R v Helps

[2016] SASCFC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HELPS

[2016] SASCFC 154

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)

23 December 2016

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - OTHER CASES

EVIDENCE - ADMISSIBILITY - ADMISSIONS - INFORMAL ADMISSIONS - SELF-SERVING STATEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

Appeal against conviction. The appellant was found guilty of ten offences against his step-daughter, CN, after a trial by Judge alone: three counts of unlawful sexual intercourse with a person under the age of 14 years, four counts of aggravated indecent assault, one count of gross indecency, one count of unlawful sexual intercourse and one count of aggravated assault. That offending was alleged to have taken place between 2005 and 2009 when the complainant was aged between 11 and 15 years. CN complained of the offending for the first time in 2014.

Subsequent to the hearing of this appeal, the appellant sought permission to amend his notice of appeal to add new grounds of appeal relating to apparently fresh evidence.

Whether the Judge erred in not allowing the appellant to lead evidence of the record of interview as part of the defence case. Whether the verdicts are unreasonable, unsafe and against the weight of the evidence. Whether the Judge erred in not directing himself as to the use, if any, made of the evidence in respect of each count on the other counts. Whether a miscarriage of justice occurred as a result of the prosecution’s failure to disclose to the defence the fact that a potential witness had been spoken to by the police.

Held per Kelly J (Peek and Lovell JJ agreeing) (allowing the appeal):

1.       Given the failure by the prosecution to disclose that Mrs Mansfield had been spoken to by the police, it cannot be said that a miscarriage of justice has not occurred.

Held per Kelly J (Lovell J agreeing):

2.       The Judge was entitled to take the view that the appellant’s interview with the police was inadmissible at the instance of the defence case.

3.       The Judge did not err by not properly applying the burden of proof in his analysis of the defence evidence. There is no error in the passages of the Judge’s reasons impugned by the appellant. 

4.       The verdicts are not unsafe and unsatisfactory. The Judge’s assessment of the complainant’s veracity and reliability was central to the conclusion he reached. It is plain that the Judge understood this and embarked on an extensive and detailed factual analysis of the evidence. The Judge’s conclusion that the appellant’s witnesses were neither objectively credible nor reliable was open on the evidence.

5.       The Judge directed himself as to the permissible and impermissible use of the evidence of uncharged acts. The Judge expressly stated that he accepted the complainant’s evidence beyond reasonable doubt. In these circumstances there was no potential for any misuse of evidence in respect of any count.

Criminal Law Consolidation Act 1935 (SA) s 353(1); Evidence Act 1929 (SA) s 34M; Evidence Act 1995 (NSW) s 60; Statutes Amendment (Recording of Interviews) Act 1995 (No 65 of 1995) (SA); Statutes Amendment (Evidence and Procedure) Act 2008 (No 7 of 2008) (SA), referred to.
Mallard v The Queen (2005) 224 CLR 125; R v Forrest (2016) 125 SASR 319; R v Drummond (No 2) [2015] SASCFC 82; Grey V r (2001) 184 ALR 593, applied.
Azzi v the Queen [2013] NSWCCA 249; Barry v Police (2009) 197 A Crim R 445; Donaldson v Police [1963] NZLR 750; Dyers v The Queen (2002) 210 CLR 285; Gilham v The Queen [2012] NSWCCA 131; Gonzales v Folkestone Magistrate’s Court [2010] EWHC 3428 (Admin); Gordon v The Queen [2010] UKPC 18; Hargraves v The Queen (2011) 245 CLR 257; Harris v Mill (Unreported, Supreme Court of South Australia, von Doussa J, No 592, 7 April 1988); Liberato v The Queen (1985) 159 CLR 507; Mahmood v The Queen (2008) 232 CLR 397; McCarrol v The Queen [2004] WASCA 131; McKenzie v Police [2015] SASC 78; Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 23 FCR 162; Mule v The Queen (2005) 79 ALJR 1573; R v Apostilides (1984) 154 CLR 563; R v Aziz [1996] 1 AC 41; R v Callaghan [1994] 2 Qd R 300; R v Coats [1932] NZLR 401; R v Donaldson (1977) 64 Cr App R 59; R v Duncan (1981) 73 Cr App R 359; R v Familic (1994) 75 A Crim R 229; R v Golding and Edwards (2008) 100 SASR 216; R v H, ML [2006] SASC 240; R v Hamand (1986) 82 Cr App R 65; R v Hetherington (Unreported, Supreme Court of South Australia, Nyland, Mohr and Debelle JJ, No 4743, 24 August 1994); R v Higgins (1829) 3 Car & P 603 [172 ER 565]; R v Keevers (Unreported, Supreme Court of New South Wales, Hunt CJ at CL, Carruthers and Bruce JJ, 26 July 1994); R v Keyte (2000) 78 SASR 68; R v King [2009] NZCA 607; R v Li (2003) 140 A Crim R 288; R v McCarthy (1980) 71 Cr App R 142; R v McKay [1967] NZLR 139; Richardson v The Queen (1974) 131 CLR 116; Selig v Hayes (1989) 52 SASR 169; Spence v Demasi (1988) 48 SASR 536; Subramaniam v The Queen (2004) 79 ALJR 116; The Queen v C (1992) 8 CRNZ 546; The Queen v G (Unreported, Supreme Court of South Australia, Cox, Olsson and Mullighan JJ, No 5019, 4 April 1995); The Queen v J, JA (2009) 105 SASR 563; The Queen v M (1999) 16 CRNZ 526; The Queen v R (1998) 198 LSJS 119; Western v Director of Public Prosecutions [1997] 1 Cr App R 474; Wood v The Queen (2012) 84 NSWLR 581, discussed.
Abnett v Korber (Unreported, Supreme Court of South Australia, von Doussa J, No 9363, 17 September 1986); Assafiri v Horne [2004] WASCA 40; Flowers v The Queen (2005) 153 A Crim R 110; Hawker v Coulthard [2011] WASC 139; M v The Queen (1994) 181 CLR 487; Middleton v The Queen (1998) 19 WAR 179; Peck v Western Australia [2005] WASCA 20; R v Beck [1990] 1 Qd R 30; R v Haycock [1989] 2 Qd R 56; R v Ireland (1970) 126 CLR 321; R v Kochnieff (1987) 33 A Crim R 1; R v Kotzmann [1999] 2 VR 123; R v Newsome (1980) 71 Cr App R 325; R v O’Brien (1996) 66 SASR 396; R v Parsons; R v Brady [2015] SASCFC 183; R v SCD [2013] QCA 352; R v Storey (1968) 52 Cr App R 334; R v Su, Katsuno, Asami and Honda [1997] 1 VR 1; R v Thatcher [1969] 1 WLR 227; R v Wogandt (1983) 33 A Crim R 31; R v Zorad (1990) 19 NSWLR 91; Robinson v The Queen (1991) 180 CLR 531; S v The Queen (2002) 132 A Crim R 326; The Queen v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1983) 152 CLR 657; Willis v The Queen (2001) 25 WAR 217, considered.

R v HELPS
[2016] SASCFC 154

Court of Criminal Appeal:   Kelly, Peek and Lovell JJ

KELLY J.

Introduction

1. After a trial by Judge alone in the District Court the appellant was convicted of nine offences of a sexual nature and one count of aggravated assault in relation to a child.  Those offences took place at times when that child was under the age of 14 or 17 years.  He sought permission to appeal on six grounds as follows:  that the trial Judge erred in not allowing the appellant to lead evidence of a record of interview as part of the defence case; second, that the verdicts are unreasonable, unsafe and against the weight of the evidence; third, that the Judge erred by not giving enough weight to the appellant’s witnesses; fourth, that the Judge erred by placing too much weight on minor inconsistencies between the evidence of the appellant and other defence witnesses; fifth, the Judge erred in not properly applying the burden of proof in his analysis of the defence evidence; and sixth, that the Judge erred in not directing himself as to the use, if any, made of the evidence in respect of each count on the other counts.  

2. A single Judge granted permission to appeal in respect of the second and sixth grounds of appeal.  Permission was not required in respect of the first ground.  Permission was refused in respect of the third, fourth and fifth grounds of appeal.  The appeal was made out of time and that issue referred to this Court.  Noting that the respondent is not opposed, I would grant the appellant an extension of time within which to bring the appeal. 

3. Some months after the hearing of this appeal, the appellant sought permission to amend his notice of appeal and add additional grounds of appeal relating to apparently fresh evidence. That permission was granted and on 9 December 2016 the Court received and heard further evidence, and submissions by counsel.

   Background

4. In order to give context to the complaints made on appeal it is necessary to set out the evidence led in respect to each charge.

5. The complainant, CN, was born in 1995.  Her parents separated when she was about five years of age and CN’s mother, DT, formed a relationship with the appellant not long after. 

6. The appellant undertook the role of father to CN and her brother WN.  They lived at various addresses over time, eventually moving to Blanchetown.  The appellant formed a good relationship with both CN and WN.  The relationship between CN and DT was fraught with difficulty.  At trial there was no dispute that DT showed the complainant limited love and affection.

7. CN said that the appellant first initiated sexual contact with her when she was about 10 years old and it eventually became a regular and ongoing part of their relationship.  Often the sexual contact took the form of hugs which were given the code name “big hugs” involving the appellant lying on his back while CN straddled him so that their genitals touched. 

8. CN gave evidence that there was one occasion of oral sex (count 1), two occasions of vaginal sex (counts 2 and 9), and one occasion when the appellant attempted to have anal sex with CN (count 3).  In addition, CN said there were four other instances when the appellant touched her indecently by touching her underwear (count 4), by rubbing his penis on her body (count 5), by kissing her on the mouth (count 7) and by rubbing his penis on her body (count 8).  CN described one other act of gross indecency (count 6) when the appellant rubbed his penis in her presence.  The last charge (count 10) was an occasion when CN said the appellant followed her to a bus stop and slapped her across the face.

9. Eventually, at the age of 15, CN ran away from home and went to live with her adult sister before moving in with J, her boyfriend and current partner at time of trial.  At trial, the complainant was 20 years old and had an infant child.

10. There was evidence that she complained to her partner J after he had enquired about a night of disturbed sleeping when she had a nightmare and had said words to the effect of “no Craig stop it”.  Later she went to the police. 

11. On 31 August 2014 police went to the home of the appellant and DT in Blanchetown and interviewed him in relation to the allegations made by CN. 

12. At trial CN gave evidence.  J was called to give evidence of the complaint made by CN to him. 

13. The prosecutor declined to tender the video recording between the police and the appellant on 31 August 2014.  At the commencement of the defence case, the appellant asked the Judge to request that the prosecution tender the record of interview.  The Judge did not do so and, acting on the submission of the prosecutor and the concession made by the appellant’s then counsel, ruled that the interview was inadmissible as part of the defence case. 

14. The appellant gave evidence and called two witnesses, DT and WN.  The appellant denied all of the allegations made by CN.  It was suggested on the defence case that CN, who had a history of conflict with her mother and of lying, had a motive to lie. 

    Ground 1: The appellant’s record of interview

15. The first ground of appeal is a complaint that the Judge was wrong to refuse permission for the appellant to lead his record of interview with the police as evidence in the defence case.

16. The appellant now complains that the prosecution failed to ensure a fair trial by not leading the appellant’s record of interview as part of the prosecution case and the Judge similarly failed to ensure a fair trial by refusing permission for the appellant to lead it as part of his case. 

17. It is apparent from the exchange which took place at the conclusion of the prosecution case and before the defence case commenced that both counsel took the view that the interview between the appellant and the police at Blanchetown on 31 August 2014 contained only exculpatory material and was therefore inadmissible.  Counsel for the appellant frankly conceded, as he put it, that “[t]he law as it stands” was against him in applying to tender the interview as part of the defence case. 

18. The interview took place when the police went to the home at Blanchetown occupied by the appellant and DT.  In essence, the interview consisted of a series of questions put to the appellant based on allegations made by CN in her statement to the police.  Apart from the admissions the appellant made that CN lived with them for a period of time, that they went on a camping trip to Mannum and at one stage there was a bus in the backyard of the house at Kurralta Park, the appellant denied all allegations.

19. Although counsel for the Crown on appeal fairly conceded that the interview could be properly characterised as “mixed” in the sense that it contained statements partly inculpatory and partly exculpatory, I consider that on any fair reading of the interview the answers given by the appellant were mainly exculpatory.  For that reason the attitude adopted by counsel for the Crown at trial was understandable. 

20. The appellant contends that the failure to admit the appellant’s answers in the interview on 31 August 2014 into evidence has resulted in a miscarriage of justice in that the appellant has not received a fair trial.  He submits that in refusing permission to the appellant to lead the interview as part of the defence case the Judge was deprived of the opportunity to observe the demeanour of and make an assessment of the credibility of the appellant at a time when the allegations were first put to him by the police.  In a case where the credibility of the complainant and the appellant was of key importance, it was submitted that the appellant’s demeanour in the interview was an important matter for the Judge to take into account. 

21. The appellant submits, notwithstanding a consistent line of authority to the contrary in this State, that this Court ought to follow English authorities which support the proposition that an accused’s response “when first taxed” with allegations by the police is admissible.[1] 

    [1]    R v Storey (1968) 52 Cr App R 334 at 337-338; R v Pearce (1979) 69 Cr App R 365; R v Newsome (1980) 71 Cr App R 325.

22. The appellant’s submission raises the issue of whether the Judge was correct to rule the record of interview inadmissible at trial.  

23. For the reasons which follow I consider that the Judge was entitled to take the view that the interview with the police on 31 August 2014 was inadmissible at the instance of the defence.  In refusing to admit the interview, and even accepting the concession made on appeal that the interview can properly be categorised as a mixed statement containing answers partly inculpatory and partly exculpatory, the Judge was doing no more than correctly applying the law.

24. In R v H, ML,[2] Vanstone J (Nyland and White JJ agreeing) summarised the position:

    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.

    [2] [2006] SASC 240 at [25]-[27].

25. The only doubt which arose during the course of argument on appeal concerned the accuracy of the observation made obiter at [27] of her Honour’s reasons that it has been for some years customary for the prosecution to tender as part of its case any response made by an accused when first taxed with the allegations by police.  Counsel for the Director on appeal did not accede to that proposition, submitting that whether to tender an interview is a matter which is determined on a case by case basis, depending on the particular circumstances and exigencies applying.  The practice referred to by Vanstone J may well have changed over recent decades. 

26. With that reservation, the statements of Vanstone J in H, ML accurately reflect the law in South Australia. 

27. Three years later in Barry v Police,[3] Kourakis J (as he then was) made the following observations in a detailed analysis of the current state of the law:

    The survey of the authorities undertaken by Cox J shows clearly enough that self-serving statements are admissible, and have probative value, only when introduced as part of the “Crown package”. If the prosecution chooses not to lead evidence of incriminatory statements there is no relevant unfairness to the accused in the exclusion of his or her self-serving exculpatory statements. There is therefore no arbitrariness or unfairness in the operation of the common law principle. It may be a matter of “happenstance”, as Grove J observed in Rymer, as to whether an accused makes an incriminatory, exculpatory or mixed statement, but the only reason for the admission of the exculpatory part of a statement is to ensure the fair use of the incriminatory statement on which the prosecution relies. If the incriminatory statement is not led, the rationale for the admission of the exculpatory part of the statement disappears.

    In my view it would be anomalous to require the prosecution to put before the Court as probative material the self serving assertions of the defendant, whom it very obviously, does not consider to be a witness of truth.

    [3] (2009) 197 A Crim R 445 at [67]-[68].

1. As Kourakis J observed in Barry, two distinct positions have emerged in Australia over the existence of any prosecutorial obligation to tender a statement in an interview of an accused which is either purely self-serving or mixed in the sense that it contains partly inculpatory and partly exculpatory material. 

2. During argument on appeal some criticism was levelled at the decision in Barry, arising from the fact that the trial Judge was apparently not referred to the High Court’s decision in R v Soma.[4]  However, I do not understand the decision of the High Court in Soma to enunciate any rule of law or practice which is inconsistent with any of the principles enunciated in Barry.

   [4] (2003) 212 CLR 299.

3. In Soma the prosecution did not attempt to lead at trial evidence of what the appellant had told the police which contained answers which incriminated him.  Even though there was some suggestion that the appellant at trial had threatened to contest the admissibility of the record of interview as an involuntary statement or a statement at the very least given without any warning being administered, no attempt was made during the course of the prosecution case, and no real explanation was ever proffered for the failure to lead that evidence which, on its face, was admissible. 

4. Nevertheless, the prosecutor put details of some aspects of the record of interview to the appellant during cross-examination and then tendered those portions of the interview on which he had been cross-examined.  The exculpatory portions of the interview were not tendered. 

5. In upholding the decision of the Court of Criminal Appeal to quash the conviction and order a retrial, the plurality in the High Court stated:[5]

   In the present case, the prosecution had available to it evidence of statements made by the respondent to police. The prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self-serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interview could have been edited to exclude any objectionable parts. None of these steps was taken.

   If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen and Apostilides the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so. The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.

   (footnotes omitted)

   [5]    R v Soma (2003) 212 CLR 299 at [30]-[31].

6. It can be seen that the observations of the plurality in Soma were made in the context of the conduct of the prosecution at the trial, relevantly its failure to tender as part of its case an interview containing mixed statements and only later during the defence case seeking to tender certain inculpatory portions of the interview.

7. In that respect the conduct of the prosecution in Soma amounted to an egregious departure by the prosecution of two well established rules: first, that the prosecution must offer all its proof during the presentation of the prosecution case before an accused is called on to make out his defence; second, the obligation upon the prosecution – if it wishes to rely on an interview containing mixed statements – to place the whole of the statement before the jury.

8. I do not understand the remarks of the High Court in Soma to enunciate any principle inconsistent with the remarks of either Vanstone J in H, ML or Kourakis J in Barry.  It is therefore unsurprising that this decision was not cited either before the Court of Criminal Appeal in H, ML or Kourakis J in Barry.  

9. For these reasons, whether the view be that the interview is properly categorised as mixed or wholly exculpatory, I consider that the Judge was correct in taking the view that evidence of the appellant’s interview was not admissible at the instance of the appellant.

10. In deference to the contrary view, if a different view were to be taken about the admissibility of the interview and it were held that it should have been admitted, that would then amount to an error of law.  In that event, the appeal must be allowed unless this Court is of the opinion that notwithstanding the error it concludes that no substantial miscarriage of justice has actually occurred.[6] 

    [6]    Criminal Law Consolidation Act 1935 (SA) s 353(1).

11. There are several features of the evidence which are relevant to the determination of that issue.  First, it is apparent that although there were some aspects of the answers given by the appellant which were confirmatory of some of CN’s allegations, for example, where she lived and a certain camping trip they went on, most of the answers given by the appellant were exculpatory.  In that sense I consider that the interview could barely be categorised as a “mixed” statement.

12. Secondly, it is apparent from the evidence at trial that the interview between the appellant and the police was not the first occasion when the appellant had been taxed with the allegations.  It is not disputed that the appellant had been made aware of allegations made by CN on Facebook some months after she left the family home.  In fact, the evidence of DT was that both she and the appellant went to the police station at Blanchetown in an endeavour to try and have the Facebook allegations removed.  I would add with respect to those who might take a contrary view, that having seen the video of the interview between the appellant and the police I consider it plain that neither the appellant nor DT were taken by surprise by the allegations.  Minds may differ whether the appellant’s demeanour during the interview supports his credibility.  I do not consider that the appellant’s repeated denials in the interview either support or diminish his credibility.   

13. In any event the Judge did permit questions to be asked of the appellant in examination in chief about the interview and evidence of his denials to all of the allegations was before the Judge.  In this respect the appellant had the benefit of the exculpatory aspects of the interview without any of the “incriminatory” material being admitted.

14. Finally, the appellant gave evidence.  He was cross-examined.  In these circumstances it seems to me that the bare denials made by the appellant during the interview with police many, many months after being first made aware of the allegations was overtaken by the evidence which the appellant gave in court. 

15. As I have said earlier, I do not consider that the Judge was wrong in refusing to admit the interview.  However, even if the contrary view were accepted, I would not allow the appeal on this ground as I am satisfied that the admission of the interview of the appellant’s denials would not have affected the outcome of the trial. 

16. I would dismiss this ground of appeal. 

    Ground 2:  The verdict was unreasonable or unsafe

17. I turn now to consider the second ground of appeal which is a complaint that the verdict is unreasonable, unsafe and against the weight of the evidence. 

18. Before dealing with the factual matters relied on by the appellant in support of this ground, I shall deal with the appellant’s argument that the trial Judge erred in his analysis of the defence case by reversing the onus of proof. 

19. A single Judge refused permission in respect of this ground of appeal (ground 5), however during argument on appeal the appellant has renewed this complaint and now submits that it is one of the reasons why the verdict is unsafe and unsatisfactory. 

20. Two passages in the Judge’s reasons give rise to this complaint.  In the course of detailed reasons in which the Judge ultimately rejected the defence case, his Honour said:

    [407]In all, the accused was only a moderately adequate witness, and there were a number of issues that gave pause for thought as to his credibility and reliability.

    …

    [421]Turning to the defence case, regrettably, in the final analysis, the accused’s evidence was not convincing, and the accused’s witnesses, whilst I am sure they thought they were doing the right thing in so unquestioningly attempting to support the accused on any and every issue they could think to support him on, were so partisan and one sided that they were not in an objective sense credible or reliable.

21. It was submitted that in those passages the Judge effectively stated that the appellant needed to convince him that the complainant was not lying, thereby incorrectly placing an onus on the appellant to convince the Judge that the complainant was not lying.  The appellant contends that the description of the appellant as “only a moderately adequate witness” and later the description of his evidence as “not convincing” demonstrates that the Judge has incorrectly reversed the onus of proof. 

22. For the following reasons I do not accept that to be a fair interpretation of the Judge’s reasoning. 

23. The impugned remarks came in the course of an extensive discussion by the Judge about the evidence given by the appellant and his witnesses.  In his reasons the Judge repeatedly referred to the burden of proof, the standard of proof and the presumption of innocence, both in the context of giving himself general directions and again in the context of his assessment of the evidence. 

24. The Judge stated:

    [20]It is sufficiently important however to repeat that the accused commences the trial with, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof, and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.

    …

    [26]The accused in this case gave evidence on oath.  The accused was not obliged to give evidence.  He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge.  In this case, however, the accused elected to give evidence on oath.  He is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in exactly the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it at all times remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence.

    …

    [29]Both counsel agree that the prosecution case rests entirely upon the evidence of the complainant. The court has accordingly closely scrutinised her evidence, and done so with great care.

    [30]In part for that reason, the court will set out the complainant’s evidence in more detail than it might ordinarily do. It will not all be set out, however it has all been closely considered.

    [31]In this case, the evidence of the complainant and the accused are starkly opposed. The accused flatly denies every one of the many allegations of charged and uncharged offending made by the complainant. It is important to observe that in a case such as this it is not a matter of deciding who to believe or which of two versions of an event to accept, or who is more believable than the other, or anything of that nature. The question is always whether the prosecution has proven every element of a charge beyond reasonable doubt. The accused bears no onus, and has to prove nothing. Further, even if an accused gave evidence and were entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.

25. In the context of directing himself specifically as to a motive which the complainant had to lie, he reminded himself again that:

    [32]… [I]t is not for the accused to provide or suggest a motive for the complainant to lie.  No onus as to this or indeed anything else lies on the defence. … The prosecution must satisfy the court beyond reasonable doubt that the complainant was telling the truth.

26. When the Judge came to the analysis of the evidence, his Honour repeated those directions:

    [374]I have closely born in mind all the legal directions I have outlined earlier, together with all the important standard legal principles that would have been articulated to a jury were they present. In particular, the fundamental importance of the principle that it is for the prosecution to prove beyond reasonable doubt each and every element of any offence alleged against the accused, based only on the relevant and admissible evidence concerning that alleged offence, before an accused may be convicted of that offence. There is no onus whatsoever on the accused to prove anything.

    [375]I have closely considered, and re-read, all the evidence given and tendered in the case, and have subjected the evidence of the complainant upon which the prosecution case fundamentally relies to close scrutiny.

27. When the two impugned passages are read in the context of the whole of the Judge’s reasons it is evident that they have been cherry-picked from a much more detailed discussion by the Judge as to the evidence of the appellant and his witnesses in the context of which the Judge cited numerous examples from the evidence that caused him to hold reservations about both the appellant and his witnesses. 

28. In his discussion I consider that the Judge did no more than was required, namely, to expose his reasoning and why in the end he rejected the appellant’s case. 

29. Nor do I consider it inappropriate that he first analysed CN’s evidence before turning to the appellant and his witnesses.  It is not a reversal of the onus of proof for a trial Judge to keep an open mind until the very end of the process.  That is in fact a direction which is regularly given to juries and it is plain that the Judge took it seriously.  It is not a reversal of the onus of proof to consider evidence in this way.  It is complying with the Judge’s duty in a trial by Judge alone to properly consider the evidence. 

30. It is not inappropriate for a trier of fact to consider the defence case to determine whether there is anything in the evidence which might cast doubt on the evidence given by the complainant, or which would tend to demonstrate that the complainant was not a witness of truth and reliability.  A careful analysis of the defence case was required before reaching a conclusion, whether, on the whole of the evidence the Judge was satisfied beyond reasonable doubt of the truthfulness and reliability of CN. 

31. It is plain from the extensive reasons given by the Judge that he undertook that analysis.  In the following passages I consider he left no doubt that he had directed his mind to the critical issue whether the prosecution had proved the allegations beyond reasonable doubt:

    [419]In the final analysis, notwithstanding the defence case, the complainant’s story remains a compelling and credible account of events, that in the court’s opinion would be nearly impossible to fabricate and maintain in the intricate, detailed, varied and personally unflattering form that it took. In short, after the fullest and closest analysis, and close consideration of the defence case, it remained compelling and credible even after a probing and extended cross examination.

    [420]In reaching this position, the court has had close regard to the fact that the complainant was a troubled and difficult child, who lied in a range of contexts at home and at school, was self-harming herself for years, and constantly fought with and defied her mother as described. It is important to also recognise that none of those factors mean that she wasn’t or couldn’t be sexually abused exactly as alleged, indeed all those factors could make it easier for an abuser to proceed in the knowledge that such a child would be far less likely to be believed if they ever complained.

    …

    [422]After the closest of scrutiny, which the extent of these reasons to some degree reflects, the court finds the complainant’s evidence as to the events that passed between her and the accused the subject of the 10 counts in the information before the court established beyond reasonable doubt.

32. As to the defence case, the Judge’s rejection of the evidence of the appellant and his two witnesses is made plain in the following paragraphs:

    [407]In all, the accused was only a moderately adequate witness, and there were a number of issues that gave pause for thought as to his credibility and reliability.

    …

    [417]Regrettably, much of the evidence of those two witnesses had the flavour of reconstruction of what might, may or could have been the case, or the flavour of agreed positions as a result of discussions between them and the accused. The inconsistencies between them on undiscussed issues, in particular the content of discussions and when they occurred prior to trial, also gave concern about both their credibility and reliability.

    [418]Further, both the complainant’s mother and brother have a deep and longstanding allegiance to the accused and a deep and longstanding antipathy to the complainant, have discussed much of the issues in depth prior to trial, have assumed in the absence of any of the evidence that the complainant is lying about everything, and regrettably in the final analysis there is a significant risk that all of that has so coloured their evidence that little reliance can be placed on their evidence as to any of the disputed issues.

    …

    [421]Turning to the defence case, regrettably, in the final analysis, the accused’s evidence was not convincing, and the accused’s witnesses, whilst I am sure they thought they were doing the right thing in so unquestioningly attempting to support the accused on any and every issue they could think to support him on, were so partisan and one sided that they were not in an objective sense credible or reliable.

33. I take the Judge to have made the observations in [407] and [421] in the context of a consideration of the appellant’s evidence standing alone.  No doubt he felt obliged to record the impact it made on him, as well as viewing it in the context of all the evidence.  It is not unknown for judicial officers to describe as “unconvincing” evidence which in the end they are not prepared to accept or believe.  I consider the trial Judge’s remarks should be understood in that context. 

34. The Judge’s comments at an earlier stage in his reasons at [399] to [401] were also the subject of sustained criticism during the appeal:

    [399]His description of the early part of the relationship with the complainant’s mother was unremarkable, except for one curious aspect.

    [400]Whereas the accused gave evidence that he and the complainant’s mother moved in together 2 weeks after they met in 1991, when the complainant’s mother gave evidence she said they did not move in together until 3 to 6 months after they met, and that it could not have been just two weeks. The difference between those versions of events is so stark someone is likely lying about it for some undisclosed reason, however the matter was not further explored by either counsel.

    [401]There were some matters of potential note during the course of his evidence. I mention some of those matters.

1. The appellant complains that the Judge’s comment in [400] that “someone is likely lying about it for some undisclosed reason” is another indication that the approach of the Judge to the assessment of the evidence of the appellant and the defence witnesses was tainted and that he did not bring an open mind to his assessment of the evidence. 

2. Once again I consider that when the Judge’s observations are viewed in the context in which they were made it is evident that the Judge made no finding about the matter apart from an observation that it was a curious aspect of the evidence.  Viewed against the whole of the Judge’s analysis and reasons I consider that the comment at [400] was nothing more than a passing comment by the Judge before moving on to consider other matters which he did consider to be of significance in reasoning to the conclusion he reached. 

3. In the end the Judge made it clear that he had carefully assessed the credibility and reliability of CN’s evidence in light of what he considered to be the cogent criticisms of her evidence, before making findings of fact beyond reasonable doubt in respect of each of the charges. 

4. For these reasons I do not consider the criticisms levelled at the trial Judge’s approach to the assessment of the evidence are justified.  Given that the appellant presented his evidence in a straightforward manner, making denials about all the allegations, the question might be asked how else was the Judge to go about assessing it. 

5. For these reasons I do not accept the submission that the Judge’s reasoning in the impugned passages is indicative of error by reversing the onus of proof. 

6. I turn now to consider the other matters relied on by the appellant in support of the complaint that each of the verdicts was unsafe, unsatisfactory and against the weight of the evidence. 

   Factual inconsistencies

7. The appellant referred to what he described as inconsistencies in CN’s evidence between what she said at trial and what she told the police, as well as inconsistencies between her evidence and the evidence of other witnesses at the trial, namely the appellant, DT and WN. 

8. In addition the appellant referred to aspects of the CN’s history which suggested that she may have had a motive to lie.  There was conflict between CN and DT from a very young age and there were demonstrated false allegations which CN had made about the appellant when she was still a very young child.  It was submitted that CN may have wished to exact revenge upon DT after being rebuffed when she moved out of the family home.  The appellant relied on the evidence of WN that both he and CN were told by their natural father to lie about the appellant as he (the complainant’s father) wanted to resume his relationship with DT.  Finally, it was said that in light of J’s evidence that CN sometimes said things to obtain sympathy, she may have made up the allegations about the appellant as yet another way to seek attention from her partner.

9. There were other aspects of CN’s evidence which the appellant submitted ought to have caused the Judge to doubt her veracity:  first, the fact that CN claimed to like being around the appellant on the one hand but on the other hand telling the police that she would go shopping with her mother on Thursday nights to get away from him; second, that despite years of alleged abuse by the appellant CN could not remember what the appellant’s penis looked like or even whether it was circumcised or not; third, that CN had every opportunity to tell her mother about the abuse but did not; and fourth, CN failed to describe the air scoop in the middle of the bonnet of the Suzuki vehicle involved in count 8.  Finally, the appellant relied on the fact that WN denied any of the alleged sexual contact between him and CN, as well as an incident between the appellant and CN on a bridge during which WN was allegedly also present. 

10. In summary, the appellant submitted that the inconsistencies in CN’s evidence went to the heart and substance of her evidence and the trial Judge did not place enough weight on those aspects of CN’s evidence which ought to have left him with a reasonable doubt about both her veracity and reliability.  In addition, the appellant complained that the Judge placed far too much weight on peripheral inconsistencies between the appellant and his witnesses, which inconsistencies were said to be explicable by reference to the lapse of time and the inevitable lapse of memory between witnesses otherwise giving honest evidence.

11. The appellant complained that the Judge’s approach, as typified in his observations about the discrepancy between DT’s evidence and the appellant’s evidence about when they first moved in together, demonstrated an overall approach by the Judge which tainted the whole of his assessment of the defence witnesses.  I have dealt with that criticism earlier in these reasons. 

    Discussion and analysis

12. The Judge’s assessment of the complainant’s veracity and reliability was central to the conclusion he reached.  It is plain from the passages I have earlier referred to, that the Judge understood this, and he then embarked on an extensive and detailed factual analysis of the evidence. 

13. It is also plain, and the Judge emphasised as much, that he understood that proof of the prosecution case rested entirely on the complainant and there was therefore a need to scrutinise her evidence with great care.  He stated in explicit terms that he had closely considered all of CN’s evidence, in particular all of her responses to all the matters raised with her in cross-examination.  He then made the following comment at [42]:  “The court has closely considered all of the evidence, not just those portions which are summarised, quoted or specifically referred to”.

14. At [167] the Judge again stated that after the complainant’s extensive cross-examination he had read and re-read all of her evidence again and given it the closest consideration and scrutiny in reference to all the matters raised in cross-examination, particularly those matters emphasised by counsel for the appellant.  He then identified those matters again in detail and quoted at length from CN’s evidence.

15. I do not consider that this Court should lightly disregard the repeated statements by the Judge that he had very carefully considered the whole of CN’s evidence, and the cogent criticisms made of it, even though not every aspect of it and every criticism was referred to in his reasons. 

16. All of the matters relied on by the appellant to support the submission that the Judge should have entertained a doubt about the complainant’s veracity and reliability were the subject of cross-examination.  They were also addressed by both counsel in detail at the end of the trial.  Those matters were dealt with by the Judge in the course of his reasons.  The Judge had the full advantage of seeing and hearing CN, including her responses to all of the matters raised by the appellant in this Court. 

17. Many of the differences in CN’s evidence as between what she said in court and what she said to the police were matters which she simply failed to mention in her initial statement to the police.  She gave an explanation for that.  It cannot be said that the Judge overlooked any differences just because he did not specifically mention them or the arguments about them. 

18. As to the complaint that it is inherently unlikely that a young child who was subjected to ongoing sexual abuse would not be able to describe the appellant’s penis or whether it was circumcised or not, I note that there was only one allegation made by the complainant of oral sex between her and the appellant involving the penetration of her mouth with his penis.  That occurred very early on when she was still very young.  Many of the subsequent events complained of occurred in different circumstances when the appellant was either partially clothed or under a sheet or when the complainant was specifically not looking.  In any event, it is not the first time that a witness who has been demonstrably telling the truth was unable to recall whether or not the perpetrator’s penis was circumcised.  I do not consider that CN, in light of the allegations of the sexual abuse made here, can be justifiably criticised for not being able to remember many years later the appearance of the appellant’s penis.  This is particularly so in light of the fact that there were only three questions asked on that topic.  It was not explored any further and there was never any evidence about how many times she saw the appellant’s penis erect, semi-erect or flaccid. 

19. As to the inconsistency in CN’s evidence that she liked being around the appellant and her statements to the police that she only went shopping with her mother on Thursday nights to get away from him, I consider that CN’s evidence on that topic had the distinct ring of truth about it.  It is not unknown, it is indeed common that a child subject to persistent sexual abuse over many years has conflicted feelings about the abuser.  The complainant’s evidence that she enjoyed aspects of the physical contact with the appellant but preferred to go shopping with her mother on Thursday nights to get away from him is explicable in that context. 

20. Yet another feature of the evidence which, contrary to the appellant’s submissions, I consider points to the correctness of the conclusion reached by the Judge about CN’s veracity was the uncontested evidence of the dysfunctional relationship between CN and DT from a very early age.  That evidence provides a cogent and logical explanation as to how it was the appellant was able to groom and then abuse CN for as long as he did.  It is not inherently improbable that a young child in the position of the complainant here, seeking but not receiving affection from the primary caregiver, would fall prey to the attentions of the appellant.  Neither is it surprising in these circumstances that CN did not confide in her mother about it. 

21. Many of the appellant’s other criticisms about CN’s evidence depend either wholly or substantially on the acceptance of the truth and veracity of the evidence of the appellant, DT and WN.  All these criticisms were made to the Judge.  The advantage the Judge had in seeing and hearing the witnesses in a case such as this should not be underestimated.  I am satisfied from my own review of the evidence that the Judge’s conclusion that the appellant’s witnesses were neither objectively credible nor reliable was well open on the evidence.  

22. Having completed my own independent review of the evidence I have no misgivings about the verdicts.  I would grant permission to appeal on, but dismiss this ground of appeal.

    Ground 6:  Directions as to use of evidence on each count on other counts

23. The final complaint made by the appellant can be dealt with briefly.  The appellant complains that the Judge did not direct himself as to what use, if any, could be made of the evidence on each count in relation to the findings of guilt on the other counts. 

24. In making this complaint the appellant relied on this Court’s decision in R v Keyte.[7]  In that case Doyle CJ, in the course of discussing the obligations of a trial judge to give reasons, held that on the facts of that case the trial Judge was required to give reasons as to whether and how use had been made of the evidence of uncharged acts in relation to the charged acts.[8] 

    [7] (2000) 78 SASR 68.

    [8]    R v Keyte (2000) 78 SASR 68 at 80.

25. In this case, the Judge gave himself extensive directions about the use of the uncharged conduct and how that evidence was used:

    [21]The prosecution case was that the charged events were specific occasions of offending that the complainant could identify and remember by reference to other events and dates, but that unlawful sexual contact was an ongoing feature of the relationship between the accused and the complainant over several years.

    [22]Evidence was led without objection as to the whole course of events during which it is alleged the charged offences occurred, and in doing so reference was made to ongoing and in that respect uncharged sexual offending.

    [23]As no objection was taken to the evidence it was unnecessary to formally consider the application of section 34P of the Evidence Act 1929 which addresses the admissibility of evidence amounting to discreditable conduct.  In the court’s view the evidence was in any event plainly admissible and the permissible use of the evidence substantially outweighed any prejudicial effect.

    [24]The evidence was necessary to explain the nature of the relationship between the accused and the complainant, put it and the alleged offending into context, and to explain why the complainant might react to, comply with and even initiate the sexual conduct that occurred between the accused and the complainant on the charged occasions.  The evidence must not be used for any other purpose, and the court does not use it for any other purpose.

    [25]In particular, the court must not reason that by virtue of any uncharged offending that the accused is or may be guilty of any of the charged offences, nor that because of any uncharged conduct the accused is of bad character or a bad person and for that or any related reason is or may be guilty of the charged offences. Nor should the court reason that by way of any uncharged conduct that the accused is either more likely to have committed any of the charged offences or had any kind of propensity to commit the charged offences.

    (footnotes omitted)

26. The facts here are somewhat different to Keyte.  The Judge correctly directed himself that before he could reach a conclusion of guilt on any one count he needed to satisfy himself beyond reasonable doubt that the essential features of CN’s evidence in respect of that count was truthful and reliable. 

27. The assessment of CN’s honesty and reliability in respect of the whole of her evidence was central to the Judge’s conclusion.  His Honour analysed her evidence in careful detail.  I have previously referred to that analysis.  Before finding the appellant guilty he specifically addressed the evidence in each and every count and made specific findings of fact in relation to those counts. 

28. Prior to making those findings, for the reasons I have expressed, the Judge expressly stated that he accepted CN’s evidence beyond reasonable doubt. 

29. In these circumstances I consider there was no potential for any misuse of the evidence in respect of any count.  The Judge had previously directed himself as to the permissible and impermissible use of the evidence of the uncharged acts. 

30. I would grant permission but dismiss this ground of appeal. 

    Grounds 7, 8 and 9 – Fresh evidence[9]

    [9]    The appellant's document entitled 'Proposed Additional Grounds of Appeal' incorrectly numbered these as grounds 6, 7 and 8.  Counsel for the appellant provided the corrected numbering during the hearing, which is reflected in the grounds of appeal extracted in this judgment.

31. On 9 December 2016 the appellant was granted permission by this Court to amend his notice of appeal and include three additional grounds, as follows: 

    Ground 7

    The appellant applies to adduce fresh evidence from Mrs Leanne Mansfield (‘the fresh evidence’) relating to the circumstances in which the offending charged in count 4 is alleged to have taken place.

    7.1     The fresh evidence was not available to the appellant at the time of trial.

    7.2The prosecution did not disclose to the defence the fact that Mrs Mansfield had been spoken to by police about the matter.

    The fresh evidence raises the reasonable possibility that the complainant’s evidence about count 4 is not truthful or reliable.

    Ground 8

    The fresh evidence now available to be considered by the Court shows that the learned trial judge must have had a reasonably doubt in relation to count 4.

    Ground 9

    The implications of the fresh evidence should be considered by the Court in its independent examination of the evidence pursuant to Ground 2 which effectively asserts that all of the verdicts are unreasonable or not supported by the evidence.

32. Also on 9 December 2016 the appellant called Mrs Leanne Mansfield to give evidence before this Court.  During submissions, the Court also received affidavit material, namely the affidavits of:

    1.   Leanne Gay Mansfield, school services officer, affirmed 27 October 2016;

    2.   Detective Brevet Sergeant Simon James Nash, affirmed 1 November 2016; and

    3.   Donna Monique Foundas, Solicitor, affirmed 1 November 2016.

    The evidence

33. The respondent accepted that during the course of the investigation Detective Brevet Sergeant Nash had spoken to Mrs Mansfield.  He had made brief notes of the discussion.  Those notes were made available to the prosecution, however they were not provided to the appellant or his legal representatives.  The respondent’s evidence on the appeal demonstrated that the failure to disclose was accidental.  The appellant accepted that position.

34. The evidence of Mrs Mansfield principally relates to count 4.  That count alleged that the appellant had committed aggravated indecent assault against the complainant when they were swimming together in the river during a camping trip at Mannum.

35. The effect of Mrs Mansfield’s evidence was that she noted nothing unusual about the behaviour of the appellant towards the complainant during the camping trip.  She did not recall the phrase or anything about “big hugs”.  She did not remember the appellant swimming with the children although she recalled that the adults on the trip waded into the water to about knee depth.  Her evidence was that there were always at least two adults watching the children when they were swimming in the river.  Mrs Mansfield worked as a school support officer and therefore as a mandatory reporter had an obligation to report any suspicion of child abuse.

36. Whilst she and her husband remained friends with the appellant and his family they had “just got out of touch” between the camping trip and the time when the police contacted her about the appellant’s behaviour.  After the police spoke to her about the camping trip she did not contact the appellant or his family as she “wasn’t sure whether or not [she] should.”

37. When cross-examined Mrs Mansfield denied being asked whether she would be prepared to give evidence at a trial.  She said “Nothing like that was asked of me.”  She agreed that she understood the police were investigating a serious matter involving possible child sexual abuse, and that the “big hugs” she was asked about referred to “Something in the way of sexual behaviour.”

38. The evidence was clearly relevant to count 4 on the Information.  The allegation was that the appellant touched the complainant on her underwear while they were together in the river swimming during a camping trip at Mannum.  The effect of Mrs Mansfield’s evidence that the adults, including the appellant, did not go deeper than knee depth into the water meant that this offending could not have occurred as described by the complainant in her evidence at trial. 

39. Mrs Mansfield’s evidence had the potential to undermine the credibility of the complainant on count 4 and therefore more generally.  If accepted, her evidence supported that given by the appellant at trial that he did not go swimming with the children on that camping trip.  Thus, Mrs Mansfield’s evidence was capable of supporting the account of the appellant.

40. Further, the Judge had rejected the accounts of witnesses called by the appellant during the trial on the basis that they had a “longstanding allegiance” to the appellant which had so “coloured their evidence that little reliance can be placed on their evidence as to any of the disputed issues.”  The evidence of Mrs Mansfield could not have been so characterised.

    Discussion

41. I only intend to deal with appeal ground 7, namely the failure of the prosecution to disclose the fact that the police had discussions with Mrs Mansfield and further, the content of those discussions.  In my view the appeal should be allowed on this ground.

1. The respondent did not contest its failure to provide the material to the appellant.  Therefore the question to be determined is whether that failure has resulted in a miscarriage of justice.[10]  It is not to be determined by the law relating to the reception of fresh evidence.[11]

   [10]   Grey v R (2001) 184 ALR 593; Mallard v The Queen (2005) 224 CLR 125.

   [11]   R v Drummond (No 2) [2015] SASCFC 82.

2. The failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice.  Beyond cases of that kind, care must be taken before finding that the undisclosed material could not have changed the result.[12]

   [12]   R v Forrest (2016) 125 SASR 319.

3. In my view, the evidence of Mrs Mansfield was capable of raising a question about the credibility and reliability of the complainant.  The loss of the opportunity to produce the evidence of Mrs Mansfield is, in itself, indicative of a miscarriage of justice.  It could not be said that the evidence of Mrs Mansfield was insignificant or that the Judge would have necessarily resolved the differences in the evidence of Mrs Mansfield and the complainant against the appellant.  It is not possible to reach such a conclusion due to the significance of Mrs Mansfield’s evidence in relation to the issues which arose during the trial.

4. In my view, the failure to disclose the material has led to a miscarriage of justice.  I would allow the appeal on this ground.  It is unnecessary for me to consider the “fresh evidence” raised in grounds 8 and 9.

   Conclusion

5. Given the failure to disclose, it cannot be said that a miscarriage of justice has not occurred.

6. I would allow the appeal. I would quash the convictions and remit the matter to the District Court for retrial.

   
   

7. PEEK J.    Appeal against convictions.

   Introduction

8. The appellant was tried by a District Court Judge sitting alone for three counts of unlawful sexual intercourse with a person under the age of 14 years, four counts of aggravated indecent assault, one count of gross indecency, one count of unlawful sexual intercourse, and one count of aggravated assault. 

9. The complainant, who is to be referred to as CN, was born in April 1995 and was 20 years old at the time of trial.  Her mother, who is to be referred to as DT, is the appellant’s current partner.  CN’s natural father and DT separated when she was about five years old.  DT retained custody of her and her younger brother, who was born in August 1996 and is to be referred to as WN.

10. After CN’s parents separated, DT and the appellant formed a relationship and DT, CN and WN moved into the appellant’s house in Ottoway.  The appellant readily undertook the role of step-father to the two children, who both called him “Dad” (as distinct from “Father”) from the outset, and they formed a good relationship.  On the other hand, the relationship between CN and DT was beset with conflict.  CN eventually ran away from home at the age of 15, initially living with her adult sister and later with her natural father for a time.  She later moved in with her current partner JG and they had a child together.

11. On an occasion when JG asked CN about her disturbed sleeping, she said to him that she had had a sexual relationship with the appellant up to when she had left home.  Around the same time, she placed a post on her Facebook page referring to the appellant as a paedophile and later made a complaint to police alleging years of sexual activity that forms the basis of the charged offences.

12. On 31 August 2014, the appellant was interviewed by police in his home in Blanchetown, and denied the detailed allegations that were put to him.  This interview was recorded aurally and visually.  He was arrested and taken to the Nuriootpa police station, where he was charged.

    The Information

13. The amended Information appears as follows:

    First Count

    Statement of Offence

    Unlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN], a child under the age of 14 years, by causing [CN] to perform fellatio upon him.

    Second Count

    Statement of Offence

    Unlawful Sexual Intercourse with a Person Under 14.  (Ibid).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN], a child under the age of 14 years, by inserting his penis into her vagina.

    Third Count

    Statement of Offence

    Unlawful Sexual Intercourse with a Person under 14.  (Ibid).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN] a child under the age of 14 years, by inserting his penis into her anus.

    Fourth Count

    Statement of Offence

    Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935)

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2009 at Mannum, indecently assaulted [CN], a person under the age of 14 years, by touching her underwear.

    It is further alleged that Craig Stewart helps committed the offence knowing that ([CN]) was, at the time of the offence, a child of whom he had custody as a parent or guardian.

    Fifth Count

    Statement of Offence

    Aggravated Indecent Assault.  (Ibid).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2009 at Kurralta Park, indecently assaulted [CN], a person under the age of 14 years, by rubbing his penis on her body.

    It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.

    Sixth Count

    Statement of Offence

    Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2007 and the 1st day of September 2009 at Kurralta Park, committed an act of gross indecency in the presence of [CN], being a person under the age of 13 years, by rubbing his penis in her presence.

    Seventh Count

    Statement of Offence

    Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown, indecently assaulted [CN], a person of the age of 13 or 14 years, by kissing her on the mouth.

    It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.

    Eighth Count

    Statement of Offence

    Aggravated Indecent Assault.  (Ibid).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown, indecently assaulted [CN], a person of the age of 13 or 14 years by rubbing his penis on her body.

    It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.

    Ninth Count

    Statement of Offence

    Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2008 and the 1st of January 2011 at Blanchetown, had sexual intercourse with [CN], a child under the age of 17 years, by inserting his penis into her vagina.

    Tenth Count

    Statement of Offence

    Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Craig Stewart Helps between the 31st day of December 2009 and the 1st of January 2011 at Blanchetown, assaulted [CN].

    It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.

14. The counts were particularised at trial as follows:

    -Count 1 alleged that the appellant called CN into his bedroom, asked her to kiss him on the penis through a purple bedsheet and subsequently removed the sheet and put his penis in her mouth.

    -Count 2 alleged that while CN was lying on the edge of the dining room table, the appellant spat on his hand and rubbed her vagina before pulling her underwear aside and penetrating her vagina with his penis.  CN said that he stopped when she cried out in pain and she later discovered blood on her bathers.

    -Count 3 alleged that after CN had been swimming in the backyard pool, the appellant called her into an old bus that was being renovated near the back of the house, bent her over some bed railings that were in the bus, twisted her arm behind her back, and put his penis into her anus, causing her to jolt away in pain.

    -Count 4 alleged that the appellant touched CN on her underwear while they were swimming together in the river during a camping trip with another family in Mannum.

    -Count 5 alleged that on the night of her year 7 graduation, CN was on the appellant’s bed on top of him and he was rubbing his penis against her when they heard DT arriving home; that he forced her onto the floor and underneath the bed, her head hitting the bedside table on her way down; and that DT then came into the room to get changed while CN was hiding underneath their bed.

    -Count 6 alleged that the appellant came into the bathroom while CN was putting on make-up and played with his genitals in front of her through his clothes; that CN returned to her room and the appellant followed her, yelling in anger that she was a “slut” and that she was like her mother and did not need make-up; that the appellant then broke her make-up kit with his fist, causing a bit of the mirror to cut her arm; and that the appellant then grabbed DT by the throat after she defended CN.

    -Count 7 alleged that inside the garage where the appellant was fixing a boat, he kissed CN on the mouth while she played with his genitals through his clothes; that CN had gone there to talk with him about letting her go camping with some of her friends.

    -Count 8 alleged that in the garage, on a different occasion from that of count 7, when the appellant was fixing a Suzuki car, he picked CN up, put her on the bonnet of the car, and rubbed his penis against her.

    -Count 9 alleged that, following CN asking the appellant if she could sleep over at her adult sister’s house, the appellant pushed CN onto the bed and had sexual intercourse with her in a rough manner causing red marks where he had held her.

    -Count 10 alleged that the appellant got angry with CN for wearing a skirt rather than pants, followed her to the bus stop, called her names, and slapped her with the back of his hand across the face.

    The course of the trial

15. The trial commenced on 16 February 2016 and occupied six days.  The prosecution case entirely depended on the uncorroborated evidence of CN.  The prosecution called only two witnesses, CN and her current partner, JG (who gave complaint evidence only).

16. In overview, CN gave evidence of offences corresponding to the above particulars in the context of the following further evidence.  That the appellant sexually abused her between about 2006 and 2010, when she was aged around 10 to 15 years.  That initially innocent interactions between the appellant and her began to develop sexual undertones and then became overtly sexual when they were alone together.  That the appellant began to walk around the house in only a purple sheet or a robe in a way that showed his genitals, began to kiss her in sexual way and to rub himself against her.  That there was a long course of uncharged conduct with the charged offences being incidents that were linked to other facts retained in her memory.  That she instigated some of the sexual activity because it felt nice and because she would sometimes be rewarded for it.  That she came to use such sexual activity as a lever to obtain various domestic advantages.  That the appellant and CN used the term “big hugs” when referring to sexual activity in front of others.  That she made a complaint to her partner, published on her Facebook page allegations that the appellant was a paedophile, and later made a complaint to police as referred to above.

17. At the end of the prosecution case, defence counsel submitted that the prosecution should, in fairness to the appellant, lead the audiovisual record of interview of the appellant conducted on 31 August 2014 but the prosecutor refused to do so.  This is the subject of the first ground of appeal and is dealt with below.

18. The appellant elected to give evidence and also called DT and WN as defence witnesses.  The defence case was that CN had fabricated the allegations and that there were a number of inconsistencies and improbabilities to be seen in her evidence by reference to the combined evidence of the appellant, DT and WN.  It was emphasised that CN had a demonstrated history of lying on many topics.  It was further submitted that CN had various reasons to fabricate the present allegations against the appellant.  One is that CN’s natural father had wanted to reunite with DT and had told CN and WN to lie to their mother about the appellant.  Another is that CN wanted revenge on her mother with whom she had long been on very bad terms for various reasons; and by whom she had again been rebuffed in refusing to see her after she had left home.[13]  Another is that, due to her “rocky” relationship with JG, she may have made a false complaint to him to gain his sympathy.

    [13]   CN gave evidence that when she was living with her father, a few years after she had moved out, she had taken a folder of school reports to show her mother how well she had been doing.  She said she had felt “crushed” and was crying when the appellant told her that her mother did not want to see her.

19. On 24 February 2016, the Judge reserved judgment.  His Honour delivered his verdict and reasons on 15 March 2016, convicting the appellant of all ten counts on the Information.

    Grounds of appeal

20. The appellant appeals on six grounds as follows:

    Ground 1

    1.1The prosecution failed in its duty to ensure a fair trial for the accused by not leading the evidence of the accused video record of interview; or in the alternative

    1.2The learned Trial Judge erred in not allowing the accused to lead that evidence as part of the defence case.

    Ground 2

    The guilty verdicts of the learned Trial Judge on all 10 counts on the Information are unsafe, unsatisfactory and against the weight of the evidence.

    Particulars of Ground 2:

    2.1The prosecution case depended solely on the evidence of the complainant [CN] and in her evidence she was inconsistent in important aspects as compared to what she told the police in her statement. Those inconsistencies are as follows:

    [Further particulars not reproduced]

    2.2There are aspects of the complainant’s evidence which should have resulted in the learned Trial Judge to doubt the complainant’s veracity. Those aspects are as follows:

    [Further particulars not reproduced]

    2.3     The complainant had the following possible motives for lying:

    [Further particulars not reproduced]

    2.4The evidence of the complainant’s mother, [DT], showed the complainant to be a liar in relation to the following facts in issue:

    2.4.1  In relation to count 4 the complainant alleged that whilst on a camping trip with the accused, her mother and her brother that she and the accused went swimming at which time the accused indecently assaulted her. According to [DT] the accused did not go swimming during the whole camping trip.

    2.4.2  In relation to count 5 the complainant alleged that the accused indecently assaulted her in his bedroom and that when her mother came home the accused pushed the complainant under the bed. Whilst under the bed the complainant alleged that she was whimpering and crying and her mother would have heard her. According to [DT] the complainant would not have fitted under the bed as there was no room due to a spare mattress being stored there and she heard no whimpering or crying.

    2.4.3  In relation to count 6 the complainant alleged that the accused argued with her about the use of make-up and called her a “slut just like your mother”, The complainant further alleged that [DT] became involved and supported her to which the accused assaulted [DT] by grabbing her around the neck. [DT] said in evidence that she has never been assaulted by the accused and that he has never called her a “slut”. It was also [DT]’s evidence that she supported the accused and not her daughter in the argument.

    2.4.4  It was [DT]’s evidence that the complainant was a frequent liar and in particular the complainant coloured one eye with boot polish and told people that her mother had given her a black eye.

    2.5The evidence of the complainant’s brother, [WN], showed the complainant to be a liar in relation to the following facts in issue:

    2.5.1  It was the complainant’s evidence that on one occasion she had sexual relations with [WN]. According to [WN] no such incident took place.

    2.5.2  In relation to count 4 the complainant alleged that the accused indecently assaulted her whilst swimming on a camping trip. According to [WN] the accused did not go swimming at any time during that camping trip.

    2.5.3  It was the complainant’s evidence that she was walking across the Blanchetown Bridge with the accused and her brother and the accused had said he had read her diary and her references to her suicidal thoughts. The complainant further alleged that the accused picked her up and made out he was going to throw her off the bridge. According to [WN] no such conversation or incident of the accused pretending to throw the complainant off the bridge took place.

    2.5.4  [WN] said in his evidence that the complainant would lie to her natural father that the accused had hit her, abuse [sic] her and throw [sic] things at her.

    Ground 3

    The learned Trial Judge in his reasons for the guilty verdicts erred in not giving enough weight to the defence witnesses [DT] and [WN] in relation to crucial matters that showed the complainant to be lying and prone to making false allegations.

    Particulars of Ground 3:

    See particulars for 2.4 and 2.5 of this Appeal Notice.

    Ground 4

    The learned Trial Judge erred in placing too much weight on the minor inconsistencies between the evidence of the accused, [DT] and [WN] which inconsistencies can be explained away by the passage of time as well as the young age of [WN] (aged 18).

    Ground 5

    The learned Trial Judge erred in not properly applying the burden of proof in his analysis of the defence evidence.

    Particulars of Ground 5:

    5.1The learned Trial Judge in saying “In all the accused was only a moderately adequate witness…” is not a proper application of the presumption of innocence. A proper application of the burden of proof requires the trier of fact to find an accused to be a totally inadequate witness.

    5.2The learned Trial Judge in saying “Turning to the defence case, regrettably, in the final analysis, the accused’s evidence was not convincing, and the accused’s witnesses, whilst I am sure they thought they were doing the right thing in so unquestioningly attempting to support the accused on any and every issue they could think to support him on, were so partisan and one sided that they were not in an objective sense credible or reliable.” (Highlighting [appellant’s]) has appeared to reverse the onus of proof by suggesting that the accused and his witnesses have not convinced him of the accused’s innocence.

    Ground 6

    The learned Trial Judge erred in not directing himself in his reasons as to what use, if any, he made of the evidence on each count in relation to his findings of guilt on the other counts.  [Footnotes omitted]

1. There is no dispute that the interview constituted a “mixed statement” or that defence counsel submitted that the prosecution should tender the audiovisual recording and the prosecutor refused to do so.  It transpires that the trial prosecutor erroneously thought that interview was wholly self-serving and did not constitute a “mixed statement” and that she was not required to tender it.  In fact there was nothing that brought the case within the third rule in R v Pearce[205] and the respondent does not submit that there was.

   [205] (1979) 69 Cr App R 365.

2. I conclude that the prosecution duty to present the case fully and completely applied here.  The appellant has not had a fair trial according to law and ground 1 of appeal is made out.

   PART I:  CONCLUSION AND DISPOSITION OF THE APPEAL

3. Grounds 2 and 6 of appeal remain for consideration.

4. Ground 6 of appeal is awkwardly worded.  If it means that a doubt arising as to the complainant’s credibility in the context of one specific count should, in a case such as the present, be taken into account as going to her credibility on all of the counts, that proposition is obvious and has been referred to as part of the consideration of grounds of appeal 3, 4 and 5 above.  However, here the Judge found that there was no doubt in relation to any of the counts and the appellant’s real complaint goes to an anterior matter, the very reasoning process adopted by the Judge.  Ground 6 of appeal has nothing to add to the appeal and is not made out.

5. I have carefully considered ground 2 of appeal because success on that ground would lead to a judgment of acquittal rather than an order for a retrial.  I have followed the precepts in M v The Queen[206] and have made an independent assessment of all the evidence (a good part of which, but not all, I have commented upon in the context of grounds of appeal 3, 4 and 5).  I find that ground 6 of appeal is not established.  Since there may be a re-trial, I think it inappropriate to say any more.

   [206] (1994) 181 CLR 487.

6. The appellant has made out grounds of appeal 1, 3, 4 and 5.  I would hold that each of ground 1 (on the one hand) and the group of grounds 3, 4 and 5 (on the other hand) independently establish a miscarriage of justice.  I would also hold in the alternative that the aggregate of grounds 1, 3, 4 and 5 together establish a miscarriage of justice.[207]

   [207] In R v Ireland (1970) 126 CLR 321, 331, Barwick, CJ stated: “Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial.”

   In R v Zorad (1990) 19 NSWLR 91, 108, the New South Wales Court of Criminal Appeal (Hunt, Enderby and Sharpe JJ) stated: “As we said at the beginning of this judgment, a number of errors were made by the judge and, whilst many of them (taken individually) led to no miscarriage of justice, the question which arises in the end is whether the cumulative effect of all the errors made has been such as to have denied the appellant a fair trial. Every accused is entitled to a fair trial, one in which the relevant law has been correctly explained to the jury and in which the rules of procedure and the laws of evidence have been properly followed. If there has been a failure in any such respect, and if the accused may thereby have lost a real chance (or a chance that was fairly open to him) of being acquitted, there has been a miscarriage of justice.”

   In R v Kotzmann [1999] 2 VR 123, a decision of the Victorian Court of Criminal Appeal, Batt J (with whom Phillips CJ and Callaway J agreed) stated at 157 [114]: “Mr Tehan argued that, even if each of the grounds individually failed, nevertheless the combination or aggregation of the defects said to be identified in several grounds should lead this Court to conclude that there had in truth been a miscarriage of justice. That such a conclusion is open to a court of criminal appeal is clearly established: R v Ireland (1970) 126 CLR 321, 331 (Barwick, CJ) (with whom the other members of the Court agreed); R v Gibband McKenzie [1983] 2 VR 155, 166; R v Levidis [1991] 2 VR 179, 182; R v Appleby (1996) 88 A Crim R 456, 488; R v McKellin (unreported, Court of Appeal, 19 December 1997) (Phillips, CJ and Charles, JA) p 10; R v Zorad (1990) 19 NSWLR 91, 108 (though the function of substantial miscarriage there is not clear to me) and R v Robertson [1998] 4 VR 30, p 42 (Callaway, JA) (like this, a case concerning directions as to use of evidence). It is clear from those cases that the “defects”, “faults” or “errors” which may thus be aggregated are such as have not led to a miscarriage of justice; for, if any of them have done so, the Court would, unless the proviso were held applicable, be obliged by virtue of s 568(1) and (2) of the Crimes Act 1958 to allow the appeal and quash the conviction. (I am speaking with reference to the third limb only of s 568(1).) Compare R v Konstandopoulos (1997) 99 A Crim R 36, 44 and 47.”

   Numerous later cases, particularly in Victoria, have followed Kotzmann, sometimes referring to “the Kotzmann Ground”.

7. This case turns on witness credibility.  It would be impossible to apply the proviso and the prosecutor did not suggest that the Court should do so.

8. I have considered the discretion to enter judgment of acquittal or order a retrial.  I consider that the appropriate order is for a re-trial (and counsel for the appellant did not put any submissions to the contrary).

9. I would grant permission to appeal on grounds 3, 4 and 5.  I would allow the appeal and order that there be a re-trial on the amended Information.

   AFTERWORD

10. Well after judgment was originally reserved on 21 June 2016, and after the above judgment had been completed, the appellant lodged an interlocutory application seeking to re-open the argument of the appeal by tendering fresh evidence.  I agree with what Kelly J has written in this regard, including her proposed orders, and I do not wish to add anything.

    
    

    LOVELL J.

11. I would allow the appeal.  I agree with the orders proposed by Kelly J and with her reasons.  However I wish to add a few remarks in relation to grounds 1 and 2.

    Totally exculpatory statements

12. A confession is admissible under an exception to the hearsay rule.  It is admissible as evidence of the truth of its contents.  It is inadmissible as evidence against a co-accused.

13. In general, self-serving statements made by an accused are inadmissible as evidence of the facts stated. In England, and in some Australian states, it appears that a totally exculpatory statement is customarily led by the prosecution. Statements, written or unwritten, made by an accused person to the police, and which are totally exculpatory, are led to show the attitude or reaction by an accused when “taxed” with the allegations. Whilst such a course may be open to the prosecution in South Australia, and may have in the past been done, there is no obligation on them to do so.[208]

    [208] R v H, ML [2006] SASC 240.

14. In England the position remains that a wholly exculpatory statement is not evidence of any fact asserted.[209] Thus the actual exculpatory statements have no evidential value; the relevance is simply in the reaction of the accused to the allegations. A jury is given the direction that exculpatory statements themselves are not evidence.

    [209] R v Aziz [1996] AC 41, 51.

15. With respect to those who take a different view it is difficult to see the utility in leading an exculpatory statement for such a limited purpose. Given the vagaries of human nature, and the infinite number of different reactions that an accused may have when “taxed with the allegations”, it is hard to see what sensible direction could be given to a jury about the use that could be made of an accused’s response. I agree with the remarks of Kourakis J (as he then was) in Barry v Police[210] where he stated:

    It is convenient to record here that I do not accept that the reaction of an accused when “first taxed” with an allegation is admissible unless the conduct supports an inference that the accused accepted the truth of the allegation. Prior consistent statements, whether expressly or impliedly made, are inadmissible at common law. The fact that police put an allegation to an accused and the fairness with which they have treated an accused may be relevant in a case where the defence legitimately raises an issue about the propriety of the police conduct. However, the purpose of the admission of that evidence, in such a case, is not in any way related to the exculpatory response made on such an occasion. Moreover the past practice of prosecutors cannot, of itself, effect a change in the common law.[211]

    [210] (2009) 197 A Crim R 445.

    [211]  Barry v Police (2009) 197 A Crim R 445, [54].

    Mixed statements

16. A review of the law both in England and in Australia demonstrates consistency between the jurisdictions in regard to “mixed statements”.

17. As the cases demonstrate self-serving statements are generally not evidence of their truth as opposed to the evidential value of an admission. In England it was recognised that this difference caused problems when directing juries in relation to the use to be made of a mixed statement. The courts recognised that jurors, who heard the entire mixed statement, would have difficulty in differentiating between admissions that were evidence as to the truth of the facts and exculpatory statements which were not. In R v Sharp[212] Lord Havers stated that the judicial direction which was required in order to differentiate between the two parts of a mixed statement was incomprehensible to jurors. A jury, he said, would make little of a direction which required them to distinguish between “evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts.”[213]

    [212]  R v Sharp [1988] 1 All ER 65.

    [213]  R v Sharp [1988] 1 All ER 65, 71.

18. To alleviate that problem it was held that self-exculpatory parts of a mixed statement are to be received along with the incriminating portions as evidence of their truth with the weight to be accorded to them to be decided by the tribunal of fact. In a criminal context it is only if the prosecution seeks to tender the statement for its own purposes that the exculpatory portion falls for consideration.

19. This is the position in Australia as well. In R v Soma,[214] in relation to a “mixed statement”, the plurality (Gleeson CJ, Gummow, Kirby and Hayne J) stated:

    If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent’s trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen and Apostilides the prosecutor’s obligation to put the case fairly, would on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so.[215]

    (Emphasis added)

    [214] (2003) 212 CLR 299.

    [215] R v Soma (2003) 212 CLR 299, [31].

20. Thus, where an interview contains a mixture of incriminating admissions and exculpatory statements, the prosecution, consistent with their obligations, should lead the whole of the statement, unless there is a positive reason for not doing so.

21. In Mahmood v Western Australia, Hayne J stated:[216]

    In general, the prosecution should call “[a]ll available witnesses ... whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”. If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution “cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case”.

    (Citations omitted)

    [216] (2008) 232 CLR 397, [39].

22. Hayne J further stated:[217]

    In Western Australia, Callaghan has been said to stand for the proposition that “[i]t is a matter or the prosecution to determine whether or not it wishes to lead the evidence as part of its case” of an out-of-court statement that contains both inculpatory and exculpatory material. The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case. If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpatory and exculpatory material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.

    (Citations omitted)

    [217] (2008) 232 CLR 397, [41].

23. This is also consistent with the prosecutor’s duty as explained in R v Apostilides[218] although the High Court in that case was dealing only with competent or compellable witnesses.

    [218] (1984) 154 CLR 563

24. It is pertinent to observe that a prosecution is not, of course, based on exculpatory statements of an accused. A totally self-serving statement of an accused could not be seen as part of an “unfolding narrative of a prosecution case”.

25. In my view the statements of Hayne J in Mahmood v Western Australia are consistent with what he said in R v Soma.[219] In neither case was Hayne J dealing with a totally exculpatory statement. This position is also consistent with the remarks of the Court in Spence v Demasi[220] and the remarks of Kourakis J (as he then was) in Barry v Police[221] as to the admissibility of “mixed statements”.

    [219] (2003) 212 CLR 299.

    [220] (1988) 48 SASR 536.

    [221] (2009) 197 A Crim R 445.

    What is a mixed statement?

26. Questions naturally arise as to what amounts to a “mixed statement” and further what the duties of a prosecutor are when determining that issue. Whilst the cases talk of a “mixed statement” content must be given to that label. When does a record of interview (for example) become a “mixed statement” such that the prosecuting authority, in accordance with its obligations, is required to lead the statement in its entirety? If an accused makes what could be classified as an admission, but one of very little weight in the overall prosecution case, is the prosecutor obligated to call evidence of what is, in effect, an almost entirely exculpatory interview?

27. The issue of the dividing line between mixed statements and self-serving statements arose in R v Garrod.[222] The Court identified the issue as “how to identify the kind of interview which contains enough in the nature of admissions to justify calling it a “mixed rather than an “exculpatory” statement.”

    [222]  [1997] Crim. L.R. 445 CA.

28. Having posed the question the Court held:[223]

    We would hold that where the statement contains an admission of fact which are significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilty, then the statement must be regarded as “mixed” for the purposes of the this rule.

    [223]  R v Garrod [1997] Crim. L.R. 445 CA.

29. This statement was approved in R v Thorpe.[224]

    [224] [2011] EWCA Crim 1128 at [25].

30. In accordance with those authorities, Phipson on Evidence[225] states:

    A mixed statement can be defined as one containing both exculpatory elements and an admission of fact which is significant to any issue in the case, that is capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt.

    [225]  Hodge M Malek et al (eds), Phipson on Evidence, (Thomson Reuters, 18^th ed, 2013) 1307.

31. This position, as adopted in England, is consistent with the prosecutor’s duty in Australia. It is, in my view, a matter for the prosecutor in any particular case whether the admissions of fact are “significant to any issue in the case” and are capable of adding “some degree of weight to the prosecution case and on an issue which is relevant to guilt”. That decision of the prosecutor must, of course, be consistent with the principles established in R v Apostilides.[226]

    [226] (1984) 154 CLR 563.

32. Once the prosecutor decides to lead the admissions, it is not open for the prosecutor to pick and choose between inculpatory and exculpatory statements, and the entire statement must be led.

33. Whether on the facts of this case the interview in question fell to be regarded as a “mixed statement” or not was not debated before us and the question need not be decided. The prosecutor in the case considered the statement to be totally exculpatory and made the decision not to lead it. It was conceded on appeal that the interview did indeed contain some admissions although of a relatively minor nature.

34. Defence counsel sought to lead the evidence of the interview as part of his case. The Judge declined to allow him to do so and was correct, in my view, in so ruling. Whether the prosecutor was “obliged” to tender the entire statement as part of the case does not need to be determined on appeal. The issue for this Court is whether what actually occurred gave rise to a miscarriage of justice not whether the decision by the prosecutor was correctly made at the time.

35. As pointed out by Kelly J, even if the statement ought to have been led by the prosecution, it could hardly have mattered in this case. I agree with her Honour’s reasoning in that regard.

    Ground 2

36. The principles relating to the adequacy of reasons of a trial Judge sitting without a jury has been recently discussed in the case of R v Cotton.[227] Precisely how detailed the reasons need to be depends upon the issues in the case. In R v Keyte[228] Doyle CJ (with whom Wicks J agreed) said:

    I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.[229]

    [227] [2015] SASCFC 17.

    [228] (2000) 78 SASR 68.

    [229]  R v Keyte (2000) 78 SASR 68, [56].

37. However it can reasonably be said that resolution of the issues in a case requires not only a statement in the reasons of the principles of law that are applied and the findings of fact that the Judge makes, but also a statement of the reasoning process linking them and justifying the findings of fact and ultimately the verdict that is reached.

38. The resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another.  The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The choice for the Judge was not to prefer one version of events over another. The question to be decided was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. Even if the Judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true.[230]

    [230] R v Douglass [2012] HCA 34.

1. This case really was an “oath against oath” case although, to a limited extent, the accused received some support from other members of his family. In my view the Judge gave detailed reasons as to his findings of fact, the reasoning process in which he engaged, and the principles of law involved. The main criticism by the appellant is that, while the Judge has exposed his reasoning, in particular in relation to the way in which he dealt with the defence case, the reasoning exposed did not justify the rejection of the appellant’s case at least as a reasonable possibility.

2. It must always be remembered that the reasons for verdict must be read as a whole. Also it should be borne in mind that, in a case where it is plain that one witness must be lying, it is often difficult for a tribunal to express reasons preferring one account to the exclusion of the other.[231] However, even allowing for that difficulty the reasons may be inadequate if little or no reasons are given as to why there is an acceptance of the evidence of a victim over that of sworn evidence of an accused.

   [231] R v CH [2016] SASCFC 112.

3. Here the Judge expressed a number of reasons why he rejected the appellant’s evidence and indeed the appellant’s case. Opinions may differ as to the strength of the points made by the trial Judge but in my view his findings were open on the evidence. It can be seen that the Judge considered and dealt with in his reasons, the criticisms made by the appellant’s counsel of the victim’s evidence.

4. Further, one cannot overlook that the Judge’s preference for the victim’s evidence was, to some degree at least, a matter of the impression made by her when giving evidence. The trial Judge had an advantage in that regard.

5. The Judge clearly understood the task he was required to undertake. The Judge stated:

   [31]In this case, the evidence of the complainant and the accused are starkly opposed. The accused flatly denies every one of the many allegations of charged and uncharged offending made by the complainant. It is important to observe that in a case such as this it is not a matter of deciding who to believe or which of two versions of an event to accept, or who is more believable than the other, or anything of that nature. The question is always whether the prosecution has proven every element of a charge beyond reasonable doubt. The accused bears no onus, and has to prove nothing. Further, even if an accused gave evidence and were entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.

6. It is clear from the trial Judge’s reasons that he considered the victim’s evidence very carefully and scrutinised it as he was required to do. It is also clear from the entirety of his reasons that he was aware of the appropriate standard of proof. He did not just accept that the victim was truthful and credible. Such a finding is not necessarily inconsistent with the existence of a reasonable doubt as to guilt. The Judge took the next step and expressed, very clearly, that he accepted the victim’s evidence beyond a reasonable doubt. These findings were open to the Judge.