R v Frederick - [2004] SASC 404

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FREDERICK
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT
Appellant charged with one count of indecent assault and four counts of unlawful sexual intercourse alleged to have been committed upon his step-daughter between 1 January 1983 and 1 October 1983 - appellant convicted of indecent assault and an act of unlawful sexual intercourse alleged in count 5 of the information - acquitted on other counts - appeal against convictions - prosecution claimed that mother of complainant witnessed the act of intercourse charged in count 5 - widely divergent versions given by complainant and mother as to circumstances of act of intercourse including location - whether prosecution required to elect as to version on which count based - alternatively, whether prosecution required to further particularise the act of sexual intercourse relied upon - whether jury instructed as to an identifiable occasion to support charge - whether direction to jury that it was unnecessary to decide upon location of offence was correct - whether jury verdict on count 5 was uncertain. Left open to jury to use conviction on count 5 to support allegation of offence of indecent assault charged in count 1 - whether verdict on count 1 can stand.
Held: Appeal allowed. Convictions on counts 1 and 5 set aside and retrial ordered.
Consideration of the adequacy of the directions to the jury on evidence led to establish a complaint in relation to the count of indecent assault.
Consideration of whether the verdicts of guilty in relation to the indecent assault and one count of unlawful sexual intercourse should be set aside on the ground that they are inconsistent with the jury’s verdicts of not guilty in relation to the other counts.
Consideration of whether certain passages in the trial judge’s summing-up wrongly suggested that the evidence of the complainant's mother was capable of corroborating the complainant's evidence as to the count of unlawful sexual intercourse.
The appellant sought leave to appeal on a ground refused by a single judge – whether comments made by the trial judge removed from the jury the decision as to whether the complaint did establish consistency - leave to appeal on this ground refused.
S v The Queen (1989) 168 CLR 266; The Queen v Pfitzner (1976) 15 SASR 171; R v Liddy (2002) 81 SASR 22; Alford v Magee (1952) 85 CLR 437; Tillott (1991) 53 A Crim R 46; Mackenzie v The Queen (1996) 190 CLR 348; R v James [1999] NSW CCA 191; R v Kirkman (1987) 44 SASR 591, considered.

R v FREDERICK
[2004] SASC 404
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J: The appellant was presented for trial in the District Court on an information which alleged that he committed one offence of indecent assault contrary to the Criminal Law Consolidation Act 1935 (“CLCA”) s 56 and four offences of unlawful sexual intercourse contrary to CLCA s 49(3). It was alleged that the offences took place between 1 January 1983 and 1 October 1983. The complainant, K, turned 16 on 11 May 1983.
The appellant and K’s mother J entered into a relationship in 1980 and commenced living together in the following year. Later in the same year they moved into a house at Gilles Plains. J had three children by a previous marriage who, at that time, lived with their father. At about Christmas 1982, K went to live with the appellant and J. At that time she was 15 years of age. The appellant was practising as a solicitor at the time and he had an office at Holden Hill. J married the appellant after the alleged offences, but separated from him in 1988.
According to the evidence given by K at the trial, the first sexual approach which the appellant made to her was on an occasion when she went outside to a shed to tell him dinner was ready. She said he kissed her on the lips for a couple of seconds. She then described to the court four acts of sexual intercourse which she said the appellant had with her over the period referred to in the information. She was unable to be precise about any of the dates of these incidents, but she said that two of the acts of sexual intercourse took place in his office and the other two took place in his car. The allegations came to the notice of the police in 2002.
The appellant was convicted on the indecent assault charged in the first count and on the charge of unlawful sexual intercourse which was the subject of the fifth count. He was acquitted on the charges of unlawful sexual intercourse alleged in the second, third and fourth counts. He now appeals against his conviction on the first and fifth counts.
K’s version on count 5
K said in evidence that there were two occasions when the appellant had sexual intercourse with her in his office. She referred to one occasion when she said intercourse took place on the couch in the office. She then said that there was an occasion when intercourse took place on the floor of the office at Holden Hill which she said was about 10 or 15 minutes away from the Gilles Plains house by car. She said that she and the appellant were lying in front of his desk and that he was lying on top of her. According to her evidence, this was the last time he had intercourse with her.
K said that after this incident the appellant took her home. J was there when they arrived. She said she thought the appellant went back to the office. Her mother then put it to her that the appellant had sex with her. She said she denied having intercourse with the appellant and her mother told her to pack her bags and go before the appellant came back to the house. K denied that she had sexual intercourse with the appellant at any time in the house at Gilles Plains.
J’s evidence
J gave evidence to the effect that she became suspicious that the appellant might have been involved sexually with K and she decided to see if she could observe any such behaviour. She said that one Friday she told K and the appellant that she was going out to see a film, but she did not do so and returned home to Gilles Plains at about 7.00 pm. She said she looked in through the lounge room window and saw K lying on the floor of the lounge. She said the appellant was having intercourse with K.
J said she was in an hysterical state. She said she knocked on the door and the appellant opened it. She pushed past him. She told K to go to her bedroom. There was no discussion between J and the appellant about the incident on that evening. J said that on the following day she asked K if she would like to live with her father or her sister. K said she wanted to live with her sister and arrangements were made for her to go there.
The appellant gave evidence. He denied having sexual intercourse with K on any occasion. He admitted kissing her from time to time, but denied that any of these incidents were accompanied by circumstances of indecency.
Discussion about count 5 before the prosecution opening address
It is important to examine the conduct of the trial in so far as it related to the charge alleged in count 5.
The conflicting versions to be relied upon by the prosecution in support of count 5 prompted some discussion between the trial judge and counsel prior to the prosecution opening. During the discussion defence counsel put to the court that, at some stage, the prosecution would be forced to an election as to the act which the prosecution relied upon to support the charge alleged in count 5. The prosecutor replied that this act could be identified as “the last occasion” upon which K said that she and the appellant had intercourse.
In his opening address the prosecutor had this to say about count 5:
“Then, what K will tell you was the last occasion that they had sexual intercourse, she will say was at the office and this last occasion of sexual intercourse is the occasion the subject of count five on the information, the last charge. However, for reasons that I’ll come to a little later this afternoon, there is some conflict in this trial, and there will be some conflict in the evidence, about where the final occasion of sexual intercourse between K and the accused actually took place.
. . .
As I have already suggested, the prosecution distinguishes count five from other charges before you because this was the last occasion that sexual intercourse took place between K and the accused.
This is the charge about which there is a conflict in terms of where the incident took place. K will tell you that the last time that she had sexual intercourse with the accused was again, at the office premises. J, K’s mother, and the woman that the accused later married and who was living with her daughter K and the accused at the house at Gilles Plains at the time, will give evidence, and she will tell you that she saw an occasion of sexual intercourse, but she saw it taking place at the house.
I will tell you, first, about K’s version of how this act of sexual intercourse, the last occasion of sexual intercourse, took place, count five. As I have said, K will tell you that it took place at the office and after she had gone there in order, on the face of it, to do the cleaning. K will tell you that sexual intercourse took place by the accused placing her penis into her vagina and this was the last time, as I’ve said.
It was the last time not because either K or the accused really themselves brought this improper relationship to an end, but because they were caught by K’s mother, J. K will tell you that this last act of sexual intercourse took place somewhere on the floor of the office; as I say, at the office premises.
. . .
As I’ve already touched upon, J will tell you about this incident or about what must have been, on the prosecution case, that last occasion of sexual intercourse. It’s important that you know about what J will tell you, because she will tell you that she did catch the accused and her daughter having sexual intercourse, but says that she caught them not at the office premises but actually at the house at Gilles Plains.
. . .
Clearly ladies and gentlemen, there will be in the evidence a substantial difference between what K will tell you about this last occasion of sexual intercourse and where it took place, and what J will tell you. The difference of course is the location.
As I have said, K will tell you that it took place at the office, J will tell you that she saw it take place at the house. She doesn’t know of course for herself that it was the last occasion but she will tell you, as K will tell you, that after this last occasion, after being caught, K left the house and never returned.
On the prosecution case with respect to count 5, they must be talking about the same incident although given the passage of time, someone has become confused about where it took place. The prosecution says that it was certainly the last occasion because as I have said, K left the house either that day on her account or the next day on her mother’s account.
While that difference is of course significant, ultimately the prosecution will suggest at the conclusion of this trial that it is explicable in all of the circumstances. Perhaps the obvious emotion of what happened and the mere passage of time, some 21 or so years since this incident is alleged to have taken place, there might be other explanations. Those explanations are for another time.
What is important ladies and gentlemen, is that I make it plain that the prosecution says that count 5 relates to what K will tell you was the last time that she had sexual intercourse with the accused. The prosecution says that if ultimately you find beyond reasonable doubt that there was a last time that K and the accused had sexual intercourse, and that following the last time she left the Gilles Plains house, then the prosecution says that that will be sufficient for the accused to be guilty of that charge.
The prosecution says that it does not matter where that incident took place ultimately. The law does not require the prosecution to prove that any charge took place at a particular location. What is important is that each charge can be distinguished from any other. The last charge, count 5, the prosecution seeks to distinguish by the fact that K will tell you that it was the last occasion that she had sexual intercourse with the accused.
It does not matter the prosecution will suggest to you ultimately where it took place, so long as you are satisfied that there was in fact a last time.”
Prior to final addresses, defence counsel referred to her earlier remark about putting the prosecution to its election on count five. There was then a discussion as to whether the circumstances identified by the prosecution as the last act of intercourse should be left to the jury simply as an uncharged act. The trial judge took this up with the prosecutor:
“HIS HONOUR: What do you say about that? It is troubling me.
MR KIMBER:             I disagree. In my submission, the Crown have opened quite properly and accurately on the basis that the occasion of count five is the last occasion of sexual intercourse. It is not a material particular as to where it took place any more than it is a material particular about when it took place. On the evidence, the prosecution seeks to establish that it was the last occasion because of the surrounding circumstances and the leaving of the house. So, in that sense, obviously the jury will have to grapple with, if they’re going to accept the evidence, how they reconcile that obviously massive difference between the two people –
HIS HONOUR:           So you want me to say to the jury ‘Count five is her evidence that it happened at the office. Because of the period of time we’re talking about, you’ve heard evidence from the mother, and the Crown case is this is in relation to count five that happened at the house. Whether it happened at the house or it happened at the office, it has to be proved beyond reasonable doubt that it happened on that occasion just before she left and is made out, but as far as the evidence is concerned, bearing in mind you have to find it proved beyond reasonable doubt, there is an enormous inconsistency between the two versions’.
MR KIMBER:             Yes.
HIS HONOUR:           And that goes to the credit of both the mother and her, etc.
MR KIMBER:            Credit and/or reliability.”
The prosecutor repeated in his final address that it was unnecessary for the jury to resolve the issue of where the act alleged in count five took place:
“So, first of all, how might you resolve the different accounts between K and her mother about where it happened, about location? The most important thing that you must bear in mind on this topic is that you don’t have to resolve any issue of location. You will see on the information – the document that I gave you at the start of the trial – that count five, as with the other charges of unlawful sexual intercourse, says it took place at Gilles Plains or another place.
The law says that where an act of sexual intercourse took place is not necessarily something that the prosecution has to prove beyond a reasonable doubt. In this case it doesn’t have to be proven, the prosecution says, beyond a reasonable doubt. What you have to find beyond a reasonable doubt is that this was the last time. If you find that it was the last time, and you’re satisfied beyond a reasonable doubt there was unlawful sexual intercourse, you will convict.
Ladies and gentlemen, if you accept that there was a sexual relationship, beyond a reasonable doubt, then you will have no doubt that this was the last time, because K was no longer available to the accused because she had left the house, in whatever circumstances, to go and live with M.
But even though the issue of location is very much not something you have to resolve, you might think that J is the one who is more likely to be right and accurate about where this was. It is a matter for you, but you might think that what she saw has been burnt into her brain, given the passage of time. K had sex with him on a number of occasions, but the mother only saw what she saw that once, and with the passage of time and perhaps the rejection of K by her mother, K has become mistaken about this last occasion. It is not something you have to resolve, the issue of location. The prosecution says that all you have to find is that this was the last time. But you might think, ladies and gentlemen, if you care to look to resolve it, that the evidence of J is more likely to be accurate.
. . .
Ladies and gentlemen, does it matter where it was seen or where it took place? Although, as I say, you might think that J is likely to be right, it is a very detailed and careful account she gave about the circumstances in which she came home, going to the front door first – something she hadn’t told the police – going to the lounge room window and so on. You might think, as a matter of commonsense, that she is likely to be right, but it doesn’t matter, so long as you are satisfied beyond a reasonable doubt that she saw them having sexual intercourse.”
The prosecutor also put to the jury in his address that the evidence of J could be used to support the account given by K. He said:
“So, when you come back now, to K’s evidence, what else is there independent of her that tells you that her account is the true one? You don’t need evidence independent of her, you can proceed purely upon her evidence alone, and the prosecution says you could convict on her evidence alone, having scrutinised it with great care, as you must do. It doesn’t need, the prosecution says, the slightest bit of support but, ladies and gentlemen, there is support, and, of course, it comes from J. You have an eyewitness to an occasion of sexual intercourse, what the prosecution says is the final occasion, the occasion of count five.”
After discussing J’s evidence further the prosecutor said:
“It is such an important aspect of this trial because it offers plain support for K’s account about there being a sexual relationship, and it offers plain support for count five.”
The summing-up
In the early part of his summing-up the trial judge identified for the jury the brief circumstances on which the various counts were based. When he came to count 5 he said:
“Count 5, once again, is unlawful sexual intercourse and that count relates to the act of intercourse at the office on the floor.”
A short time later he said:
“I set out for you, and I will not do it again, the situations that applied, the particulars that applied, to each count. The second count was on the couch; the third count was in the car after the coffee shop; the fourth count was in the car after the job interview and count 5 was at the office on the floor.
Count 5 is further particularised because the Crown says on their case that that was the last act of sexual intercourse that took place and that was shortly before she left the house where she was living at Gilles Plains.
In relation to count 5, when I come to the evidence I will mention it again, there is, of course, a conflict between what K says and what the mother says about where this act of intercourse took place, and that has been well ventilated by counsel. The mother says she saw that act of intercourse. Shortly before K left the house, she saw that happen at the house. K says that the last act of sexual intercourse shortly before she left the house was at the office. She never said she had sexual intercourse with the accused at the house.
Now that may be important when you are assessing whether you believe these people, and I will come to that in a moment, but as far as the law is concerned, if you find it proved beyond reasonable doubt that an act of intercourse took place between those dates set out in count 5, and it was an act over and above those other three counts, it was not count 2, 3, or 4, it was another act of sexual intercourse, and it is identified as the last act of sexual intercourse which took place before them, and is identified as that act of sexual intercourse which happened shortly before she left the house, so you know exactly what the occasion is, it does not matter where it took place. That is as far as the law is concerned. Whether that affects your assessment of these witnesses, that is another matter.”

After summarising the prosecution case the trial judge said:
“I want to say something about that evidence especially in relation to count five, but I hasten to add the facts are for you and not for me, but I want to try and clarify the situation in relation to count five.
Ladies and gentlemen, count five alleges an act of intercourse that took place between the accused and K, which is specified and particularised as the last act of intercourse which happened between the two of them and took place on an identified occasion; namely just before she left Gilles Plains, namely the day before. I have already told you that when I explained the law. It must be clearly understood that is the occasion that is being identified.
K has given evidence of that and you will assess her evidence accordingly. Her mother has also given evidence of an act of intercourse which she observed at about that same time; just before she left the house. I direct you, as I did earlier, but I will tell you again, as a matter of law, if you find it proved beyond reasonable doubt that an act of intercourse took place, which can be identified as a specific act which took place shortly before K left the house at Gilles Plains, and also specifically identified by K as the last act of intercourse which took place between the two of them, it does not matter where you find that that act of intercourse took place. The difference in that detail does not matter. I hope that is clear.
If you find it proved beyond reasonable doubt that the act of intercourse took place in that identified way and that she was under the age of 17, then you can find him guilty of count five and, as I say, it does not matter where it took place.
Ladies and gentlemen, that is the strict legal position. But, of course, you will remember the arguments of Ms Powell as to your observations in relation to the credibility of both of these witnesses when the mother says that an act of intercourse took place at the house and the daughter says that it took place at the office, but the daughter adds that no act of intercourse ever took place at the house. That is a matter that you will assess very carefully when looking at the credibility of both of these witnesses. Ms Powell’s argument is, of course, they cannot both be right, and how could you forget something like that, especially as far as K is concerned, even though it was something like 20 years ago. However, I direct you that legally you can find the accused guilty of that count irrespective of where it happened.”
Later in the summing-up the trial judge said:
“Even in relation to count five, the evidence which is led by the prosecution which is said to support her, namely the evidence of the observations of her mother, can be argued is really not supportive of her evidence but inconsistent with it, because the mother says intercourse took place at the house and M says intercourse never took place at the house. So, for those reasons, ladies and gentlemen, the length of time, the fact that the Crown relies really upon her evidence alone, the vagueness of the dates of the charges, the defendant has great difficulty in presenting his case and answering these charges, and because of that, it requires me to tell you that it would be very dangerous to convict the accused of any of these charges.
That does not mean you cannot convict him. However, before doing so, you must scrutinise her evidence with great care.”
Grounds 1, 1A, 1B and 1C complain about the lack of particularisation of the offence alleged in count 5, the failure of the prosecution to elect as to the version on which the prosecution case was based, the direction that the jury need not find where the alleged offence took place and the uncertainty of the resulting verdict on count 5.
The prosecution case in relation to count 5
The prosecution evidence led in support of the allegation in count 5 consisted of two versions which differed in fundamental respects.
K said that she was in the office at Holden Hill with the appellant on an occasion when intercourse took place on the floor in front of the appellant’s desk. The office was on the upper floor of commercial premises. There was no suggestion that J would have had an opportunity to observe this incident and was subsequently confused as to where it took place. K described how she went home with the appellant after the incident and her description of the aftermath involving her leaving home is quite different from that given by J.
J said she saw an act of intercourse between the appellant and K in progress on the floor of the lounge room of the house at Gilles Plains. She said it was in the early evening. K denied that any such act had taken place at any time in the home.
The appellant denied having sexual intercourse with K on any occasion.
The prosecution case proceeded on the assumption that both witnesses were purporting to describe the same incident. It was argued that the discrepancies could be explained by the lapse of time between the incident and the laying of the charges. However, in light of the degree of disparity between the versions there is doubt as to the validity of that assumption. It is difficult to explain the differences in the versions on the basis of faulty memory. It could hardly be supposed that J might have been looking through a window of the office when she saw the alleged act of intercourse. On the other hand K specifically denied any act of intercourse in the house.
It was argued by the prosecution both at trial and on the hearing of the appeal that the offence alleged in count 5 was sufficiently particularised as “the last occasion of sexual intercourse”. This was based on the evidence of K that the appellant did not have intercourse with her after this alleged incident and the evidence of J that K left the home shortly after the incident she described so that there was no opportunity for the appellant and K to have sexual intercourse from that time on.
The first difficulty in particularising the act in this way is that the evidence of K and J as to the circumstances in which K left differs in important respects. This is apparent from the summary which is set out above. Furthermore, there is other evidence which casts doubt on the details of when and in what circumstances K left home.
The evidence of J as to the time at which K left home was inconsistent with other apparently reliable evidence. J said that K left before her sixteenth birthday on 11 May 1983. K and her sister (“M”) both said that K did not attend school after she left home. She had been attending a girls’ school and a statement was tendered from the principal of the school which established that K did not leave the school until the end of August 1983. The appellant said in evidence that K left home on about 26 August 1983. M gave evidence that when K came to live with her there had been no prior arrangement for her to do so. K simply arrived with her boyfriend and stayed there from that time on. This is contrary to the evidence of J that she contacted M and made arrangements for K to live with her.
There is a danger in drawing an inference from the evidence of K and J as to the circumstances in which K left home to establish that they were talking about the same incident and that it is therefore appropriate to describe it as the last act of intercourse. The versions which they gave of the incident which each said took place would seem to be a more accurate indication as to whether they were purporting to describe the same incident. The particularisation of their respective versions as the last occasion on which intercourse took place attributes a commonality to the two versions which is not supported by the evidence. It does not assist in identifying the circumstances of the act of intercourse which is alleged to have taken place on that occasion.
In this state of the evidence and in light of the directions given in the summing-up, it cannot be determined by what path the jury reached their verdict on count 5. They could have proceeded on the basis of a reconciliation of the versions of K and J in some way. Alternatively, the verdict might have been based on an acceptance of K’s evidence that she had intercourse with the appellant in the office or the jury might have accepted J’s evidence that she saw an act of intercourse in the lounge room of the home. As a further alternative, it is possible that some jurors accepted the evidence of K as to the essential features of her version and rejected the evidence of J and that others accepted the evidence of J and rejected the evidence of K, thus leading to uncertainty as to whether the verdict was unanimous in the acceptance of one version or another. (cf. S v The Queen (1989) 168 CLR 266 at 276).
In the somewhat unusual circumstances of the case it is my view that the trial judge should have required the prosecution to elect which version or incident they relied upon to support a conviction on count 5. The question of election was raised by the defence on two occasions during the trial. The same result would have been achieved by requiring the prosecution to further particularise count 5.
The difficulties in the case do not end there. In the absence of election or further particularisation of the alleged offence and in the light of the conduct of the prosecution case and the judge’s directions, it was left open to the jury to attempt a reconciliation of the two versions and arrive at a finding of guilt without making a finding on whether the alleged act of intercourse took place in the appellant’s office at Holden Hill, in the lounge room of the house at Gilles Plains or at some other place.
The jury were told on a number of occasions throughout the case and in the course of the summing-up that it did not matter where the alleged act of intercourse took place. They were told that they could find the appellant guilty on count 5 irrespective of where the incident occurred. The judge reminded the jury of the defence argument that the issue as to where the incident took place was relevant in relation to the credibility of J and K, but that was as far as he took the matter.
The directions given by the trial judge arose from an acceptance by him of the prosecution argument that an allegation as to the place at which the alleged offence took place was immaterial.
It is clear that, as a general rule, averments in an information relating to time and place are immaterial. If it is established that the act or acts relied upon to constitute the offence were within the jurisdiction, the precise location is not an element of the offence except where the definition of the offence requires proof of a particular location such as the offence of larceny in a dwelling house. Allegations as to time will be material in some cases such as in the case of those sexual offences where the age of the complainant is one of the elements of the offence.
There are other cases in which the specification or particularisation of time or place may be necessary in order to avoid injustice. Bray CJ gave an example in The Queen v Pfitzner (1976) 15 SASR 171 at 185:
“Whether the date alleged in the information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v Butcher [1957] SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1970) 54 A Cr App R 38.”
In R v Liddy (2002) 81 SASR 22 at [256] Mullighan J summarised the relevant principles as follows:
“It is well established that the dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence: R v Dossi (1918) 13 Cr App R 158, R v Pfitzner (1976) 15 SASR 171, McDermott v The Queen (1987) 45 SASR 335, R v Jacobs [1993] 2 Qd R 541, Hartley v The Queen (unreported, Court of Criminal Appeal, SA, Full Court, No 294 of 1994, 6 September 1994); G v R (unreported, Court of Criminal Appeal, SA, Full Court, No 13 of 1995, 4 April 1995); R v H (1995) 83 A Crim R 402 and R v McDonald (1995) 65 SASR 322. In Pfitzner Wells J said (at 192):
‘Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer.’
In Johnson v Miller (1937) 59 CLR 467 at 489 Dixon J observed:
‘For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.’
However, there may be cases where even though the particulars of when an offence is alleged to have been committed is not an element of the offence, it may be material to the integrity of the criminal process: R v H (at 76). I adhere to what I said in McDonald (at 330):
‘However, as was acknowledged in Pfitzner, the circumstances of the case, including the forensic issues raised at the trial such as alibi or lack of opportunity, may make the date vital.’
Similar observations were made by Gleeson CJ, with whom Handley JA and Studdert J agreed, in R v VHP (unreported, Court of Criminal Appeal, NSW Full Court, No 60733 of 1996, 7 July 1997). In that case the indictment alleged a range of dates but the complainant in evidence said that the offence occurred on a particular date. The evidence established that the offence could not have occurred on that date. The directions of the learned Trial Judge may have led the jury to think that they could convict the appellant if they found that the offence had occurred within the range of dates. Gleeson CJ said (at 15-16):
‘As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Secondly, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.
The general rule was stated by Atkin J in R v Dossi (at 159-160) in the following terms:
‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence .... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.’
There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above (for example, R v Dean [1932] NZLR 753, R v Kringle [1953] Tas SR 52; R v Pfitzner (1976) 15 SASR 171; R v Macdonald (1995) 65 SASR 322; R v Westerman (1991) 55 A Crim R 353).”
Counsel for the appellant has not argued that the information is defective in a technical sense. However, as the authorities show, the nature of the evidence and the conduct of the case can render the location of the alleged offence vital. In the present case the prosecution was required to establish an identifiable occasion on which the alleged offence took place. I have referred to the shortcomings inherent in describing that occasion in this case as “the last occasion on which sexual intercourse took place”. In a case such as the present where the prosecution based its case on the evidence of witnesses who described two sets of circumstances which differ in vital respects, including place, it was necessary for the jury to be given a clear indication of the factual basis which would require proof beyond reasonable doubt before a verdict of guilty could be returned.
The direction that the jury did not need to make a finding as to where the alleged act of intercourse took place absolved them from making findings of fact which were crucial to the assessment of this count in the information. They were at liberty to convict the appellant without making any findings as to the circumstances of the alleged offence other than the fact that an act of intercourse took place which could be described as the last act of intercourse shortly before K left home. As I have said, this description does not resolve the question as to what took place on that occasion. This is not a case in which there is a single version of a set of facts which establish an act of intercourse, but the witness is unable to say with precision where the incident took place. Rather, it is a case in which there is considerable controversy within the prosecution case as to the circumstances of the alleged offence such that it is difficult to reconcile the two versions satisfactorily.
It must be accepted that a jury is entitled to accept parts of a witness’s evidence and reject other parts. However, in this case the jury were invited to arrive at a synthesis of the two versions without making findings on the essential circumstances of the alleged offence. In this respect it is important to bear in mind the following comments in the joint judgment of the High Court in Alford v Magee (1952) 85 CLR 437 at 464 which have application to civil and criminal trials:
“A jury is not, of course, bound to accept the whole of any evidence before it, even when that evidence is entirely consistent and clear, as it rarely is in these cases. It has undoubtedly the function of drawing inferences, and this means that it commonly has a wide latitude in arriving at its own reconstruction of what actually happened. But the question whether it could in a particular case reasonably draw a particular inference is a question which will constantly arise, and courts and judges will often be called upon to rule on that question.”
(See also Tillott (1991) 53 A Crim R 46 at 51.)
The jury were told that it was necessary for them to reach a conclusion that an act of intercourse took place, but they were not told that they had to reach this conclusion by reference to an identifiable occasion which established that act. If the jury made no finding as to where the alleged act of intercourse took place they could make no finding as to the facts of a particular act of intercourse. The facts deposed to by K and J including the lead up to the alleged act, the circumstances of the act itself and the aftermath were inextricably linked with separate locations. A conviction based on a finding that sexual intercourse took place without any means of identifying or determining the factual basis of such a finding would be unsafe and unsatisfactory. As it cannot be determined whether the jury’s findings were more specific, there remains a real risk of a miscarriage of justice.
The difficulties to which I have referred could have been overcome if the prosecution had been required to elect to the extent of specifying which version of the facts they relied upon in order to support a verdict of guilty on count 5 or, to put the matter another way, the prosecution should have been required to particularise the incident relied upon in that count beyond the description of it being the last occasion on which intercourse took place.

For these reasons it is my view that the conviction on count 5 must be set aside.
The conclusion which I have reached in relation to count 5 has consequences also for the conviction on count 1. The prosecution suggested to the jury they might begin their deliberations by considering count 5 and if they found that count proved beyond reasonable doubt it would then lend weight to the allegations in the other counts in a number of ways including proof of the existence of an unnatural sexual interest in K by the appellant.
The trial judge directed the jury that if they found the appellant guilty of one count that finding could be used in relation to other counts by way of establishing a sexual interest in K by the appellant.
The prosecutor’s remarks and these directions have not been criticised as such, but if the jury used the finding of guilt on count 5 to reach a finding of guilt on count 1, the conviction on count 1 must be set aside if the finding of guilt on count 5 is set aside.
Directions on the complaint
Criticism was made in ground 4 of the trial judge’s directions on evidence led to establish a complaint made by K about the indecent assault charged in the first count.
K said that when the appellant kissed her in the manner described she felt shocked. She said she went back inside the house and spoke to her sister M. She said to M “Michael kissed me on the lips and I don’t know what to do”. K said M told her to go and tell her mother but K said she was too scared. She thought she might get into trouble.
In cross-examination K agreed that she told M she was scared, upset and worried about the incident. The cross-examination continued:
“QDid you convey to her that you were upset, yes or no?
AI think she could tell.
QSo did you say anything? Did you say ‘I’m upset’ or do you think she would judge that by your demeanour, by the way you behaved?
AI think she’s got good judgment.”
M gave evidence that K told her the appellant had kissed her when she went out to the garage. When asked about K’s demeanour M said it was “fine”. In cross-examination M said that K did not say or do anything to suggest she was upset on this occasion. K did not say she was scared to tell her mother but said “You know what Mum’s like”.
The trial judge gave the following direction on this evidence in his summing-up:
“That conversation with M, as I explained at the time, is led for a specific reason. It is a principle of our law that in general the only evidence of the existence of facts is evidence given on oath or affirmation in the witness box and subjected to cross-examination. What a person says outside the court is not evidence of what occurred. What K said to her sister on this occasion is not evidence of what occurred, namely, there was a kiss. For that, you must rely on the evidence she has given in this trial. However, this evidence of what she said to her sister is before you because it is considered that the making of a prompt complaint is relevant in assessing the truth of the alleged victim, that K’s evidence, in this courtroom, namely, it happened and straightaway she complained to someone it happened. That might indicate to you that there is a consistency in her stories which might go to whether she’s telling the truth or not. It is for you as to whether you accept the evidence of the complaint and, if so, what weight you attach to it. I hope that’s clear.
So, ladies and gentlemen, the fact that she told her sister is evidence led by the prosecution to show consistency of behaviour in that, on her evidence, the kiss happened, and she told her sister about it almost straightaway.”
Later in his summing-up he said:
“Ladies and gentlemen, I have already directed you about the evidence of the complaint by K to M. It is also evidence showing consistency and it only relates, of course, to count one.”
During their deliberations the jury requested redirection on the issue of complaint. The trial judge then gave the following direction:
“That conversation is led for a specific reason. Once again, it only applies to count one; that is the indecent assault. It’s a principle of our law that the only evidence of the existence of facts is evidence given in the witness box on affirmation or on oath and subject to cross-examination. What a person says outside of the court is not evidence of what occurred. Let me pause there. When she said to her sister ‘Michael kissed me’, that is not evidence of that fact. She says in court ‘Michael kissed me’, that is evidence of that fact. I hope that is clear.
However, the evidence of what she said to her is before you because it is considered that the making of a prompt complaint – straight afterwards complaining about the fact that he kissed her – is relevant when you are assessing the truth as to whether this happened or not. You see, she’s told her sister what happened straightaway after it happened, and the prosecution led that because it might indicate to you there is a consistency in her story; it’s happened and then she has told somebody. That is evidence going towards whether she is telling the truth or not.
But, what she said to her sister is not actually evidence of what happened. I hope that is clear. As I have told you it is for you to accept whether you believe that she said that to her sister or not, and what weight you attach to what she said to her sister, but the reason it is before you is that it shows consistency of her story and goes to the question as to whether you believe her on that topic or not. It is not evidence of what actually happened. The evidence you must rely upon is what she said in this courtroom.”
It was not contended that what was said by K to M was not admissible as evidence of a complaint. However, it was argued that the trial judge should have instructed the jury on the relevance of M’s evidence as to K’s demeanour at the time of the complaint.
In my view K’s demeanour at the time of making the complaint was of limited probative value. Consent was not an issue in the case and the kiss was not denied. K’s reaction, whatever version is accepted, did not throw any real light on whether the kiss was such as might be viewed as accompanied by circumstances of indecency. K’s own evidence did not suggest obvious distress but rather that she felt shocked. The trial judge did not suggest to the jury that there was any relevance in her reaction, nor did he refer to her evidence on this aspect in his summing-up.
However, when summarising M’s evidence, the trial judge did refer to her description of K’s demeanour as “fine”.
In the circumstances the fact that the trial judge did not comment further on K’s demeanour could not have caused any real detriment to the appellant’s case.
In my view this ground of appeal cannot succeed.
Application for leave to appeal on ground 3
The appellant was refused leave to appeal by a single judge on ground 3 of the amended grounds of appeal which is another ground relating to the evidence of complaint. The appellant has requested that the application for leave to appeal be referred to this court.
This ground is based on comments by the judge which are said to have removed from the jury the decision as to whether the complaint did establish consistency. At one point in his summing-up the judge said:
“Ladies and gentlemen, I have already directed you about the evidence of the complaint by K to M. It is also evidence showing consistency and it only relates, of course, to count one.”
In the re-direction on the use of the complaint the trial judge said:
“…but the reason it is before you is that it shows consistency of her story and goes to the question as to whether you believe her on that topic or not.”
It is important to consider these passages in the context of the other directions as to complaints. In the principal direction on this issue the trial judge said:
“That might indicate to you that there is a consistency in her stories which might go to whether she’s telling the truth or not. It is for you as to whether you accept the evidence of the complaint and, if so, what weight you attach to it.”
In the re-direction immediately before the impugned passage his Honour said:
“… the prosecution led that because it might indicate to you there is a consistency in her story.”
The trial judge also told the jury in the same passage that it was for them to decide whether they accepted her evidence as to what she said to her sister and what weight they were to attach to it.
I do not accept that the jury could have gleaned the impression from the directions as a whole that the issue of consistency had been decided for them by the trial judge. Nor do I accept the argument that it was implicit in the directions that the jury should reject M’s version of what was said to her and how K behaved on the occasion of the conversation.
I would refuse leave to appeal on ground 3.
Inconsistency of verdicts
Ground 2 of the grounds of appeal alleges that the verdicts of guilty on grounds 1 and 5 should be set aside on the ground that they are inconsistent with the jury’s verdicts of not guilty on counts 2, 3 and 4.
The evidence of the acts upon which counts 1 to 4 were based emanated from K alone. According to the argument, the convictions on counts 1 and 5 cannot stand with the acquittals on the other counts.
The principles relevant to the consideration of this ground of appeal were considered by the High Court in Mackenzie v The Queen (1996) 190 CLR 348. This decision was summarised by Beazley JA in R v James [1999] NSW CCA 191 at [3]:
“A question arose on the appeal as to whether the verdicts were inconsistent, resulting in convictions which were unsafe and unsatisfactory. Gaudron, Gummow and Kirby JJ considered that six general propositions governing the question whether verdicts were inconsistent could be discerned from the authorities. I will attempt to summarise them but regard should be had to the propositions as fully explained at 366-368 of the judgment.
(i)There is a distinction between legal and factual inconsistency, the former usually being easier to resolve because ‘[o]n the face of the court’s record there will be two verdicts which, in law, cannot stand together’ (at 366).
(ii)Factual inconsistencies can be both as between different verdicts affecting the same accused (as in the present case) and different verdicts affecting co-accused.
(iii)Where the inconsistency arises upon different counts ‘the test is one of logic and reasonableness’ (at 366).
(iv)Given the general respect given to juries and jury verdicts, an appellate court will generally be reluctant to find verdicts to be inconsistent and will not do so if they may properly be reconciled.
(v)If, however, different verdicts ‘represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’, an appellate court will interfere ‘to prevent a possible injustice’ (at 365).
(vi)The obligation to make good the submission that verdicts are inconsistent is upon the person making the submission.”
The following comments of King CJ in R v Kirkman (1987) 44 SASR 591 at 593 were cited with approval in Mackenzie:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
In Mackenzie at 368 Gaudron, Gummow and Kirby JJ went on to say:
“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant occasion will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’ ”
The forensic contest in relation to count 1 differed from that in the case of the counts alleging unlawful sexual intercourse. The appellant denied any act of sexual intercourse, but he did concede that, from time to time, he kissed K in a “non-sexual” way. He did not deny that he kissed K when she came out to the garage to tell him dinner was ready. He said he had no specific recollection of it. However, the issue in relation to that count was whether the act was carried out in circumstances of indecency. As the contest in relation to counts 2, 3 and 4 turned on a quite different issue, no inconsistency arises in relation to the acquittal on those counts and the conviction on count 1.
As to the alleged inconsistency in relation to count 5, the lack of a clear identification of the factual basis for the conviction on that count prevents an effective assessment as to whether the verdicts were inconsistent. It is possible that the verdict was based solely or predominantly on the evidence of J, in which event it could not be argued there was inconsistency with the verdicts of not guilty. The difficulty of effective appellate review is another consequence arising from a verdict such as this which lacks certainty.
Nevertheless, if the assumption is made that the jury acted solely on the evidence of K in relation to count 5, I do not think it can be said that the verdict of guilty on count 5 was necessarily inconsistent with the verdicts of acquittal. The jury were told that they were to consider each count separately. As I have attempted to point out, the unsatisfactory nature of the verdict on count 5 arises from considerations apart from inconsistency.
Finally, counsel for the appellant argued that certain passages in the summing-up wrongly suggested that J’s evidence was capable of corroborating K’s evidence as to the fifth count. The passages to which our attention was drawn do not refer to J’s evidence and I do not agree that they are capable of being understood in the sense suggested by the appellant’s counsel. Furthermore, the trial judge’s direction set out in [20] of these reasons is to the effect that J’s evidence is inconsistent with K’s evidence and not supportive of it.
Summary
The complainant, K, gave evidence that the appellant had intercourse with her shortly before she left home to live with her sister and that this was the last occasion on which she and the appellant had intercourse. Her mother, J, said she saw an act of intercourse take place between the appellant and K shortly before her daughter left home. However, the version given by K as to the act of intercourse she described and the version given by J as to what she said she saw differs to a significant degree. K said the incident took place in the appellant’s office. She said she did not have intercourse with the appellant in their home on any occasion. J said the incident she saw took place in the home. The evidence given by K of the lead-up to the incident she described and its aftermath differed substantially from J’s description of what preceded and followed the act which she claimed she saw. The differences in the evidence raise a real question as to whether the two witnesses were giving evidence of the same incident or whether they were purporting to describe different incidents.
These circumstances rendered it essential for the jury to have identified for them the act upon which the prosecution relied to establish the offence alleged in count 5. The location where the offence is alleged to have taken place was a necessary part of the particularisation of the offence.
Instead, the jury were directed that it was unnecessary to find where the alleged offence took place. The only way in which the offence was particularised was its description as the last occasion on which sexual intercourse took place between the appellant and K. In the circumstances of the case this description did not assist in identifying the act relied upon to prove the offence alleged in count 5. The verdict on count 5 is uncertain in that the incident relied upon by the jury to convict the appellant cannot be identified.
As the jury were told that if they found the appellant guilty on count 5 they could use that finding in relation to count 1, the verdict on count 1 is also affected.
For these reasons the verdicts on both counts are unsafe and unsatisfactory.
I would allow the appeal and set aside the convictions on counts 1 and 5. In my view grounds 2 and 4 are not established. I would refuse leave to appeal on ground 3.
I have considered the matters relevant to the exercise of the discretion to grant a re-trial, some of which are set out in R v Leak [1969] SASR 172 at 176 and the judgment of Bleby J in R v Blobel (2001) 216 LSJS 222. In my view it is appropriate to direct a re-trial on counts 1 and 5 although in the case of count 5 I repeat the comment made by Toohey J in S v The Queen (1989) 168 CLR 266 that the prosecution will have to consider whether their case can be put in such a way that a new trial will not miscarry as this trial has miscarried.
BLEBY J. I agree with the orders proposed by Duggan J and with his reasons. I have nothing further to add.
ANDERSON J. I agree that the appeal should be allowed for the reasons set out by Duggan J. I also agree that there should be a retrial on counts 1 and 5.