R v England
[2013] SASCFC 79
•20 August 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ENGLAND
[2013] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
20 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
Following a trial by jury, the appellant was convicted of one count of indecent assault. The offending conduct occurred during the course of the appellant’s employment as a masseur. The victim was a 20-year-old woman. The massage was performed by the appellant. The victim gave evidence that, during the course of the massage, the appellant reached under the towel that was covering the victim and cupped her breasts upwards of 15 times.
At trial, evidence of a conversation between the victim and a friend, K, and two conversations between the victim and her mother were admitted without objection, as evidence of a complaint. Both the victim and K gave evidence of their conversation, although their accounts of the conversation differed. The victim and her mother gave evidence in relation to their conversations. There were inconsistencies between the victim and her mother’s accounts of their conversations.
The appellant appealed, arguing that (1) the judge erred in failing to direct the jury that it was necessary to be satisfied beyond reasonable doubt as to both the credibility and reliability of the complainant’s evidence; (2) the judge erred in admitting the evidence of the initial complaint to the victim’s mother; and (3) in the alternative, the judge erred in failing adequately to direct the jury as to the permissible and impermissible use of the evidence of the initial complaint to the victim’s mother.
Held (by Stanley J, Kourakis CJ and Nicholson J agreeing, dismissing the appeal):
(1) The issue for the Court is whether, having regard to the issues at trial, the evidence and how the case was fought, the judge fairly put the substance of the defence case to the jury, related the defence case to the evidence, and explained or summarised the facts to the extent called for in the particular circumstances. In the context of the whole trial, the judge’s directions were adequate. [22], [25].
(2) An “initial complaint” is defined in s 34M(6) of the Evidence Act 1929 (SA) to include information provided by way of elaboration of the initial complaint. The complaint to the victim’s mother was an elaboration of the first complaint to K. The mother was told additional details. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. [32].
(3) Admissibility of the victim’s complaint to her mother was a matter for the judge, not the jury. It was for the judge to decide the facts of the complaint made to the mother and whether, as a matter of law, it amounted to an elaboration. [42].
(4) Pursuant to s 34M of the Evidence Act, there is only a single complaint that is admissible. While the initial complaint may include information provided by way of elaboration of the initial complaint, the direction required to be given pursuant to 34M(4) is in relation to the initial complaint. In this case, the initial complaint consists of the conversation with K and the conversations with the victim’s mother. A single direction pursuant to 34M(4) was given. That was all that was required. [44].
Evidence Act 1929 (SA) s 34M, referred to.
R v Sierke [2011] SASCFC 53, distinguished.
R v Allen (2011) 109 SASR 396; Alford v McGee (1952) 85 CLR 437; Clayton v The Queen (2006) 168 A Crim R 174; B and D (1993) 66 A Crim R 192; Breen v The Queen (1976) 180 CLR 233; R v H, T (2010) 108 SASR 86; R v J, JA (2009) 105 SASR 563; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v A, GP (2012) 113 SASR 146; R v Maiolo (No 2) [2013] SASCFC 36, considered.
R v ENGLAND
[2013] SASCFC 79
KOURAKIS CJ: I would dismiss the appeal for the reasons given by Stanley J.
STANLEY J:
Introduction
This is an appeal against conviction. The appellant was convicted, after a jury trial, of one count of indecent assault.
The appellant appeals on three grounds. First, that the judge erred in failing to direct the jury that it was necessary to be satisfied beyond reasonable doubt as to both the credibility and reliability of the complainant’s evidence. Second, that the judge erred in admitting the evidence of the initial complaint to the victim’s mother. Third, in the alternative, that the judge erred in failing adequately to direct the jury as to the permissible and impermissible use of the evidence of the initial complaint to the victim’s mother.
For the reasons that follow I would dismiss the appeal.
Background
The charges arose out of an incident that occurred during the course of the appellant’s employment as a masseur at what is described as an energy and healing centre. The victim was a 20-year-old woman who attended at the centre for the purposes of receiving a “remedial” or “full body” massage. The massage was performed by the appellant. The prosecution alleged that, for the purposes of the massage, the victim lay on a massage table, wearing only underpants and covered by a towel. The prosecution alleged that during the massage, while the victim was lying on her back, the appellant reached under the towel and cupped her breasts. He moved her breasts up and down about 15 times, and held her nipples between his fingers. This allegation was the subject of the charge of indecent assault.
The victim also alleged that during the massage, while she was lying on her front, the appellant touched her about one centimetre from her vagina and swept the side of her breasts about 15 times. He then asked her to turn over and she lay on her back. She alleged the appellant again touched her about one centimetre from her vagina. It was after this occurred that it was alleged the indecent assault took place.
The victim made no complaint to the appellant during the massage, nor to the receptionist when she was leaving the premises.
Complaints made by the victim to two witnesses were admitted without objection. Soon after the incident, either on her mobile phone in the car on the way home from the energy and healing centre, once at home, or both, the victim complained to a friend, K. Later on that same day, the victim spoke by phone to her mother, who was at work, and complained about the incident. She spoke to her mother again when her mother came home. That second conversation occurred either on the night of the incident or the following morning.
The appellant did not give evidence and called no other evidence.
At trial, counsel for the appellant challenged the victim’s account of the incident by reference to her failure to complain at the time or shortly thereafter, her failure to leave the massage room when the opportunity arose, and by highlighting inconsistencies between her version of events and the accounts given in the evidence of the two complaint witnesses, K and the victim’s mother.
The appellant’s counsel put to the victim that the appellant may have placed a palm between her breasts, held it there for about five minutes, but did not move it. The victim denied this.
Under cross-examination the victim said that this was the first time she had undergone a massage. She admitted she was unwell, and was suffering from “bad” tonsillitis at the time. She thought she was suffering a chest infection.
The victim gave evidence that she telephoned her friend, K, from her car after the incident but did not make a complaint at that time. By contrast, K said that during that afternoon she received a phone call from the victim during which the victim complained that “he had massaged my breasts” and massaged her bottom. The victim gave evidence that K came to her home and they spoke in her bedroom that day. The victim said to K, “It was really weird. The man actually touched my boobs.” The victim said that K told her they were not allowed to do that. The victim said she laughed it off.
K gave evidence that in the conversation in the bedroom, the victim told her that the appellant had massaged her breasts and massaged her bottom. She gave evidence that the victim demonstrated the assault with open hands on her own breasts.
The victim said that after she returned home on the day of the incident, her mother telephoned her from work. She complained to her mother, “It was really weird because he touched my boobs.”
The victim said she was in bed that evening when her mother came home, and she did not speak to her again until the following morning. She said that on the following morning her mother questioned her as to precisely what had occurred the previous day. The victim said she told her mother “he just touched me on the boobs”.
The victim’s mother gave evidence that she spoke to the victim on the telephone on the evening of the incident. The victim told her that the appellant had touched her on the breasts and between the thighs. The victim’s mother said that she spoke to the victim again late that same night when she returned from work. She gave evidence that the victim told her that the appellant had touched her breasts, inner thighs and buttocks. The victim’s mother said that the victim provided details of the touching of the buttocks and demonstrated how her breasts were touched by the appellant.
Ground 1
The appellant submits that the judge erred in summing up in failing to direct the jury that it had to be satisfied beyond reasonable doubt not only of the credibility of the victim’s evidence, but also of its reliability.
He submits this was critical in circumstances where the prosecution had framed the issue in terms of whether the victim was honest or not in her account of the relevant events during the massage. He submits that in summing up, the judge reminded the jury of the issue as framed by the prosecutor, but not the issue identified by the defence, which focussed on the victim’s reliability.
Mr Anders, counsel for the appellant, submits that the victim’s reliability was an issue as, at the time of the massage, she was suffering from a bad case of tonsillitis, she thought she was suffering a chest infection, a massage was a novel and unfamiliar experience, and all these circumstances could combine to produce an effect on her recollection not dissimilar to a state of inebriation. He referred to this Court’s judgment in R v Sierke[1] where David J, with Duggan and Sulan JJ agreeing, found that in a trial by judge alone, a miscarriage of justice occurred where the trial judge failed adequately to deal with the question of the complainant’s reliability in circumstances where she was alleging anal rape by her ex-boyfriend, after she had ingested an amount of cocaine, had smoked marijuana, and consumed 11 alcoholic drinks, mainly vodka, resulting in her intoxication.
[1] [2011] SASCFC 53.
I do not accept the appellant’s submission.
The issue for the Court is whether, having regard to the issues at trial, the evidence and how the case was fought, the judge fairly put the substance of the defence case to the jury, related the defence case to the evidence, and explained or summarised the facts to the extent called for in the particular circumstances.[2] A jury need only be directed on so much as is necessary for them to know, in order to guide them to the real issue or issues in the case.[3]
[2] R v Allen [2011] SASCFC 40 per Doyle CJ at [3], per Kelly J at [40], (2011) 109 SASR 396 at 399 and 405.
[3] Alford v Magee [1952] HCA 3, (1952) 85 CLR 437 at 466.
First, the trial judge directed the jury that the assessment of witnesses involved an evaluation of both credibility and reliability.[4] In addition, the judge referred to the appellant’s submission on this issue.[5]
[4] Summing up AB 64.
[5] Summing up AB 64 and 67.
Second, no further direction to the jury was sought by the appellant’s counsel at the time.[6] The absence of any complaint is a relevant factor in deciding whether the terms in which the judge summed up to the jury carried the risk of a miscarriage of justice. The failure of defence counsel to seek a redirection on a particular matter points strongly to a conclusion that, in the atmosphere of the trial, there was nothing about the summing up calculated to lead to a miscarriage of justice.[7]
[6] Clayton v The Queen [2006] HCA 58 at [24], (2006) 168 A Crim R 174 at 180.
[7] B and D (1993) 66 A Crim R 192 at 197.
Third, in the context of the whole trial, the judge’s directions were adequate. In assessing whether the direction given was adequate, the starting point must be the extent to which both credibility and reliability were really in issue. While the appellant’s counsel at trial submitted in his closing address that the jury should consider whether the complainant had been both honest and reliable,[8] it must be doubted that reliability was really in issue in the trial. There was no obvious basis on the evidence to conclude that the complainant might have been mistaken. Counsel at trial does not appear to have submitted to the jury in his closing address that some innocent act could have been mistaken for the conduct alleged.[9] The cross-examination of the victim further confirms this. What was put to her, and denied, was that the appellant had placed the palm of his hand between her breasts for about five minutes but did not move his hand. That conduct could not have been confused with the conduct alleged by the victim. Further, no suggestion was put to the victim, nor was a submission put to the jury, that the victim’s reliability was in issue on the basis propounded before this Court on appeal. No suggestion was made that her perception was so clouded by her symptoms of illness that her recollection of what occurred was wrong or mistaken. On the contrary, the whole tenor of the attack on her evidence in the course of cross-examination and the defence’s submissions in closing address, while occasionally cloaked in the language of reliability, is more properly to be characterised as an attack on her credibility.
[8] Appellant’s closing T 153.
[9] The appellant’s counsel did use the word “mistaken” at T 153.32, but at no point developed how the complainant might have mistaken what occurred. The whole of the address appears to be directed to suggesting that aspects of the complainant’s account could not be true.
Fourth, the appellant’s reliance upon R v Sierke[10] is misplaced. The case is readily distinguishable. A mere recitation of the facts of Sierke identify the obvious point of departure between the two cases. In Sierke the appellant was convicted of rape on the basis of an allegation of anal intercourse. Although the appellant denied any act of anal sexual intercourse had occurred, and the matter was defended on the basis the complainant was lying, the circumstances of her ingestion of drugs and alcohol on the night of the alleged incident, coupled with the pre-existing sexual relationship between the complainant and the appellant, demanded the trial judge specifically direct attention not only to the complainant’s credit, but to her reliability. I reject any suggestion that the victim’s symptoms due to her ill health, or her unfamiliarity with her surroundings or the mechanics of massage either alone or in combination, could be characterised as similar to inebriation or a basis to call into question her reliability.
[10] [2011] SASCFC 53.
Ground 2
The appellant submits that the judge erred in admitting the evidence of the victim’s complaint to her mother. This ground of appeal turns on the application of s 34M of the Evidence Act 1929 (SA).
Section 34M abolished the common law with respect to recent complaint in sexual cases and replaced it with a statutory regime which expands the circumstances in which complaints are admissible, beyond that permitted by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions. Section 34M provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The appellant submits that the evidence of the complaint to the victim’s mother did not constitute an “initial complaint” within the meaning of s 34M(3). Further, he submits the evidence did not constitute information provided by way of elaboration of the initial complaint within the meaning of the definition of “initial complaint” in s 34M(6). Finally, the appellant submits that the evidence did not constitute an admissible complaint because it was not capable of proving consistency of conduct of the victim because there were inconsistencies in the evidence of the contents of the complaint made to her mother.
The complaint evidence from the victim’s mother was admitted without objection. The evidence of the mother was that, when she spoke to the victim on the phone on the evening of the massage, she said she was told by the victim that she had been touched on the breasts and between the thighs. The victim’s evidence in relation to this conversation was that she told her mother that she had been touched on her “boobs”. The mother said she spoke to the victim again when she returned from work that same night. She said that the victim then told her that she had been touched by the appellant on her breasts, inner thighs and buttocks several times. She told her that the touch to the inner thigh was quite high, into her inner thigh and more of a rubbing sensation. In cross-examination, she clarified that the victim had not used the word “thighs” but said she had been touched between the legs. In her evidence, the victim said that this second conversation occurred the next morning when she again told her mother that she had been touched on the “boobs”.
I do not accept that any miscarriage resulted from the admission of the complaint evidence given by the mother.
Section 34M(3) provides that evidence relating to the making of an initial complaint of an alleged sexual offence is admissible on a charge of that offence. An “initial complaint” is defined in s 34M(6) to include information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). The complaint to the mother was an “elaboration” of the first complaint to K. The mother was told additional details. In particular, the victim alleged that she had been touched between the legs and referred to rubbing in that area. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. A complainant does not even have to recall making the complaint.[11]
[11] Breen v The Queen [1976] HCA 15, (1976) 180 CLR 233.
I do not accept the appellant’s submission that the evidence of the complaint to the mother was not admissible because it was not capable of proving consistency of conduct of the victim because there were inconsistencies in the evidence of the contents of the complaint made to the mother. This Court has previously held[12] that even though s 34M(4) identifies consistency of conduct of the alleged victim as one of the uses of complaint evidence, that is to be understood as including evidence which, in some aspects, reveals inconsistency of conduct because it is for the jury to evaluate the significance (if any) of the evidence given its degree of consistency or inconsistency.
[12] R v H, T [2010] SASCFC 24 at [50], [81] – [82], [103] - [107], (2010) 108 SASR 86 at 101, 108 and 112 – 113.
In this matter is it not difficult to conclude that, at trial, counsel for the appellant perceived a forensic advantage in the admission of the mother’s evidence precisely for this reason. That explains, at least in part, the failure to object to its admission.
Ground 3
The appellant submits that the judge erred in failing to adequately direct the jury as to the permissible and impermissible use of the evidence of the complaint made to the mother. Again, this submission turns on the application of s 34M.
The judge directed the jury that a complaint was made to K and the victim’s mother, and that they could rely upon those complaints for the purpose of assessing consistency of conduct. The appellant submits that given the discrepancy between the evidence of the victim and the evidence of her mother as to the terms of the complaint made, it was necessary for the judge to direct the jury they could only act on the evidence of the complaint to the mother if they were satisfied beyond reasonable doubt that the complaint had been made to the mother in the terms described by the mother in her evidence, and that this complaint was an elaboration of the initial complaint made to K relating to the conduct the subject of the charge. The appellant submits the judge was required to direct the jury that if they found that the mother’s evidence was an elaboration of the complaint made to K, it could not provide additional support for the victim’s credibility, that is, in addition to the evidence of K, in the sense that there were two witnesses who, independently of each other, bolstered the credibility and reliability of the victim.
The judge directed the jury in relation to the complaint evidence as follows:
You heard evidence of the complaint or complaints that [the complainant] made to Ms [K] and her mother immediately following the incident. It is an important principle of law that the only evidence of the existence of facts or the occurrence of events which is permitted is evidence given on oath or affirmation in the witness box and subject to cross-examination. That is an important safeguard in the criminal court. The evidence of the complaints by [the complainant] to Ms [K] and her mother is not such evidence. You heard the evidence of [the complainant] in the witness box. She described the accused touching her on the breasts, that is evidence in the court which is evidence which establishes the facts. What [the complainant] said to her mother and her mother’s evidence of what she was told is not evidence of the fact. The only evidence of the alleged offending itself is the evidence that you heard from [the complainant] in this courtroom. So I need to explain to you the manner in which the evidence of the complaints to Ms [K] and [the mother] may be used. Evidence of the initial complaint of an alleged sexual offence is admissible to inform the jury as to how the allegation first came to light. The evidence is also admitted as evidence of the consistency or inconsistency of the conduct of the alleged victim, that is, is the substance of the complaint to Ms [K] and [the mother] consistent with [the complainant’s] evidence to the court? However, as I have mentioned a complaint to Ms [K] and [the mother] is not admitted as evidence of the truth of what was alleged. Mr Allen submitted that there are inconsistencies between the complaints and her evidence. You will remember what he said about that only a short time ago. He said that because of those inconsistencies [the complainant] is not a reliable witness. That is a matter for you.
There may be varied reasons why an alleged victim of a sexual offence has made a complaint of the offence of a particular time or to a particular person but it is for you to determine the significance of the evidence of the complaint in the circumstances of this case.
Subsequently the judge gave a further direction in relation to this topic in the following terms:
I told you about why the complaint to Ms [K] and [the mother] which was put in evidence wasn’t evidence of the fact but was evidence of how the complaint came to light, and it can be used for specific purposes. There is an exception in the case of the first complaint by an alleged victim. The complaint to Ms [K] was the first complaint that was made. Then the complaint to [the mother] was really an elaboration of that. The law doesn’t permit evidence to be given of every complaint that a complainant has made.
Again, there was no complaint by the appellant’s counsel at trial in relation to these directions. As is the case with respect to Ground 2, there is every reason to consider that this was because counsel perceived a forensic advantage in the omission of any direction to the jury that might have resulted in the jury disregarding the complaint evidence to the mother in circumstances where the appellant was relying upon the inconsistencies between that evidence and the evidence of the victim.
In any event, there is no error in the directions given by the judge. The jury were directed in accordance with s 34M(4). Specifically, the judge directed the jury as to the manner in which the evidence of the complaint to K and the mother may be used. First, he said that evidence of the initial complaint of an alleged sexual offence is admissible to inform the jury as to how the allegation first came to light. Second, he said that the evidence is also admitted as evidence of the consistency or inconsistency of the conduct of the alleged victim, that is, whether the substance of the complaint to K and the mother was consistent with the victim’s evidence to the Court. Third, he said the evidence of the complaint to K and the mother was not admitted as evidence of the truth of what was alleged. Fourth, he said there may be varied reasons why an alleged victim of a sexual offence has made a complaint of the offence of a particular time (sic) or to a particular person, but it is for the jury to determine the significance of the evidence of the complaint in the circumstances of this case.
No further direction was required. Yet, the appellant contends that the judge was obliged to direct that, before acting on the evidence of the mother, the jury had to decide the terms of the complaint actually made to the mother and that the complaint was an elaboration. This submission mistakes two matters.
First, it was not for the jury to determine whether the complaint constituted an elaboration. The complaint could only be admitted if it was an elaboration. Admissibility was a matter for the judge, not the jury. It was for the judge to decide the facts of the complaint made to the mother and whether, as a matter of law, it amounted to an elaboration. Second, even if it was necessary for the jury to determine that it was an elaboration, such a direction was unnecessary in this case. The judge did not need to direct the jury that it had to decide whether to accept the mother’s evidence as to the terms of the complaint made to her by the victim. As I have identified earlier, the mother knew more than K about what had allegedly occurred during the massage. The mother knew of touching between the legs and rubbing the vicinity of the vagina. There was no basis on the evidence to conclude that this detail had come from anyone other than the victim. Certainly, it was not put to the mother that this information had come from another source or at another time. The conclusion that what had been said to the mother was an elaboration was the only conclusion open.
The appellant’s submission that the judge was required to direct the jury that if they found that the mother’s evidence was an elaboration of the complaint made to K, it could not provide additional support for the victim’s credibility on the basis that she had made a complaint to both K and her mother, misunderstands the operation of s 34M.
Pursuant to s 34M, there is only a single complaint that is admissible. That is evidence of the initial complaint of an alleged sexual offence. While that initial complaint may include information provided by way of elaboration of the initial complaint, whether provided at the time the initial complaint is first made or at a later time, the direction required to be given pursuant to s 34M(4) is in relation to the initial complaint. In this case, the initial complaint consists of the conversation with K and the conversation with the mother. A single direction pursuant to s 34M(4) was given. That was all that was required. In fact, to have given separate directions in relation to the two conversations would run the risk of prejudice to an accused in that it could lead the jury impermissibly to consider that evidence of separate complaints could bolster the credibility and reliability of the complainant. Accordingly, only one direction is given because the direction is given in relation to an initial complaint which is treated as a single complaint.
In my view, the judge’s direction conformed to the requirements of s 34M(4). There was no miscarriage.
Conclusion
I would dismiss the appeal.
NICHOLSON J. I agree that the appeal should be dismissed for the reasons given by Stanley J subject to the following qualification concerning his Honour’s discussion of the admissibility of the complaint evidence (ground two).
Different views have been expressed by Judges in this Court concerning whether or not complaint evidence should always be admitted pursuant to s 34M of the Evidence Act 1929 including where it cannot be said to demonstrate consistency of conduct.[13] It may be that only rarely, if ever, will the making of a complaint not exhibit some element of consistency of conduct.[14] Different views have also been expressed as to how a trial judge should direct a jury in accordance with the requirements of s 34M in the event that complaint evidence that demonstrates only inconsistency of conduct were to be admitted.[15] These issues do not arise in the present matter and I refrain from expressing a view concerning the differences of approach at this time.
[13] See, for example, R v H, T (2010) 108 SASR 86.
[14] See the differences of view in this respect in R v H, T (2010) 108 SASR 112 at [25], [48] (Gray J) and [106] (Kourakis J).
[15] The proper application of s 34M in these and other respects has been considered in a number of recent decisions of this Court including R v J, JA (2009) 105 SASR 563; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v A, GP (2012) 113 SASR 146 and R v Maiolo (No 2) [2013] SASCFC 36.
The complaint evidence relied on by the Director of Public Prosecutions in this case, if accepted by the jury, had elements which tended to show both consistency and inconsistency of conduct by the complainant. As such, and on any view, the evidence was properly admitted. It was for the jury to determine its significance, once instructed in accordance with the requirements of s 34M, but upon a consideration of those elements bearing on consistency of conduct and those elements bearing on inconsistency of conduct.
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