R v Finn

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FINN
[2014] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Bampton)
13 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - PROCEDURE - SUMMING UP
Appeal against conviction and sentence.
The defendant was charged with unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case at trial was that in 2005 the defendant had unlawful sexual intercourse with his 13 year old stepsister during a houseboat holiday with family and friends. The defendant was tried in January 2014 and was convicted by a jury and sentenced to imprisonment for three years with a non-parole period of 15 months.
The defendant appeals against the conviction on the grounds that the trial Judge:
1. failed to direct the jury as required by section 34CB of the Evidence Act 1929 (SA) about the forensic disadvantage the defendant suffered due to the passage of time between the events in 2005 and the trial in 2014; and
2. wrongly admitted evidence which inferred that the complainant had not previously engaged in sexual activity contrary to section 34L of the Evidence Act.
The defendant appeals against the sentence on the grounds that it is manifestly excessive.
Held (the Court):
1. The trial Judge erred by failing to direct the jury in relation to forensic disadvantages. The defendant suffered a significant forensic disadvantage because the recall of the witnesses, in particular the defendant's then girlfriend, of when people retired to bed and the movements of the defendant on the night was likely to have been adversely affected by the passage of time (at [34]).
2. The passage of time was an important aspect to this case and the failure to give a direction gave rise to a real risk of a miscarriage of justice (at [35]).
3. On the second ground, assuming section 34L was enlivened and permission was required, the failure to obtain permission did not give rise to a substantial miscarriage of justice. The complainant's evidence was unsolicited and given willingly. There was no obvious distress, humiliation or embarrassment to the complainant. The evidence had probative value, was part of the explanation given by the complainant in answer to a question about penetration and was admissible (at [46]-[47]).
4. Appeal allowed. Conviction set aside. Matter remitted to the District Court for re-trial (at [49]).
5. It is not necessary to consider the appeal against sentence (at [50]).
Criminal Law Consolidation Act 1935 (SA) s 49; Evidence Act 1929 s 34C, s 34CB, s 34L, referred to.
Crampton v The Queen (2000) 206 CLR 161; Longman v The Queen (1989) 168 CLR 79; R v Cassebohm (2011) 109 SASR 465; R v Robins [1998] SASC 7013, discussed.
Doggett v The Queen (2001) 208 CLR 343; Tully v The Queen (2006) 230 CLR 234, considered.

R v FINN
[2014] SASCFC 46
Court of Criminal Appeal: Sulan, Blue and Bampton JJ

THE COURT: These are appeals against conviction and sentence.
The defendant and appellant, Matthew Johnathon Finn, was charged with the offence of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). He was convicted by jury verdict and sentenced to imprisonment for three years, with a non-parole period of 15 months.
The defendant appeals against conviction on the grounds that the trial Judge erred by failing, contrary to s 34CB of the Evidence Act 1929 (SA), to direct the jury in respect of the forensic disadvantage suffered as a result of the effluxion of time between the events the subject of the charge and the trial of the charge. It is further contended that the Judge erred in admitting evidence which inferred that the complainant had not previously engaged in sexual activity contrary to s 34L of the Evidence Act 1929 (SA).
The defendant appeals against sentence on the ground that it is manifestly excessive.
The trial
The prosecution case at trial was that some time between 1 January 2005 and 31 July 2005, the defendant engaged in unlawful sexual intercourse with his then 13 year old stepsister. The defendant was approximately 21 years of age at the time. The offence occurred during a houseboat holiday on the Murray River. There were ten people on the trip including the complainant’s mother and her partner, the defendant’s biological father, as well as a number of the complainants’ step-siblings and their partners.
At trial the complainant, the defendant’s brother, the defendant’s girlfriend at the time, and the complainant’s mother all gave evidence. The complainant’s sister gave evidence of a complaint made to her by the complainant. The defendant gave evidence in his defence.
The complainant’s evidence was that one evening, after the boat docked for the night, the occupants of the houseboat enjoyed a campfire by the riverbank. She said that around the campfire that night she was playing her guitar. She then left the group and sat on the upper deck of the houseboat by herself. It was dark by that time and there were no lights. She took her guitar, a blanket and a pillow with her. She said she intended to sleep there.
The complainant testified that, after she had been on the upper deck for somewhere between 30 minutes and an hour, the defendant came to the upper deck. She had observed him drinking that night. Based on her previous experiences with seeing him intoxicated, he appeared to be quite intoxicated. He had a beer with him when he came to the upper deck. When he first came to the upper deck, he was standing near the railing of the boat and talking about the song that she had played. He told her that he wasn't happy with his life and he couldn't eat or sleep and felt depressed. He vomited over the side of the boat while he was on the upper deck talking to her. They chatted for around 15 minutes and then the accused came and sat next to her on the ground. They continued talking and he told her that, even though they weren't really brother and sister, he felt as though she was like a sister to him. By this point the defendant was sitting fairly close to her and they were both covered by the blanket. After a couple of minutes the defendant moved forward so that he was on his hands and knees in front of her and moved forward so that she was laying down. He undid the cargo pants she was wearing and took them off. The defendant said nothing to her as he took her pants off and she said nothing to him. She said she kind of knew what was about to happen but she felt sorry for him because he had been saying how much he hated his life and she felt like she didn't want him to be upset. He pulled his pants down but he did not take them off. He then put his penis in her vagina. She did not see his penis but she knew what was taking place because she felt something hard and she knew what it was.
The complainant testified that while he was having sexual intercourse with her, he was on top of her and the blanket was on top of him. He had his penis inside her for a couple of minutes and he was moving back and forth. He did not say anything while this was happening and neither did she. Once he removed his penis he pulled up his pants, and went back downstairs straightaway. She stayed on the upper deck for another 15 minutes, then went back to the lower deck and went to bed. She did not see the defendant again that night. The next morning she saw the defendant but she just stayed away from him. Neither of them said anything to the other about what had taken place the night before.
The complainant said that the first person she spoke to after the incident was her sister.
The complainant’s sister gave evidence that in around the middle of 2005, she found the complainant in a distressed state in a bedroom at her family home in Maitland. She said that she asked the complainant what was wrong and the complainant told her that the defendant had had sex with her on the houseboat. She said the complainant told her that it happened on the top deck of the boat when everyone had gone to bed at night. She said it took her quite a while to get that information out of the complainant as she was quite upset. She said the complainant told her she did not want her to tell anybody else because she felt ashamed.
It was suggested that the complainant’s motive to lie was because she did not want her mother to marry the defendant’s father. The complainant gave evidence that she thought it was a few months before the wedding that she first told her sister about the incident. Her sister gave evidence that at the time the complainant complained to her she was not even aware that a wedding between her mother and the defendant’s father had been planned. The complainant also said that she did not want her mother to know about the incident and did not want to disrupt the family unit by having her mother know. She said she respected the defendant’s father.
The defendant gave evidence denying that any sexual activity occurred. He said that he never went to the upper deck at night at all during the houseboat trip. He said that he never had any conversation alone on the houseboat at night with the complainant. He could not recall when either he or the complainant left the campfire that night. He could not say where the complainant was when he went to bed, and he could not recall whether he went to bed at the same time as his girlfriend on the night in question. He said that customarily they went to bed together.
None of the witnesses could recall the order in which people went to bed on the night of the campfire. No other witness saw the complainant and the defendant on the upper deck that night.
The defendant’s girlfriend’s evidence was that she did not know if she and the defendant went to bed at the same time every night during the trip and that if the defendant was not in bed at the same time, it would not have caused her concern and she would not have gone looking for him. Some nights they slept in a bedroom and other nights they slept on couches in the lounge area. She was not living with the defendant at the time and their relationship ended shortly after the houseboat trip.
Forensic disadvantage occasioned by the passage of time
The defendant’s first ground of appeal is that the trial miscarried as a result of the trial Judge’s failure to direct the jury in respect of the forensic disadvantage suffered by the defendant as a result of the effluxion of time between the incident giving rise to the offence and the trial. It was an agreed fact that the houseboat trip occurred between 1 January 2005 and 31 July 2005. The defendant was arrested by police on 24 June 2012 and the trial commenced on 28 January 2014, some nine years after the incident giving rise to the offence. It is contended that the delay of nine years combined with the circumstances in which the offence was said to have occurred warranted a warning in terms contemplated by s 34CB of the Evidence Act 1929 (SA) regarding the forensic disadvantage suffered by the defendant, particularly upon the topic of when the houseboat guests retired to bed.
Section 34CB of the Evidence Act 1929 (SA) provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)   A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)   If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)   An explanation or direction under subsection (2) may not take the form of a warning and—
(a)       must be specific to the circumstances of the particular case; and
(b)       must not include the phrase "dangerous or unsafe to convict" or                  similar words or phrases.
At trial, the defendant’s counsel raised with the Judge, on two occasions, the issue of whether a direction in terms of s 34CB would be given to the jury. It was raised by counsel the first time towards the end of the case for the prosecution. The following exchange occurred between defence counsel and the Judge:
MR WHITE: Can I flag one matter, I don't expect a response from your Honour or my learned friend but I anticipate I would be asking your Honour to utilise s.34CB of the Evidence Act. That is the forensic disadvantage provision. It has an unusual circumstance in that the complaint was aired fairly quickly, that is within months of the alleged event, but then it subsided until police arrested my client on 25 June 2012.
HIS HONOUR: Was your client aware of the complaint made by [the complainant]?
MR WHITE: Yes, but then obviously it's different to a police -
HIS HONOUR: I understand but how does that create a significant forensic disadvantage to him?
MR WHITE: If it had led to the usual path, I'm not saying it's the only path but if it had led to a usual path of police being involved after the complaint then obviously those significant forensic disadvantages would have come.
HIS HONOUR: What is the significant forensic disadvantage that he suffered from - he knows that the allegation is he had intercourse with her on the upper deck of the houseboat, there were other people about on the houseboat that we have heard evidence from. He denies the intercourse occurred obviously. Where is the significant forensic disadvantage that would flow to him as a result of his conduct in this case?
MR WHITE: If it [sic] taken a usual path of police being involved soon after a complaint then he would have had the statements before him a lot earlier. His own memory would have been more precise.
HIS HONOUR: I mean his memory -
MR WHITE: Is something your Honour will hear about anyway.
HIS HONOUR: Yes, he denies having any intercourse with [the complainant].
MR WHITE: Yes.
HIS HONOUR: And really that's as far as it goes. I mean nobody on the houseboat can say one way or the other whether [the complainant] was on the upper deck with your client at any time during the night of this campfire. I am not persuaded at this stage, Mr White, that this is a case where there is significant forensic disadvantage such that I would direct the jury in accordance with s.34CB of the Evidence Act but I'll obviously wait until your client has completed his evidence, but nothing strikes me as this being one of those cases requiring such a direction.
MR WHITE: Thank you for your Honour's indications. It is an unusual matter in that I accept that the excluded evidence tends to show that he knew about the complaint to [the complainant’s mother], and your Honour knows the time lapse from there.
HIS HONOUR: I mean the problem with that is that opens up -
MR WHITE: It opens up a lot.
HIS HONOUR: - very much what has been excluded. It would be unfair for me to give a s.34CB direction without permitting the Crown to explore the issue of forensic disadvantage and the exploration of that will have to go to his state of knowledge of what the complainant then alleged to see whether or not there is in fact a forensic disadvantage. So it simply doesn't work in the context of this case, Mr White, for that very reason.
MR WHITE: Thank you.
HIS HONOUR: Have a think about it.
MR WHITE: Yes, I will.
HIS HONOUR: But I just can't see, given what has been excluded, that I could give such a direction in the knowledge that I would have to permit the Crown to explore what you would be submitting to the jury is a forensic disadvantage.
MR WHITE: When the Crown has the answer?
HIS HONOUR: Yes.
MR WHITE: The accused's point of view is obviously he was acutely aware of the allegation outside of police knowledge and then nothing happens and then out of the blue he is arrested on 24 June 2012.
HIS HONOUR: But that still would then be a question for the jury to decide whether there has been a forensic disadvantage and they would have to know the full facts about that to make an assessment of that. As I say, that will open up a line of cross-examination that will introduce what has been excluded.
MR WHITE: The state of the evidence is aside from the complainant I don't think anyone categorically puts my client either circumstantially or directly climbing the ladder.
HIS HONOUR: No, the whole Crown case hinges entirely upon the jury accepting beyond reasonable doubt the evidence of [the complainant]. There is no other evidence to support her account.
In his summing up, the Judge told the jury that the defendant was not at a disadvantage in terms of the date of the charge. He said:
Mr Finn is not at a disadvantage in terms of the date of the charge as he knows it is alleged to have occurred on that particular family holiday, and he has given evidence that nothing inappropriate ever took place involving [the complainant], and how he spent his time relaxing with his extended family that holiday which was organised and paid for by [the defendant’s brother].
For the reasons which follow, we consider that the Judge was in error in directing the jury that the defendant suffered no disadvantage. The Judge appears to have overlooked the fact that the memory of at least one witness whose evidence could have assisted the defendant may have been affected by the long delay.
After the Judge had completed his summing-up to the jury, the following exchange then occurred between the Judge and defence counsel:
HIS HONOUR: Is there anything that I have left out that I should include?
MR WHITE: It’s only my running submission about 34CB. Your Honour obviously considered that at the end of the evidence. I do say that obviously the allowance of the Crown sought, due to time gap on the part of the complainant, does equate, on the other side of the coin, to a legitimate basis for s.34CB.
HIS HONOUR: Mr White, having heard the evidence, particularly that of Mr Finn, I am not satisfied that there is a significant forensic disadvantage such that a direction pursuant to s.34CB would be warranted.
MR WHITE: Yes. The only matters I point to are that had the matter, as I said to your Honour, followed a conventional path, things such as who went to bed, when, obviously could be traced back.
The jury was not recalled and no further direction was given. Insofar as the Judge gave a reason for declining to give the direction requested, it is not clear what he meant when he said that “having heard the evidence particularly that of Mr Finn”, he was not satisfied that the defendant had suffered a forensic disadvantage. The issue was whether a significant forensic disadvantage arose because of the recall of witnesses, in particular the defendant’s girlfriend, of the detail of when people retired to bed. The Judge did not make any reference to that issue.
The High Court has considered a trial Judge’s duty to avoid a perceptible risk of miscarriage of justice arising from the passage of a substantial period of time between the events the subject of a charge and the trial of the charge by providing an adequate warning to a jury.[1] In R v Cassebohm,[2] this Court considered the proper construction and application of s 34CB Evidence Act 1929 and its impact on the common law requirement for giving such a warning where required in a particular case.
[1] See for example, Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; Tully v The Queen (2006) 230 CLR 234.
[2] (2011) 109 SASR 465.

In Cassebohm, the appellant was convicted of six counts of unlawful sexual intercourse and one count of rape, all of which were alleged to have taken place around 25 years before the commencement of the trial when the complainant was aged 14 years. The complainant had made allegations to the police around the time of the alleged offences in 1986. The appellant was questioned by police at the time but no charges were laid. The complainant renewed her allegations in 2007. The police file from 1986 had been lost and several potential witnesses had died. The prosecution case turned wholly on the evidence of the complainant. On appeal the appellant contended that a miscarriage of justice occurred is that the trial Judge had failed to direct the jury adequately in relation to the effect of the passage of time between the alleged offending and the trial.
Doyle CJ, with whom White and Peek JJ agreed, identified the two broad kinds of disadvantage that can be occasioned to an accused by the passage of time. First, difficulty with recollection that the passage of time might cause for an accused and, secondly, the denial by the passage of time to an accused of the forensic weapons that a timely complaint might allow an accused to assemble. Doyle CJ observed:[3]
It is desirable to emphasise that a Longman warning is not based simply on the passage of time between the events the subject of the charge and the trial. The need for the warning arises from a forensic disadvantage that an accused person suffers attributable to the passage of time. The disadvantage can be of two broad kinds. It was conveniently summarised by McHugh J in Doggett (at [51]), where his Honour said:
Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
The position was also conveniently summarised by Crennan J in Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 at [181] where her Honour said:
The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of ‘reasonable contemporaneity’.
[3] R v Cassebohm (2011) 109 SASR 465, [25].
Doyle CJ then considered the scope of s 34CB. He observed that s 34CB(1) does not abolish the rule of practice identified in Longman regarding the provision of a warning based on the forensic disadvantage to an accused person attributable to the passage of time and it does not abolish the power of a Judge to make a comment about any circumstance, including delay. He held that s 34CB(2) obliges a court, on forming an opinion that the period of time that has elapsed between alleged offending and trial has resulted in a significant forensic disadvantage to a defendant, to provide a particular explanation and direction. The precise terms of the explanation and direction are to be found in sections 34CB(2)(a) and 34CB(2)(b), with further qualifications to be found in section 34CB(3). Doyle CJ observed:[4]
Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”. This is a decision for the trial judge.
…
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[4] R v Cassebohm (2011) 109 SASR 465, [29], [31]-[32].
In the present case, no direction or warning was given to the jury in respect of any forensic disadvantage suffered by the defendant due to the passage of time between the incident giving rise to the charge and the trial of the charge. On the contrary, the trial Judge affirmatively directed the jury that there was no forensic disadvantage. It became clear during submissions that the focus of the contention regarding forensic disadvantage concerned the lack of recollection by the defendant’s then girlfriend as to when the defendant went to bed on the relevant night. It is contended that, if she had been questioned by police within weeks or months of the incident, it is likely that she would have recalled details, such as whether she and the defendant were together when she retired to bed.
It is conceded by the Director of Public Prosecutions that the movements of the complainant and the defendant on the night of the campfire were relevant. The Director contends that there is inadequate reason to conclude that any witness would have known when the complainant or the defendant went to bed or if either of them were on the upper deck of the house boat. The Director submits that, even if the defendant’s girlfriend could recall when she and the defendant went to bed that night, there is no basis to conclude that such evidence would have assisted the defendant such as to give rise to a significant forensic disadvantage. We do not accept that submission.
In Cassebohm, Doyle CJ observed that whilst it is not sufficient for an accused to identify a theoretical, hypothetical or assumed forensic disadvantage, s 34CB does not require an accused to show something actual or specific. It is sufficient for a trial judge to conclude that the lost, missing or unavailable material is likely to have assisted even though one cannot be certain that that is so. He stated:[5]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused's memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant's evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
[5] R v Cassebohm (2011) 109 SASR 465, [30].
It is possible to postulate circumstances in which the evidence of an accused is such that no significant forensic disadvantage is occasioned by the passage of time. For example, if the defendant’s evidence in the present case was that he specifically recalled that he was the last person to leave the campfire and he slept by the fire alone that night, the fact that his girlfriend did or did not recall if or when the defendant came to bed that night would be of no significant forensic disadvantage to him. That was not, however, the present case. Contrary to the view expressed by the trial Judge, there was nothing in the defendant’s evidence to suggest that he may not have been assisted if the other witnesses, particularly the defendant’s girlfriend, recalled the movements of the complainant and the defendant on the night of the campfire.
To infer that the defendant’s girlfriend would have recalled when the defendant went to bed on the night of the campfire, if asked within a short period of the time after houseboat trip, involves a degree of speculation. Determining the degree of forensic disadvantage in cases such as the present will invariably require some speculation. There are, however, strong reasons for drawing such an inference. Of the other eight guests on the houseboat trip, the defendant’s girlfriend would be the person most likely to recall the defendant’s movements. She was not living with the defendant at the time and her evidence was that during the trip they slept in the same room together each night. Given their relationship, it would be expected that she would be the person that would have taken the most interest in his movements.
In order to have suffered a significant forensic disadvantage, it is not necessary for an accused to show that the potential evidence would necessarily exculpate the accused. In this respect, the remarks of Brennan, Dawson and Toohey J in Longman are apposite. They observed: [6]
But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them … That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay … and it was imperative that a warning be given to the jury.
[6] (1989) 168 CLR 79, 91.
Similarly, in their joint judgment in Crampton, Gaudron, Gummow and Callinan JJ observed:[7]
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury.
[7] (2000) 206 CLR 161, [45].
The defendant has suffered a significant forensic disadvantage attributable to the passage of time in that the witnesses, particularly his girlfriend, were unable to recall the movements of the defendant and the complainant on the night of the events giving rise to the charge. We are satisfied that s 34CB(2) applied to this case and that a direction in terms contemplated by the section should have been given. The passage of time was an important aspect of this case, and was an important matter for the defence. The Judge’s refusal to give a direction in that respect gives rise to a real risk of a miscarriage of justice.
As to the application of the proviso, it is conceded by the Director that, if this ground of appeal is upheld, then the proviso has no application in the circumstances of this case.
Whilst it is strictly unnecessary to do so, for completeness, we turn to consider the defendant’s second ground of appeal.
Evidence of prior sexual activity
The defendant submits that the Judge erred in admitting evidence which inferred that the complainant had not previously engaged in sexual activity contrary to s 34L of the Evidence Act 1929 (SA).
Section 34L of the Evidence Act 1929 (SA) provides as follows:
34L—Evidence in sexual cases generally
(2)   In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)as to the sexual reputation of the alleged victim of the offence; or
(b)except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(3)   In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)is of substantial probative value; or
(b)would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and that its admission is required in the interests of justice.
(4)   Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(5)   An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any).
(6)   In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(7)   Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(8)   In this section—
"evidence" includes an allegation or statement made by way of an unsworn statement;
"sexual activities" includes sexual experience or lack of sexual experience.
The following parts of the trial are relevant to this ground of appeal. Prior to the empanelment of the jury, counsel appearing for the Director of Public Prosecutions raised the issue of s 34L with the Judge. She said:
[Prosecutor] …Just one further matter: my friend raised the issue of s.34L and whether I would be leading from the complainant that she was a virgin at the time this occurred. It is not a question that I intend to specifically ask her. However, I will be asking her questions along the lines of whether the accused ejaculated at the time and, according to her statements, she may say things like 'I'm not aware of whether that happened because I never had sex before'. So it may come up.
The matter was left and nothing further said by the Judge or defence counsel.
Then, during examination-in-chief of the complainant, the following questioning ensued:
QYou mentioned he took your pants off. Were they zip-up pants, elastic pants, button pants.
AHad a button and a zip.
QHow did he take them off.
AUndid the button and zip.
QWhat did he do with them then.
AJust put them next - just put them next to where we were.
QYou mentioned that you had underwear on. Once he took your pants off did you still have underwear on.
AI think he took them off with the pants.
QYou mentioned earlier that you had a blanket covering you; where was the blanket at that point.
AStill over me.
HIS HONOUR
QWere you wearing any footwear.
AI don't think so; maybe socks.
XN
QDid he say anything to you when he was doing that.
ANo.
QDid you say anything to him.
ANo.
QHow did you feel while that was happening.
AI can't remember but I felt sorry for him because he'd been saying how much he hated his life and, like, I felt like I didn't want him to be upset.
HIS HONOUR
QDid you know what was about to happen.
AKind of but I'd never done anything like that before.
XN
QAfter he had taken your pants off, what happened then.
AI just remember he put his penis inside my vagina.
QI need to go back a step then. When he first came up what was he wearing.
AA jumper, maybe like a knitted Billabong jumper or something and trackies.
QDid that change at all when he was up on the upper deck with you.
ANo, I think he just pulled his pants down; didn't take them off.
QYou mentioned that your pants came down. What about your top; did you still have a top on.
AYes.
QAnd you still had a bra on.
AYes.
QWhat about him; did he still have a top on.
AYes.
QYou said he put his penis inside of your vagina. Did you see his penis.
ANo.
QHow do you know that that's what happened.
ABecause I felt something hard, never had - I'd never had that done before so I didn't - I had never experienced that before but I knew that was what it was.
QBefore he had put his penis inside your vagina did he touch you at all.
ANo.
QHe didn't touch you anywhere else on your body.
ANo.
QDid he kiss you at all.
ANo.
QOnce he had put his penis inside of you what position was he in, in relation to you.
AOver the top of me.
QWhere was the blanket at that point.
AOver him.
HIS HONOUR
QHow long was he in that position for; that is, on top of you with his penis in your vagina.
AA couple of minutes.
XN
QWhat did he do once he was on top of you like that.
AMoved backwards and forwards; wasn't very long.
QDid he say anything at all.
ANo.
QDid you say anything.
ANo.
QDid he make any noise at all.
AI don't think so.
QDid you.
ANo.
QFor the time that he was on top of you could you hear any noise coming from anywhere else.
ANo.
QOnce he was on top of you, where was his head in relation to yours.
AAbove mine (INDICATES). Kind of like he wasn't laying, he was kind of half kneeling, I suppose, like leaning down but not laying.
QYou said that happened for a couple of minutes. As far as you are aware what caused it to stop.
AI guess he had finished.
QAt some point he removed his penis.
AYes.
QAre you aware of whether he ejaculated.
AI don't know. I didn't know what that was.
QWhat happened once he removed his penis.
HIS HONOUR
QDid you feel any different sensation at all as to any wetness between your legs or in your vagina.
AI don't think so.
[Emphasis added.]

There was no objection to any of the questions asked by either the Judge or the prosecutor and no application of the kind contemplated by s 34L(1)(b) was made.
Shortly after the jury retired to consider its verdict, the jury returned and asked two questions. Only the second of those questions is relevant. They jury asked:
May we please have a copy of the courtroom transcript of [the complainant’s] when she mentioned the alleged incident “back and forth” motion?
The Judge, in response to the question, read a passage of the examination of the complainant which included the section set out above. No objection was taken to the Judge doing so.
In R v Robins,[8] this Court considered the application of the predecessor to s 34L, s 34(i), in a situation where evidence of the complainant’s prior sexual activity was led by the prosecutor during examination in chief. In a joint judgment, Perry and Nyland JJ, with whom Millhouse J agreed, observed that the section commonly operates to restrain counsel for the accused in cross-examining the complainant, whereas in that case the relevant evidence was given by the complainant, apparently willingly, during the course of her examination in chief by counsel for the Crown.
[8] [1998] SASC 7013.
Perry and Nyland JJ referred to the second reading speech. They concluded that although the purpose of the section was to prevent unduly intrusive cross-examination of complainants in cases involving sexual offences, it had to be accepted that the section is not worded so as to confine its operation to cross-examination. They observed:[9]
As to the legislative history of s34(i) of the Evidence Act, the section was inserted by Act No 84 of 1976, namely, the Evidence Act Amendment Act. The Minister’s second reading speech to the amending Act contained, inter alia, the following passage:
The restriction upon cross examination of the alleged victim of a sexual offence is, in the Government’s opinion, a necessary reform. Presently, it is not uncommon for counsel to embark on cross examination about prior sexual experiences, although the topic of cross examination bears no direct relevance of any allegation that is at issue in the proceedings. The purpose of the cross examination is merely to blacken the character of the prosecutrix and thereby to seek to prejudice the jury against her. The Bill provides that such cross examination will only be permitted by leave of the judge, and leave will not be granted unless the subject of cross examination is directly relevant to the matter that is in issue at the trial.
From that passage, it would seem to be clear that the amendment was directed to what was thought to be unduly intrusive cross-examination. But it must be accepted that the section is not worded so as to confine its operation to cross-examination.
The section was, then, of application to this case insofar as counsel for the Crown sought to lead the evidence which the appellant now complains of, from [the complainant].
[9] R v Robins [1998] SASC 7013, [104]-[106].
Although Perry and Nyland JJ considered that there was a breach of s 34(i), they determined that it did not give rise to any injustice. They said:[10]
Given the attitude of [the complainant] and of counsel for the appellant, if an application to that end had been made, there seems little doubt that the trial judge would have granted leave to the Crown to lead the evidence.
In coming to that conclusion, we bear in mind that the adduction of the evidence, given that it was given willingly by [the complainant], could hardly be said to have subjected her to any “unnecessary distress, humiliation or embarrassment”.
We do not think that it can be said that the admission of such evidence, could have been said to have caused a substantial miscarriage of justice so as to render the trial of the accused unfair. We note that the question of the adequacy of the judge’s directions to the jury in this regard is a separate matter, and we will address that question in due course.
In these circumstances, although there was a breach of s34(i), it did not give rise to any injustice. As to this contention by the appellant, we would apply the proviso.
[10] R v Robins [1998] SASC 7013, [107]-[110].
In the present case, no objection was raised to either the questioning of the complainant or the admission of her evidence. The impugned evidence was not given in direct response to questions asked by the prosecutor. It is not necessary for us to decide whether there was a breach of s 34L of the Evidence Act 1929 (SA). However, assuming that the section was enlivened and that permission was required before the evidence was admitted, the failure to obtain permission did not give rise to a substantial miscarriage of justice. The evidence was admissible. Section 34L permits evidence of a complainant’s lack of sexual experience to be admitted with the permission of the judge, and sets out the mandatory considerations to which a judge must have regard. Relevantly, the evidence must have substantial probative value and the admission of the evidence must be required in the interests of justice. In weighing those considerations, a judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment.
In the present case, the evidence was unsolicited. There was no obvious distress, humiliation or embarrassment cased to the complainant. The evidence had probative value in that it was part of the explanation given by the complainant in answer to questions about whether penetration had occurred.
Accordingly, we dismiss this ground of appeal.
Conclusion
We allow the appeal, set aside the conviction and remit the matter to the District Court for re-trial.
In the circumstances, it is neither necessary nor appropriate to consider the appeal against sentence.

[2014] SASCFC 46

13 May 2014

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