R v H, ML - [2006] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v H, ML
[2006] SASC 240
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice White)
18 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant convicted by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years - evidence led at trial disclosed an investigation by Victorian police into claims of similar offences in Victoria - no charges ever laid in Victoria - trial judge did not permit defence counsel to adduce evidence indicating that no charges were laid in Victoria - trial judge directed jury as to permissible use of uncharged acts said to have occurred in Victoria - trial judge directed jury not to specuate as to the outcome of the Victorian investigation - no prejudice to appellant resulted.
Whether defence case adequately put - whether inconsistencies in complainant's evidence sufficiently detailed - directions adequate.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appellant interviewed by police - appellant questioned as to complainant's possible motives for fabrication of allegations - these parts of interviews excluded from evidence by trial judge - whether interviews constituted "mixed statements" - whether interviews should have been admitted into evidence in their entirety - excluded portions of interview held to be inadmissible.
Evidence led of refusal by complainant to undergo medical examination - question by defence counsel as to possible findings on such examination queried by trial judge - potential significance of answers limited in any event - no prejudice to appellant - appeal dismissed.
Palmer v The Queen (1998) 193 CLR 1; Jack v Smail (1905) 2 CLR 684; Mule v The Queen (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536; R v Collie (2005) 91 SASR 339; R v Duncan (1981) 763 Cr App R 359; Callaghan v The Queen [1994] 2 Qd R 300; R v Pearce (1979) 69 Cr App R 365; R v Newsome (1980) 71 Cr App R 325, considered.

R v H, ML
[2006] SASC 240
Court of Criminal Appeal: Nyland, Vanstone and White JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.
VANSTONE J:
Introduction
The appellant was convicted after a trial by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years committed upon his nine year old daughter in 1999. He appeals against those convictions on grounds concerning rulings on admissibility and directions to the jury.
Background
On the prosecution case the offences were part of a long course of similar conduct by the appellant, starting when the complainant was about 7 seven years of age and finishing when she was 12 years. The child’s parents were separated from the time she was a baby. For the later part of that period the appellant lived in Drik Drik in Victoria and occasionally his daughter would visit him there. When the girl’s allegations came to light, in 2003, they included claims that sexual offences had been committed upon her not only in South Australia, but also in Drik Drik. As a result, police in both states conducted an investigation. Apparently the two investigations ran in a parallel manner. However, it seems that no charges were ever laid in Victoria.
It was inevitable that the jury would understand that there had been an investigation in Victoria, because the prosecution wished to lead part of an interview which occurred between a Victorian police officer and the appellant. Upon the trial, that was relevant to uncharged acts which the prosecution was permitted to lead.
Instruction to jury about fate of Victorian investigation
Prior to the jury being empanelled, the Judge heard submissions as to how the fact of the Victorian investigation might be presented to the jury and in particular, to what extent, if any, it would learn of the result of the Victorian investigation.
The Judge ruled that defence counsel would not be permitted to adduce evidence to the effect that no charges were ever laid in Victoria, holding that fact irrelevant. The Victorian allegations were referred to before the jury as “uncharged acts”.
The appellant complains that he should have been allowed to elicit the fact that no charges were laid in Victoria. It is contended that the way in which the matter was left could have given rise to speculation that the appellant had been both charged and convicted of Victorian offences. That was particularly said to be a risk because of the time lag between the interviews by both Victorian and South Australian detectives in August 2003 and the trial in the Mount Gambier Circuit Court in March 2006. It is said that such a risk was further exacerbated by two references in the summing up to the Victorian “offences”.
These complaints were particularised in the first three grounds of appeal. Leave was granted on only the second of those. However, since they are interrelated, I think it appropriate to grant leave on grounds 1 and 3 and to deal with the three grounds collectively.
As I understand the contention put by Ms Powell QC for the appellant, it is not now suggested that the decision not to lay charges in Victoria was relevant to the jury’s task. Rather, the submission on appeal was that in the absence of the jury being told of the true position, it might impermissibly speculate in a way prejudicial to the appellant’s interests.
In my view, Senior Counsel was correct in drawing short of suggesting that the decision not to charge and the reasons for that decision were in themselves relevant. Whether or not a charge is laid is always a matter of judgment, either by police or by another adjudicator. In this case it amounted to the opinion of an unknown person. It is hard to see that such an opinion could ever be admissible. Sometimes the fact of the charge being laid or not laid might have relevance as a matter of history. For example, it might explain why events subsequently developed in a particular way. Here, as I said, there was no suggestion on appeal that the very fact of no charge being laid in Victoria had relevance. But it was suggested that only by leading evidence to that effect could potential prejudice to the accused be averted. It becomes necessary, then, to examine the instructions given to the jury on the topic.
The Judge gave these directions:
I want now to speak to you about the sexual activity which is alleged by [V] but which is not the subject of any separate counts on the information. I will just take you briefly through that evidence.
…
All of these uncharged acts are said to have occurred in Victoria. As to these alleged acts, I want to say firstly this; you know that the South Australian Police first became aware of the overall allegation in June 2003. Constable Hill spoke to [V] on 18 June 2003 and then the accused first spoke to the police, of his own free will, on 21 August, just three days later at Mount Gambier, which was when he first became aware of them. You know also that on that day, he spoke also to Detective Senior Constable Beanland of the Victorian Police in Mount Gambier – and again, he did this of his own free volition – about the offences alleged to have involved penetration and which are said to have occurred in Victoria and that, thereafter, there was a consensual search of the Drik Drik house and nothing adverse to the accused was found.
You know that these Victorian offences were investigated, but you do not know the outcome of that investigation. You must not speculate about what that outcome may have been. Whatever may have occurred in Victoria, if, indeed, anything did, cannot in any way help you here. You must decide this matter on the evidence which you have heard and seen in this courtroom during this trial. Nothing from outside it may be used to decide if the onus of proof has been discharged. Any such information is not relevant, as it cannot be helpful to you in that task.
And so, I direct you in the strongest terms that you must not speculate, not only as to the Victorian investigation, but as to anything which has not been the subject of evidence. To do so would be wrong and you must not do it.
(emphasis added)
(The Judge then directed as to the permissible and impermissible uses of the uncharged acts.)
I do not consider that the criticism levelled at these directions is justified. The clear and firm instruction against speculation as to the result of the Victorian investigation must be taken to have been heeded by the jury. The jury would have had no difficulty obeying the direction because the facts as the jury were given them were neutral as to the result of the Victorian inquiry. It is not as if the evidence tended towards any particular conclusion. I do not agree that the time delay between the investigations and the trial would have had any particular impact on the jury.
As to the references by the Judge to “offences” as opposed to “allegations”, the above passages show the context within which that word was used. The whole purpose of the direction was to quarantine, as irrelevant, the outcome of the investigation. The jury would hardly suppose that by the use of the word “offences”, the Judge would supply the answer to the very question he was instructing them not to consider. I do not think there is any reason to suppose that the jury would have latched on to that word and ignored the constant references to expressions such as “alleged acts”, “said to have occurred” and “investigation”. After all, the word carries a more loaded meaning in the criminal law – implying proved acts – than it does outside that context. Moreover, the very use of the expression “uncharged acts” would likely have been taken by the jury to have meant that no charges arose from those acts.
Police interviews
The next ground of appeal asserts that certain sections of three conversations that the appellant had with police concerning the allegations were wrongly excluded from evidence.
The appellant was first spoken to by South Australian police on 21 August 2003. This and subsequent conversations were recorded by videotape. After the allegations had been put and denied the appellant was asked if he had questions as to the procedures. He pondered why the matter had “come up now”. He mentioned litigation with V’s mother relating to a property settlement and an argument that had occurred on his 50^th birthday. These answers were excluded. Towards the end of that interview Detective Scott advised that if the appellant had anything further he wished to say about the matter, either then or later, he should make contact with Detective Scott.
Upon the conclusion of that interview a Victorian investigator, Detective Beanland, questioned the appellant in relation to the Victorian allegations. After the allegations had been dealt with Beanland asked this question:
Q.91Can you offer any reason as to why you are saying these allegations of these incidents occurred? Can you offer any reason as to why [V] has said what she had said?
At that point the appellant mentioned several incidents which, he suggested, could have given rise to resentment or feelings of ill-will in the complainant and her mother. These included the property settlement previously raised and some dealings with the Child Support Agency. He also mentioned a threat made by his former wife’s new partner towards him and an accusation made to him by his daughter to the effect that he was a liar. Upon further questioning he gave an account of an incident in which the complainant had become upset after an interchange between the two of them. Then he raised an issue over his daughter’s mobile telephone and his refusal to provide her with all the funds she required for it. Upon the appeal there was some confusion as to what part of this second interview was in fact excluded by the trial judge. Having re-read the transcript of argument and checked the videotape exhibit I am satisfied that the topics I have just mentioned were covered in that part of the conversation which was before the jury.
However from that point some answers were excluded. These included expressions of surprise by the appellant at the language the complainant had used in describing the alleged conduct. He said he had not heard her use certain terms and did not use them himself. Also excluded was a conversation about police planning to immediately search the Drik Drik home. The search took place against the background of the appellant asserting that his first notice of the allegations was during the preceding interview by Scott. This could have laid the basis for an argument that because of the sequence of events the appellant had no opportunity to remove any incriminating items (such as film of the complainant) from his home before the search occurred. Nonetheless it was open to the appellant to give evidence about his having no notice of the search.
Perhaps because of the invitation of Detective Scott given to the appellant on the occasion of the first interview, coupled with the question he had been asked by Detective Beanland as to possible motives in the complainant, the appellant made contact with Detective Scott and presented himself for a third interview on 28 August. On this occasion he wished to outline to the detective a matter concerning the complainant’s medical history, which he said might have had an impact on whether he could have effected penetration of her vagina. He then spoke of measures which had been taken some years earlier in relation to constipation the complainant was experiencing and the attitude that may have engendered in the child with respect to any attempt at anal intercourse. This was relevant to one of the allegations. Questions and answers in relation to those matters went before the jury.
However, having covered those topics the appellant told the Detective that he had one other thing he wished to say and it was in further response to Detective Beanland’s questions going to the child’s motives. He then outlined his fears about what his former wife may have told the child in regard to why he had left the matrimonial home, and further described an incident on his 50^th birthday which he apprehended may have embarrassed the complainant in front of her friends and exacerbated any feelings of abandonment she may have already harboured. That part of the interview was excluded by the trial judge.
The attitude of the appellant upon his trial was that he wished to have all three of the interviews wholly excluded. If he were not successful on that application, then he wished all three to go in, in their complete form. The prosecutor’s attitude was that the answers in response to a question as to why the complainant might make up a false story against him were not admissible.
In particular the prosecutor argued against the admissibility of the third interview, in which no allegations were put to the appellant, but which, for the most part, contained general assertions made by him not specifically related to any of the allegations.
The Judge ruled on the interviews prior to the jury being empanelled, but a little way into the evidence amended his ruling to allow some further answers to go in. No doubt that contributed to the confusion in argument in this Court to which I earlier referred.
Upon the appeal counsel for the respondent did not contest the proposition that a police officer, and most especially, counsel for the prosecution, should not ask an accused person to ascribe motives for constructing a false story to a complainant, because of the tendency that has to invite speculation and subvert the onus of proof. (I shall proceed on the basis that this concession was well made.) It is not that motive to lie is irrelevant. The complainant may be cross-examined about it with a view to impeaching his or her credit: Palmer v The Queen (1998) 193 CLR 1, 7. In addition, the accused would be able to give or call evidence to establish such a motive. However, the appellant argued that the topic having been raised with him by police and answers having been given which were essentially exculpatory in nature, the Judge should not have excluded them. The argument ran that an appellant in this position could have the answers go before the jury, or be excluded from evidence, at his option.
I should add that the complainant was cross-examined about a number of the topics and incidents which were raised by the appellant in the police conversations, including topics raised in the excluded passages of the police conversations. Defence counsel was not prevented from pursuing these matters. Furthermore, counsel for the appellant conceded that when the appellant gave evidence before the jury he alluded to such of these matters as his counsel chose to elicit, without objection. Consequently the complaint is not that the imputed motives did not come before the jury, but rather that exclusion of them from the interviews meant that the jury were deprived of knowing that the appellant had mentioned them when first accused.
I turn to the question of principle. Statements made out of court, including by the accused person, are, prima facie, hearsay. However, in a criminal trial the prosecution can tender a statement of a defendant where it is said to contain admissions or other incriminating statements. Where such a statement contains exculpatory material as well – referred to as a “mixed statement” – the prosecution is obliged to tender the whole statement. The material goes in as an exception to the hearsay rule. The jury is entitled to treat the various parts of it as being of differing weight: Jack v Smail (1905) 2 CLR 684, 695; Mule v The Queen (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536, 540; R v Collie (2005) 91 SASR 339; Duncan (1981) 73 Cr App R 359. The exculpatory parts go in not merely to provide a context to the admissions, but as some evidence of the facts stated: Duncan, Spence v Demasi at 541.
However, if the statement contains only self-serving material then it is not admissible at the instance of the accused: Callaghan v The Queen [1994] 2 Qd R 300.
It is probably admissible if tendered by the prosecution. Indeed in this jurisdiction it has been for some years customary to tender as part of the prosecution case any response made by the accused when first “taxed with the allegations” by police. That seems to accord with the English practice outlined in Pearce (1979) 69 Cr App R 365 as explained in Newsome (1980) 71 Cr App R 325. I note that the learned author of Cross on Evidence (7^th Australian Edition, Butterworths, 2004) at [17335] is critical of such a procedure.
There are several features of the interviews under consideration which are worthy of comment. The interviews were all, in essence, exculpatory. Whilst the first two contained a few answers which were unusual, and for that reason useful to the prosecution, they were not “mixed statements” in the sense that expression is used in the cases.
Furthermore, the parts of each interview excluded by the Judge formed quite a separate section of each interview. The answers were not responses to allegations, but musings as to why the complainant might have implicated him.

As has been seen, the third interview was not in any sense spontaneous.
An unusual aspect of the matter is that it was the appellant who sought to have these answers go into evidence.
In my opinion the Judge was entitled to take the view that the answers under consideration were inadmissible. I think that is certainly so in respect of the third interview. The answers did not have the advantage of spontaneity and the assertions made had no tangible nexus to the allegations. The ruling could properly have extended to the whole of that interview. In respect of the first, the material omitted was in my view of no probative value.
As to the second interview, the position is more finely balanced. As I have said, the answers were not mixed with admissions. Nor were they responses to allegations; the allegations had already been put and denied. They amounted to the appellant casting about for any matter of family history which could have engendered ill will towards him. Whilst I would not be prepared to go so far as to say that an accused person’s attribution of motive in an interview would never be admissible, I think here it was, though of potential relevance, inadmissible. It could have been rendered admissible during the trial had the doctrine of recent invention properly been invoked, but no suggestion of recent invention was put to the appellant. The fact that the appellant cross-examined the complainant about some of the imputed motives and suggested some of them in evidence himself, means that, even if the answers were excluded in error, no miscarriage of justice could thereby have occurred.
Contention that defence case not adequately left
The appellant seeks leave to argue that in one particular the Judge did not adequately put the defence case. It is submitted that whilst the Judge identified a number of the alleged inconsistent statements by the complainant and directed as to the possible significance of them, he failed to point out to the jury that some of them were patent on the prosecution case and others were the subject of agreed facts.
The Judge gave quite an extensive direction on prior inconsistent statements. He referred to defence counsel’s submissions to the jury in that regard but, as I said, also mentioned himself the major inconsistencies. He also referred to a document in the complainant’s hand (Exhibit D2) which contained some of the inconsistencies. In several instances he referred to the “conflicting evidence” as to a matter.
The attention given to the overall topic was appropriate in terms of the importance to the defence of the complainant’s conflicting statements. There is no complaint of any misdirection. I consider the use of the expression “conflicting evidence” was apt to underscore the fact that some of the inconsistent statements were not just alleged, but also proved.
This was a short trial in which the issues were clear. On my reading of the evidence the directions were adequate. I would refuse leave to appeal on this ground.
Evidence of medical opinion disallowed
The evidence disclosed that on 12 June 2003 the complainant saw her family doctor, Dr Mackle, in company with, and perhaps at the suggestion of, her mother. He was informed of the allegations against the appellant. Dr Mackle said in evidence that he asked but was refused the complainant’s permission to do a genital examination “to try and see if there was any evidence of the genital penetration in the young girl”. In cross-examination he said he explained to the complainant that an examination might provide evidence to support or refute her allegations. In re-examination he was asked to explain that further. He said he “supposed” that evidence of the loss of the “vaginal hymen” would suggest that penetration had occurred. He said that any evidence of anal damage would have informed him – he supposed – of sexual interference or activity.
When re-examination concluded defence counsel sought and was granted leave to further cross-examine. The witness was then asked about whether he might have expected “residual injury” if there had been penetration of the complainant from about age six years onwards. He replied he would “imagine so” but could not give a qualified opinion, having not seen “the effects of child and sexual trauma”. The following question was then asked:
Q.Whilst the loss of the hymen might not be conclusive of sexual activity, the fact that there was an intact hymen may be conclusive of no penetration, is that right, of the fact that there wasn’t penetration, is that correct.
The trial judge queried the utility of the question inasmuch as vaginal penetration was not required in proof of vaginal intercourse. It does not appear from the transcript that the question was actually ruled upon, but there was no further evidence from the doctor.
I consider that the question, if addressed to a properly qualified expert, was allowable. But I do not think that the ruling – assuming it was one – was of much moment in terms of prejudice to the appellant. It appears that the doctor was at the limits of his expertise in giving these answers. This Court has no way of knowing what answer would have been given in any event. Medical examinations of this type are notorious for their equivocality. In any event there was no right to further cross-examine after re-examination was concluded.
The appellant points further to a passage in the summing up on the topic of the significance of the complainant declining the examination. His Honour said:
Similarly, reference was made to the accused losing the possible chance of exoneration by [V] not consenting to an examination by Dr Mackle in June 2003, about six months after she stopped going to Drik Drik. You must decide whether you think this is so or whether, again, the evidence is equivocal, given the time which has passed since both the commencement of and the end of this alleged behaviour.
His Honour reminded the jury of the doctor’s reticence about expressing an opinion. Then he said:
Remember also what I said to you about what constitutes the first element of sexual intercourse at law. The slightest penetration is sufficient. There is no requirement for full penetration. Consider whether, in your experience, it is likely that slight penetration may leave telltale signs when the evidence is that there was no bleeding and no ongoing discomfort.
All these matters were for the jury. I do not consider that anything the Judge said had the effect of withdrawing the issues from the jury. In my view no conclusion one way or the other could properly have been drawn from the complainant’s refusal to undergo an examination, a refusal which, I must say, I find entirely understandable.
In my view the argument on this ground fails.
Conclusion
My conclusion is that leave should be granted on grounds 1 and 3 (Victorian investigation), but refused on ground 7 (concerning putting the defence case).
I consider that none of the grounds of appeal is made out.
I would dismiss the appeal.
WHITE J: I agree with the orders proposed by Vanstone J. I also agree generally with her reasons. There is nothing which I wish to add.