutor referred to the considerable detail that L provided, and contrasted that with the evidence of Mr Gray, saying that:
“The accused’s version of events, the bland simple denial ‘didn’t happen’, is a very easy story to make and a very easy one to maintain.”
No complaint was made about that comment, and it was open to be made by the prosecutor, but it highlights the need for the Judge to bring home to the jury that there might not be much more than a “bland simple denial” that Mr Gray could provide in all the circumstances.
In short, the matters that needed to be brought to the jury’s attention more clearly was not the effect of delay on memories, and on the ability of the defence to test L’s evidence by checking it against surrounding circumstances and the evidence of other people. It was the disadvantageous position of the defence when opportunity to offend is admitted or proved, and the defence can do little to answer detailed allegations other than simply deny that what is alleged did occur.
Although in other respects relating to the evidence of L the summing up was adequate, in my view it fell short of what was required in the aspect just dealt with.
In giving the direction that the Judge should have given, it would have been appropriate to draw no distinction between the evidence as to conduct the subject of a charge, and the evidence as to uncharged conduct. To draw a distinction between these categories of evidence would cause unnecessary confusion in the circumstances: cf. R v IK [2004] SASC 280 at [91].
I will return later to the significance of the deficiency of the summing up in this respect.
Ground 3 - The failure by L to complain to her mother
As my chronology discloses, L did not complain to her mother about Mr Gray’s conduct. L first complained about that conduct to her father’s second wife, after she had gone to live in Adelaide with her father.
In cross examination L agreed that her mother had been “a good mum”, and that her mother had warned L about “stranger danger”. She gave the following evidence:
“Q.Is there any reason why you couldn’t have told your mum about this, about these things that you say went on.
A.Because I was told that if I told anyone that I would be in trouble, so I didn’t tell anyone because I was too scared, but when I moved down to Adelaide well, I thought I’m never going to see him again so why can’t I tell someone?
Q.Are you saying you didn’t tell mum because you were worried about Dave.
A.Yes.”
The Judge raised with the jury the significance of L having not complained to her mother. He posed the question whether they would have expected her to complain to her mother. Then he said:
“Could it be that she did not confide in her mother because she feared her mother would not side with her on allegations which she would make about her mother’s husband?”
Mr Schapel submits that this question, which he suggests implied a comment, was unfair. L had not made any such suggestion. The Judge was inviting the jury to speculate, there being no basis in the evidence for speculation along those lines.
I do not agree. L’s evidence that she was afraid she “would be in trouble” is consistent with her fearing that her mother would not believe her and would side with Mr Gray. In the circumstances, the possibility that the Judge raised was one that the jury were entitled to take into account.
Ground 4 - The Judge’s comment on the medical evidence
I have summarised the medical evidence earlier in these reasons. The Judge referred to the evidence. He said the jury might think there was little doubt that L had suffered a significant injury to her hymen. He said:
“The doctor said this could have been caused by an erect penis or a finger. If it was not an erect penis or a finger she thought the only other possibility was some accident which would have been traumatic. But there is no evidence of any other such accident which could wholly explain the injury to the hymen. Of course, there is always the possibility that it was caused by some event which we just don’t know about. But if it had been such an event, you might wonder whether [L] would not have complained to her mother about it and she would have known about it.”
Mr Schapel submits that this comment is unfair. No evidence was led by the prosecutor that L had not suffered an accidental injury that might explain the injury to L’s hymen.
There is some force in this point. The prosecutor did not ask L if she had ever had an accidental injury of a kind that might explain the doctor’s findings. But in cross examination L’s mother agreed that she was not aware of any incident that might explain the doctor’s finding. And, in the course of the above direction, the Judge reminded the jury that they should be mindful of the possibility of some event of which they had not been told.
In all the circumstances, I do not consider that there is any risk of this aspect of the directions having given rise to a miscarriage of justice.
Ground 5 - The Judge’s comment about the significance of the medical findings
As I have already said, L’s mother gave evidence that she had been vigilant to protect her children from sexual abuse. Her vigilance extended to the men with whom she had had relationships, including Mr Gray. The Judge made the following comment:
“I point out to you that if you are satisfied from the evidence of Dr Woodard-Knight that there had been some sexual penetration of [L’s] vagina by some person, the fact that [L] did not complain about it to her mother or apparently to anyone else and her mother’s vigilance about protecting her from sexual abuse was apparently not sufficient to prevent this occurring or to detect it when it had happened. This may cause you not to place any great weight on [L] not having confided in her mother and in her mother having been able to shield her from sexual molestation.”
Mr Schapel complains that this comment overlooks the fact that if L had been interfered with sexually, that might have been by someone other than Mr Gray. L might have been reluctant to complain about that other person, who might well have been a family friend. Sexual interference with L by some other family friend might have occurred despite L not complaining to her mother, and despite her mother’s vigilance. But, he argued, the fact that L’s mother said she had been vigilant remained relevant as a factor in considering whether Mr Gray was the offender, and it might be that L was just as reluctant to identify some other offender as she would have been to identify Mr Gray as the offender.
There is some force in these points. When one reflects on what the Judge said, it is, with respect, unclear. The jury could only have concluded that there has been sexual penetration of L’s vagina if they were satisfied of that fact, despite L not having complained to her mother and despite her mother’s vigilance. The absence of complaint and the vigilance were matters to consider in deciding whether or not they were satisfied that sexual penetration had occurred. Once they were satisfied of that, it remained for them to consider whether or not Mr Gray was the perpetrator, and whether or not he had committed the offences charged.
Although the direction is unclear, it had no potential to work to Mr Gray’s disadvantage. Accordingly, there is no risk of it having given rise to a miscarriage of justice.
Ground 6 - The directions about uncharged acts
In relation to the evidence from L about sexual interference that was not the subject of a charge, the Judge gave the following direction:
“That evidence has been led in this trial to enable you to gauge, insofar as you accept it, the extent and the nature of the overall relationship between the accused and [L], and to put the six incidents which are the subject of the charges in their proper contexts.
You should not act on any other incident in forming a conclusion adverse to the accused about the nature and the extent of his relationship with [L] and the context in which an incident charged occurred unless you are satisfied about the truth of the victim’s version of these other incidents which could amount to other similar offences. You must not use any finding you make about any uncharged incidents of unlawful sexual intercourse or indecent assaults to reason that the accused has a propensity to commit such offences and therefore is more likely to have committed the offences charged than if you had not known about the other matters.
You must limit your use of any findings about uncharged other offences of unlawful sexual intercourse or indecent assaults to the nature and extent of the overall relationship and the context in which the incidents or charges occurred and not use them for any other purpose.”
It is surprising that the Judge should have directed the jury in these terms. This Court has said repeatedly that in cases of this kind, when evidence of uncharged acts is led, the Judge should explain to the jury with some care, and being as specific as the Judge can, how such evidence can be used and how it cannot be used. A clear direction about how the evidence can be used is important, because it helps the jury understand how the evidence cannot be used. For example, as this Court has often said, evidence of uncharged acts might explain why the accused was confident that the victim might submit to sexual interference under circumstances under which one would otherwise think that the accused would never have run the risk of the victim reacting in a manner that might lead to the accused being detected. Evidence of uncharged acts might also help the jury understand why the victim would not be startled or surprised when a particular incident occurred. These are just two examples of how evidence of uncharged acts might be relevant. This Court has said on a number of occasions that it is preferable not to refer to such evidence in general terms as evidence of “relationship”, because that term could imply a line of reasoning that the uncharged acts disclose a propensity to offend in relation to the victim. The same comment applies to terms as general as “background” and “context”. I refer, without repeating it, to what I said on this topic in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56 at [43] - [47] and at [84] - [86], with which observations the other members of the Court agreed: Perry J at [103] and Mullighan J at [107]. Those observations have been applied in subsequent cases: see the discussion in R v IK [2004] SASC 280 at [50], Doyle CJ.
The Judge’s directions did not explain, other than in general terms, how the evidence could be used. The Judge’s reference to “relationship” and to “context” gave rise to the danger of the jury thinking that the evidence could be used to support a conclusion that Mr Gray had a propensity to commit offences of the kind in question with L. I have not overlooked the clear warning given by the Judge against propensity reasoning. But, in my opinion, when the permissible of use of such evidence is explained in such general terms, the jury are likely to be confused by what would otherwise be an appropriate propensity warning in the terms used by the judge.
The Judge should have told the jury, in specific terms, how the evidence could be used.
It is the responsibility of counsel, and in particular the prosecutor who leads such evidence, to assist the Judge in identifying the proposed use of the evidence. As it happens, in opening the case to the jury the prosecutor told them that the relevant evidence was that led to help them understand “the form or nature of the relationship” between Mr Gray and L. That was no more helpful than what the Judge said.
It follows that the Judge’s directions in relation to the uncharged acts were deficient.
Conclusion
The Judge’s directions were deficient in the two respects identified. These directions dealt with significant aspects of the case.
The fact that L gave detailed evidence of the conduct relied on by the prosecution, and that the opportunity to offend could not be denied, made it important for the jury to understand that in the circumstances there was likely to be little that Mr Gray could do other than simply deny that he had offended as alleged. This was not brought home adequately to the jury.
The evidence of uncharged acts in the present case was not evidence that in any sense overwhelmed or overshadowed the evidence of acts the subject of a charge, but it remained important that the jury understand clearly the limited use to be made of such evidence. The directions given were not sufficient in that respect.
Having regard to the importance of these matters in the trial of Mr Gray, I conclude that he has not had a fair trial, because on two matters of considerable significance the jury has not been given adequate directions. There is a real risk of a miscarriage of justice as a result of the inadequacy in the directions. While there was solid evidence on which the prosecution relied, and on which it was open to the jury to be satisfied beyond reasonable doubt, deficiencies in the directions cannot be put to one side on the basis that they were of no practical significance, nor can it be said that, properly directed, a jury would inevitably have convicted Mr Gray. The deficiencies in the directions, in my opinion, went to the heart of the case, notwithstanding the significance of the medical evidence.
For those reasons I would allow the appeal, set aside the convictions and order that there be a retrial on the Information.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons for those orders.
GRAY J: I would allow this appeal. I agree with the orders proposed by the Chief Justice. There is nothing I wish to add to the reasons of the Chief Justice.