R v H, T - [2010] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, T
[2010] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
24 August 2010
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
Appeal against conviction - defendant and appellant convicted of two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years of age - on appeal, Director conceded that errors of fact and law had occurred with respect to the directions on the topic of evidence of initial complaint - matter remitted by Court for retrial in District Court - construction and operation of section 34M of the Evidence Act 1929 (SA) discussed.
Held: (Gray J) other grounds of complaint dismissed - operation of section 34M does not abrogate common law discretion of Court to decline to admit otherwise admissible evidence - terms of section do not mandate that evidence of recent complaint “be admitted” - however, section 34M makes clear that delay of itself, does not give rise to inadmissibility of evidence of complaint - pursuant to section 34M, evidence of complaint cannot be admitted as evidence of the truth of what is alleged - evidence may be relevant to credibility if showing consistency of conduct - direction that evidence is capable of showing consistency of conduct only required to be given if the evidence in the circumstances is so capable.
(White J) as matter remitted for retrial for other reasons, not necessary to engage in detailed consideration of submissions with respect to form of directions required pursuant to section 34M - refrain from expressing concluded view.
(Kourakis J) terms of section 34M indicate that its purpose is to make admissible, without exception, evidence of initial complaint and to leave assessment of the weight of that evidence entirely to the jury - directions mandated by section 34M must all be given whenever evidence of complaint is admitted - difficulty with direction in relation to consistency of conduct resolved by reading in words “degree of” - a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak, of its occurrence - not necessary to consider the way in which a residual discretion to exclude complaint evidence should be exercised.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56 and s 353(1); Evidence Act 1929 (SA) s 34M, referred to.
Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358; R v Corkin (1989) 50 SASR 580; Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Eastman v The Queen (2000) 203 CLR 1; American Dairy Queen (Q) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; Bropho v Western Australia (1990) 171 CLR 1; Potter v Minahan (1908) 7 CLR 277; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; HML v The Queen (2008) 235 CLR 334; R v Swaffield (1998) 192 CLR 159; Driscoll v The Queen (1977) 137 CLR 517; R v J (2009) 105 SASR 563; RPS v The Queen (2000) 199 CLR 620; R v AJS (2005) 12 VR 563; R v Hendriksen (2007) 98 SASR 571; R v Robinson (No 2) (1991) 180 CLR 531, considered.

R v H, T
[2010] SASCFC 24
Court of Criminal Appeal: Gray, White and Kourakis JJ
GRAY J:

This is an appeal against conviction.
Introduction
The defendant and appellant, TH, was charged with two counts of indecent assault[1] and one count of unlawful sexual intercourse with a person under 12 years of age.[2]
[1] Pursuant to section 56 of the Criminal Law Consolidation Act 1935 (SA).
[2] Pursuant to section 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution alleged that all offending occurred during the course of a single incident at the home of the defendant in suburban Adelaide. The complainant was the young sister of the defendant’s then wife. The complainant alleged that after going to bed, the defendant moved his own daughter from the bedroom and then later returned naked, entered her bed and committed the offences alleged. The complainant said that on the occasion of the alleged offence, she was in the sole care of the defendant. The information particularised the offences as having occurred between 5 October 1979 and 30 August 1980. However, at trial, it was the prosecution case that the offences occurred during the month of February 1980.
The only evidence of the alleged abuse came from the complainant. However, the fact that the complainant had stayed overnight at the residence of her sister and the defendant on a single occasion in February 1980, was confirmed by evidence from the complainant’s sister and her parents. The day following the alleged offending, the complainant was collected from the defendant’s home by her parents. At that time she made no complaint about the defendant’s conduct. Evidence was led without objection about the complainant’s behaviour at that time, that was said to be consistent with her wishing not to remain at the defendant’s home.
The complainant did not disclose the alleged offending until 26 October 2008 - a delay of more than 28 years - when she informed her brother and sister-in-law that she had been raped by the defendant. Subsequently, she spoke to the police and to her parents. However, there was no evidence as to what was said to the police and to her parents.
The defendant gave evidence. He denied the alleged offending. It was not in dispute that the complainant may have visited his home during the relevant period. However, the defendant disputed that the complainant was ever in his sole care at his home. His evidence was that he had no recollection of the complainant staying overnight, but if she did, his wife, the complainant’s sister would have been present.
Following a trial before Judge and jury in the District Court, the defendant was convicted by majority verdict of each offence.
Numerous complaints were advanced on the appeal. It was said inter alia that the Judge in his summing up failed to identify the real issues in the case, failed to give adequate legal directions in regard to the legal issues and misdescribed the defendant’s primary challenge to the prosecution witnesses as being a challenge only to reliability and not to credibility. It was said further that the Judge allowed inadmissible evidence to be led in regard to the complainant’s conduct after the alleged offending, and insofar as the evidence was admissible, failed to give the jury an adequate warning about possible misuse. It was complained that the Judge gave inadequate directions in regard to evidence said to support or corroborate the complainant’s account, misdirected the jury in regard to evidence of complaint, and suggested that the defendant had a bias in the matter and thereby undermined the presumption of innocence. Finally, having regard to all of the above, the defendant submitted that the verdicts were unsafe and unsatisfactory.
The Director accepted that the Judge’s directions with respect to complaint were wrong in law and fact but contended that as no risk of a miscarriage of justice arose, the proviso should be applied and the appeal dismissed.
This was a trial where the veracity and reliability of the complainant were critical and if the jury were left in a doubt about either, it would follow that verdicts of acquittal would be returned. In these circumstances the directions with respect to complaint and the use that could be made of complaint were of heightened importance. The misdirection on the topic of complaint gave rise to a real risk that a miscarriage of justice may have occurred. I formed the view that for this reason alone, the appeal should be allowed and that in all the circumstances, it was not appropriate to apply the proviso.[3] As a consequence, I joined in the order of the Court that the appeal be allowed and the proceedings remitted for a retrial in the District Court. At that time, the members of the Court indicated that reasons for the decision would be provided later. My reasons follow.
[3] Section 353(1) of the Criminal Law Consolidation Act 1935 (SA); see also Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358.
Section 353(1) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The Appeal
Legislative amendment has abolished the common law with respect to recent complaint in sexual cases. The common law has been replaced by a statutory provision - section 34M of the Evidence Act 1929 (SA). This appeal raises for consideration the meaning and reach of section 34M and in particular, its application to the circumstance where the complaint is not recent. Before addressing section 34M, the former common law position should be recorded.
At common law, a contemporaneous, spontaneous complaint was admissible evidence, not as to the truth of the complaint, but as conduct which could be used when assessing the credibility of the complainant and a complainant’s account of the incident the subject of the charge. Spontaneity and contemporaneity were the touchstones to the admissibility of evidence of complaint at common law. These were the matters which made the complaint relevant and probative. As King CJ observed in Corkin:[4]
…A complaint by the alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence and only for the purpose of showing the consistency of the complainant's conduct in making the complaint and of the statement or statements made by the complainant at the first reasonable opportunity with the complainant's evidence in court, R v Lillyman [1896] 2 QB 167 per Hawkins J at 170; R v Sparks [1964] AC 964; R v Freeman [1980] VR 1 esp at 4. …
[4] R v Corkin (1989) 50 SASR 580 at 581.
This appeal raises for consideration the meaning and effect of section 34M of the Evidence Act. Difficult questions of interpretation arise under the section and there would appear to be a number of inconsistencies in the drafting.
The section commences with the abolition of the “common law relating to recent complaint in sexual cases”. A note makes reference to the High Court decisions of Kilby[5] and Crofts.[6] These authorities are a convenient reference to the common law position. The section makes plain that evidence of complaint is not to be treated as evidence of the truth of the alleged incident. By this provision, Parliament re-enacted a significant component of the common law. It follows that evidence of complaint, if admissible, and if admitted, could have relevance to the question of credibility - what the legislation describes as “consistency of conduct” - but could not be used as evidence of the truth of the alleged incident.
[5] Kilby v The Queen (1973) 129 CLR 460.
[6] Crofts v The Queen (1996) 186 CLR 427.
The legislation has removed the common law requirements for admissibility – of spontaneity and contemporaneity. This gives rise to the problem of the relevance of a complaint which is not recent. The terms of the complaint and the context and circumstances in which the complaint is made may have direct relevance to the topic of credibility. It is possible to envisage circumstances where credibility may be enhanced or may be damaged. The section makes plain that in giving mandated directions, the trial Judge is not bound to deliver those directions with any particular form of words.
Section 34M provides:
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)     In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•      when the complaint was made and to whom;
•      the content of the complaint;
•      how the complaint was solicited;
•      why the complaint was made to a particular person at a particular time;
•      why the alleged victim did not make the complaint at an earlier time.
(4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)     It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The Conceded Error as to Complaint
As noted above, the Director conceded that errors of fact and law had occurred with respect to the evidence of complaint. I propose to address this ground of appeal at the outset. Later in these reasons I discuss the effect and meaning of section 34M.
In the present proceeding, the Judge made the following observations in the course of his summing up on the topic of complaint:
I know [counsel for the prosecution] yesterday read to you some of the evidence. I will have to read some of the evidence again. I will also give you directions as to how you may use certain pieces of evidence, including that statement [of the complainant’s sister-in-law] to which I have just referred. Those directions to which I will refer in due course as an “initial complaint” will include the statements made by the complainant…to the police and her other family members late in 2008.
…
The next direction, ladies and gentlemen, is the use you may make of the evidence you have heard about that initial complaint that I was discussing with you before. That is to say, the complainant speaking to [her sister-in-law and her brother] on Sunday, 26 October 2008. That was the first occasion the complainant had told anyone what she said had occurred at Hackham West in probably February of 1980.
You will recall the statement of [the complainant’s sister-in-law] … In essence it was this: ‘[the complainant] appeared nervous and agitated. She very briefly told us that when she was eight years of age her brother-in-law [the defendant] had raped her. She gave us an abbreviated story about where she was at the time and how it happened.’ That is the essence of what they were told at that time.
You heard subsequently that she told her parents the same thing and later the police. As I say, that evidence is what is called the initial complaint by the complainant.
Generally speaking, you would not hear as evidence in a trial what the complainant had said to somebody else not in the presence of the accused. As you know, without repeating it again, a period of 28 years had elapsed between the alleged sexual offences and the time when that complaint was made to the family.
The law, however, in South Australia permits evidence of that initial complaint to be given before you for two very specific reasons and only those reasons. First, in informing you as to how the allegations in the three counts on the information came to light and led to the charges being laid. Second to assist you in testing the consistency or inconsistency of the conduct of the complainant… .It is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this court.
What is important is that the evidence of what she told her family, including [her sister-in-law] and the police, is not placed before you as evidence of its truth. That distinction is very important, ladies and gentlemen. It is not evidence as to whether the alleged sexual offences actually occurred. As I say, it is there for the two limited purposes I have explained to you.
On appeal, the defendant submitted that the above extract contained material errors of fact. The Judge treated the complaints to the police and to the complainant’s parents as forming part of the initial complaint. This was incorrect. There was no evidence that during either conversation there had been an “elaboration” of the complaint made to the complainant’s brother and sister-in-law.
The Judge in the extracted passage asserted that the complainant “told her parents the same thing and later the police”. The reference to “the same thing” was a reference to what was said by the complainant to her brother and sister-in-law. The following extract comes from a statement of the complainant’s sister-in-law tendered in the trial by consent:
…[the complainant] appeared nervous and agitated. She very briefly told us that when she was eight years of age her brother-in-law [the defendant] had raped her. She gave us an abbreviated story about where she was at the time and how it happened.
There was no evidence before the Court as to what the complainant had said to her parents or the police.
The jury were invited to consider and weigh three complaints by the complainant - to her brother and sister-in-law, to the police and to her parents. The Judge also invited the jury to proceed as though the evidence had established that the complainant had made the same complaint to the police and to her parents; that is, that she had been raped. Further, the Judge directed the jury that the complaints made to the police and to her parents, were to be treated by the jury as part of the initial complaint. Shortly put, the jury were invited to consider and weigh matters that were not the subject of evidence. This was a material error.
The Use of the Evidence

The defendant complained about the Judge’s directions to the jury concerning the use of the evidence of complaint.
The Judge, as recorded above, informed the jury that they could have regard to the evidence of complaint to the complainant’s brother and sister-in-law, to her parents and to the police to assist them in “testing the consistency or inconsistency of the conduct of the complainant”. The Judge did not identify the “conduct” referred to. If the Judge was referring to the conduct of the complainant in 1980, her complaints in 2008 could not allow for any meaningful testing. If the Judge was referring to the conduct of the complainant in making the initial complaint in 2008 to be used to test her testimony at trial, this also did not allow for any relevant or meaningful testing.
The Judge, as further set out above, went on to inform the jury “it is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this Court”. The defendant complained on appeal that this was an invitation to the jury to test the consistency of the complainant’s out of court statement in 2008 with her evidence given in the trial.
In the present proceeding, as the complaint was made some 28 years later, it is difficult to perceive how comparing the complainant’s out of court statement in 2008 with her evidence given in 2010 could assist the jury in assessing her credibility or reliability. This is particularly so given the terms of section 34M(2). There is substance to this complaint.
However, the difficulty which arises is that it appears that the Judge considered section 34M as mandating a direction to the jury that “it is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this Court”.
Further analysis of the meaning and effect of section 34M is necessary before these complaints about the use of evidence can be addressed. I turn now to the issues of statutory interpretation.
Statutory Interpretation – Extrinsic Materials
In reaching my conclusions on the topic of complaint, I have had regard to the extrinsic materials that may be properly referred to when construing the legislative provisions. In particular, I refer to the observations of French CJ in K-Generation about the use of extrinsic materials as an aid to interpretation. In that respect French CJ observed:[7]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy”.
[Footnotes omitted]
[7] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [51]-[52].
The introduction of section 34M is to be understood against the background of the directions previously seen to be necessary in sexual cases. The second reading speech outlined the relevant background to the amendment:[8]
The hearsay rule is that a court may not admit, as evidence of the truth of what a person said, evidence from someone else about what that person said to them out of court. For sexual offences, however, a court may admit evidence of a person’s report of the offence to someone else that was made out of court if that report was made at the first possible opportunity after the alleged offence occurred. This is called evidence of ‘recent complaint’.
If admitted, the judge must tell the jury that it may not treat this evidence as bearing on the truth of the matter, but rather as going to the credibility or consistency of conduct of the complainant. This is known as a Crofts direction.
If there was some delay between the alleged offence and when the complainant reported it, and the court may not admit evidence of the complainant’s out-of-court report of the offence because it was not sufficiently ‘recent’, the judge must direct the jury that the delay must be taken into account when they assess the alleged victim’s credibility and consistency of conduct. This is known as a Kilby direction.
[8] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007,, 1459 (The Hon M.J. Atkinson).
The particular criticisms of the directions required in relation to complaint in sexual cases, which led to reform, were outlined:[9]
The law of recent complaint, with its implications for a victim’s credibility is based on outdated notions of the behaviour of victims of sexual assault, particularly child victims. …
South Australia tried to overcome problems with warnings about the significance of a delay in reporting a sexual offence by legislating that if, in a trial of a sexual offence, there is a suggestion that the alleged victim failed to report it or delayed reporting it, the judge must warn the jury that that failure or delay does not necessarily mean the allegation is false, and tell the jury that the alleged victim could have valid reasons for failing to report the offence or delaying reporting it (see current section 34I of the Act).
Section 34I does not stop a judge making a Kilby direction when an alleged victim does not make what is regarded as a ‘recent’ complaint of a sexual offence. In such cases, the judge must tell the jury that the delay in reporting the offence is a matter to which they can have regard when assessing the alleged victim’s credibility.
Because section 34I(6a) of the Act confines the admissibility of out-of-court reports of sexual offences to ‘recent’ reports, Kilby/Crofts directions are too often given without the jury having heard evidence form the complainant as to why and to whom he or she reported the offence and why he or she reported it at that particular time and not earlier.
The defence may make a tactical decision to ask the complainant when he or she reported the offence but not to ask further questions about it, so that the complainant has no opportunity to explain any delay. That leaves the jury wondering why the prosecution has offered no evidence in explanation when it hears the defence address on delay followed by a warning form the judge that the delay has a significance to the complainant’s credibility. The effect must be to encourage a belief that the prosecution has something to hide and that the complainant should not be believed.
[9] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1459 (The Hon M.J. Atkinson).
The above extracted explanation demonstrates that section 34M was enacted to overcome the prejudice occasioned to complainants, associated with a delayed complaint. As the speech further comments in relation to the approach to reforms recommended by the law reform commissions in Tasmania, New South Wales and Victoria:[10]
…The principle behind those reforms is clear- that it should not be assumed or suggested to a jury that a delay in reporting a sexual offence necessarily means that the complainant is lying, and that, indeed, juries should understand that there are often legitimate reasons for not reporting a sexual offence for some time.
[10] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (The Hon M.J. Atkinson).
The particular operation of the Bill introducing section 34M was explained:[11]
This Bill deletes section 34I of the Act and replaces it with a new provision (section 34M) that expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby/Crofts directions. It forbids any suggestion or statement to a jury that the timing of the reporting of a sexual offence has an inherent significance for the complainant’s credibility or consistency of conduct. It allows the admission of evidence of a complainant’s initial report of a sexual offence, if relevant, whenever that occurred. That evidence may be given by any person about when the report was made and to whom, its content, how the complaint was solicited, why the complainant reported the alleged offence to that person at that time and why the complainant did not report the alleged offence to someone else at an earlier time (if relevant).
When admitting such evidence in a trial before a jury, the judge must give the jury specific directions about how to treat the evidence, but is not bound to use a particular form of words in doing so. The judge must direct the jury that this is hearsay evidence that may not be used as evidence of the truth of what was alleged; that the reason it is admitted is to show how the allegation first came to light; that there may be any number of reasons for the alleged victim of a sexual offence reporting the allegation to a particular person at a particular time; and that it is the jury’s job to determine what significance, if any, should be given to the evidence of that report in the circumstances of the particular case.
[Emphasis added]
[11] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (The Hon M.J. Atkinson).
The section was further explained:[12]
New section 34M abolishes the common law relating to recent complaint in sexual cases; that is, the rule that currently applies in relation to the giving of a Kilby or Crofts direction, and substitutes a statutory scheme in its place. The new section forbids the making of a suggestion or statement to the jury that a delay in making a complaint etc is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct. This reflects modern perceptions related to the reasons a complainant may choose not to make a complaint at the earliest opportunity. Consequently, the section provides that evidence related to the making of a complaint is admissible in certain trials. However, certain directions and warnings must be given to juries in relation to such evidence of the kind set out in the provision.
[12] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1466 (The Hon M.J. Atkinson).
Statutory Interpretation and the Common Law
The High Court, when considering the interpretation of statutes, has consistently recognised that it is presumed that Parliament does not intend to abrogate the common law. It is well settled that a statute is not to be construed as abrogating fundamental common law principles or rights unless the contrary intention is manifestly clear from its terms or as a matter of necessary implication.[13]
[13] Eastman v The Queen (2000) 203 CLR 1 at 23 (Gaudron J);
In American Dairy Queen (Q) Pty Ltd v Blue Rio Pty Ltd[14]Mason J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed, made the following pertinent observations:
The general rule is that the courts will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such an intention is manifested according to the true construction of the statute. See Reg v Morris; Potter v Minahan; see also Craies on Statute Law…
[Footnotes omitted]
[14] American Dairy Queen (Q) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682-683.
In Bropho v Western Australia[15] the Court adopted the oft-cited comments of O’Connor J in Potter v Minahan[16] when observing:[17]
One can point to other “rules of construction” which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, eg, Benson v Northern Ireland Road Transport Board), which would operate retrospectively (see, eg, Maxwell v Murphy), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, eg, Magrath v Goldsbrough, Mort & Co Ltd) or which would take away property without compensation (Attorney-General v De Keyser's Royal Hotel). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v Minahan, and see, also, Ex parte Walsh and Johnson; In re Yates). …
[Footnotes omitted – emphasis added]
[15] Bropho v Western Australia (1990) 171 CLR 1.
[16] Potter v Minahan (1908) 7 CLR 277 at 304.
[17] Bropho v Western Australia (1990) 171 CLR 1 at 17-18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
The High Court in Balog,[18] similarly cited Potter v Minahan when making the following comments:
…If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred: Smorgon v Australia and New Zealand Banking Group Ltd. See also Hamilton v Oades; Potter v Minahan; Wade v New South Wales Rutile Mining Co Pty Ltd; and Baker v Campbell.
[Footnotes omitted – emphasis added]
[18] Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-636.
The decisions of Bropho and Balog have been subsequently referred to with approval by the High Court and applied in other jurisdictions.[19]
[19] See eg Glennon v The Queen (1993) 179 CLR 1 at 12; Eastman v The Queen (2000) 203 CLR 1 at 23 (Gaudron J); Kruger v Commonwealth (1997) 190 CLR 1 at 105 (Gaudron J); Water Board v Glambedakis (1992) 28 NSWLR 694 at 712 (Kirby P); Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 700 (Kirby P); City of Swan v Lehman Brothers Australia Ltd (2009) 179 FCR 243 at 267-268.
The Construction of Section 34M
Before looking at the construction of section 34M in greater detail, it is necessary to draw attention to the principle of admissibility of evidence at common law. That principle was authoritatively outlined in HML[20] where Gleeson CJ observed:
The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible. Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability. …
[Footnotes omitted – emphasis added]
[20] HML v The Queen (2008) 235 CLR 334 at 351.
It is further necessary to draw attention to the overriding common law discretion to exclude evidence, notwithstanding its admissibility. The general discretion was discussed by the High Court in Swaffield[21] where Toohey, Gaudron and Gummow JJ observed:
[21] R v Swaffield (1998) 192 CLR 159 at 191-193.
In Cross on Evidence the following statement appears under the heading "Discretion to exclude relevant evidence in criminal proceedings":
"Evidence may be excluded where its prejudicial effect exceeds its probative value. This is commonly applied in relation to similar fact evidence, but can apply more generally."
Certainly there are judicial statements to that effect as for instance in R v Edelsten where the Court of Criminal Appeal adopted a passage from the judgment of Hunt J in R v Merritt and Roso in which it is said that there are three distinct areas of the trial judge's discretion to exclude evidence that is technically admissible, the first arising "where the prejudicial effect of that evidence outweighs its probative value".
A number of the authorities relied upon in Edelsten to support this proposition deal with similar fact or propensity evidence. However, as a matter of principle there is no reason why the power or discretion to exclude evidence which is unduly prejudicial should not extend to a statement made by an accused person and to other evidence upon which it would be dangerous for a jury to act. In the case of propensity evidence which is not of a kind that compels an inference of guilt, evidence which is prejudicial rather than probative is simply inadmissible. In other situations it may be necessary to reject such evidence because "no account ought to be taken of [it] ... for any evidentiary purpose". And there may be yet other situations where it is necessary to reject evidence which is prejudicial rather than probative to avoid a risk of a miscarriage of justice. In such cases it is not entirely accurate to speak in terms of a discretion. In Pfennig v The Queen Mason CJ, Deane and Dawson JJ spoke of two relevant principles enunciated by Lord Herschell LC in Makin v Attorney-General (NSW), the second of which "seemed to imply that propensity evidence was ... inadmissible for some overriding policy reason, ie, that in many cases its prejudicial effect would outweigh its probative force". And the discretion has sometimes been seen to involve considerations of fairness to the accused. Thus in R v Wray Martland J, speaking for a majority of the Supreme Court of Canada, said:
"The allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly".
However, the fairness at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.
Since "the unfairness discretion" is a recognised basis for excluding confessional statements and is dealt with in the authorities as a discrete discretion, the issue whether there is some additional basis for excluding such statements in terms of probative value versus prejudicial effect does not call for further exploration in the present context.
[Footnotes omitted]
It is to be noted that the High Court has recognised a residual discretion to reject any evidence if the strict rules of admissibility would operate to cause an unfairness to the accused in the sense that the trial would be unfair. In Driscoll[22] Gibbs J, with whom Mason, Jacobs and Murphy JJ agreed, made the following remarks in relation to whether the discretion should be exercised to exclude an unsigned record of an interview of the accused:
…It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, e.g., R. v. Christie; Noor Mohamed v. The King; Harris v. Director of Public Prosecutions; and Kuruma v. The Queen. …
…
…In any case the paramount requirement is that the trial should be conducted fairly and for the reasons I have given I consider that the admission of an unsigned record would in some cases tip the scales unfairly against the accused. …
[Footnotes omitted]
[22] Driscoll v The Queen (1977) 137 CLR 517 at 541-542.

Section 34M recognises the continuing existence of the overriding judicial discretion to decline to admit into evidence otherwise admissible evidence. Section 34M(3) provides that evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Parliament through this subsection addressed admissibility. By the enactment of section 34M, Parliament removed the requirement of recency as a criterion for the admissibility of complaint evidence. There is nothing in the wording of section 34M(3) to require that evidence to be admitted. In particular, nothing in the section, nor the second reading speech nor any of the relevant materials suggests in any way that section 34M abrogated the overriding common law discretion to exclude otherwise admissible evidence. Had Parliament intended to remove the common law discretion, it would have directed that the evidence be admitted. This conclusion is reinforced by the terms of section 34M(4), and in particular, the words “[i]f evidence referred to in subsection (3) is admitted in a trial, the judge must direct…”. The use of the word “if” contemplates that a Judge may in the exercise of judicial discretion not admit the evidence. This conclusion is further reinforced by the presumption against abrogation of the common law earlier outlined.
This interpretation of section 34M is supported by the above extracts from the second reading speech. It is apparent that the principal focus of the section was to remove any suggestion that delay in complaint might be relevant in assessing - in an adverse manner - the credibility of a complainant. Furthermore, the enactment sought to amend the common law position that delay, of itself, gave rise to the inadmissibility of evidence of complaint. The latter of these aims was achieved by providing that evidence of complaint “is admissible” in a trial of a charge of the sexual offence “despite any other rule of law or practice”.
It is to be pointed out that the second reading speech notes, as highlighted, that the section allows the admission of evidence of a complainant’s initial report of a sexual offence, whenever that occurred “if relevant”, indicating that ordinary evidential concerns such as relevancy remain a consideration for the trial Judge.
Returning to the provisions of section 34M, once the evidence is admitted, the Judge is to direct the jury that the evidence is admitted to inform the jury as to how the allegation first came to light; that it is admitted as evidence of the consistency of conduct of the alleged victim; that it is not admitted as evidence of the truth of what was alleged; that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person; but that otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
It is clear that in enacting section 34M, Parliament re-enacted major portions of the common law and in particular, that a complaint was not evidence of the truth of what was alleged. It follows that the only other basis of admissibility is the credibility of the complainant. This was recognised in J, where Duggan J observed:[23]
It was submitted that s 34M of the Act confined the relevance of a complaint to consistency and that it was a misdirection to tell the jury that it was relevant to “consistency and therefore credibility”.
In my view the reference to credibility in the summing up did not constitute a misdirection. Consistency of conduct is relevant to a consideration of the credibility of a complainant. In Suresh v The Queen Gaudron and Gummow JJ said:
[The complaint] is admitted not as evidence of the facts in issue, R v Lillyman [1896] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460 at 472 per Barwick CJ.
This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency. This in turn constitutes a buttress to the evidence of the complainant. The trial Judge’s use of language was appropriate: the jury were told that the evidence was relevant to consistency and “therefore the credibility of the complainant’s evidence”.
[Footnotes omitted-emphasis added]
[23] R v J (2009) 105 SASR 563 at [92]-[93].
These remarks make clear that if evidence of complaint is relevant to show consistency of conduct, that evidence may buttress the complainant’s credibility. These remarks reinforce the position that the evidence of complaint is not admitted as evidence of the facts in issue. In my view, this Court should follow these observations. The manner in which this matter was addressed by Duggan J is the only way to make sense of the legislation.[24]
[24] It is to be observed that Nyland and White JJ agreed with the observations of Duggan J.
In the present proceeding, there was a possible relevance of the evidence of complaint to assist the jury in understanding how the allegation first came to light. The members of the jury were addressing an alleged incident more than 28 years after it was alleged to have occurred. It may be said to be in the interests of a fair trial that the jury should understood that the allegations were raised for the first time in 2008. If the evidence were admitted for that purpose, the jury would also be informed that the complaint was not evidence of the truth of what was alleged. However, a further problem arises from the wording of section 34M. Once admitted, does the Judge have to also direct the jury that the evidence has been admitted as evidence of the consistency of conduct of the complainant. This raises the difficulty referred to earlier - that the evidence in the circumstances of this proceeding is not probative on that question.
In my view, this difficulty could be best met by reading down section 34M(4)(a)(ii), to oblige the Judge to only so direct if the evidence is capable of demonstrating consistency of conduct; that is, can the evidence be said to be relevant to show consistency of conduct. If the evidence is not so capable it is not relevant or admissible for that purpose. It is to be noted that such a reading down does not in any way undermine the thrust of the reforms intended to be introduced by section 34M; that is, to abolish the giving of directions to the jury that delay in making a complaint is relevant to assessing adversely the credibility of the complainant.
Another possible way to address this difficulty is to adopt the course followed by the trial Judge in the present proceeding and treat the reference to consistency as including inconsistency.
It was appropriate for the Director to make the concession that errors of law and fact permeated the Judge’s summing up when dealing with the issue of complaint. As earlier discussed, the acceptance of the credibility and reliability of the complainant were critical to the jury’s verdicts. These errors were material and significant and give rise to a risk that a miscarriage of justice may have occurred. There is no room for the application of the proviso. In the circumstances, it is necessary that there be a remittal for a retrial.
Having regard to the foregoing, I propose to briefly address the other grounds of appeal.
Identification of Real Issues and Adequate Directions on those Issues
As earlier observed, it was complained that the Judge in the course of the summing up did not identify the real issues of the case and did not give adequate direction in respect of those issues.
In RPS, the High Court outlined the task of a trial Judge in the following terms:[25]
…The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[Footnotes omitted]
[25] RPS v The Queen (2000) 199 CLR 620 at [41].
The particular obligations required of a trial Judge were further summarised by the Victorian Court of Appeal in AJS:[26]
(a)     to decide what are the real issues in the case;
(b)     to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)     to tell the jury, in the light of the law, what those issues are;
(d)     to explain to the jury how the law applies to the facts of the case; and
(e)     to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
[26] R v AJS (2005) 12 VR 563 at [55]; these authorities were adopted by Layton J in R v Hendriksen (2007) 98 SASR 571 at [69]-[70].
A review of the summing up discloses that the Judge dealt, inter alia, with the onus of proof, the need for any verdict to be free of any external pressure or influence, the need for any verdict to be uninfluenced by sympathy or prejudice, the fact that the case was to be decided on the evidence, the significance of out of court statements, the assessment of evidence and in particular that the defendant’s evidence was to be assessed just like the evidence of the other witnesses, the use of good character evidence, the use of delay, the elements of each count, the need to consider each count separately, a review of the key evidence, the address of counsel, and a summary of the prosecution and defence cases.
I do not consider that this complaint is of any substance. The approach taken by the defendant on appeal was to identify a particular passage in isolation and to advance criticisms without considering the summing up as a whole. In my view, subject to the question of complaint, the Judge met the obligation to deliver a summing up sufficient to ensure a fair trial. In particular, as discussed above, the Judge identified the real issues, gave directions to the jury on so much of the law as was necessary to enable the jury to resolve the issues that arose, explained how the law applied to the facts, and summarised the matters in the trial relevant to the facts in issue, doing so by reference to the issues in the case.
Credibility and Reliability
As earlier observed, it was complained that the Judge suggested to the jury that the defence only challenged the prosecution witnesses as to reliability and not credibility. The particular complaint advanced related to the following statement of the Judge:
This may be a case where you might disapprove of some of the behaviour of some people you have heard about. You have heard a great deal of evidence touching upon the break-up of the marriage of [the complainant’s sister] and the [defendant]… . You heard the break-up was acrimonious. Everyone told you that. You heard there also appears to be some ill will between some of the members of the … family and the [defendant]. That evidence may be relevant to your assessment of the credit of some of the prosecution witnesses but I say this to you: no-one suggested that anyone was being untruthful as opposed to being perhaps unreliable because of the long delay which has taken place in this case.
It is to be accepted that at times during the summing up, the Judge specifically spoke of reliability, but on a number of occasions he made it plain to the jury that their task included an assessment of credibility in addition to reliability. Early in the summing up, the Judge made reference to the assessment of the credit of the prosecution witnesses and, in the conclusion of the summing up, the Judge referred specifically to the complainant’s credibility and reliability and the need for the jury to be satisfied beyond reasonable doubt that her version of events was both truthful and reliable.
The observations at the end of the extracted paragraph related specifically to the topic of ill will. On this topic witnesses were asked about a marriage breakup and an incident at the Magistrate’s Court, but it was not put in respect of those matters that any witnesses had been deliberately untruthful or had lied out of ill will.
Self-Serving Evidence
The defendant complained on appeal that evidence given by the complainant about her emotional state following the offending, was self-serving or “oath helping”. It was contended that this evidence was inadmissible as it merely bolstered the credit of the complainant.
The prosecution relied on a number of events to evidence a disturbed emotional state, including a statement that the complainant made on returning home following the alleged incident and an observation of the wearing of a jumper around her waist. It was the prosecution case that this evidence was relied upon as conduct consistent with someone who had been abused in the way alleged by the complainant.
No objection was taken at trial to the evidence. There was a forensic reason why, even assuming the evidence to be inadmissible, objection would not be taken by the defendant. It was his case that subsequent to the alleged offending, there were a number of occasions when the complainant did not seek to avoid him when she could have readily done so. At trial, defence counsel made the point both in cross-examination and during his address, to contrast this later behaviour with the way in which the complainant asserted she felt following the alleged offending. This allowed defence counsel to attack the complainant’s credibility. For this reason alone, even accepting that the evidence was inadmissible, it would not lead to a miscarriage of justice.
In any event, the evidence was admissible. Evidence is relevant if it can rationally impact on, directly or indirectly, the assessment of the probability of a fact in issue. Evidence is relevant if it can provide a context that is helpful or even necessary to an understanding of the narrative of a complainant. As Gleeson CJ observed in HML:[27]
The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible. Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability. The prosecution may set out to establish that an accused had a motive to commit an offence charged. Motive may rationally affect the assessment of the probability of the existence of one or more of the elements of an offence. Evidence that tends to establish motive, therefore, may rationally affect such assessment. If so, it is relevant. When the prosecution sets out to establish motive, that is often a step in the prosecution case that is not indispensable. If it is established, motive may support (sometimes powerfully) the prosecution case, but juries are often told that failure to establish motive does not mean the case must fail. The legal necessity is to establish beyond reasonable doubt the elements of the offence. What that entails as a matter of fact may depend upon the circumstances of the particular case. Some of the statements made in Chamberlain v The Queen [No 2] could have been interpreted as abrogating the fundamental legal principle, but what was there said was subsequently clarified in Shepherd v The Queen.
[Footnotes omitted]
[27] HML v The Queen (2008) 235 CLR 334 at [5].
It was relevant for the jury, when considering the evidence of the complainant, to consider whether she had behaved in a manner that was consistent with having been the victim of such offending. As Gleeson CJ further observed in HML:[28]
Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was fourteen years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In Director of Public Prosecutions v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.
[Footnotes omitted]
Evidence from the complainant about her emotional and physical state following the offending was relevant and probative evidence and was admissible at the trial.
[28] HML v The Queen (2008) 235 CLR 334 at [6].
Finally on this topic, the defendant on the appeal complained that the Judge did not give an adequate direction about the possible misuse of this evidence. In the course of his summing up, the Judge directed:
That brings me to another topic of a broadly similar nature. That concerns how the complainant presented to her parents and [her sister] allegedly on the next morning following the alleged sexual offences. You recall that evidence was led from those witnesses to say that she was quiet, she went straight to the car. When she got home she said she would not go back there and she said about changing her lock. It was not said directly to you, ladies and gentlemen, but it seemed to have been led before you to have you infer that this conduct somewhat supported or corroborated in some way what had allegedly occurred that long ago.
The defendant complained that these directions concerning support or corroboration were inadequate.

The Director accepted that it may have been a better direction for the Judge to have explained that the evidence relied on was of conduct consistent with someone who had been abused rather than to speak in terms of support or corroboration. However, it was said that in context, the jury were adequately directed as it would have been clear to the jury how the evidence was being relied upon. This was said to have been reinforced by the direction provided by the Judge in the ensuing paragraph:
I will, in a moment, discuss further the topic of inferences and how you may draw inferences from proven facts. That is, if you are satisfied that those facts did occur what inferences arise from those facts? But I tell you this, ladies and gentlemen: before you can draw an inference in a criminal trial as suggested by the prosecution you must be satisfied by the prosecution that the inference you are being asked to draw is the only rational and reasonable inference which emerges from the relevant facts.
Again, this aspect of the summing up should not be considered in isolation. The jury were directed in the following passage in the clearest of terms that there was no corroboration or independent support for the complainant’s evidence of having been abused:
I need to give you an important direction in respect of the evidence of the complainant… . In this case, there is no independent support - that is something called ‘corroboration’ - for her evidence.
And in the conclusion of the summing up, the Judge directed the jury:
On the other hand, if you are satisfied beyond reasonable doubt that the evidence leads you to find the proven facts are inconsistent with any rational or reasonable hypothesis other than the guilt of the accused you should say so and return a verdict of guilty in respect of that count.
I remind you again that the prosecution case is totally reliant upon the evidence of the complainant and any doubt you may have formed with respect to one element of an offence, including any inconsistencies, ought be taken into account by you in assessing her credibility and reliability, generally.
You will recall that I directed you that you must scrutinise the evidence of the complainant with great care before you could find that you are satisfied beyond reasonable doubt that it is a truthful and reliable version of the events.
Undermining Presumption of Innocence
In the course of his summing up the Judge directed the jury:
It is also important to bear in mind this: does a witness have some relationship, some interest in the case which might give rise to bias or perhaps sympathy?
It was submitted on the appeal that this direction would have been taken by the jury to apply to the defendant and as a consequence it was a direction that would have the effect of undermining the presumption of innocence. Attention was drawn to the observations of Mason CJ, Brennan, Deane, Toohey and McHugh JJ in Robinson:[29]
Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had "the greatest interest of all the witnesses" in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. An express direction which had the effect of his Honour's directions would have been a clear misdirection, as…counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial -- including the evidence of the accused -- the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence.
[Footnote omitted]
[29] R v Robinson (No 2) (1991) 180 CLR 531 at 535-536.
The Director submitted that Robinson was clearly distinguishable. In that case, the Judge suggested that the accused had the greatest interest in the outcome of the case and that his evidence should be scrutinised closely as a consequence. The direction in the present proceeding was said to be of an entirely different character. It was contended in particular that the jury would not have taken the direction given by the Judge as other than applying to the prosecution witnesses. It was further submitted that the direction was predicated on there being a relationship or interest that might give rise to bias or sympathy and was plainly directed to members of the complainant’s family who had given evidence during the prosecution case. It was put to these witnesses in cross-examination that the breakdown of the relationship between the defendant and his ex-wife, the complainant’s sister, was acrimonious. It was in this context that the Judge gave his direction.
My review of the summing up has allowed the conclusion that it is unlikely that the jury would have inferred or considered that this direction related to the defendant. Allowing for the risk that the jury may have so understood the direction, I do not consider it to be of such a nature so as to have led to any miscarriage of justice. Defence counsel at trial raised no concern about this direction, which provides some support for the conclusion that those at the trial understood the Judge to be referring to the prosecution witnesses and not the defendant.
Leaving aside the topic of complaint, there is nothing otherwise about the summing up that would give rise to any suggestion that the verdicts reached were unsafe or unsatisfactory.
Conclusion
As earlier discussed, the misdirections with respect to complaint gave rise to the order that the appeal be allowed and the matter be remitted for a retrial. In my view, the other matters of complaint are of no material substance. Otherwise, there was no risk of a miscarriage of justice having occurred.
WHITE J: I joined in the orders of this Court on 28 May 2010 allowing the appeal, setting aside the convictions, and remitting the matter for retrial.
Like the other members of the Court, I consider that there were errors in the Judge’s directions on the topic of the complaints by the alleged victim. In particular, the evidence of the statements made by the complainant to her parents and to the police after her initial report to her brother and sister-in-law could not form part of the initial complaint. Contrary to the Judge’s directions, it could not be said that whatever the complainant said to her parents and the police was the “same thing” as she had said to the brother and sister-in-law. That is because there was no evidence of what she had actually said to her parents and the police. In that circumstance, it could not be said that whatever the complainant said to the parents and the police comprised (in the sense contemplated by the definition of “initial complaint” in s 34M(6) of the Evidence Act 1920 (SA)) the provision of information in elaboration of the initial complaint to the brother and sister‑in‑law.
The errors in the directions by themselves warranted the appeal being allowed. I also agreed that this is not a case in which the proviso should be applied.
The complainant’s first complaint was made more than 28 years after the conduct alleged against the appellant was said to have occurred. This gave rise to submissions on the appeal as to the form of directions required by s 34M(4) of the Evidence Act in these circumstances. Subsection (4)(a) requires the Judge, when evidence of an initial complaint has been admitted, to direct the jury as to the two purposes for which that evidence has been admitted, ie, to inform the jury as to how the allegation first came to light, and that it is evidence of consistency of conduct of the alleged victim.
The first limb should usually cause no difficulty. However, a Judge may have difficulty, without infringing the prohibition contained in s 34M(2), in explaining to the jury how there can be any consistency, or even partial consistency, between conduct alleged to have occurred many years previously and the evidence of a complaint about that conduct which is made much later.
Various means by which those difficulties may be addressed were canvassed in the submissions. Because the appeal has been allowed for other reasons, it is not necessary, in my respectful opinion, to engage in a detailed consideration of those submissions. At present, I am inclined to think that a Judge may direct a jury in accordance with s 34M(4) in circumstances like the present by first giving an appropriate direction under sub-s (4)(a)(i). The Judge could then tell the jury that the law also permits evidence of the initial complaint to be admitted as evidence of consistency of the conduct of the alleged victim, and then tell the jury that it is for it to consider whether the making of the complaint in the circumstances disclosed in the evidence in the particular case is consistent with the conduct alleged by the complainant having occurred, and whether the content of that complaint is consistent with the complainant’s evidence. The direction would, of course, also have to address the matters contemplated by sub-paragraphs (b) and (c), and by the concluding words of sub-s 4).
A direction of this kind would avoid the apparent incongruity of a trial Judge having to direct a jury that the evidence as to the making of the complaint is admitted as evidence of the consistency of conduct of the alleged victim in circumstances in which it is plain that there is no consistency, or in which it is open to the jury to consider that there is no consistency. Such a direction would have the effect of telling the jury that it was for it to consider the nature and extent of any consistency or inconsistency. In this way it would also fit in with the direction required by the concluding words of sub-s (4).
As it is not necessary for the disposition of this appeal to express a concluded view about the content of a proper direction, I refrain from doing so.
For similar reasons, it is not necessary to address the remaining grounds of appeal.
KOURAKIS J: I gratefully adopt the summary of the evidence and of the proceedings appearing in the judgment of Gray J.
The direction of the Judge that the complainant had informed her parents and the police of the “same thing” of which she had complained to her brother and sister in law was a misdirection; there was no evidence of the substance of the complaint made to her parents and the police.
I joined in the orders of this Court setting aside the appellants convictions and remitting the matter for retrial because of that redirection on a matter of fact. The proviso cannot be applied because the misdirection affected the assessment of the complainant’s credit in a trial which largely fell to be determined by resolving the conflicting testimony of the appellant and the complainant. On the other hand the verdict was plainly enough not unreasonable; it was supported by the testimony of the complainant which was buttressed by independent evidence.
It is strictly unnecessary to deal with the remaining grounds but it is necessary to record my views on the construction of s 34M of the Evidence Act 1929 because they differ from the approach taken by Gray J.
Section 34M of the Evidence Act 1929 (the Act) provides:
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about –
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that:
(a)     it is admitted:
(i)    to inform the jury as to how the allegation first came to light; and
(ii)     as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section –
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
In my view it is evident from the very text of s 34M that its purpose is to admit, without exception, evidence of the initial complaint and any subsequent elaboration of it, and to leave the assessment of the weight of that evidence entirely to the jury. The prohibition against any suggestion or statement that the timing of the reporting of a sexual offence has inherent significance is aimed at both judges and counsel. I explain my reasons for so holding below. The manifest purpose of the section is confirmed by the available secondary materials. An exchange between the Attorney-General and the then Shadow Attorney-General that the clause was amended, shows that they proceeded on the assumption that the prohibition was directed to both judges and counsel.
In introducing the Bill to enact s 34M, which was then expressed in different terms to those in which it was finally enacted, the Attorney-General expressed its purpose as follows:
…that it should not be assumed or suggested to a jury that a delay in reporting a sexual offence necessarily means that the complainant is lying, and that, indeed, juries should understand that there are often legitimate reasons for not reporting a sexual offence for some time.[30]
[30] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (The Hon M.J. Atkinson).
The Attorney-General referred to a tactical defence sometimes deployed in cases of late complaint in these terms:
…to ask the complainant when he or she reported the offence but not to ask further questions about it, so that the complainant has no opportunity to explain any delay. That leaves the jury wondering why the prosecution has offered no evidence in explanation when it hears the defence address on delay followed by a warning from the judge that the delay has a significance to the complainant’s credibility. The effect must be to encourage a belief that the prosecution has something to hide and that the complainant should not be believed.[31]
[31] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1459 (The Hon M.J. Atkinson).
The Attorney-General then explained the operation of the section as follows:
This Bill deletes s 34L of the Act and replaces it with a new provision (s 34M) that expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby/Crofts Directions. It forbids any suggestion or statement to a jury that the timing of the reporting of a sexual offence has an inherent significance for the complainant’s credibility or consistency of conduct. It allows the admission of evidence of the complainant’s initial report of a sexual offence, if relevant, whenever that occurred. That evidence may be given by any person about when the report was made and to whom, its content, how the complaint was solicited, why the complainant reported the alleged offence to that person a that time and why the complainant did not report the alleged offence to someone else at an earlier time (if relevant).
When admitting such evidence in a trial before a jury, the Judge must give the jury specific directions about how to treat the evidence, but is not bound to use a particular form of words in doing so. The Judge must direct the jury that this is hearsay evidence that may not be used as evidence of the truth of what was alleged; that the reason it was admitted is to show how the allegation first came to light; that there may be any number of reasons for the alleged victim of a sexual offence reporting the allegation to a particular person at a particular time; and that it it the jury’s job to determine what significance, if any, should be given to the evidence of that report in the circumstances of the particular case.[32]
[32] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1460 (The Hon M.J. Atkinson).

There can be no clearer abrogation of the common law of recent complaint than the express terms of s 34M(1) of the Act. The remainder of s 34M should be given its natural meaning free of any preconceptions, based on the common law which it abolishes.
The terms of s 34M(2) are clear. The proscribed suggestions and statements must not be made in a trial. The prohibition is not limited to a particular participant in a criminal trial. The sub-section takes the passive form. It would be repugnant to the manifest purpose of the prohibition in sub-s (2) to limit it to counsel leaving the trial judge free to make such comment as he or she thought fit. Disputed questions of fact are for the jury to determine with the assistance, primarily, of counsel. The Parliament, in prohibiting comment on the length of delay, could not have intended to transfer counsels’ responsibility to the trial judge.
No implication can be drawn from the terms of s 34M(4) that s 34M(2) is limited to counsel because the former sub-section uses the verb “direct” in referring to statements that a judge is required to make. The word “direct” is used in s 34M(4) precisely because that sub-section is, and can only be, applicable to the trial judge and because it requires the statement to be given as a legal direction to the jury. For the same reason, no implication can be drawn from s 34CB of the Act.
Not only do the text and secondary materials make the universal and absolute nature of the prohibition clear, so too does the social context in which s 34M was enacted. In recent times there has been a growing recognition and understanding of the deep psychological consequences of sexual abuse. The social, physical and psychological obstacles to disclosure of abuse by complainants are now well known. At the very least they are very well-known to criminal courts and those who appear in them.
The prohibition in s 34M(2) against any suggestion that delay in making a complaint in itself is probative in relation to the complainant’s credibility recognises those obstacles.
The context in which s 34M(2) was enacted also informs the meaning of s 34M(4). It is most evident in the closing clause of s 34M(4)(c). Plainly, the legislature has taken the view that the weight to be attached to the nature and timing of the complaint is a matter which can be properly and fairly assessed by modern juries without the “assistance” of counsel or judges. Parliament must be taken to have been aware of the warnings and comments sometimes given to juries on these matters. Section 34M evinces a clear intention that juries should not be burdened by such statements.
The first direction prescribed by s 34M(4) that the evidence of complaint is admitted to inform the jury how the allegation first came to light is unlikely to cause any difficulty, even where there has been a very long delay between the alleged offending and the making of the complaint. Equally, in my view, a jury will readily understand the direction required by s 34M(4)(c) that there may be varied reasons why an alleged victim has made a complaint of an offence at a particular time or to a particular person. The direction articulated in s 34M(4)(b) repeats the direction which has long been given to juries. It is plain that the three directions just discussed must be given in all cases where evidence of complaint has been received; they are preceded by the command “the judge must direct the jury”, each sub-paragraph is conjoined with the word “and”, and there is nothing about the content of each direction which suggests that the mandatory terms of the sub-section do not mean what they say.
The directions mandated by s 34M(4) must be given if, in the sense of whenever, evidence of complaint is admitted. The obligatory direction is a direction that “it” is admitted for particular purposes. The “it” referred to by s 34M(4) is the evidence of complaint actually given in the trial. Section 34M(4) does not require directions about the operation of s 34M of the Act in cases generally. Its purpose is not to give the jury a lesson about the operation of a particular aspect of the law of evidence. Section 34M requires the jury to be directed about why the particular complaint evidence it has heard is admitted. In that context it is plain that it requires a direction that the complaint evidence heard by the jury “is admitted as evidence of the consistency of the conduct of the alleged victim”. The plain words of the section do not allow for a direction to the effect that the complaint evidence heard by the jury is some time admitted in other trials as evidence of the consistency of conduct of the complainant but in fact is not evidence of the consistency of conduct in this particular case. To so direct the jury would breach the obligation imposed by s 34M(2); it would constitute a direction that the alleged victims delay in making the complaint had probative value in relation to her credibility.
Moreover, the mandatory terms of s 34M(4) of the Act are equally applicable to s 34M(4)(a)(ii)as they are to the other prescribed directions. It is impermissible to read the word “and” which conjoins the various directions stipulated by s 34M(4) as meaning “and/or”. To imply the word “or” is in fact to destroy the mandatory nature of the command in the opening phrase of s 34M(4) of the Act. If one thing is clear from the text and context of s 34M(4) is that it is that the Parliament intended to closely control the way in which complaint evidence was used and the directions given on it.
The direction that the complaint is admitted as evidence of the consistency of conduct of the alleged victim and is not admitted as evidence of the truth of what was alleged is problematic.
Finally I observe that a trial judge must direct a jury that it is for “it” to determine the significance (if any) of the complaint evidence; any suggestion by a trial judge that the delay is so long that the complaint is not consistent with the allegation will tend to usurp the function that Parliament has entrusted to the jury’s, and not the judge’s, common sense.
It is convenient now to deal with the supposed difficulty with the direction that the complaint is admitted as evidence of the consistency of the complainant’s conduct. It is contended that a complaint made decades after an alleged offence can not in any material sense be consistent conduct. In my view, that difficulty dissolves once it is understood that the use of the complaint referred to in the direction described in s 34M(4)(a)(ii) is “as evidence of the [degree of] consistency of conduct of the alleged victim”. No violence is done to the meaning of the phrase by inserting the words in square brackets. Plainly, the degree of consistency will vary from case to case. There is no one measure of consistency. To read in the words “degree of” is also consistent with the final direction which the Judge must give the jury that it is for the jury to determine the significance if any of the evidence.
The construction I propose requires a direction to the jury that the making of a complaint in itself demonstrates some degree of consistency, even though that degree may be minimal. In my view for the reasons that I have given, that is Parliament’s intention and the ineluctable result of the language it has used. Moreover it is my view that a complaint however late is consistent with the allegation of an assault it makes. T he likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak of its occurrence. That is perhaps even more obvious when the recognition of the psychological and social factors to which I have earlier referred is taken into account. In any event, it is not open, given the terms of s 34M(2) of the Act to ever regard delay in itself as being inconsistent.
Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
It is not necessary to consider the way in which a residual discretion to exclude complaint evidence should be exercised in order to dispose of this appeal. I observe only that that discretion must necessarily be informed and controlled by the manifest purpose of s 34(M) of the Act.