R v G, GT - [2007] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v G, GT
[2007] SASC 104
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
28 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
Appeal against conviction - appellant convicted of one count of indecent assault and one count of unlawful sexual intercourse - evidence that after police approached appellant, he phoned victim's father and claimed that victim was "out to get him", and that he had never been in cars with children - prosecutor presented as evidence that accused feared that victim had told police about misconduct and was trying to get in early to establish a defence - trial judge directed jury that evidence was lie capable of providing evidence of consciousness of guilt - whether trial judge erred in giving lies direction - held, appeal allowed, matter remitted for retrial - lies direction should only be given in clear and limited circumstances - evidence of "lie" was confused and unclear making it dangerous to leave to jury as consciousness of guilt.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - PARTICULAR CASES
Evidence of uncharged criminal conduct subsequent to charged offences - evidence that appellant purchased alcohol for victim subsequent to charged offences - whether trial judge erred in not excluding this evidence - held, evidence of uncharged criminal conduct was relevant to explain lack of complaint and appellant's continuing sexual interest in victim - evidence of appellant purchasing alcohol had probative use that outweighed prejudicial effect.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION
Whether trial judge properly directed jury regarding delay in complaint, inconsistencies in victim’s evidence, and use of evidence of uncharged acts – held, trial judge gave proper directions in relation to these matters.
Criminal Law Consolidation Act 1935 (SA), referred to.
R v Loader [2004] SASC 234; (2004) 89 SASR 204; Harris v The Queen (1990) 55 SASR 321, applied.

R v G, GT
[2007] SASC 104
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ. I agree that the appeal against conviction should be allowed, and that there should be a retrial, for the reasons given by David J.
I add some observations limited to the aspect of the Judge’s directions which contain a misdirection giving rise to a miscarriage of justice.
David J has summarised the relevant facts.
The prosecutor put to the jury that the jury might conclude from the fact that the appellant telephoned V’s father when he did (not long after Sergeant Smith arranged to speak to him), and from what the appellant said to V’s father, that the appellant feared that V had told the police about misconduct of some kind on his part towards V, and that by his reference to drugs the appellant was trying to set up a motive for V to make false allegations against him, and that by his reference to never being with children he was trying to sow the seeds of a defence.
The prosecutor was entitled to put that submission.
The Judge should have directed the jury in terms that reflected that submission. Some attention needed to be given to the different versions of the conversation and to possible explanations for the conversation. Care was needed, because the conversation had the potential to be treated by the jury as highly significant.
There was also a need to make the point that, having regard to the evidence given of uncharged acts, the telephone conversation could not be treated by the jury as relating only to the charged acts.
Unfortunately, the manner in which the trial Judge put the matter to the jury was potentially misleading. The direction focussed on whether the appellant told a lie when he said he had never been alone with kids. That was not the real point. On any view that statement was false or wrong, as the prosecutor recognised. The question was, why did the appellant ring V’s father when he did, and mention the matters that he did mention? Directing the jury in the manner in which the Judge did was prejudicial to the appellant, because it focussed on an issue (the possible lie) which more or less had to be resolved against the appellant. Moreover, the suggested inference that the appellant made the call “because he knew what he had done to [V]” suggests that the lie could be treated as relating to the charged acts in particular, whereas it had to be pointed out to the jury that it might have related to other misconduct. That highlights the awkwardness of the manner in which the issue was left to the jury.
In short, this aspect of the summing up did not deal adequately with the prosecutor’s submission on what was a significant issue. The direction that the Judge gave was prejudicial to the appellant because it presented a false issue, an issue likely to be resolved adversely to the appellant.
I agree with David J, for the reasons that he gives, that the evidence about the telephone conversation should not have been left to the jury at all as evidence of a lie manifesting the consciousness of guilt.
I take the opportunity to emphasise the wisdom and practical force of the comments made by King CJ in Harris v The Queen (1950) 55 SASR 321 at 323, which are set out in the reasons of David J.
I add that if a prosecutor proposes to submit to the jury that there is evidence of lies told by the accused which manifest a consciousness of guilt, the prosecutor should raise that matter with the judge before the submission is put to the jury. The purpose of doing so is to ensure that the prosecutor accurately identifies the suggested lie, and the circumstances by reference to which it can be said to manifest a consciousness of guilt. Raising the matter with the Judge before the submission is put to the jury will also help ensure that the Judge understands the proposed submission, and is in a position to deal with it adequately in the summing up. I say this because of the number of cases in which submissions as to lies said to evidence a consciousness of guilt, and the Judge’s directions on that topic, have caused difficulty on appeal. The trial Judge is entitled to rule that the suggested evidence is not capable of being used in the manner proposed by the prosecutor, should the Judge hold that view. In that event, the prosecutor should not put the submission, and will be corrected by the Judge if the prosecutor does so. As well, a trial Judge is entitled to discourage a prosecutor from putting such a submission, should the trial judge consider that the case is one in which the proposed submission has little force. The history of cases in which such submissions have caused problems on appeal should encourage trial judges to exercise their authority and influence in this area.
In fairness to the prosecutor in this case and to the Judge, I add that the proposed submission to the jury was canvassed with the Judge. Unfortunately, in what was otherwise a clear and thorough summing up, an error nevertheless occurred.
GRAY J. I would allow this appeal and set aside both convictions. I would set aside the sentence imposed. I would remit the matter for retrial. I agree with the reasons of David J. I also agree with the observations of Doyle CJ.
DAVID J.
Introduction
The appellant was convicted by verdicts of a jury of one count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and one count of unlawful sexual intercourse, contrary to s 49(3) of the Act. He was sentenced to five years imprisonment with a non‑parole period of three years. He now appeals by leave against his convictions and seeks leave to appeal against his sentence.
Both offences involved behaviour which took place on one occasion in a motel in Adelaide on an evening particularised as being between 4 January 2003 and 9 January 2003. At the time of the offending, the appellant was aged 47 years and his female victim (whom I will refer to as “V”) was aged 14 years. It was alleged that the appellant indecently touched V in the area of her breasts (count 1) and performed an act of cunnilingus upon her (count 2). At trial, the appellant admitted being with V on the occasion as alleged but denied any indecent or inappropriate behaviour.
The appeal against conviction involves complaints about:
·the trial judge’s direction to the jury on lies allegedly told by the appellant out of court;
·the trial judge’s decision not to exclude evidence of uncharged criminal behaviour, and alternatively, his direction to the jury on that evidence;
·the trial judge’s direction to the jury in relation to V’s delay in making a complaint;
·the trial judge’s direction to the jury in relation to inconsistencies between the evidence of V and prior statements she made; and
·the trial judge’s decision not to exclude evidence about the appellant purchasing alcoholic drinks for V and her friend after the alleged offences.
Background Facts
V gave evidence that the offences took place in January 2003, when she was 14 years of age. She had known the appellant for about a year prior to the relevant dates. Both of them lived in the same country town, and she knew him from catching taxis, as he was a taxi driver. V had received a photography award, and her evidence was that when she told the appellant about that award, he suggested that he pay her to take photographs of taxis in Adelaide. V said that the appellant told her that he had been asked to do this by the South Australian Taxi Association in order to photograph taxis doing things incorrectly. V’s evidence was that she spoke to her parents about the trip, and although they were reluctant for her to go, she insisted on going to Adelaide with the appellant for that purpose. It was during this trip that V alleged the offences took place. V drove to Adelaide with the appellant, and they went to a motel. V’s evidence was that on the first night, after they had eaten dinner and consumed a certain amount of alcohol, the appellant manipulated her breasts with his hands, and a little later he asked her into his bedroom and performed an act of cunnilingus upon her. V said that the appellant also “fingered” her. After the sexual activity finished, V’s phone rang and during a conversation with a female friend (whom I will refer to as “S”) she was asked what was wrong because V appeared to be speaking in a confused and angry manner. V gave evidence that she then went into the bedroom where the appellant was and asked him to suggest an explanation she could tell her friend on the phone. According to V, the appellant suggested not to tell her anything. V then explained to S that she was in Adelaide for the purpose of taking photographs on behalf of the appellant and that she did not know if she was allowed to tell anyone the reason why. She then made arrangements to meet S the next night. V did not tell S that anything of a sexual nature had occurred between she and the appellant.
On the second day, V took photographs of taxis and drove around with the appellant. V met S at the cinema but they did not go to a movie. Later, the appellant picked both of them up, and they went back to the motel and had dinner, and the appellant also purchased alcohol for them. Later that evening, S’s mother picked her up, and when V was alone with the appellant, she reluctantly gave him a massage after being asked to do so.
On the third day, V went to the South Australian Taxi Association with the appellant. After they left there, the appellant paid V the sum of $150, and he eventually drove her back to the country town where they lived.
V gave evidence about coming to Adelaide with the appellant on a second occasion. There was another girl in the car with them whilst they were driving down from the country, but she got out at Murray Bridge. During that trip V took more photographs. They stayed in Adelaide for one night, and V gave evidence that, whilst in the motel room, the appellant asked her to take off her clothes and walk around naked to make her feel comfortable with her body. V said that she took all of her clothes off except for her knickers, and walked around according to the appellant’s instructions for something like 15 minutes. V gave evidence that the next day she met her mother and they drove back to the country. V thought that the second trip was about three weeks to a month after the first.
V gave evidence that at the start of the school year in 2003 she became a boarder at a school in Adelaide. During the time that she attended the school, she saw the appellant around the town where they lived when she went home on some weekends and school holidays. V gave evidence that she would ring for a taxi, and even though she did not ask for him, the appellant would invariably be the taxi driver. V said that on occasions, whilst she was travelling in the front seat of the taxi and the appellant was driving, he would touch her on the top of her vagina with his left hand. V gave evidence that the appellant did this about 15 times, and that she had then started to sit in the back when he came to pick her up.
V gave further evidence that while she was attending boarding school in Adelaide she was sometimes permitted to leave the school grounds under certain conditions. V gave evidence that the appellant would phone her and say he was coming down to Adelaide, and would ask to take her out to buy her dinner. V gave evidence that she would agree to do that because she was homesick and it was an excuse to get out of school. V went out with the appellant pursuant to this arrangement on a number of occasions. V’s evidence was that on one particular occasion the appellant took her to a motel and asked her to take her clothes off. The reason the appellant gave was that V was smoking and the people at the school would be able to smell the cigarette smoke on her clothes. V said she took all of her clothes off except her knickers and remained like that for about 10 minutes.
V also said in evidence that there was an occasion when the appellant phoned her and said that his wife had heard rumours that she was having sex with him. He told her during that conversation that he would put his wife on the phone and instructed her to deny the rumours to his wife. V gave evidence that she then spoke to the appellant’s wife and denied the rumours.
V gave evidence that the first time she told anybody about the appellant’s behaviour was when she told her friend, S, on about 9 August 2003.
V’s father gave evidence of the arrangement for V to be taken to Adelaide for the purpose of photographing taxis. He had known the appellant for about 10 years. He gave evidence that both he and his wife were unhappy about the trip but V was determined. He gave evidence of a phone conversation he had with the appellant some time after V came back from boarding school. That telephone conversation is the subject of ground 1 of the appeal. I will refer to it in more detail when discussing that ground. In short, V’s father described it as a confusing conversation on a number of topics, including a remark by the appellant that he (the appellant) had never been with any kids in a vehicle. The appellant also talked about drugs. V’s father was so alarmed that he drove to the premises of a friend of his who is a detective (whom I will refer to as “Detective W”).
Detective W gave evidence that he went outside to V’s father’s car and heard part of that conversation between the appellant and V’s father on the loudspeaker of the car phone. Detective W took notes of that conversation shortly afterwards, and noted that the date was 21 August 2003 and the time of the conversation was 1.15 pm. Detective W gave evidence that he heard the appellant say to V’s father:
·that both V and her father needed to be careful;
·that as a result of the appellant giving information to the police about drugs the kids were out to get him; and
·that he had never been alone with any kids.
As I have indicated, the direction to the jury about that conversation is the subject of ground 1 of the Notice of Appeal.
The investigating police officer, Sergeant Nicholas Smith, gave evidence that he first contacted the appellant in relation to this matter on 21 August 2003 at about 11.15 am. Sergeant Smith telephoned the appellant and made an appointment for him to attend the police station for an interview. Sergeant Smith gave evidence that he did not tell the appellant what the interview was about. As a result of that conversation, the appellant attended the police station later that evening and a formal record of interview was conducted, commencing at 7.31 pm and ending at 11.05 pm. The train of events was such that the conversation between the appellant and V’s father, which was overheard by Detective W, took place shortly after the police had contacted the appellant in relation to an interview but before that interview had taken place.
Both in his interview and when giving evidence on oath, the appellant denied any allegations of sexual impropriety of any kind with V. However, he did admit going to Adelaide with V on two occasions. He said that on the first occasion, they stayed at some apartments on South Terrace, and on the second occasion, they stayed at some apartments at North Adelaide. The appellant also admitted that he had taken V from the boarding school to an apartment in Adelaide, but said that this was for an innocent purpose, namely to give her a bed-roll which he had at the apartment. The appellant said that no impropriety took place with V on any occasion, either in Adelaide or in the country town where they lived.
The appellant gave evidence that he spoke to V’s father about V being involved with drugs. He also gave evidence that prior to the day that he was spoken to by the police, namely 23 August 2003, he dropped V at home and she seemed to be upset that he had told her father about her using drugs and the person from whom she was obtaining them. The appellant also gave evidence that he phoned V’s father for two reasons, firstly, about a mobile phone and secondly, about V trying to create trouble for him because he was concerned about her drug problem. The appellant also gave evidence that in 2003, before the police had spoken to him, his wife had called him and said that she had heard rumours suggesting that V had been with him and that he and V were having sexual relations. The appellant said that he denied that to his wife, and when he got home he telephoned V at her school whilst his wife was in the same room. The appellant said that he told V that the rumours his wife had heard had to be sorted out and asked if his wife could speak to V. The appellant said that his wife spoke to V, but he left the room and did not hear what was said. He denied that he told V what to say to his wife.
The appellant’s wife was called to give evidence, and she said that she had been told by one of the taxi drivers that V had “been” with the appellant. She said she telephoned the appellant and told him what she had heard. She said that the appellant was shocked and denied the allegations. The appellant’s wife gave further evidence that she then phoned V and told her that the rumour needed to be “sorted out” before it spread. She gave evidence that V said she was angry about people spreading rumours and that she would sort it out. The appellant’s wife gave further evidence that, when this conversation with V took place, the appellant was not in the room.

I deal with the grounds of appeal on conviction. I will deal with ground 1 last.
Grounds of Appeal on Conviction
Ground 2
The learned Trial Judge erred by not excluding evidence of uncharged criminal conduct which was alleged to have occurred subsequent to the charged offences, and erred in his directions to the jury as to the purposes for which that evidence could be used.
The evidence complained about was:
·the evidence of V massaging the appellant on the evening after the charged acts took place;
·the acts alleged to have taken place on the second trip to Adelaide when the appellant asked V to walk around naked in the hotel (which she did, except for her knickers);
·the evidence of indecent touching whilst in the taxi in the country town where they lived; and
·the evidence of asking her to walk around naked (which she did) in the motel whilst she was on day leave from the boarding school.
It is to be noted that all of these allegations of uncharged acts took place subsequent to the behaviour which was the subject of the two convictions.
The trial judge directed the jury on the topic of uncharged acts:
In this trial [V] has told you about two acts which constitute the two counts on the information against the accused. They were, respectively, her evidence that the accused drew circles on the nipples of her naked breasts underneath her top, the first charged act, and her evidence that the accused performed an act of cunnilingus on her by stimulating her clitoris with his tongue, the second charged act.
[V] also told you about an occasion on the second night of the first trip to Adelaide with the accused when she sat on the accused’s back when she thought he was lying on the double bed only in his boxer shorts and gave him a massage. [V] also told you about two other occasions when the accused had her remove all her clothing except her knickers in an apartment in Adelaide and had her walk around in his presence in that state of undress. On one of those occasions he hugged her when she was in that state of undress. [V] also told you of a number of occasions when she was in the accused’s taxi in [the country town where they lived] when, with his left hand, he would touch her on the top of her vagina while she was clothed. All of this conduct is, potentially at least, an offence, but the accused has not been charged with any of this conduct. I shall refer to all of this conduct as the uncharged conduct.
When you are considering whether or not you are satisfied beyond reasonable doubt that the accused is guilty of the first count you may use the evidence of the act constituting the second count and of the uncharged conduct in a special and limited way.
Usually in a criminal trial evidence of other alleged crimes do not come before a jury such as you. In this case, however, you have heard evidence of two charged crimes and evidence of uncharged conduct because it is potentially helpful to you in evaluating the evidence of [V]. Hearing the whole of the allegations she made may better enable you to assess her evidence. The whole of the alleged course of events provides a context around which it is said that a charged incident occurred. There is a sense in which the more evidence you have of the interaction between [V] and the accused the better opportunity you have to evaluate [V]’s evidence and to determine to what extent, if any, you are prepared to rely on it. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between [V] and the accused.
When you are considering the first count you may consider the evidence as to the second count and the uncharged conduct in determining what, if any, weight you are prepared to place on the evidence of [V]. Evidence of the other charged act and of the uncharged acts or conduct is available to you as material which may assist you in concluding whether you think that [V]’s evidence is reliable as to the first count, being the count you are then considering. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence and, therefore, may raise doubt about the charge you are considering.
The relevance of the other charged act and the uncharged conduct is before you when considering the first count on the following basis and only on the following basis:
First, that evidence, if you are satisfied that any of it occurred, provides a context and setting for the alleged charged act in the first count. That is notwithstanding the fact that the evidence of the second count and the uncharged conduct relates to events subsequent to the first count. That evidence, if you are satisfied that any of it occurred, may suggest to you that the accused had a sexual attraction to [V]. That evidence may also be relevant, if you accept that any of it occurred, as it may explain why [V] did not complain about the accused’s conduct after the time at which the charged acts took place and the uncharged conduct occurred.
You may only use the evidence of the other charged act and the uncharged conduct which is alleged to have occurred between the accused and [V] in the way I have just mentioned. You must not use it in any other way when you are considering the evidence of the act alleged to constitute the first count against the accused.
Furthermore, when you consider the second count, being the charge of unlawful sexual intercourse, you must consider the evidence regarding the first charged act and all the uncharged conduct in the same way and for the same purposes that I have identified, and only in those ways and only for those purposes.
In addition, I direct you that you must not use the evidence regarding the other charged act and the uncharged conduct, if you are satisfied of the truth of any, some or all of that evidence, to reason that just by virtue of that the accused is the kind of person who is likely to have committed the particular offence you are then considering and, therefore, did commit that offence. It would be wrong to reason in that way.
It is usually charged acts that must be proved beyond reasonable doubt, not the surrounding facts or circumstances. However, before you can use the evidence of the other charged act or the evidence of uncharged conduct in the way to which I have just referred, you must be satisfied that that act and conduct occurred. I direct you that you should not act upon the evidence of the uncharged conduct unless you are satisfied of the truth of that evidence beyond reasonable doubt. I direct you in that way because the evidence of the charged and uncharged acts relate to a period of time that is now some years ago and are alleged to have commenced and been committed when [V] was a young teenager.
Mr Henchliffe, counsel for the appellant, argues that as the uncharged acts occurred after the commission of the charged offences, the evidence relating to the uncharged acts did not assist the jury in terms of increasing or decreasing the probability that the charged acts had occurred. He argues that although evidence of behaviour in uncharged acts which occur subsequent to the offence can be probative, the value of such evidence would be decreased by the fact that they occurred subsequent to the charged offences.
In my view the evidence of the uncharged acts was relevant and, therefore, admissible for a number of reasons. Most importantly, what had occurred between the appellant and V after the date of the charged offences could be an explanation as to why V did not complain about his behaviour earlier. It was also evidence of his continuing sexual interest in V. To deprive the jury of evidence of what had happened between the two of them from the time of the charged offences until the time that the police spoke to the appellant would be incomplete and would not allow the jury to see the evidence in its proper context. The trial judge carefully directed the jury as to the use which could be made of the uncharged acts and, furthermore, directed them that proof beyond reasonable doubt was required before the uncharged acts could be used. The complaint about the adequacy of the directions about uncharged acts is not made out. I would dismiss that ground of appeal.
Ground 3
The learned Trial Judge failed to properly and adequately direct the jury about the significance of the Complainant’s delay in making a complaint about the alleged offences.
The evidence was undisputed that it was a period of about seven months from the time of the offences until V first told somebody about them. The trial judge directed the jury about that delay in the following terms:
For the same reasons I direct you to scrutinise the evidence of [V] with special care. That is because she was a young teenager at the time that she said these events occurred. She did not complain to anyone for some time after the alleged charged acts occurred and the case against the accused rests largely on the evidence of [V] which is otherwise uncorroborated by direct evidence.
In regard to the delay before complaining, I say to you that the fact that there was a delay of several months before [V] made a complaint about the accused’s conduct in January 2003 does not necessarily mean that her allegations are false. Victims of sexual offences could have their own valid reasons for failing to make an immediate complaint or for delaying in making a complaint. [V] gave evidence as to why she did not tell anyone about what she said was the accused’s sexual conduct towards her until later. I have referred to that evidence when I have dealt with [V]’s evidence.
The fact of the matter is that there was some delay in [V] making a complaint. You may consider that as being relevant to her observations, her understandings and her reactions to events as at the time she was giving her evidence. You may also consider that as being relevant to the reliability of her recollections now of the events she described.
Mr Henchliffe argues that the trial judge erred in directing the jury that matters of delay in complaining are relevant to the reliability of V’s present recollections of the events that she describes. Mr Henchliffe argues that the trial judge should also have added that the question of delay goes to V’s credibility as well as to her reliability.
In certain circumstances such an oversight may be important, but it was not in this case. The issue at trial was whether it had been proved beyond reasonable doubt that V was telling the truth about whether the charged acts had happened. There was no suggestion that she may have been confused and unreliable as distinct from not telling the truth. It would have been obvious to the jury that the trial judge’s directions on delay would have included matters going to credibility as well as reliability. I would dismiss that ground of appeal.
Ground 4
The learned Trial Judge failed to direct the jury adequately on the significance of inconsistencies between the evidence of the Complainant and prior statements she had made.
Whilst V was being cross-examined, certain inconsistencies were established between V’s evidence and what she had said on previous occasions. They were as follows:
·V said in her first statement to police that it was three nights that she and the accused had stayed in Adelaide;
·V said in her first statement to the police that another girl had been in the car the first time she came to Adelaide with the accused;
·V said she first told the police that the appellant had touched her sexually on the second night of their first trip to Adelaide, not on the first night.
The trial judge reminded the jury of all of those inconsistencies when charging them. Mr Henchliffe complains that he should have gone further and directed the jury as to the potential significance of these inconsistencies and how the jury should evaluate and use them. In my view it was unnecessary for the trial judge to do so. The jury were properly reminded of those inconsistencies, and it was clear that the credibility of V was one of the major issues at the trial. To have told the jury that the significance of those inconsistencies went to the question of V’s credibility would, in the circumstances of this case, have been superfluous. I would dismiss that ground of appeal.
Ground 5
The Learned Trial Judge erred by not excluding the evidence of Mr [G’s] purchase of alcoholic drinks for the Complainant and [S] on the evening after the alleged offences and the evidence of their consumption of those drinks.
No objection was raised at trial to evidence of the appellant supplying alcohol to V and S on the evening after the charged counts were alleged to have occurred. In my view this ground has no merit. The prejudicial effect of supplying and allowing teenagers to drink alcohol is clearly outweighed by the probative use that could be made, namely the familiar relationship which the appellant had with V whilst at the motel. It was also an important part of the narrative of events. I would dismiss that ground of appeal.
Ground 1
The learned Trial Judge erred in his directions to the jury about how they could use the evidence relating to a telephone conversation between Mr [G] and [V’s father] on 21 August 2003.
This ground has caused me great concern. It is important that the evidence which was led at trial is set out very clearly. V’s father gave the following evidence in chief on that topic:
Q.Sometime after [V] was back from boarding school did you have a conversation with Mr [G].
A.I did, yes.
Q.Was that on the telephone.
A.That's correct.
Q.Who called who.
A.Mr [G] called me.
Q.Where were you.
A.In [the country town where we live].
HIS HONOUR
Q.At home.
A.No, in [the] township, I live out of town.
XN
Q.Were you on your mobile phone.
A.I was.
Q.What did Mr [G] say to you during that call.
A.It was a confusing conversation. I can remember some specifics of it that he was dealing with the police, something to do with a drug bust, he had a diary which he had to give to the police, that [V] and I had to be careful, and some of these things I couldn't understand where they were directed at.
Q.Did he say anything about a reason that you needed to be careful.
A.No.
Q.Did he say anything else during that conversation.
A.That he had the diary that had to be given to the police for some reason and, yes, that [V] and I had to be careful. He said that he had never been with any children in a vehicle, which, once again, it was another odd part of the conversation. It was a conversation that was just difficult to understand.
Q.How long did the conversation last for.
A.Perhaps three to four minutes.
Q.During that conversation what did you do.
A.I was actually heading towards home when I got the call and I called in to Detective [W’s] home, who was on the way home. I actually got his attention, he was inside at the window, I got his attention, and he actually come out and listened to part of the conversation.
Q.How long in total did the conversation go for.
A.Three to four minutes.
Q.How much of that was Detective [W] present for.
A.I'd say a minute, perhaps a little bit longer, but a minute.
Q.Did you say anything to Mr [G] during that conversation.
A.No, not that I can recollect.
Q.Did you say anything about [V] during that conversation.
A.No.
HIS HONOUR
Q.Was the police officer there at the end, the latter part of the conversation.
A.That's correct.
Detective W gave the following evidence in chief:
Q.Sometime in August did you see [V’s father] at your home address.
A.Yes.
Q.Did you make some observations of a telephone call that he was having at that time.
A.He drove his motor vehicle into my driveway, my home address driveway.
Q.As a result of those observations did you take some notes.
A.Yes.
Q.When did you take the notes.
A.Shortly after I listened to the conversation.
Q.When you say ‘shortly’, how much afterwards.
A.A matter of minutes.
Q.Do you recall the details of your observations without reference to those notes.
A.No.
Q.Do you seek leave of the court to refer to those notes.
A.I do.
PERMISSION TO REFER TO NOTES, MISS DAVEY NOT OBJECTING
Q.By reference to your notes, what date was it that this occurred.
A.21 August 2003.
Q.At what time.
A.At 1.15 p.m.
Q.Can you describe the circumstances when you first saw [V’s father].
A.[V’s father] drove into my home driveway, which is [M] Road.
Q.Did you recognise the vehicle that he was driving.
A.I recognised him as the driver.
Q.What did you do when you saw him pull in.
A.Went out to see him.
Q.What did you observe when you went out.
A.He was having a conversation on his mobile phone with Mr [G].
Q.How could you hear that.
A.Because he had a hands-free car kit.
Q.You say it was with Mr [G].
A.Yes.
Q.Did you recognise the voice.
A.Yes.
Q.What did you hear Mr [G] say.
A.I overheard a conversation and Mr [G] mentioned some drug information that he had given to an undercover police resulting in a big drug bust in Adelaide, said that he kept a diary and had spoken to a solicitor and given a copy of the diary to a solicitor. He stated as a result of giving information to the police about drugs the kids were out to get him, and stated that [V’s father] and [V] needed to be careful, and that he had never been alone with any kids. I instructed [V’s father] to end this conversation.
Q.How long did you listen to the conversation for.
A.Only a matter of minutes.
Q.How did Mr [G] sound during the conversation.
A.It was hard to follow Mr [G’s] conversation, he was talking quite quickly.
Q.Was there anything else you noticed about the tone of his voice.
A.No.
Q.Have you had contact with Mr [G] in other circumstances.
A.Yes.
In cross-examination, it was put to Detective W that the appellant had not said anything about being alone with children in that conversation.
In evidence, the appellant denied saying anything in that telephone conversation about being alone with children, but agreed that he had the conversation with V’s father on the date referred to by Detective W. However, he said that the conversation was about V causing trouble, because she had told him who was supplying her cannabis. The appellant had told that to V’s father. The appellant also gave evidence that another reason he phoned V’s father was to talk about the problems he was having with his mobile phone. He said he had phoned her father at that time because he had received a phone call from a person who told him that V was out to get him.
In his summing up to the jury, the trial judge gave a direction about alleged lies that arose from the appellant’s evidence and from his video interview conducted by the police on 21 August 2003. In relation to those alleged lies, the trial judge properly directed the jury that if those lies were established they went to the appellant’s credibility and reliability, but they could not be used as a consciousness of guilt. There was no objection in relation to that direction, nor has there been any ground of appeal in relation to it. However, the trial judge then went on and gave the following direction:
The next, and related, aspect of the accused’s evidence in respect of which I give you a specific direction concerns the phone call the accused made to [V’s father] on 21 August 2003. This conversation is in a different and special category to what I have just said about lies. I have summarised the evidence already from the witnesses who gave evidence as to what was said in that telephone call. Evidence was given by [V’s father], Sergeant [W] and the accused, both in evidence before you and in the video interview with police. There was also evidence from those witnesses of the demeanour of Mr [G] during that call.
The prosecution says that you should be satisfied that what was said in that telephone call, and the demeanour of the accused when it was said, was as described by [V’s father] and Sergeant [W]. The prosecution says that if you are satisfied of that, what the accused said to [V’s father] included a lie, being that he had never been alone with kids, because even on his own evidence as to what happened in Adelaide with [V] in January 2003 and later at the apartment to get the bed-roll, a statement that he had never been alone with kids was untrue and the accused knew it was untrue.
I direct you that you are entitled to consider this conversation and to consider whether you are able to conclude what the truth is as to what was said in it. However, if you conclude that the conversation was as contended for by the prosecution, you must not draw any inference adverse to Mr [G] from that conclusion unless you are satisfied of any such inference beyond reasonable doubt.
The inference adverse to the accused contended for by the prosecution is that the accused knew what the police wanted to speak to him about and he made that call because he knew what he had done to [V].
Furthermore, you must not draw any such adverse inference and use that as part of your reasoning process in determining your verdicts if there is some other explanation for what you would have concluded Mr [G] said to [V’s father] consistent with innocence which has not been excluded beyond reasonable doubt.
I shall put that in another way because that is a long sentence with a number of negatives. If you conclude that Mr [G] said what [V’s father] and Sergeant [W] said he did in the phone call, including that Mr [G] had never been alone with kids, and you are satisfied that that statement was a lie, before you can draw the inference adverse to the accused to which I have referred you must be satisfied of that inference beyond reasonable doubt and you must exclude all other explanations for Mr [G] saying what he said, what he is said to have said, and you must exclude all other explanations beyond reasonable doubt.
Mr Henchliffe argues that the jury should not have been directed that the lie referred to above was capable of providing evidence of a consciousness of guilt. He argues that the evidence was imprecise and could not be specifically related to the offences. He further argues that alternatively, even if it was appropriate to direct the jury that that lie could be evidence of a consciousness of guilt, the trial judge did not clearly set out for the jury the differing versions about what was said according to the evidence of V’s father as against the evidence of Detective W. Mr Henchliffe argues that the difference is significant because if, as V’s father says, the lie was that the appellant said he had never been in a car with children, as distinct from Detective W’s evidence that the appellant said he had never been with children, then the lie according to V’s father’s version could only relate to the uncharged acts in the taxi in the country town where they lived. If the jury accepted Detective W’s version, then it is a more general lie, which goes to a consciousness of guilt of both the uncharged and charged behaviour.

A further complication is that when addressing the jury, the prosecution suggested that they could use the telephone conversation between the appellant and V’s father not as evidence of a lie showing consciousness of guilt but, in fact, as a pattern of behaviour from which the jury could infer that the appellant was concerned that V had made allegations against him, and he was trying to get in early to put an alternative point of view. It is to be remembered that:
·there was clear evidence that the police wanted to speak to the appellant and that they contacted him at 11.15 am on 21 August 2003;
·the police did not tell him why and made no reference about V or her family. The appellant admitted that in evidence;
·the appellant phoned V’s father at 1.15 pm on that day; and
·the appellant was formally interviewed that evening.
In my view the prosecution at trial was correct in its argument as to how that conversation should be used, and this was consistent with the decision of this Court in R v Loader.[1] Nevertheless, the trial judge still left the matter to the jury on the basis that the lie about not being alone with children could be used as evidence of consciousness of guilt. In my view the trial judge’s decision to direct the jury in the way that he did was incorrect. The authorities make it very clear that leading lies as a consciousness of guilt or an implied admission as distinct from going to matters of credibility can only occur in clear and limited circumstances. The evidence here is far from clear. Both witnesses were of the view that the appellant was confused and unclear in the alleged conversation, and the reference to being alone with children was a very small part of a more general conversation. There is also the fact that the timing of the conversation was such that it was after the appellant had been informed by the police that they wanted to question him. It was the evidence of the investigating police officer that he was at pains not to tell the appellant why they wanted to see him. However, as has already been set out, there was evidence at trial from V, the appellant and the appellant’s wife concerning rumours in the community about his behaviour with V. Although there were differences in the evidence of the three of them about the conversation which resulted from the appellant’s wife hearing these rumours, nevertheless, there is a clear inference from the evidence that the jury could have accepted that such rumours existed. A combination of that and the fact that the police phoned him for an appointment made it dangerous to leave the lie as an implied admission of guilt. I refer to the comments of King CJ in Harris v The Queen:
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking "a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all": see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin. In that case Lord Devlin warns against the "natural tendency for a jury to think that if an accused is lying, it must be because he is guilty". The circumstances in which the accused's lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of R v Lucas [1981] QB 720 and R v Evans (1985) 38 SASR 344. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt (emphasis added).[2]
Although the present case is not as extreme as the situation in Harris v The Queen,[3] nevertheless in my view, the circumstances were such that the jury should not have been directed that it could be used as evidence of a consciousness of guilt.
[1] [2004] SASC 234; (2004) 89 SASR 204.
[2] Harris v The Queen (1990) 55 SASR 321, 323.
[3] Ibid 321.
It would have been appropriate for the trial judge to leave the lie to V’s father as material going to the credibility of the appellant. It would also have been appropriate to charge the jury in the way that the prosecutor addressed them, namely that the very conversation with V’s father was a piece of circumstantial evidence suggesting that the appellant was involved in a pre‑emptive strike to put forward his slant on the allegations, and indeed, showed a certain amount of esoteric knowledge (although it could have been argued that this may have been negated by reference to the wife’s evidence about rumours). In my view it was incorrect in those circumstances to leave the lie arising from that conversation as evidence going to consciousness of guilt.
Conclusion
I would allow ground 1. I would dismiss grounds 2, 3, 4 and 5. I would allow the appeal, and I would remit the matter for retrial.