R v Green

R v GREEN
[2001] SASC 25

Court of Criminal Appeal: Doyle CJ, Olsson and Bleby JJ

1................ DOYLE CJ....... This is an appeal against a conviction recorded by a Judge of the District Court after trial by Judge alone. A criminal trial may proceed without a jury pursuant to s 7 of the Juries Act 1927 (SA).

Olsson J has summarised the facts and identified the issues. I will not retrace that ground.
Mr Peek QC, counsel for the appellant, submits that the trial Judge’s reasons indicate that, on several issues arising at the trial, he directed himself inadequately, and that he reached conclusions by an unreliable process of reasoning. He submits that the verdict is “unreasonable or cannot be supported having regard to the evidence”, and that there has been a “miscarriage of justice”: see s 353(1) of the Criminal Law Consolidation Act 1935 (SA). His main submission is that the Judge’s reasons show that the Judge failed to consider adequately the substance of the defence case. He also advances a number of other specific criticisms of the Judge’s reasons, and these also are relied upon to buttress the complaints about the verdict.
I am of the opinion that the submissions for the appellant should be rejected, and that the appeal should be dismissed.

Duty to give reasons

By and large Mr Peek based his submissions on the manner in which the trial Judge dealt with issues that arose at trial. The effect of his submission was that the Judge’s reasoning was in particular respects unreliable, or that the Judge’s reasons demonstrated that the Judge had not considered the relevant issues satisfactorily.
No submissions were advanced by Mr Peek or by Mr Rofe QC, the Director of Public Prosecutions, as to the extent of the reasons required by a Judge sitting without a jury.
In relation to that matter I adhere to what I said in R v Keyte [2000] SASC 382 about the duty to give reasons. It is not necessary to take the matter any further in this case. The Judge has adequately disclosed his process of reasoning, and has dealt with the issues that arose at trial. The question is whether the reasons given by the Judge are flawed. The complaint that the Judge erred because he did not warn himself that he should exercise great care before convicting Mr Green, because of the delay between the incident in question and the trial, perhaps stands a little differently, but as will appear I am satisfied in any event that that complaint is not made out.

Treatment of the defence case

The trial Judge was satisfied beyond reasonable doubt that Ms Lockey did not consent to Mr Green having intercourse with her. That finding was not directly attacked on appeal, although some of the grounds argued are capable of affecting that finding as well as the finding mainly under attack. In my opinion there is no flaw demonstrated in this aspect of the Judge’s reasons.
The defence case did not rest solely on the possibility of Ms Lockey having consented to Mr Green having intercourse with her. It was put to the trial Judge that whatever might have been Ms Lockey’s state of mind (unconscious or semi-conscious, consenting or not consenting), Mr Green observed bodily movements by Ms Lockey, heard moaning sounds made by her and noticed bodily responses (in particular a moistening of Ms Lockey’s vagina), and that in the light of these observations the Judge could not be or should not have been satisfied beyond reasonable doubt that Mr Green did not believe that Ms Lockey was consenting to him having intercourse with her. In short, the relevant aspect of the defence case was that in light of Ms Lockey’s behaviour or responses while Mr Green was in her room, the Director could not prove beyond reasonable doubt that Mr Green knew she was not consenting, or that he was recklessly indifferent to the possibility that she was not consenting. For convenience, in these reasons, I will refer on occasions to Ms Lockey’s bodily movements, utterances and responses as her behaviour, and to Mr Green’s defence, based on that behaviour, as a defence of mistake. In so referring to the defence case I ignore questions of onus of proof also as a matter of convenience.
Mr Peek submitted that the trial Judge failed to appreciate that the mistake, based on Ms Lockey’s behaviour, was a quite separate aspect of the defence case. He submitted that in any event the Judge’s treatment of the issue was inadequate, and that the reasons of the Judge indicate that there is a substantial possibility that the trial Judge was mistaken about the issue of mistake or about its resolution. Mr Peek also submitted that in any event, in light of the evidence about Ms Lockey’s behaviour, it was not open to His Honour to be satisfied beyond reasonable doubt that Mr Green knew that Ms Lockey was not consenting.
The criticism of the disclosed process of reasoning, and the complaint that the Judge failed to appreciate the nature of the defence case, directs attention to the possibility of a miscarriage of justice. The further submission just referred to, directs attention to the possibility of the verdict being unreasonable or being unable to be supported having regard to the evidence: see Gipp v The Queen (1998) 194 CLR 106 at 146 - 147 Kirby J and Fleming v The Queen (1998) 197 CLR 250, [1998] HCA 68 at [11] - [14], Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. The complaint that the Judge did not warn himself about the effect of delay also raises a possible miscarriage of justice.
The submission that the verdict is unreasonable (or unsafe and unsatisfactory) also called in aid all of the criticisms of the approach of the trial Judge, including some points that I will consider separately. The attack based on the Judge’s reasons is available only because this was a trial by Judge alone, and there are written reasons for the verdict. The second approach would be available even if the trial had been before a jury.
I make these points, and draw this distinction, mainly because of the need to bear in mind that when the complaint goes to the form of the Judge’s reasons, the complaint must always be assessed with reference to the obligation of a trial Judge to give reasons.
Having read the Judge’s reasons carefully, I am satisfied that the trial Judge correctly understood and identified the defence of mistake. I am also satisfied that the Judge dealt with it adequately. It was not necessary for the Judge to deal in terms with every aspect of the defence of mistake. His reasons will be adequate if they show that he appreciated the substance of the defence, disclose how he dealt with the substance of it, and show that he complied with any requirements of the law.
In the relevant part of his reasons the Judge dealt with particular aspects of the behaviour of Ms Lockey on which Mr Green relied, and in relation to most aspects dealt concurrently with the question of whether it was proved beyond doubt that she had not consented, and whether it was proved beyond reasonable doubt that Mr Green was not mistaken. It is necessary to take the Judge’s reasons as a whole, and to distinguish between aspects of his reasoning dealing with the issue of consent, and aspects dealing with the issue of mistake.
I am satisfied that the Judge’s reasoning was as follows. He accepted the possibility that Ms Lockey might have behaved as described by Mr Green with one important exception. The exception is that while he accepted the possibility that her left hand made contact with Mr Green’s penis, he rejected Mr Green’s evidence that Ms Lockey grabbed hold of the penis as described by Mr Green. Subject to that, the Judge accepted as a reasonable possibility that Ms Lockey behaved as described by Mr Green. But, and this was crucial, the Judge found that Mr Green had a clear view of Ms Lockey’s face during the incident, which lasted some time, and that from the appearance of her face he knew that she was “either asleep or at best, semi-conscious” [41]. In other words, the trial Judge found that despite the behaviour of which Mr Green gave evidence, Mr Green knew that she was asleep or semi-conscious, and knew this because, apart from an occasional flickering of the eyes, her facial appearance and expression indicated that she was “basically unconscious rather than conscious” [38].
This line of reasoning was open on the evidence, and was supported by the evidence. It is not affected by the Judge’s finding that Ms Lockey was a credible witness, and does not involve any confusion between the issue of Ms Lockey’s consent, and Mr Green’s belief that she was consenting. To my mind the Judge makes it clear that he was aware that the issue of mistake was a quite separate issue. In my opinion the trial Judge did consider the substance of Mr Green’s case on this point. He dealt with the various aspects of Ms Lockey’s behaviour relied on by Mr Green. He did not deal in terms with every detail. But I am satisfied that he addressed the substance of this defence.
It is important to recall that this incident lasted for some time. Mr Green said it lasted for about 90 minutes, but the trial Judge obviously thought that it did not last that long. During the course of the incident Mr Green was very close to Ms Lockey, the room was reasonably well lit by an outside source of light, and Mr Green had a clear view of Ms Lockey’s face for most of the time. Hence the importance attributed by the Judge to her facial appearance. The trial Judge was entitled to do that. For much of the time Mr Green’s face could not have been more than a foot or two from Ms Lockey’s face. I am confident that the trial Judge was influenced by what seems to me to have been a telling part of the cross-examination of the accused. Because of its significance, I will set it out in full. It is as follows:
“Q.... Did you ask Tammy if she wanted to have sex.
A.No.
Q...... Did you say anything to her other than her name when you were in the bedroom.
A.No, I don’t think so, I can’t remember - I can’t really quite remember.
Q...... I want you to think about it carefully. Was there anything else that you can recall saying to her.
A.No, I don’t think so. I can’t quite remember. I think I remember calling her name.
Q...... What name did you call her.
A.‘Tammy’.
Q...... How many times.
A.It might have been once or twice.
Q...... When was that.
A.Just after I first went in there.
Q...... Was she lying on her side, facing the wall at that time.
A.Yes.
Q...... What did she do.
A.Nothing.
Q...... No response.
A.No.
Q...... Didn’t say your name.
A.No.
Q...... Didn’t move.
A.No.
Q...... Didn’t do anything.
A.No.
Q...... Did you enjoy the sex.
A.No.
Q...... Not at all.
A.No.
Q...... Did you say anything to her after it was over.
A.No.
Q...... Did you say ‘Thank you.’.
A.No.
Q...... Did you say ‘Have to do that again’.
A.No.
Q...... Nothing like that.
A.No.
Q...... Not one word.
A.No.
Q...... Just got up and walked out of the room.
A.Yes.
Q...... Was that because she wasn’t awake, there is no point talking to somebody who is not awake, is there.
A.No, but I say she was awake.
Q...... She never said one word to you during all of this episode, did she.
A.No.
Q...... You never saw her eyes open.
A.No, I wasn’t looking at her face all the time, so, no.
Q...... But during the hour and a half that you were in the room with her, you say you never saw her eyes open.
A.No, but I wasn’t looking at her face all the time.
Q...... You were sitting on the bed.
A.Yes.
Q...... Weren’t you.
A.Yes.
Q...... You were facing her.
A.Yes.
Q...... She was lying on her back, at that time.
A.After - yes.
Q...... It sounds to me as though you had one arm over the top of her.
A.Yes.
Q...... Towards the northern side of her bed.
A.Yes.
Q...... You were using your right hand to touch her on the breasts.
A.Yes.
Q...... There was light coming into the window.
A.Yes.
Q...... How far away was her face from you at that time.
A.Probably about two feet.
Q...... Two feet.
A.Yes.
Q...... Between you, your face and her face lying on the pillow.
A.Yes.
Q...... What did you see on her face.
A.I didn’t really see nothing on her face.
Q...... You could see her face, though, couldn’t you.
A.Yes.
Q...... What was she doing.
A.She was just laying there.
Q...... Lying there like she was asleep.
A.As if she was asleep, yes.
Q...... You saw nothing that would indicate, from the way she was lying, from looking at her face, that she was awake.
A.No.
Q...... Nothing at all.
A.No.
Q...... That didn’t change, did it, throughout this incident, throughout the sex.
A.No, not -
HIS HONOUR: Do you mean the face or his belief?
MS DAVISON: I will rephrase that.
XXN
Q.The look on Tammy’s face didn’t change, did it, throughout the time you were having sex with her.
A...... Not that I can recall.
Q.During the time you were having sex with her, she was lying on her back and you were on top of her.
A...... Yes.
Q.Is that correct.
A...... Yes.
Q.When you were having intercourse.
A...... Yes.
Q.Your face, at that time, would have been fairly close to her face.
A...... Yes.
Q.During the time you were actually having sexual intercourse, you were in a good position to look at her face.
A...... Yes.
Q.There was nothing about her face that indicated she was awake, was there.
A...... Yes, she was flicking her eyes.
Q.Opening her eyes.
A...... I never seen her open her eyes, because I wasn’t looking at her face all the time.
Q.Her eyes flickered, on how many occasions.
A...... I don’t really know, probably about three to four times.
Q.Are you talking about the entire time you were in the room with her, or just whilst you were having sexual intercourse with her.
A...... She flickered a couple of times beforehand, when I was looking at her face and then a few times when I was having sex.
Q.That was the only noticeable change on her face.
A...... Yes.”

I note that in this evidence Mr Green acknowledged that Ms Lockey’s facial appearance was consistent with her being asleep.

The trial Judge referred to this evidence, and set out part of it in his reasons. A little later he identified the elements that had to be proved by the prosecution. He referred to the third element as “proof that the accused knew she was not consenting or was recklessly indifferent as to whether she was consenting”: [23] . The Judge then went on to deal with a number of particular matters relevant to this element, and to other elements.
I accept Mr Peek’s submission that, on the evidence, the Judge had to proceed on the basis that it was a reasonable possibility that Ms Lockey took Temazepam tablets before she went to sleep. The Judge’s inability to make a finding about that is neither here nor there. It was clearly a reasonable possibility. But I am satisfied that taking the Judge’s reasons as a whole, he accepted as a reasonable possibility that Ms Lockey had taken Temazepam, and was affected by it. First of all, he accepted that she was soundly asleep when Mr Green came into her room, “whether it was because of Temazepam or for some other reason”: [32]. Secondly, he accepted evidence that a person affected by Temazepam “might behave as if they were conscious when in fact they were unconscious”: [38]. The terms in which he did so indicate that he was accepting, as a reasonable possibility, that Ms Lockey might have been so affected. It would have been better if he had said so in terms, but I am satisfied that is the effect of his reasons. A particular significance of the taking of Temazepam is that it made it more likely that she might have appeared to be conscious, although not in fact conscious. There is no doubt in my mind that the Judge was prepared to accept that hypothesis as a reasonable possibility. The point the Judge made, referring to the cross-examination to which I have referred, was that despite the behaviour relied upon by Mr Green, the observations of her face demonstrated that she was unconscious. I return to this matter later.
The Judge found that once Ms Lockey woke up, which on her evidence was after Mr Green’s penis had entered her vagina, she “did not give any outward sign, either of encouragement or discouragement, to the accused” [33]. He accepted her explanation for that. Her explanation was that she froze from shock.
The Judge dealt with the issue of distress. Olsson J has summarised the relevant evidence, and the Judge’s comments. I agree that Ms Lockey’s distress, when she visited her friend the following day, is of no assistance on the question of whether her behaviour caused Mr Green to believe that she was consenting. In my opinion there is no indication that the Judge used this evidence in this manner. I repeat that the Judge dealt with the issue of consent and the issue of mistake as he dealt with each aspect of the evidence, and there is no reason to think that in relation to this aspect of the evidence he used it other than in relation to the issue of consent.
The fact that distress on the part of Ms Lockey may be consistent with a belief by Mr Green that she was consenting could not advance the appellant’s case that there was a reasonable doubt that he knew she was not consenting or was recklessly indifferent as to whether she was consenting.
The Judge referred to Mr Green’s evidence that Ms Lockey appeared to lift her body to assist him remove her clothing: at [37]. He accepted that this might have happened. He reasoned that because she was asleep, her body might have been more pliable. The rejection of that reasoning, if it were to be rejected, is relevant to the question of whether Ms Green in fact consented or not. But on the issue of mistake, the relevant fact is that she did appear to assist Mr Green in the removal of her clothing, and the Judge was prepared to accept as a reasonable possibility that she did appear to do so. But, once again, the Judge’s point was that under the circumstances the accused could not “honestly” interpret the movement as indicating awareness of what he was doing and as indicating consent to it happening. He said at [37]:
“I do not believe that he could honestly interpret that sort of movement as indicating she was aware of what he was doing and willing for him to remove some of her clothes.”
The Judge made a similar comment in relation to the moistness of Ms Lockey’s vagina. The Judge’s theory that her body responded to Mr Green’s “ministrations” is just that, the Judge’s theory. But, once again, the significant thing is that the Judge was prepared to accept as a reasonable possibility that the moistness occurred. And, once again, he dealt with this by reference to the cross-examination set out above. He said at [41]:
“However, I do not accept that this condition in a woman who had given no previous indication of sexual interest in the accused, whose presentation was consistent with being either asleep or at best, semiconscious, and from whom the accused had been unable to get any verbal response at all - not even an acknowledgment of her name, gave rise to a belief on his part that she was willing to have sexual intercourse with him.”

In my opinion there is no error in this aspect of the Judge’s reasons.

As I have said, it is necessary to consider the reasons as a whole. In his reasons the Judge accepts as reasonable possibilities all but one matter relied upon by Mr Green, and appears to me to dispose of them substantially by reference to Mr Green’s observations of Ms Lockey’s face, and by reference to his admissions in cross-examination. The Judge said at [42]:
“Having no belief that she was consenting, he took a risk and went ahead irrespective of whether she was consenting or not. The Crown has established the elements of the crime; the third, in the form of reckless indifference. I therefore find the accused guilty of rape as charged.”

Having satisfied myself that the Judge adequately identified and dealt with the substance of the defence, and that there is no risk of a miscarriage of justice on this basis, I turn to the question of whether the verdict is unreasonable in the sense that, making my own assessment of the evidence, I am satisfied upon the whole of the evidence that it was not open to the Judge to be satisfied beyond reasonable doubt that Mr Green was guilty: see Jones v The Queen (1997) 191 CLR 439 at 450 - 451 Gaudron, McHugh and Gummow JJ.
Before doing so, it is convenient to refer to some other points argued. Some of them have an independent relevance.
As I have earlier said, it is a reasonable possibility that Ms Lockey was affected by Temazepam. That would explain why she was so slow to wake up, and could explain her behaving in some respects as if she were conscious. The effects of Temazepam might be such that she behaved in an equivocal fashion, from Mr Green’s point of view. But that has been allowed for. The trial Judge accepted, by and large, that she behaved as described by Mr Green. Mr Peek submitted that the Temazepam might also have affected Ms Lockey’s memory of events, and that the Judge did not refer to this or make sufficient allowance for it. But this seems to me to be unimportant on the issue of mistake. Ms Lockey does not deny Mr Green’s evidence about her behaviour. I am not satisfied that the Judge overlooked the possibility of Temazepam affecting Ms Lockey’s memory, or causing confusion in her mind as to what she was doing. In any event, while these matters might go to the issue of consent, they do not appear to me to be of any particular significance on the issue of mistake. What is significant on that issue is the behaviour observed by Mr Green, and its effect on him.
The trial Judge found that Ms Lockey was generally a reliable witness, and rejected the evidence of Mr Green in some respects, especially his claim that Ms Lockey grabbed his penis. These are matters that depend a good deal on the impression made by the witnesses on the Judge. In my opinion one cannot say that it was not open to him to reach the conclusion that he reached about their credibility.
Taking the evidence as a whole, and bearing in mind the behaviour which the Judge accepted as a reasonable possibility, was it open to the Judge to be satisfied beyond reasonable doubt that Mr Green was guilty? I consider that it was. The circumstances of the offence are surprising, on any view. It is not easy to accept that Mr Green would have entered Ms Lockey’s room, without any earlier encouragement from her, and that finding her asleep, as he seems to admit he did, he would then have proceeded as he did. But on his own case, and on Ms Lockey’s evidence that is what he did. It is likewise difficult to believe that he would attempt intercourse if he knew that she was asleep or semi-conscious. But experience demonstrates that in cases involving sexual offences one must be cautious about discounting events as unlikely to have happened. And, I repeat, the answers given by Mr Green in cross-examination are significant, and are quite capable of supporting the very line of reasoning that the trial Judge adopted. Making my own assessment of the evidence, and allowing for the impression that the trial Judge formed of the credibility of the two key witnesses, I consider that it was open to him to be satisfied beyond reasonable doubt.

Delay

Ms Lockey first went to the police to complain about the incident in April 1999, about two and a half years after the event. The Judge accepted her explanation for the delay. She had not gone to the police because her mother had not wanted her to do so, and, as the Judge inferred because of the impact on her of her grandmother’s death. Mr Green was first interviewed in May 1999. The trial was in September 2000, about four years after the incident.
On the topic of delay, this is what the Judge said in his reasons at [36]:
“The complainant first complained to the police in April 1999, some 2½ years after the event and is (sic) now nearly four years since the night in question. The complainant said in evidence-in-chief that she did not go to the police earlier, partly because of her grandmother’s illness, leading to her death, and partly because of her mother’s wishes. The matter was not pursued further. I have no reason on the evidence to take an adverse view of the complainant’s credibility because of this time lapse. As far as the accused is concerned, there was nothing that caused me to suspect that he was hampered in his defence by the delay. He appeared to have no difficulty recalling the occasion and there is no suggestion that he has lost an opportunity to call other evidence.”
Even though the Judge accepted Ms Lockey’s explanation for the delay, the delay could nevertheless have affected the reliability of her memory of the events. That is something to be considered quite apart from the acceptability of her explanation for the delay. The Judge did not refer to this aspect of delay. In the particular circumstances of this case, I do not regard the failure to deal with this aspect of Ms Lockey’s evidence as a significant flaw in the Judge’s reasoning. It is relevant to recall that Ms Lockey’s evidence was that the first thing she recalls is waking up to find Mr Green on top of her, his penis already in her vagina, and him engaging in intercourse with her. That lasted for some minutes, after which he got off her and left the room. She did not say anything or make any protest by word or by action because, in her own words,
“... I freaked out. I was scared. It is not every day you wake up and find somebody on top of you.”

This is not a case in which there is any significant conflict between the evidence of Ms Lockey and Mr Green. I find it difficult to see how any possible frailty of memory, attributable to delay, could be relevant to Ms Lockey’s evidence or, as a matter of substance, to the defence of mistake.

But that is not the end of the issue of delay. Delay between an incident which results in a charge and a trial can also affect the accused. The delay had the potential to affect Mr Green’s memory adversely, and to affect adversely his ability to test the evidence of Ms Lockey, to collect evidence himself and to marshal the defence case. There may be relevant details that Mr Green has forgotten, and of which he now has no memory. There is no way of knowing for certain, one way or the other, if he has forgotten relevant matters, but allowance must be made for the possibility.
The High Court has emphasised on a number of occasions the need for trial Judges to attend to the impact of delay on the testimony of witnesses, and on the ability of an accused fairly to test the prosecution evidence, and to adduce evidence in reply. In short, the trial Judge must deal with the impact of delay on the defendant’s ability to mount an adequate defence: Longman v The Queen (1989) 168 CLR 79, Jones v The Queen. In some cases, depending on the circumstances, a comment from the trial Judge will suffice, in other cases a firm and emphatic warning that it would be dangerous to convict on the evidence unless the jury, scrutinising the evidence with care, are satisfied of its truth and accuracy, will be necessary: Crampton v The Queen (2000) 75 ALJR 133, [2000] HCA 60 at [39] - [42] Gaudron, Gummow and Callinan JJ; at [124] - [132] Kirby J and at [140] - [142] Hayne J. In this area, nothing is to be decided by formula or by rigid rules. Whether a comment or a warning is called for, and the terms of any comment or warning, will always depend upon the circumstances of the particular case.
Delay will usually call for a comment at least, and significant delay will almost always call for a firm and clear warning. The delay in the present case is not great, but four years is a significant period of time.
Nevertheless, the present case is an unusual one. My view, which I have already indicated, is that in relation to Ms Lockey’s evidence the delay is not likely to have increased the risk of error or unreliability in her evidence. Mr Green’s position requires separate consideration. He was able to give quite detailed evidence, and the evidence relevant to mistake was not contested by Ms Lockey. There was no dispute that the incident in question happened. As the Judge observed, there was nothing to suggest that Mr Green was hampered in his defence by the delay. With one exception, he appeared to have no difficulty recalling the events. The exception to which I refer is that part of his evidence which I have quoted where he expressed an inability to remember what he may have said to Ms Lockey whilst in her bedroom. He conceded that he called her name once or twice, but could not remember whether he said anything more. I regard that as being of no significance. If he had recalled that he did in fact say more, it could not have assisted him. It would only have been more likely to have awoken her. The trial Judge’s finding, open to him as it was on the evidence, was that, whatever may have been said or done to her, Ms Lockey remained asleep until after the intercourse had commenced, and that she appeared to the accused to remain asleep during that time. There was no reason to think that he had lost an opportunity to call other evidence: at [36]. One cannot be categorical about these things, but I consider that this is the sort of case in which a warning about delay on these grounds was not required.
But even that is not the end of it. The warning is given to juries, I consider, to bring home to the jury to possibility of prejudice to the defence, prejudice that cannot be demonstrated by reference to any specific matter. The whole purpose of the warning is to bring home to the jury the danger of convicting, without the exercise of great care, because of the possible impact of delay on the defence. The warning is given as a salutary reminder of something to be taken into account, although the warning cannot be linked to any specific feature of the defence case.
In the present case, the trial Judge gave no such warning to himself. In the case of trial by Judge alone, a warning that should be given to the jury by reference to an aspect of the facts of the particular case, should usually be recorded in the reasons of the trial Judge, to ensure that the matter giving rise to the need for a warning is not overlooked, and also to demonstrate that the Judge has properly directed himself or herself on the facts. The warning should be recorded in the trial Judge’s reasons even though there is no statutory requirement to that effect: cf Fleming at [31]. The requirement to give reasons will usually include a requirement to give reasons that demonstrate that the requirements of law and practice, applicable to the circumstances of the case, have been discharged: cf Fleming at [32] - [33]. If the circumstances of the case call for a warning, then it is necessary for the trial Judge to show that the warning has been heeded.
It does not follow as a matter of course that a failure to give a warning that should be given will result in the appeal being allowed: Fleming at [32]. Whether the failure to give a warning that should be given will mean that an appeal must be allowed will depend upon whether the failure to give the warning gives rise to a substantial risk of miscarriage of justice. However, usually a failure to give a warning that is required would give rise to a real risk of a miscarriage of justice.
I consider that the present case is an exceptional one. For the reasons I have already given, I consider that the delay in the present case is of little significance when one considers the issue under consideration, the evidence before the trial Judge, and the fact that the issue was the impact on Mr Green of his observations of Ms Lockey’s behaviour, observations which he described with a fair degree of detail. The type of warning that would usually be given is that it would be dangerous to convict on the evidence, having regard to the time that had elapsed since the incident, unless the Judge was satisfied of guilt beyond reasonable doubt, after scrutinising the evidence with special care. In the circumstances, there was no requirement to give or record such a warning. If the case had been tried before a jury, and the Judge had seen fit to make a reference to delay, he would have been entitled to add the comment that in view of the evidence before the jury, the jury might well conclude that the possibility of any prejudice from delay could be excluded.
In short, in the exceptional circumstances of the present case I am satisfied that the failure to give a warning does not give rise to a perceptible risk of a miscarriage of justice, and accordingly this is not a reason for allowing the appeal.

Conclusions

For those reasons, I reject the submissions advanced by Mr Peek. I would dismiss the appeal.

OLSSON J

Introduction

This is an appeal, by leave, against the conviction of the appellant of the crime of rape. That verdict was pronounced by the Chief Judge of the District Court, the appellant having elected for trial by Judge alone.
By his notice of appeal, the appellant seeks to impugn certain aspects of the approach of the learned Chief Judge indicated in reasons for verdict published by the latter. He further complains of what is said to be a failure by the learned Chief Judge, adequately, to warn or direct himself in relation to specified topics. It is also argued that the verdict returned is unsafe and unsatisfactory, having regard to the state of the evidence at the conclusion of the trial.

Background

The charge against the appellant asserted that, on a night between 1 September 1996 and 30 November 1996 at Penfield, he had vaginal sexual intercourse with Tammy Maria Lockey, without her consent.
Much of the relevant factual background was never in dispute at trial. It was, for example, conceded that, one night between the dates in question, a single act of sexual intercourse (involving the insertion by the appellant of his penis into the complainant’s vagina) did, in fact, occur. The prosecution contends that she did not consent to it and that the appellant had no reason to believe, and did not genuinely believe, that she was consenting.
The appellant was about 47 years of age as at the date of the alleged offence. He had been married to the complainant’s mother since 1990. The complainant was about 24 years of age. She had four young children of her former marriage.
Following the failure of her marriage and the termination of a subsequent relationship, the complainant and her children came to live with the appellant and his wife at their Penfield home, several months prior to the alleged offence.
In that home there are three bedrooms next to one another, which, in their totality, comprise its eastern side. The four children were given the main bedroom at the front of the house, the complainant occupied the centre bedroom and the appellant and his wife had moved into the rear bedroom. The doors to the second and third bedrooms were adjacent to one another. It is not disputed that, at night, a good deal of light entered the window of the complainant’s bedroom from the nearby RAAF Edinburgh base.
It was common ground that the complainant had a substantial history of drug abuse, involving heroin, amphetamine and marijuana. She was forbidden by her mother to use illegal drugs in the Penfield house, but testified that, whilst staying there, it was her custom (unknown to her mother) to ingest between two and four 10 milligram Temazepam tablets each night. She testified that she used about a bottle of 25 of these tablets each week to assist her to sleep. Although these are a prescription drug, it was her practice to purchase them illegally. She insisted that she had followed her usual practice of ingesting such tablets on the night in question. She said so in examination-in-chief and reiterated her assertion to that effect in cross examination. (See AB 71, AB 101.)
Dr Lim, a psychiatrist, told the learned Chief Judge that Temazepam causes drowsiness and helps a person to go to sleep. It takes about two hours to achieve its full effect and it is then effective for about six to eight hours. Over time, a person regularly using Temazepam develops a tolerance to it. It then becomes necessary to take a higher dosage to achieve the desired effect.
This witness said that, when a person is subject to the effects of Temazepam, it is harder to wake them up, by way of contrast with a sleeper who has not taken such a drug. When woken, their ability to think clearly and to be aware of what is occurring would be impaired. It is possible for a person under the effects of Temazepam to behave as if conscious and yet not be fully conscious.
As I understand his reasons, the learned Chief Judge accepted the appellant’s evidence that he was unaware that the complainant was using Temazepam or, for that matter, any other drug, whilst living at the Penfield house.
The complainant’s grandmother took very ill with cancer some time in October 1996. In the result, the appellant’s wife was absent looking after her quite frequently. This was the situation on the night of the alleged offence.
The complainant testified that, on that night, she took some Temazepam tablets and retired to bed at about 10.30 - 11.00 pm. She had changed into her usual night attire of a loose jumper, underpants and tight fitting leggings.
The complainant told the learned Chief Judge that the next thing that she can recall is waking up to find the appellant on top of her. His penis was in her vagina and he was having intercourse with her. Her underpants and leggings were off. She said that she had no recollection of anybody taking her clothes off her.
She said that, apart from opening her eyes for a couple of seconds, she did not move. She saw the appellant’s head. She assumed that the appellant ejaculated into her, because her vagina was wet afterwards. The appellant then got off, walked out of the room and shut the door. Nothing was said. The appellant claimed that she then got her pants from the bottom of the bed, put them on and cried herself to sleep. She said that she did not, at any stage, consent to the intercourse. She explained that, whilst the intercourse was taking place she did not protest “I freaked out. I was scared. ... ”
The complainant gave evidence that the appellant left for work early the next morning. She got the three older children ready for school and telephoned a friend, Ms Malycha, and arranged to talk with her. Having left the older children at school, the complainant took the youngest child to Ms Malycha’s home. Ms Malycha told the learned Chief Judge that she did receive such a visit from the complainant, at a time and a date which she cannot now recollect. The complainant was crying on arrival and said that she had woken up to find the accused on top of her. She did not wish to return to the house.
The complainant and her children moved in with Ms Malycha that day. They remained there until the complainant subsequently procured a Housing Trust home at Smithfield.
The complainant did not report the matter to the police until 7 April 1999, nor did she seek any medical advice following the incident. Her explanation for this delay was that “Sandra didn’t want me to”. (Sandra was her mother.) She said that her mother asked her not to report the matter to the police.
The complainant actually returned to live at the Penfield home with her mother and the appellant about two years later. She then remained there for some months, without the children, as part of an effort to become free of illicit drugs.
In the course of his reasons, the learned Chief Judge recited that the complainant said, in evidence-in-chief, that she did not go to the police earlier, partly because of her grandmother’s illness, leading to the death of the latter, and partly because of her mother’s wishes. With respect, that is not an accurate summary of her evidence. The only reason she expressed was that her mother (Sandra) asked her not to report the incident. She was then asked whether her grandmother was ill at the time. She merely replied “Yes” and said nothing about the relevance (if any) of that situation to her conduct.

The appellant at all stages readily admitted that an act of intercourse had taken place on the night in question.
His evidence was to the effect that he went to bed prior to the complainant. As was his custom, he wore no night attire. At about 1.00 am he got up and went to the toilet to relieve himself. On the way back to his bedroom he saw the complainant in bed through the open door of her room. He conceded that he went into her room touched her on the shoulder and then played with her breasts with his hands outside of her clothing. At that stage the complainant was on her side facing away from him. Initially he was standing, leaning over her, but then he sat on the bed alongside her.
The appellant told the learned Chief Judge that, after a couple of minutes, the complainant rolled over on to her back. He put his hand under her attire and played with her bare breasts. He contended that, at that point she took hold of his penis with her hand and he got an erection. The complainant moved a little and he started to pull the jumper which she was wearing up towards her shoulders. She lifted the top half of her body which enabled him to move the jumper up more easily and expose her bare breasts. She maintained her hand on his penis. She did not open her eyes, but they were flickering now and again.
The appellant said that there was a fair bit of light coming into the room, and that he could see the complainant’s face clearly while these activities took place. He confirmed in cross-examination that he was quite close to her face, could see her face, and that she lay there as if she was asleep.
The appellant further related that he then commenced playing with the complainant’s vagina on the outside of her pants and she opened her legs a little. He then put his hand inside her pants and inserted a finger in her vagina, whilst he continued to play with her breasts with his other hand. Thereafter, he moved the blankets off the lower part of her body and removed her underpants and leggings. He says that she lifted the lower part of her body to facilitate the removal.
Having placed the clothing on the end of the bed, the appellant said that he lay down alongside the complainant and continued to fondle her. Her legs became bent, with her knees raised. When he noticed that her vagina was wet he inferred that the complainant was willing to have intercourse with him. He got on top of her and had penile intercourse.
The appellant asserted that, during the intercourse, the complainant reacted with “a bit of moaning as if enjoying it”. He eventually ejaculated, got off and went back to sleep in his bedroom.
He claimed that the complainant made it clear to him, by her physical reactions, that she consented to intercourse. He thought that she had awakened when she first rolled over on to her back. It is to be remembered that, at the time he was unaware that she had ingested Temazepam, or of the effects of that drug.
The learned Chief Judge noted that the appellant was a person of previous good character, who, when interviewed by the police, readily narrated the version of facts which he reiterated at trial. He also observed that there had been no significant overt sign of sexual interest by either of the parties in the other, prior to the night in question.
In the course of his reasons the learned Chief Judge considered that there were a number of occasions when the accused was what he described as “disingenuous or evasive in giving evidence”. By way of contrast he assessed the complainant as a reliable witness, who gave her evidence in a straight forward way and was frank in her answers - even about her history of drug addiction.
Having addressed a number of evidentiary issues, he expressed himself as being satisfied beyond reasonable doubt that the complainant had not consented to sexual intercourse with the appellant and that “she neither said nor did anything to suggest to the accused that she was so consenting”. He went on to say:-
“I am also satisfied that the Crown has proved beyond reasonable doubt that the accused made an opportunistic decision to have intercourse with the complainant. Having no belief that she was consenting, he took a risk and went ahead, irrespective of whether she was consenting or not”.

He therefore found rape proved.

As I understand his reasoning, the above conclusion was essentially the product of his earlier comments to the following effect:-
“The complainant was unable to comment about whether or not her vagina was moist during this act of intercourse. She said that it was wet after intercourse and that was her reason for thinking the accused had ejaculated. The accused said that he interpreted the state of her vagina as indicating that she was willing to have intercourse. It may well be that her body responded in this way to his ministrations while she was asleep, or such a thing may have occurred for some quite unrelated reason. The fact that she had no soreness after intercourse is an indication that her vagina was lubricated to some extent during the act of intercourse. However, I do not accept that this condition in a woman who had given no previous indication of sexual interest in the accused, whose presentation was consistent with being either asleep or at best, semiconscious, and from whom the accused had been unable to get any verbal response at all - not even an acknowledgment of her name, gave rise to a belief on his part that she was willing to have sexual intercourse with him.”
I here pause to comment that, so far as I can ascertain, there was no evidence before the learned Chief Judge to suggest a physical possibility that the complainant’s body may have responded to the appellant’s “ministrations” in the manner postulated while she was asleep, even although that possibility could have been put to Dr Lim. This seems to have been his own theory.
He did, however, have this to say:-
“In the course of questioning, Dr Lim agreed that it was possible that someone who was under the influence of Temazepam might behave as if they were conscious when in fact they were unconscious. That may well be so but the description given here by the accused is not of someone who appeared to be conscious. In particular, as is clear from the earlier extract from cross-examination about his observations of her on the bed, the appearance is of someone who appears basically unconscious rather than conscious.
The accused said that she moaned after penetration and he interpreted that as a sign of enjoyment and therefore an indication of willing participation. Later in cross-examination he described it as ‘moaning or making like murmurs’ (Tx 124). It is quite consistent with the complainant’s version that as she was becoming conscious during the act of intercourse, she made moaning or murmuring noises. However, I accept her evidence that after she woke up, she did not intentionally make any such noises. I do not accept that these sounds indicated any approval or consent by the complainant to his continuing with intercourse and taking the evidence as a whole, I do not think that the accused honestly believed they did.”
This was a theory expressed after he had arrived at the following specific findings:-
“I am satisfied that the Crown has proved that she did not consent to his having intercourse with her. I am also satisfied on the evidence that she gave no voluntary indication to him that she was willing to have intercourse. It is clear from the accused’s own evidence that apart from the occasional flicker of her eyes he saw nothing on her face to indicate that she was other than asleep. Given their respective positions it is quite possible there was contact between her left hand and his exposed penis but I do not believe his assertion that after she went onto her back and while her facial appearance was essentially that of someone asleep, she grabbed his penis in the way he described. Nor do I accept that he formed a belief that she was voluntarily assisting him to lift her jumper and remove her lower garments by lifting herself up. I am satisfied that at that time she was still asleep. It is possible that because she was asleep, she was more pliable and he was more easily able to lift her body and move it as needed. I accept that the accused is not academically able and he is not well educated, having left school at age 14 in an opportunity class. But he is not naïve. I do not believe that he could honestly interpret that sort of movement as indicating she was aware of what he was doing and willing for him to remove some of her clothes.”
Against the foregoing background I now turn to the various arguments advanced by Mr Peek, of senior counsel for the appellant.

Issues

I commence my consideration of the grounds of appeal in this matter by observing that, in recent times, there has been an increasing tendency to subject reasons for conviction by Judges trying criminal cases without a jury to minute examination and criticism, almost as if they are required to be carefully crafted legal essays which identify every possible legal and factual issue and contain solemn self directions and warnings on all conceivable points, without any consideration being given to the fact that, unlike a jury, a Judge is assumed to know the law and to apply well known and commonly applicable principles in the course of his or her deliberations. This case was no exception.
This topic was touched upon by Doyle CJ in R v Keyte [2000] SASC 382. As he there pointed out, there is no assumption in the authorities that reasons for verdict must replicate instructions that would be given to a jury and also include detailed findings on all issues of fact. What is required is that reasons be sufficiently adequate to indicate to the parties the basis upon which a verdict has been arrived at, so that they may be able to exercise such rights as are available to them in respect of it. This will normally require a traverse of the major issues of fact and law which fall for review, but the detail to which the trial judge will need to descend will obviously vary, dependent on the nature and complexity of those issues.
I first turn to that aspect of the appeal which focused on the evidence of the mental state of the appellant at the time of the intercourse.
In essence, Mr Peek QC argued that the reasons published by the learned Chief Judge indicate that he did not fully appreciate the thrust of the defence case, with the result that he fell into error in his approach to the application of the provisions of s 48(b) of the Criminal Law Consolidation Act (SA) 1935.
As to this, I reiterate that the ultimate conclusion of the learned Chief Judge was expressed as under:-
“The Crown has proved beyond reasonable doubt that the complainant was asleep when the act of penetration took place, that at that time she was not consenting and that at that time he could not have formed a belief that she was consenting. It has also been proved that although she did wake up during the act of intercourse, she did not consent to it continuing and that she neither said nor did anything to suggest to the accused that she was so consenting. I am also satisfied that the Crown has proved beyond reasonable doubt that the accused made an opportunistic decision to have intercourse with the complainant. Having no belief that she was consenting, he took a risk and went ahead irrespective of whether she was consenting or not. The Crown has established the elements of the crime; the third, in the form of reckless indifference. I therefore find the accused guilty of rape as charged.”
It was submitted by Mr Peek QC that this reasoning indicates an imperfect grasp of and approach to the true nature of the defence relied on by the appellant; and a consequential failure to address the aspect adverted to in R v Sherrin [No 2] (1979) 21 SASR 250and R v Lightfoot (1993) 174 LSJS 330.
These authorities establish the proposition that, where a mistake as to whether the alleged victim was consenting is a live issue in a trial and when the accused asserts a belief that the victim was consenting, there is a need, positively, to consider whether the existence of that belief was a reasonable possibility and, therefore, whether such a situation was inconsistent with the positive knowledge or, alternatively, the reckless indifference constituting the mental element of the crime.
The attention of this Court was drawn to the fact that, in paragraphs 10-13 of his reasons, the learned Chief Judge, having summarized the evidence of the appellant, concluded by saying:-
“In short, the accused says that the complainant made it clear to him that she was consenting to his having sexual intercourse with her”.
This was, Mr Peek QC argued, an erroneous analysis of the defence case which, in turn, led to the finding which I have above recited, namely that there was no consent and that the appellant could not have formed the belief that the complainant was consenting.
He put it that what the learned trial Judge had not appreciated was not that the appellant asserted that the complainant had, in some manner, indicated specific consent, but, rather, “the whole combination of the sights that he saw, the sounds that he heard and the physical sensations that he experienced were such as to convey to him that the complainant was consenting”, so as to give rise to a state of mind in the appellant which was inconsistent with the knowledge of non-consent, or reckless indifference, adverted to in s 48.
Mr Peek QC particularly drew attention to the evidence as to:-

.the complainant rolling over on her back;
.her grasping of the appellant’s penis;
.movements of the complainant’s body at various stages to facilitate removal of clothing and the act of intercourse;
.the flickering of the complainant’s eyes;
.the apparent lubrication of her vagina;
.her moaning as if in enjoyment; and
.the absence of any positive indication of non-consent at any stage.

He put it that those matters, or a combination of some of them, may have occurred without the complainant consciously intending them, or knowing of them by reason of the affects of the Temazepam. They could well have given rise to a positive belief on the part of the appellant which negated knowledge of non-consent or reckless indifference on his part.

This was a case in which the issues raised rendered it important to make specific findings on the above factual matters stressed by Mr Peek QC, derived from the evidence before the Court.
It is by no means clear to me which of the above alleged facts, as summarised by Mr Peek QC, the learned trial Judge accepted as having occurred and which did not.
He seems to have at least accepted that there may have been some contact with the appellant’s penis, but possibly of an involuntary nature. He also appears to have accepted that there may have been some bodily movements by the complainant, although his findings in that regard are by no means specific. His thesis that it is possible that, because the complainant was asleep, she was more pliable and the appellant was more easily able to lift her body and move it as needed - particularly to remove clothing - derives absolutely no support from the evidence. I would, with respect, have thought that, if the complainant was unconscious, an even more compelling commonsense thesis would be that she would present as a “dead weight”; and that it would be quite difficult to remove tightly fitting clothing from her inert body, certainly without rousing her from her sleep.
Moreover, as has been recited, Dr Lim’s evidence suggests that, due to the Temazepam, the complainant may well have behaved as if she were conscious, when she may not actually have been conscious - a fact of which the appellant could not have been aware.
Again, the learned trial Judge seems to have accepted that the complainant may have made moaning or murmuring noises, but that, when she woke up, she made no such noises. Whether or not those noises, in fact, indicated actual consent is not really to the point. The real issue is as to what reasonable conclusion the appellant could have come, when those noises were considered in combination with the other physical actions which took place.
There does not seem to have been any finding as to whether the complainant rolled over on to her back, although the learned trial Judge appears to have accepted the possibility of flickering of the eyes.
He certainly did not find any positive, overt act of non-consent or protest. He conceded that the fact that there was no soreness of the vagina was an indication of what he described as lubrication “to some extent”.
Once again the learned trial Judge resorted to a personal thesis which had no foundation in evidence. He commented “It may well be that her body responded in this way to his ministrations while she was asleep, or such a thing may have occurred for some quite unrelated reason”.
It seems to me that the critical feature is not why the lubrication occurred, but the fact that it did occur, coupled with any other physical manifestations at the time, and the combined effect that they may well have had on the mental state of the appellant at the time.
In my opinion there was a failure, clearly, to identify the issue of mistake raised by the defence and to then analyse the evidence specifically in relation to the type of issue identified in Sherrin and Lightfoot. With respect, the findings made are not adequate or convincing as to this aspect. On any view there was a substantial basis of fact on which the appellant could reasonably assert that he did not appreciate a non-consent on the part of the complainant and that the Crown had fallen far short of proving reckless indifference beyond reasonable doubt.
In so saying, I by no means ignore the expressed conclusion of the learned trial judge that the description of the complainant given in evidence by the accused “is not of someone who appeared to be conscious ... the appearance is of someone who appears basically unconscious rather than conscious”.
The validity of that conclusion depends very much on very precise findings as to exactly what occurred on the occasion in question. It is here, also, that the potential effects of delay on memory has a particular significance.
At the end of the day I simply remain unconvinced that there was a clear identification by the learned trial judge of the reasonable possibility of a mistaken assessment of consent by the appellant and a related full appreciation of the impact of the evidence of physical signs which lent support to such a thesis. This seems to me, in part at least, to have been a product of the curious failure of the learned trial judge to accept the complainant’s own evidence that she had ingested Temazepam tablets that evening.
I consider that the appeal must succeed on this basis alone.
However, lest my view is not to prevail as to this, I turn to the other issues raised. To some extent it is difficult, if not inappropriate, to review them separately and in isolation from the point just discussed, because they have a distinct bearing upon it.
Mr Peek QC drew attention to the long delay which had occurred between the date of the relevant incident and the complaint to the police and the issues which arose in relation to it.
In the course of his reasons the learned trial Judge discussed the issue of delay in fairly brief terms.
First, he dealt with the reasons said to have been expressed by the complainant for the delay. Although, as I earlier indicated, he appears to have placed one gloss on the evidence which does not derive support from the transcript, there appears to be no reason to question his conclusion as to the credibility of the complainant.
He then proceeded to comment:-
“As far as the accused is concerned, there was nothing that caused me to suspect that he was hampered in his defence by the delay. He appeared to have no difficulty recalling the occasion and there is no suggestion that he has lost an opportunity to call other evidence.”

Mr Peek QC submitted that this treatment of the issue fell short of that which was required.
Potentially, significant delay in bringing an alleged offence, such as that now under consideration, to the attention of the police needs to be reviewed from three quite distinct and independently important perspectives.
It can very well redound against the credibility of a complainant, if there is no satisfactory explanation of the delay. In the instant case the learned trial judge specifically addressed that facet and concluded that no inference adverse to the complainant ought to be drawn. There was evidence before him upon which he was plainly entitled to arrive at such a conclusion. The learned trial judge accepted her explanation that her mother had asked her not to pursue the matter and she acceded to that request for some time. This was an assessment open to him and there is no basis upon which this court can properly go behind his judgment in that regard.
Next, delay can have a serious impact on the accuracy and probative value of the evidence of a complainant. As McHugh J stressed in Longman v The Queen (1989) 168 CLR 79, substantial delay can in fact distort recollections as to detail due to a variety of possible factors, not the least of which is the impact of ex post facto reasoning and a dulling of memory as to the precise detail of what occurred at the time.
Finally, a substantial lapse of time can adversely affect the ability of an accused person to mount an adequate defence. This may well result in a combination of two effects. First, the memory of the accused as to fine detail, which could be very important in relation both to his evidence-in-chief and his cross examination, may also be dulled. Second, it may also seriously inhibit an effective cross examination of the complainant as to important detail and/or the gaining by the accused of evidence to support and the general preparation of his case, which may have been available if his memory and that of other persons was fresh at the time. (See, for example, R v T (1999) 74 SASR 486 at 491, 498-499.)
In reality, these were the conceptual points made in the joint judgment of Gaudron, Gummow and Callinan JJ in Crampton v The Queen [2000] HCA 60 at par 42 and par 45.
They stressed the need to give strong warnings to juries in relation to situations in which there is substantial delay between the date of an alleged offence and time of trial, because of the likely consequential difficulties of testing and disproving allegations by means of the passage of time and of the danger of convicting on a complainant’s evidence alone.
Their Honours pointed out that an accused’s defence will frequently be an outright denial of the complainant’s allegations, which is not a reason for disparaging the relevance and importance of a timely opportunity to both test the evidence of a complainant and, inter alia, also try to recollect the precise details of the event in question.
Whilst, in the instant case, the defence does not involve an outright denial of the act of intercourse, it does give rise to the need for a very careful consideration of the nature and sequence of the precise physical details of what transpired at the relevant time. To paraphrase an expression used in the joint judgment, the potential denial, by reason of delay, to an accused of the forensic weapons that reasonable contemporaniety provides, constitutes a significant disadvantage which must be specifically recognised.
The same point was made by Prior J in the course of his judgment in R v T at par 18. It is no answer merely to say that there was a timely complaint to some third party, where there has been subsequent substantial delay in prosecution to trial. (See The Queen v Young (1996) 90 A Crim R 80 at 104.)
It is stating the obvious to say that, in a case such as the present, in which the detailed actions and reactions of both the complainant and the appellant were quite critical to the vital question of the state of mind of the latter at the time when intercourse took place, it was of paramount importance that due regard be had to the potential impact of delay in relation to both the complainant’s evidence and also that of the appellant.
As to the complainant, the learned trial judge appears to have restricted his consideration to her credibility. He makes no mention of a need to reflect on either the probative value of her evidence or any impact of time on either the actual memory of detail or the possibility of the intervention of ex post facto reasoning. Nor does he seem to have given serious consideration to her evidence that, quite apart from the impact of any delay, she has deliberately “blocked things out” of her memory (AB 83. See also AB 94). Where, as here, her degree of consciousness at any given point in time, or her physical reactions to the ministrations of the appellant, go to the heart of core issues, these are serious matters.
As to the appellant, it seems to me that the approach of the learned trial Judge was somewhat simplistic. True it is that the learned trial Judge indicated that there was nothing to suggest any lack of memory on the part of the appellant and that it is not suggested that he had lost an opportunity of calling evidence. However, those conclusions do not cover the whole ground. There was also a positive need to reflect on the possibility that, however good the memory of the appellant may have appeared, he may well have forgotten some detailed matter of importance by reason of the passage of time. It is stating the obvious to say that, however well he now presents, he will not have remembered that which he has forgotten by reason of delay.
With all due respect, it seems to me that there is force in the contention that the treatment of this aspect of the case by the learned trial Judge was unsatisfactory, in that it was unduly simplistic.
Mr Peek QC next contended that the consideration by the learned trial Judge of the question of the possible effects of the Temazepam upon the complainant was also inadequate.
The actual finding made is somewhat curious. Despite the unequivocal evidence of the complainant to the effect that it was her habit to take a number of Temazepam tablets on most nights, her high weekly consumption of such tablets, her insistence that she did, positively, take the tablets on the night in question, and her evidence of not being aroused out of a deep sleep by all of the ministrations of the appellant and until - to use her expression - he was on top of her and actually “Going for it”, he said that he was unable to find whether or not the complainant actually took the drug that night.
He went on to say that, whilst he accepted that this was her usual practice, her evidence was that she took Temazepam just about every night - not that she took them every night.
As appears from the transcript reproduced at AB 71, the complainant specifically testified in evidence-in-chief as follows:-
“I took my tablets, laid down, read for a while and started falling asleep, turned the light off and went to sleep”.
As appears at AB 101, the following exchanges also occurred in cross examination:-
“Q.... You say you took the tablets, Temazepam
A.Yes.
Q...... Can you say how many you took that night
A.Not off memory, no.”
Despite that evidence and an acceptance of the complaint generally, the learned trial Judge said that her evidence as to taking Temazepam on the night in question was not sufficiently reliable to enable him to make a finding, mainly - it seems - because she had not initially mentioned this to the police.
It is stating the obvious to say that this was a factual matter of considerable importance, given the combined effect of the evidence of Dr Lim and that of the appellant. With all due respect, the conclusion of the learned trial Judge on this topic flies in the face of the specific evidence.
I agree with Mr Peek QC that intoxication by reason of the effects of Temazepam bore directly on the potential issues as to:-

.whether the effects of the drug may have affected the behaviour of the complainant, so as to produce a more equivocal manifestation than would otherwise have been the case;
.whether some confusion could have arisen in the mind of the complainant as between what she thought she was conveying and what her actual physical reactions naturally conveyed to the appellant; and
.whether her subsequent recollections as to precisely what occurred as to consent or non-consent might not have been affected by her state of “intoxication” by the drug.

In the course of my judgment in The Queen v Curtis (1991) 55 A Crim R 209 at 220 I discussed the relevance of evidence of intoxication in these terms:-
“There was thus a very real need to point out to the jury the need to consider what effect that situation may have had upon her, in terms both of her perceptions and interpretation of the conduct of the appellant in particular and the true nature, comprehension and effect of any signals which she may have given to him. Additionally, it bore directly on the reliability and credibility of her narration of important events, it being remembered that, in the course of evidence, she professed some confusion as to the sequence of some events and certain gaps in her memory. This was not done. It constitutes a serious deficiency in the overall content of the summing up.”
As appears at AB 38, the learned trial Judge appears, largely, to have put such issues to one side, because of the lack of a finding that the complainant had taken Temazepam on the night of the alleged offence.
In my view this constituted a demonstrable error in approach, because, on any view of the evidence, there necessarily remained a very real possibility that, at the time of the alleged offence, the complainant was under the influence of the drug, the potential effects of which were such that they went directly to the potential accuracy of her memory, her possible physical reactions, the possible state of mind of the appellant, and the discharge of the Crown burden of proof.
The appellant has made good this ground of appeal. This bore on the reliability of the complainant’s evidence (by way of contrast with her general credibility) and the question of what possibilities reasonably remained as to the signals which might fairly have arisen from her physical activities.
In the course of his submissions Mr Peek QC further complained that, having particular regard to the consistency of the appellant’s version of events over time, the learned trial judge did not express an adequate basis for his adverse view of the appellant’s credibility. It was emphasised that the learned trial Judge particularised only one aspect of the evidence to support such a conclusion. Mr Peek QC contended that, bearing in mind other relevant aspects of the evidence, this was a somewhat tenuous basis for the conclusion come to.
As was pointed out by the High Court in Fleming v The Queen (1998) 73 ALJR 1, great care needs to be taken in cases where, as here, the case for the Crown rests almost solely on the evidence of the complainant. This is the more so where there has been an element of delay. Such a situation underlines the need for a full and adequate exposition of the grounds on which an adverse assessment of credibility against an accused is made. It is certainly not enough, simply, to express a stark belief or disbelief in relation to a complainant or appellant. (See also Lander J in Edmunds & Ors v Pickering & Ors (1999) 75 SASR 407 at 417-418.)
It must be said that the discussion of the learned trial Judge of this issue was extremely economic.
However, I consider that what was said by him, read in its context, cannot be said to offend the above principle. The learned trial Judge did relate his conclusion to the manner in which the appellant gave evidence and the substance of that evidence. Whilst it must be conceded that minds might well differ as to the wisdom of founding a conclusion on a footing as narrow as that expressed, the fact is that the learned trial judge did so after having an adequate opportunity of assessing the general impact of the appellant on him as a witness. I would not be prepared to say that the assessment made was insufficiently founded.
Finally, it is necessary to address the submissions of Mr Peek QC bearing on the evidence of the complaint made by the complainant to Ms Malycha and the evidence of distress exhibited by the former, at the time.
One difficulty arising in this regard is that Ms Malycha cannot now recall, specifically, when the complaint was made to her. On the other hand the complainant asserted that this was soon after she had dropped the elder children off to school the next morning. As to this the learned trial judge appears to have accepted her as a reliable witness.
As I understand his argument, Mr Peek QC proffered his submission on this point as being a factor cumulative upon his contention in relation to the ground of appeal related to intoxication due to ingesting Temazepam.
In the course of his reasons the learned trial Judge had this to say:-
“I take into account the complainant’s distress. Ms Malycha described the complainant as upset and crying when she arrived. The complainant described herself as feeling ‘pretty emotional’ (Tx20). Ms Malycha said that she and the complainant had a conversation in her bedroom for ‘a good half an hour or so’ and during that time the complainant was ‘crying heaps ... crying pretty well most of the time’ (Tx78). I accept that description. It was put that this distress was consistent with a feeling of deep guilt on her part for having had intercourse with her mother’s husband while her mother was absent looking after her own sick mother. I do not accept that submission. It is not necessary to repeat the details of the complainant’s background. However, it is fair to say that she was a mature adult and had had considerable sexual experience. On my assessment of her, it is not reasonable to infer that if she had willingly had sexual intercourse with the accused behind her mother’s back, she would have reacted so severely, not only with obvious deep distress, but leaving the home as soon as she could with four young children not knowing where she could live, except to seek temporary refuge with Ms Malycha. This is also in the context of her mother not even being at the Penfield house at that time. In my opinion, this degree of distress and reaction is not consistent with the suggested reason, but it is consistent with a belief by her that she has been sexually assaulted.”
Traditionally, evidence of distress of an alleged rape victim has been sought to be relied upon as corroboration, in situations when corroboration has, appropriately, been required in sexual offence cases. Such evidence is normally admissible, but there are very real limits to its probative value.
In the case of Knight (1966) 50 Cr App R 122 at 125 Parker LCJ went so far as to say that, whilst exhibition of distress at time of complaint was relevant for the consideration of the jury, it was really part and parcel of the complaint. Its probative value should not be over emphasised. He commented “... the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence”.
As was pointed out in R v Pahuja (No 2) (1989) 50 SASR 551, evidence of distress will normally only be admissible as evidence of consistency of behaviour (this going to credibility) and as part of the whole circumstances surrounding an alleged offence. (See also the discussion of the authorities in The Queen v Pitman (1985) 38 SASR 566.)
It is not entirely clear as to how the learned trial Judge took the evidence of distress “into account”. He said that, in his opinion, it was consistent with a belief by her that she had been sexually assaulted. If by that he merely utilised the evidence for the purposes of arriving at a conclusion as to credibility, there could be no basis for complaint. As the Chief Justice put to counsel in the course of argument, the main relevance of distress in the instant case was that it tended to demonstrate consistency with a belief by the complainant that she had been sexually assaulted. But, it did not assist in resolving the all important issue as to whether any physical reactions or movements on the part of the complainant may have caused the accused to believe that she was consenting.
It seems to me that there is a great significance to be attached to the overall remarks of the learned trial judge. As I read them they suggest that he was approaching the situation on the basis that there were only two possibilities to be considered, namely consensual intercourse or non consensual intercourse.
As already appears, this overlooks a third possibility, in which evidence of distress has a quite neutral role. Distress may be indicative of non-consent, but it does not exclude the possibility that the appellant may well have thought that she was consenting, by reason of the circumstances earlier adverted to. This adds force to the conclusions that I have earlier expressed.
In summary, then, it is my opinion that the appellant has demonstrated error in the reasoning processes of the learned trial Judge which necessarily vitiates the verdict pronounced.
I would allow the appeal, set aside the verdict returned and remand the appellant for retrial.

BLEBY J: I agree with the Chief Justice that this appeal should be dismissed. I have nothing to add to the reasons he gives.

[2001] SASC 25

14 February 2001