R v Hollsten
[2015] SASCFC 178
•30 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOLLSTEN
[2015] SASCFC 178
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)
30 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
The appellant was convicted by jury of one count of persistent sexual exploitation of a child, alleged to have occurred between 1963 and 1974 when the complainant, A, was between the ages of about 6 and 17 years old. A was the daughter of the appellant, and was born in 1957. She was 58 years old at trial in 2015.
A gave evidence of two complaints she made about the alleged offending: first to her first serious boyfriend, Mr Rushby in about 1975 when she was 18 years old; and secondly to her husband Mr Hall in about 1980 when she was 22 or 23 years old. Mr Rushby died before trial. The appellant did not object to evidence being given of the complaint to Rushby but submitted that the later conversation with Mr Hall was not admissible under 34M of the Evidence Act 1929.
A gave evidence that she gave the same low level of detail to both Mr Rushby and Mr Hall and that she did not tell Mr Hall anything more than she told Mr Rushby. Mr Hall gave detailed evidence about the complaint made to him by A: that the appellant fondled her in her room at night; that more sexual abuse happened which led to A becoming pregnant and having an abortion; and that she did not report the offending earlier as she wanted to protect her mother.
The prosecutor argued that: the evidence of Mr Hall disclosed more than a low level of detail; the jury might prefer the evidence of Mr Hall to the evidence of A and might find that the level of detail in the complaint to Mr Hall was greater than that given to Mr Rushby. The Judge admitted the evidence of both statements pursuant to s 34M.
Further evidence was given by A’s brother, who gave evidence of an argument he heard between his parents when he was about 12 years old, apparently related to his mother having found the appellant examining A’s vagina. The mother was not called because she was elderly and had dementia. A’s brother gave evidence that the appellant had explained that he was picking a grass seed out of her vagina; in cross-examination, defence counsel suggested to him that A had been taken to the doctor subsequent to this incident, a suggestion which was not put to A in cross-examination. The Judge indicated that a comment would be made to the jury unless A was recalled. A was recalled and gave evidence that she could not recall the incident or going to the doctor for removal of a grass seed. A further stated that her mother had recently told her about the incident. Defence counsel made an application for the jury to be discharged due to that last statement. The Judge declined to do so. The Judge directed that the jurors should put out of their minds that hearsay evidence. The appellant contends that the reception of the evidence of A as to what her mother had said to her about the grass seed incident resulted in a miscarriage of justice.
Held per the Court:
1. For there to be an elaboration of a complaint pursuant to s 34M, the allegation made on the later occasion must contain more detail than an earlier allegation. Mr Hall’s evidence could not affect the accuracy of A’s evidence that she gave the same level of detail to both Mr Rushby and Mr Hall. An error by A as to the level of detail in her complaint to Mr Hall could not negate the possibility that A was correct in stating that she gave the same level of detail to both Mr Rushby and Mr Hall; the possibility that A gave more detail to Mr Hall than to Mr Rushby was not supported by any evidence before the Judge. The Judge erred in deciding that the complaint to Mr Hall was an elaboration of the initial complaint.
2. Given A’s mother’s dementia, and against the background of some evidence of A siding with her mother in her recent alienation from the appellant over financial matters, real questions arose as to the reliability of A’s mother’s statements, and also perhaps, whether Carl’s evidence was influenced by similar statements. The Judge did not adequately assist the jury to put the inadmissible evidence out of their minds.
3. There was a miscarriage of justice. The appeal is allowed and a re-trial is ordered.
Evidence Act 1929 s 34M, referred to.
MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436, distinguished.
R v England (2013) 116 SASR 589; The Queen v H, T (2010) 108 SASR 86; R v Maiolo (No 3) [2014] SASCFC 89; R v Place [2015] SASCFC 163; The Queen v S, DD (2010) 109 SASR 46, discussed.
R v Maiolo (No 2) (2013) 117 SASR 1; R v Usher (2014) 119 SASR 22, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"elaboration"
R v HOLLSTEN
[2015] SASCFC 178Court of Criminal Appeal: Sulan, Peek and Nicholson JJ
THE COURT
Introduction and overview
The appellant was convicted by a jury of the one count on the Information which appears as follows:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Olof Oliver Johannes Hollsten between the 9th day of June 1963 and the 10th day of March 1974 at Bridgewater, over a period of not less than three days, committed more than one act of sexual exploitation of A, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a) Touching A’s vagina on more than one occasion.
b) Touching A’s breasts on more than one occasion.
c)Inserting his penis into A’s vagina on more than one occasion.
d)Inserting his finger into A’s vagina on more than one occasion.
e)Causing A to perform fellatio upon him on more than one occasion.
f)Performing cunnilingus upon A on more than one occasion.
The appellant is the father of the complainant, A. A was born on 11 March 1957. She first gave a statement to police concerning this matter on 8 July 2013, when 56 years old. She was 58 years old at trial in 2015.
The grounds of appeal
The appellant’s amended grounds of appeal are as follows:
1.The trial Judge erred in ruling that evidence relating to conversations the complainant had with Peter Hall regarding the offending, was admissible, as evidence of initial complaint, and such error resulted in a miscarriage of justice. Further, or in the alternative, the trial Judge should have excluded the evidence in the exercise of his discretion.
2.The trial Judge incorrectly ruled that the failure by the appellant to put certain matters to the complainant in cross-examination required him to make to the jury a comment adverse to the appellant, and such error resulted in a miscarriage of justice.
Particulars:
a. After the complainant had completed her evidence, evidence was given by Carl-Gustaf Hollsten, a witness for the prosecution, regarding an incident which the prosecutor suggested was consistent with the commission of one of the charged offences.
b. In cross-examining the witness the appellant’s counsel put to the witness a version of facts which amounted to an explanation for the observations of the witness consistent with the innocence of the appellant.
c. Counsel for the accused had not put that version of facts to the complainant.
d. The trial Judge ruled that as a result of the failure to put that version of facts to the complainant he would make to the jury a comment adverse to the appellant, unless the appellant sought to recall the complainant and put the version of facts to her.
e. The ruling of the trial Judge was incorrect.
f. As a result of the ruling the appellant elected to have the complainant recalled, and his counsel put the version of facts to her.
g. In the course of the cross-examination that ensued, the complainant gave inadmissible evidence which was highly prejudicial to the accused.
h. As a result, there was a miscarriage of justice.
3.The trial Judge failed to declare a mistrial and discharge the jury, resulting in a miscarriage of justice.
Particulars:
a. During cross-examination the complainant gave evidence of statements made by her mother to the effect that her mother had witnessed the appellant examining the complainant’s vagina.
b. Such evidence was inadmissible.
c. Such evidence was highly prejudicial to the appellant.
d. Under the circumstances the trial Judge should have declared a mistrial, discharged the jury and ordered that there be a new trial.
e. As a result of the failure by the trial Judge to do so, there was a miscarriage of justice.
Ground 1 of appeal: Reception of complaint evidence
A gave evidence that she first complained about the conduct by the appellant when she was 18 years old, in about 1975, during a conversation with her first serious boyfriend, Mr Alan Rushby.[1] A also gave evidence, over the objection of the appellant, that she also complained about the conduct by the appellant during a later conversation with her husband Peter Hall when she was 22 or 23 years old, in about 1980.
A’s evidence on the voir dire: The complaints to Mr Rushby and Mr Hall
[1] Mr Rushby died long before the trial herein. A gave evidence that she read about his death in the early 1980s.
Evidence was taken on a voir dire hearing to assist resolution of the objection to the admission of the complaint evidence. A gave the following evidence of making complaint to Mr Rushby and to Mr Hall:
QI just ask you about the topic of who it was that you first recall telling about your allegations involving your father. Who was the first person that you recall complaining to about what your father had done?
A My first serious boyfriend named Alan Rushby.
Q How old do you think you were at the time?
A 18.
Q What do you recall telling Mr Rushby?
A That I had been abused by my father but I don’t recall the exact words.
Q Did you recall any other details you told him about the abuse?
A No.
Q And is that the extent of your memory of the conversation?
A Yes.
Q Is it the case that at some point you also spoke to your ex-husband Peter Hall?
A Yes.
QAnd how old do you think you were when you told Peter Hall about the abuse at the hands of your father?
A I would have been 22 or 23, we had been married almost a year.
Q And do you recall what you told Mr Hall?
A I told Peter that my father had abused me as a child.
Q Do you recall anything else you might have told him?
A No.
The Judge later asked A the following questions:
QI just wonder if I could ask you if you like to compare what you told Mr Rushby, on the one hand, and your husband, on the other hand, so that I can determine what the difference between the information given to each was. In other words can you put your mind so as to compare what you said to one as against what you said to the other and approach it in this way if you could: did you tell your husband anything more than you told Mr Rushby?
A No.
QDid you tell your husband on more than one occasion what had happened or was it just the one occasion?
A The one occasion.
Q And was the matter then not further discussed between you?
A No, it was too painful.
A’s evidence on the trial of making complaint to Mr Rushby and Mr Hall
A subsequently gave the following evidence on the trial proper of making complaint to Mr Rushby and Mr Hall:
QWho was the first person that you complained with about what your father had done?
A Alan Rushby.
Q Who was Alan Rushby?
A He was my first serious boyfriend.
Q How old do you think you would have been?
A 18, possibly 19.
Q Had you moved out of home by that stage?
A Yes, I had.
Q Is it the case that Mr Rushby has since passed away?
A That’s right.
QDid you then subsequently tell somebody else at a later stage? Before we go there. What did you actually tell Mr Rushby or what do you recall telling Mr Rushby?
A That my father had abused me sexually.
Q Do you know if you went into any detail with him about that?
A No, I didn’t.
Q Did you then tell somebody else?
A Yes, I did, my first husband.
Q When did you get married?
A In 1979.
…
Q How old were you when you got married in 1979?
A 22.
QHow long after you got married do you recall telling Mr Hall about what your father had done?
A Within the first year of marriage.
…
Q Do you remember exactly what you told him?
A Not the exact words but I just felt he needed to know.
Q What did you say to him?
AI don’t remember the exact words but that I had told him that my father had abused me sexually when I was a child.
Q Do you know if you went into any detail with him about it?
A No, I didn’t. I couldn’t.
Q Is your mother still alive?
A Yes, she is.
Q What is the state of her health?
A She is very, very frail and early or onset of dementia.
Q Did at some point your parents separate?
A Yes, they did.
Q When was that?
A In 2010. (Emphasis added)
Mr Hall’s evidence at trial of A’s complaint to him
Mr Hall did not give evidence on the voir dire. The ruling as to admissibility was made on the basis of his police statement which was consistent with the following evidence he gave at trial of A making complaint to him:
Q When did you get married?
A August ‘79.
Q How old were you at the time?
A 22, I believe.
Q How old was A?
A I think she was probably around the same age.
…
Q At some stage after your wedding did you move into a house at Glenalta?
A Yes.
Q Whereabouts in Glenalta was that?
A Rosella Avenue.
QFollowing that time or at any time did A ever have a discussion to you about her father?
A Yes.
Q What did she tell you?
A She just told me initially that he came into her room and fondled her at night.
Q Did she say when this was occurring, at what stage of her life it was occurring?
A Early age of her life.
QWhen she told you this how long after your wedding do you think that it would have been?
A Not too sure, six or 12 months.
Q Do you know where you were when she told you?
A In the house at Rosella Avenue.
QOther than telling you that her father had came in when she was younger and fondled her, what else did she tell you?
AWell, it kind of went on to that - I think there was more that happened and eventually it led to A becoming pregnant.
Q Did she say who the father was?
A Her father, yes.
Q What did she say to you relative to that pregnancy?
A She just said she was taken away way for an abortion, that’s about all.
Q Did she tell you where she was taken for an abortion?
A No, not that I can remember.
Q Do you remember if she told you how old she was at the time of the abortion?
A Not exact age, no.
Q Did she say anything to you about why she hadn’t reported the matter earlier?
A Mainly to protect her mother.
Q She told you that?
A Yes.
Section 34M of the Evidence Act 1929
Section 34M of the Evidence Act 1929 (the Act) was enacted in in 2008.[2] It deals with complaint evidence in sexual cases and provides as follows:
[2] See Statutes Amendment (Evidence and Procedure) Act 2008, s 18; this provision inserted “Part 3 Division 2 ─ Miscellaneous rules of evidence in sexual cases” which comprises ss 34L, 34M and s 34N into the Evidence Act 1929.
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Discussion
This Court recently observed in R v Place:[3]
[11] Of course, it is accepted that the statutory policy is that delay in complaining should not be treated as adversely affecting the credibility of a complainant, that there may be various reasons why a truthful complaint may be delayed for a long time and that juries are to be directed that “there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person”.[4]
[12] At same time, there is a need to take a balanced approach to the interpretation and implementation of s 34M of the Act. As Peek J observed in R v Maiolo (No 3):
[76] Section 34M is the successor to the common law of recent complaint. It is not to be interpreted in a vacuum; its content remains confined to sexual cases and continues to be bordered, or encircled, by the two larger areas of the common law, the rules against reception of hearsay evidence, and prior consistent statements. It must be remembered that any unduly wide interpretation of s 34M has the necessary consequence of impinging upon one or both of these important exclusionary rules.
[77] Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. …
[3] [2015] SASCFC 163 (Place).
[4] Section 34M(4)(c) of the Act.
Against this background, it may be noticed that the necessity to consider two different, but related, requirements recurs fairly regularly when prosecutors seek to tender, pursuant to s 34M, multiple statements made by a complainant on different occasions.
The first requirement is that the allegation being made by the complainant on each such occasion must sufficiently refer to, or “encompass”, an offence presently before the Court. The second requirement is that the allegation being made by the complainant on the later occasion must be “elaborative” of (in the sense of containing more detail than) the earlier allegation.
The decision of this Court in Place[5] dealt with the correct approach to s 34M generally, and with the first of the two above requirements above in particular. The Court there applied the decisions of this Court in The Queen v S, DD,[6] R v Maiolo (No 2),[7] R v Usher[8] and R v Maiolo (No 3)[9] and determined that the complaint in Place was sufficiently referrable to the charge before the Court to constitute an admissible “initial complaint”.
[5] [2015] SASCFC 163.
[6] (2010) 109 SASR 46.
[7] (2013) 117 SASR 1.
[8] (2014) 119 SASR 22.
[9] [2014] SASCFC 89.
Elaboration of an initial complaint
In Place, no question arose as to the second requirement of “elaboration”, but it is to the same general approach and methodology that recourse should be had in discussing this second requirement.
It is interesting to note that, immediately after hearing the evidence given by A on the voir dire (reproduced above), the trial Judge observed to the prosecutor arguendo:
HIS HONOUR Mr Healey I think it is an irony of the legislation that unless there is an elaboration later evidence can't be given. Now I can’t presently see how what H said to her husband can be construed as an elaboration of what she told Mr Rushby.
The Judge was correct in that initial observation. Unfortunately, the prosecutor persuaded his Honour to change his mind. The prosecutor’s submission appears to have consisted of the following steps.
First, A stated that she gave the same low level of detail to both Mr Rushby and Mr Hall. Second, the evidence of Mr Hall discloses more than a low level of detail. Third, the jury might accept the evidence of Mr Hall and therefore find that A is wrong as to the level of detail that she gave to Mr Hall. Fourth (and critically), that the jury might find that this level of detail given to Hall was greater than that given to Rushby and therefore constituted “elaboration” of the complaint to Rushby.
Mr Koehn attempted to draw his Honour’s attention to the fallacy of the above argument in essentially the following terms.
The first three steps of the prosecution argument are correct. A did state that she gave the same low level of detail to both Mr Rushby and Mr Hall; the evidence of Mr Hall did disclose more than a low level of detail; and the jury could accept Halls evidence on the matter.
However, the fourth step involves an error contrary to both logic and authority. The error is that although Hall’s evidence can demonstrate that A’s memory is faulty as to the level of detail that she had given when complaining some 40 and 35 years prior to trial, Hall’s evidence cannot affect the accuracy of A’s firm evidence that she gave the same level of detail to both Rushby and Hall. In other words, even accepting fully the first three stages of the prosecution argument, the following possibilities remain open:
1A was correct in stating that she gave the same level of detail to both Rushby and Hall (even though she was incorrect about the low level of that detail).
2A gave more detail to Rushby than Hall (perhaps because her memory was then fresher than when she later spoke to Hall).
3A gave more detail to Hall than Rushby (for no reason to be seen on the transcript).
Possibility 1 is testified to by A and a demonstrated error as to the level of detail does not negate her testimony that she gave the same level of detail to both Rushby and Hall; it certainly does not negate possibility 1. Possibilities 2 and 3 were contrary to the testimony of A; they were no more than guesses, since they were in no way supported by any evidentiary material before the Judge.
The applicable authorities
The above process of logic is supported by the decided authorities.
In The Queen v H, T,[10] the complainant did not disclose the alleged offending for some 28 years. She then complained to her brother and sister-in-law (together) that she had been raped by the defendant. Subsequently, she spoke to the police and to her parents. However, there was no evidence before the jury as to precisely what she said to the police and to her parents.
[10] (2010) 108 SASR 86.
In the summing up, the trial Judge directed:
The next direction, ladies and gentlemen, is the use you may make of the evidence you have heard about that initial complaint that I was discussing with you before. That is to say, the complainant speaking to [her sister-in-law and her brother] on Sunday, 26 October 2008. That was the first occasion the complainant had told anyone what she said had occurred at Hackham West in probably February of 1980.
You will recall the statement of [the complainant’s sister-in-law] … In essence it was this: “[the complainant] appeared nervous and agitated. She very briefly told us that when she was eight years of age her brother-in-law [the defendant] had raped her. She gave us an abbreviated story about where she was at the time and how it happened.” That is the essence of what they were told at that time.
You heard subsequently that she told her parents the same thing and later the police. As I say, that evidence is what is called the initial complaint by the complainant.
(Emphasis added)
All three members of the Court allowed the appeal on the basis that the fact of making the later complaints to the police and the parents should not have been admitted because it was not demonstrated that they constituted an elaboration of the first complaint to her sister-in-law and her brother. Gray J stated:[11]
The Judge treated the complaints to the police and to the complainant’s parents as forming part of the initial complaint. This was incorrect. There was no evidence that during either conversation there had been an “elaboration” of the complaint made to the complainant’s brother and sister-in-law. (Emphasis added)
[11] The Queen v H, T (2010) 108 SASR 86, 92 [19].
White J stated:[12]
… there was no evidence of what she had actually said to her parents and the police. In that circumstance, it could not be said that whatever the complainant said to the parents and the police comprised (in the sense contemplated by the definition of “initial complaint” in s 34M(6) of the Evidence Act 1920 (SA)) the provision of information in elaboration of the initial complaint to the brother and sister‑in‑law. (Emphasis added)
[12] The Queen v H, T (2010) 108 SASR 86, 107 [77].
Kourakis J stated:[13]
The direction of the Judge that the complainant had informed her parents and the police of the “same thing” of which she had complained to her brother and sister in law was a misdirection; there was no evidence of the substance of the complaint made to her parents and the police.
[13] The Queen v H, T (2010) 108 SASR 86, 108 [86].
The essential point is, of course, that the Judge and the jury might well have surmised that the later talks with the police and her parents were on the same topic of being raped by the defendant ─ but that did not establish admissibility of those later conversations. For admissibility under s 34M, it must be demonstrated that a later conversation is an elaboration as distinct from mere repetition.
That same framework was set out in The Queen v S, DD (in the allied context of whether the complaint sought to be relied on was the first complaint made) where Peek J stated:[14]
[96] It was contended that the evidence did not exclude the possibility that J had complained to some other person prior to complaining to S with the consequence that any complaint made to S was not an initial complaint within the meaning of s 34M.
[97] While I consider that the postulated structural legal argument is valid, this challenge fails in the present case because the evidence, taking it at its highest, was capable of supporting a finding that the first complaint was made to S. Accordingly, the trial judge did not err in this respect in leaving the matter to the jury. I would therefore reject this first challenge.
[14] (2010) 109 SASR 46, 71. Duggan J (with whom Anderson J agreed) agreed in separate reasons at 48 [2].
That, of course, is the very point being made here by the present appellant. There must be evidence before a Judge that (taken at its highest) justifies findings that the complaint sought to be relied on was the first complaint made or, as in the present case, that a complaint that was admittedly not the first complaint nevertheless qualifies for admissibility because it is elaborative of the earlier complaint.
That this is a matter that must first be passed upon by the Judge was implicit in the discussion in the cases above and was made explicit in R v England.[15] The complainant there complained first to her friend, K, and later to her mother, with each complaint clearly encompassing the offence before the Court. This Court held that both conversations were admissible because it was positively demonstrated that the second had additional detail that was not present in the first. Thus Stanley J (with whom Kourakis CJ and Nicholson J concurred[16]) stated:[17]
[32] Section 34M(3) provides that evidence relating to the making of an initial complaint of an alleged sexual offence is admissible on a charge of that offence. An “initial complaint” is defined in s 34M(6) to include information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). The complaint to the mother was an “elaboration” of the first complaint to K. The mother was told additional details. In particular, the victim alleged that she had been touched between the legs and referred to rubbing in that area. …[18] (Emphasis added)
[15] (2013) 116 SASR 589.
[16] Nicholson J made some additional remarks on an aspect which does not affect the present case.
[17] (2013) 116 SASR 589, 595.
[18] His Honour went on to observe: “The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. A complainant does not even have to recall making the complaint” and referred to Breen v The Queen (1976) 180 CLR 233. In England, both complainees K and the mother gave evidence which demonstrated that the latter conversation contained additional detail not present in the initial complaint to K.
Importantly, his Honour later stated:[19]
[42] First, it was not for the jury to determine whether the complaint constituted an elaboration. The complaint could only be admitted if it was an elaboration. Admissibility was a matter for the judge, not the jury. It was for the judge to decide the facts of the complaint made to the mother and whether, as a matter of law, it amounted to an elaboration. Second, even if it was necessary for the jury to determine that it was an elaboration, such a direction was unnecessary in this case. The judge did not need to direct the jury that it had to decide whether to accept the mother’s evidence as to the terms of the complaint made to her by the victim. As I have identified earlier, the mother knew more than K about what had allegedly occurred during the massage. The mother knew of touching between the legs and rubbing the vicinity of the vagina. There was no basis on the evidence to conclude that this detail had come from anyone other than the victim. Certainly, it was not put to the mother that this information had come from another source or at another time. The conclusion that what had been said to the mother was an elaboration was the only conclusion open. (Emphasis added)
[19] (2013) 116 SASR 589, 597-598.
The later decision in R v Maiolo (No 3)[20] proceeded on the same basis. The one ground of appeal there was:
1.The evidence of the complainant as to what was told to her mother could not amount to an initial complaint evidence (sic) pursuant to s 34M of the Evidence Act 1927 (sic) (SA) as it was not the first time the complainant had disclosed the alleged abuse.
1.2Absent any evidence as to what had previously been disclosed it was also impossible to classify the complaint to her Mother as an elaboration of an initial complainant (sic).
[20] [2014] SASCFC 89.
The argument was essentially simple: an earlier conversation with a school friend, Lindsay, constituted the initial complaint and therefore a later conversation with her mother could only be received if it elaborated on the first complaint; the argument proceeded that this could not be demonstrated because it could not be known exactly what was said during the school friend conversation.
These basic premises were accepted by all three members of this Court, but the argument failed because it was demonstrated that the school friend conversation was so nebulous that it did not constitute an initial complaint at all since it was not shown to be referrable to, or encompass, the offence before the Court. Thus Peek J (with whom David J[21] and Stanley J[22] concurred on this matter) concluded:
[29] In the present case, the evidence of the conversation with Lindsay was highly nebulous and rose no higher than that, at an unspecified time, SZ had told her school friend, Lindsay, something about “what Mr [M] had been doing to [her]”. What that something was, was entirely unspecified. The critical matter is that there is no evidence to show that any complaint made to Lindsay related to any of the particular charges on the present Information. There was therefore no evidence that the earlier Lindsay conversation constituted a complaint concerning any of the particular charges on the Information before the Court.
[30] Accordingly, I reject the appellant’s first contention that the Lindsay conversation constituted the “initial complaint” and I accept the prosecution contention that it was permissible to receive SZ’s complaint to her mother TX as the “initial complaint”.
[21] [2014] SASCFC 89, [1].
[22] [2014] SASCFC 89, [108].
Of course, if the earlier school friend conversation had been more specific and had encompassed an offence before the Court, then the prosecution would have faced other hurdles, one being that under consideration in the present case ─ namely, that it must always be positively demonstrated that a later complaint is elaborative of an earlier complaint.
Applying the test in the emboldened text in England extracted above, the Judge in the present case erred in deciding that the complaint to Mr Hall was capable of amounting to an elaboration as a matter of law. Ground 1 of appeal is therefore made out. Before considering the effect of ground 1 of appeal on the verdict it is best to consider the other grounds of appeal.
Grounds 2 and 3 of appeal
Grounds 2 and 3 of appeal address events that arose concerning evidence given by Mr Carl-Gustaff Hollsten (Carl), who was the son of the appellant and the brother of the complainant, A. He gave evidence that when about 12 years old, he heard a heated argument between his father and mother at their home. It apparently related to his mother having found the appellant in his sister’s room and examining her vagina; he heard his father saying to his mother that he was picking a grass seed out of his sister A’s vagina.
Carl’s evidence-in-chief concerning this incident (the grass seed incident) was as follows:
QI ask you to focus on a time when you were at The Lodge, do you recall any incident involving your parents relative to your sister’s bedroom -
A I do, yes.
Q - at The Lodge. First of all, how old do you think you would have been?
A I’m guessing around the 12 period, somewhere around there. It’s a long time ago.
Q What occurred at that time?
AOn that occasion that I had been home and my mother came home from her work and entered into A’s bedroom and found an event and she rushed out followed by my father and had a big screaming match.
Q Are you able to say what day of the week this would have been?
A I would suggest Saturday or Sunday mainly because we were home during the day.
Q Did your mother work on weekends?
A She did, yes.
Q What did she do then?
AShe was a housemaid at Arbury Park. Just 200 m away from the house we were living in.
QSo you say you saw your mother walk into A’s bedroom and then come out followed by your father, is that correct?
A That’s correct, yes.
Q You heard them have a discussion, did you?
A I did. They had, yeah, a very heated discussion.
Q Where were they in the house at that time?
A In the kitchen vicinity.
Q This is at The Lodge?
A That’s right, yes.
Q What did you overhear?
AI heard my father saying that he was picking a grass seed out of my sister A’s vagina.
…
Q Was A part of that discussion or where was she?
A No, she wasn’t seen so she was still in her bedroom.
…
As is normal, A had given evidence as one of the first witnesses. Carl was called later. Counsel had not cross-examined A concerning the grass seed incident (although he obviously had the statement(s) concerning Carl’s proposed evidence which conformed with the evidence that he in fact gave).
Mr Koehn then cross-examined Carl in the following terms:
QDo you remember whether your sister was then taken to the doctor’s by your parents?
A No, definitely not.
Q You don’t remember?
A I would have known that and, yeah, not as far as I was aware.
QWhen you say you heard this, were you in the same room as your parents when you say they had this heated argument?
A I was, yes.
Q Or were you in your bedroom?
AIt was – I’m pretty sure it was in the kitchen first and then retreated to bedroom which was adjacent to the kitchen.
Q Your evidence is you retreated to your bedroom during this argument?
A It could have possibly been, yes.
Q So you didn’t hear the whole argument, did you?
A It was very heated, very loud, so I heard a fair bit.
QBut you didn’t hear whether there was any discussion with A in relation to the matter that led to the argument?
A No, I didn’t, no.
Q If you retreated to your room, you don’t know what transpired after that, do you?
A No.
Q Do you remember whether you stayed in your room for some time after that?
A No, I would have no recollection of that.
Q You have no recollection?
A No.
QSo you couldn’t say whether you remained in your room for an hour or two after that?
A Not at all I’m afraid, sorry.
QSo you are not able to say whether your sister was then taken to the doctor, are you?
A No, not categorically, no.
Q It is possible that occurred and you just weren’t aware of that fact?
A I guess the possibility exists.
Q You weren’t involved in the discussion -
A No.
Q - when that happened, were you?
A No.
Q So whatever happened was done without your involvement at all?
A Correct.
Q When you say that there was yelling, was it your mother who was yelling?
A Yes, definitely, yep very angry.
Q Your father wasn’t yelling, was he?
A He would have been yelling back, yes.
Q He would have been yelling back?
A Yes.
Q But you don’t know what he was yelling?
A No.
Q You don’t know what your mother was yelling?
A No, I wouldn’t like to say, just she was very, very angry.
QThe only thing you remember about it is that there was reference to a grass seed and the vagina?
A Yes, it sticks in my mind for some reason.
QIf I were to suggest to you that there was a discussion also with A about whether she would let either your mother or your father remove her grass seed from her vagina, you wouldn’t be able to say whether that happened or not, is that the effect of your evidence?
A No.
Q You just don’t remember whether that happened or not?
A Well, I don’t remember and yeah, couldn’t say.
Q You couldn’t say?
A No. (Emphasis added)
It is to be noted that in the emboldened passages Mr Koehn had suggested that A may have been taken to the hospital on this occasion, a suggestion which could only have come from instructions from the accused and about which the accused might give evidence. That suggestion had not been put to A in cross-examination.
The Court adjourned for the day shortly thereafter. The next day, discussion ensued. The prosecutor took the extreme position of submitting that the appellant could not give evidence concerning the matter of A being taken to the Doctor at the time of the grass seed incident because A had not been cross-examined about that. The Judge rejected that extreme position but suggested that there should be a comment made to the jury. His Honour said:
HIS HONOUR … it’s a major course to take to prevent examination-in-chief on the topic. I suppose, Mr Koehn, you are left with a comment, aren’t you?
MR KOEHNI don’t believe I am. In circumstances where the matter is only raised by a subsequent witness, namely the grass seed incident, raised by Carl Hollsten and where the first witness and, of course, doesn’t mention anything about it, is sufficient notice and compliance with the rule in Browne v Dunn if I cross-examine Carl Hollsten about that matter. Nothing was led from A about anything like this.
HIS HONOUR I mean, up until now I had assumed that the complainant wasn’t involved in any of that topic but you put something that does involve her, didn’t you?
MR KOEHN I did.
HIS HONOUR And I don’t remember that coming up in our discussion yesterday or whenever our discussion was.
MR KOEHN No, I wasn’t going to reveal what my instructions were about that.
HIS HONOUR Well, you are not obliged to, but if it does involve the complainant you should have put it to her, shouldn’t you?
MR KOEHNI don’t believe I’m obliged to. You see the situation is that the evidence that Carl Hollsten gave is, in effect, inconsistent with the evidence of A, in that he talks about an incident where, I think my friend is going to ask the jury to infer this, where Mr Hollsten Senior was discovered in the act of committing one of the offences by the mother and the effect of A’s evidence was that nobody witnessed any of the offences and no-one was told, there was no point in telling anyone because she didn’t think anybody could do anything about it. So effectively there is an inconsistency there which only -
HIS HONOUR Well, all the more reason why you should put that to her.
(Emphasis added)
Mr Koehn then referred to the decision of the High Court in MWJ v The Queen[23] in some detail. The following dialogue then occurred:
[23] (2005) 80 ALJR 329; 222 ALR 436.
HIS HONOUR Look, I’m with you to this extent. There is a discretion whether I permit the evidence by your client on that topic and I tell you now that I won’t prevent him being asked about it but I’m not so sure about the comment.
MR KOEHNWell, in that case I’d ask your Honour’s permission to have her recalled so I can cross-examine her on it. I note my friend hasn’t offered to have her recalled. That is referred to in this judgment as well. It suggests that if the prosecution does not offer to have the witness recalled then it is not appropriate to make any criticism to the jury about the fact that the matter was not put to the witness. But, if your Honour is permitting - the whole situation may be resolved if your Honour permits me to put those matters in cross-examination to her.
HIS HONOUR What do you say about that, Mr Healy?
MR HEALYI have just had an inquiry made. I’ve just had a note passed by my instructor and I understand that A can be here within 15 minutes.
HIS HONOUR Well, I mean I think you should put it, Mr Koehn. In a sense I’m boxing at shadows because I’m not sure what your client is going to say but I think you ought to put it.
MR KOEHN Very well. If your Honour permits me to cross-examine her further.
(Emphasis added)
The cross-examination of A concerning the grass seed incident
Accordingly, A was recalled and her further cross-examination of proceeded as follows:
QI gather that your evidence yesterday was that while the offending by your father against you was going on nobody knew about it, is that your evidence?
A Sorry, can you speak up?
QI gather that your evidence is that while the offending was going on nobody knew about it?
A That’s correct.
QIn particular I believe you said yesterday that while the offending was going on you didn’t tell anybody that it was going on, is that your evidence?
A That’s correct.
QIs it also your evidence that nobody, to your knowledge, every witnessed any of the offending?
A Not to my knowledge.
QSo as far as you know your mother never saw your father committing any offences against you?
AShe did see one offence but, I don’t know, I can’t really explain it. She saw something when I was a young girl.
Q What do you say the circumstances were?
AShe said she walked into the bedroom and my father was examining me and she was so shocked she just walked out.
Q When you say ‘she said’, is it your evidence that she said that to you, is it?
A My mother told me this recently.
Q Do you recall that incident?
A No, apparently I was asleep.
Q Did she say what she saw your father examining?
A My vagina.
QDo you recall an incident during your primary school years when you went to see a doctor about a problem with your vagina?
A No, not particularly.
QTo be more specific, was there an occasion during the primary school years when there was a grass seed in your vagina that had to be removed?
A No.
QI suggest to you that after school one evening you told your parents that there was a grass seed in your vagina.
A I don’t recall that.
QI suggest to you that your father took you to see Dr Lloyd Evans, who was the family GP, about that?
A I don’t recall.
Q Was Dr Lloyd Evans the family GP?
A Yes, he was.
Q Do you remember seeing Dr Lloyd Evans on occasions?
A I am sorry, can you repeat that?
Q Do you remember seeing Dr Lloyd Evans on occasions?
A Yes. (Emphasis added)
A was released at about 11:15am. The prosecution closed its case and the Court proceeded to hear the evidence of the appellant which was completed and the defence case was closed. The Court adjourned at 1:20pm to resume the next day for final addresses.
The application to discharge the jury
On resumption on the next day, Mr Koehn applied for the jury to be discharged. He submitted that:
[T]he prejudice caused by the giving of that evidence is so high that there isn't any direction that your Honour could give to the jury that will eliminate the risk that they will keep that in their mind when they are deliberating about the matter. It is unfortunate but, in my submission, there has been a mistrial, such that the ability for Mr Hollsten to have a fair trial has been compromised, and that is what I submit now: that your Honour ought to declare that there has been a mistrial, discharge the jury and there ought to be a fresh trial with a new jury.
The prosecutor opposed this course, suggesting that “any prejudice could be cured by a strong direction to the jury that they just disregard.”
The Judge did not enter into any dialogue but simply stated “I decline to discharge the jury.” He gave no reasons for his decision.
The Judge’s directions to the jury concerning the grass seed incident
In summing up to the jury, the Judge directed thus:
I deal first with the evidence of Carl Hollsten. He said that on an occasion when he was about 12, and his sister would have been a year younger, he remembered an incident which stuck in his mind. He said that his mother came home from work. She went into his sister’s room. He said that she there found an event. He did not himself see anything. His mother rushed out of the bedroom followed by the accused. The parents had a big screaming match in the kitchen. Carl thought it was a Saturday or a Sunday. During the argument he heard his father say that he was picking grass seed out of A’s vagina. In cross-examination, Carl said that he was initially in the kitchen during the argument but he retreated to his bedroom which was adjacent to the kitchen. He heard a fair bit of the argument.
At first he said his sister was definitely not taken to the doctor, but when pressed he said he guessed there existed a possibility that she was. When it was put to him that there was a discussion with A about whether she would let either her parents remove the grass seed, Carl said that he could not say whether or not that was said.
I direct you as a matter of law how that evidence may be used. First you must determine as a matter of fact, that you are satisfied of what Carl heard. If you are not satisfied of any part of his evidence then you would ignore that part. Of course, you can accept a part of what a witness says and reject a part. That task of, evaluating Carl’s evidence is a factual matter and one entirely for you. However as a matter of law, I explain how Carl’s evidence is capable of being used.
If you were satisfied, one, that the parents argued after the mother had gone into A’s bedroom; two, that the accused had been in that bedroom with A; three, during the argument the accused had in fact said that he had been taking a grass seed out of his daughter’s vagina; and four, that he lied about that, then you would be entitled, as matter of law, to draw the inference that the complainant’s mother had caught the accused sexually interfering with his daughter. However you do see that you should only draw that inference if you were satisfied of each of those facts. You could consider those four pieces of evidence together, rather than in isolation, but you could only draw the conclusion, if you were so satisfied that it was the only reasonable inference or conclusion that could drawn from the facts.
I turn to the complainant’s evidence, which you might be inclined to think, refers to the same topic, although that will be a matter for you. In a way it does not matter if it refers to the same incident, because I direct you as a matter of law that you cannot use the complainant’s evidence on this topic at all. I remind you of the evidence, and I will explain why you cannot use it.
You will remember that the complainant was recalled to give some brief evidence. I tell you why she was recalled. She was recalled so that Mr Koehn could give her the opportunity to comment on the suggestion that there had in fact been an occasion when her father took her to the doctor to have a grass seed removed from her vagina. You will remember that A said she did not recall any such incident. However, in the course of questioning A, Mr Koehne (sic) asked her whether, so far as she knew, her mother ever saw her father commit any sexual offence against her. You will remember that A said that she herself knew of no such occasion, but that she had recently been told by her mother that there had been such an occasion.
Quite understandably, A does not know about the rule against hearsay, so she told you what she said her mother had told her.
However the law is quite clear about this. With very few exceptions, and then for limited purposes, what is said out of court, particularly in the absence of the accused, is inadmissible in court. There are several reasons for that. The first is that what is said out of court is not on oath. The second is that where the out-of-court witness cannot be called, the evidence cannot be tested in any way by cross-examination. Third, you never get to see or evaluate the witness. Fourth, the accused is in no position to know anything about the circumstances of the out-of-court statement. And fifth, we can know nothing about precisely what was said in out of court, or the context in which it was said.
For those reasons you can should put out of your mind the hearsay evidence about what A says her mother told her.
Finally, I turn to the accused’s evidence on this topic. His evidence is that the circumstances were slightly different from what Carl says they were. He says there was no argument. A discussion took place and it took place in the lounge room. The discussion actually involved A herself. A pulled down her pants and there was clearly visible a grass seed protruding from her vagina. A would not agree to either parent removing the grass seed, so the accused took her to the local GP. Understandably, after so many years there are no medical records that can be produced of this case. The defence case is therefore that Carl has got completely wrong as to what happened on that occasion. There was no discovery of impropriety by the mother, there was no argument. It was a genuine medical situation that arose.
The prosecution case is that the accused has lied to you about this. If you find that he has lied to you on that topic, then that lie can adversely affect his credit. That is the way, and the only way, which such a lie could be used, if you find it to be one.
…
The prosecution case is that you should accept that her brother overheard her father, make what amounts to a partial admission to the offending, on one occasion, when by inference, the mother caught him.
Discussion
This is a rather borderline situation for a number of reasons.
The appellant argues that the whole matter of recalling the complainant and the unfortunate cross-examination that eventuated, was brought about by the Judge wrongly suggesting that he would be making an adverse comment concerning a matter not having been put to the complainant during her cross-examination.
Senior counsel for the appellant on the appeal relies upon the decision of the High Court in MWJ v The Queen,[24] just as Mr Koehn did at trial. In both instances such reliance was misconceived.
[24] (2005) 80 ALJR 329; 222 ALR 436.
In MWJ, there was said to be an inconsistency[25] between two prosecution witnesses, the complainant and her mother, concerning the number of instances of sexual interference that occurred at premises at Sussex Street. Counsel for the appellant abstained from cross-examining the complainant on the version of the mother which was contrary to that of the complainant, preferring to rely on submissions to the jury concerning such inconsistency.
[25] Gleeson CJ and Heydon J demonstrate that the inconsistency was more apparent than real at [3]-[11].
It was in those circumstances that Gleeson CJ and Heydon J stated:[26]
[19] In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client?
[26] (2005) 80 ALJR 329, 333; 222 ALR 436, 441.
Similarly, Gummow, Kirby and Callinan JJ stated:[27]
[37] Something should first be said of the trial judge’s criticism of the appellant’s failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother’s evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant’s assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a “technical view of the rules of evidence” (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial.
…
[39] … On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution.
…
[41] The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant’s account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. …
[27] (2005) 80 ALJR 329, 339; 222 ALR 436, 447-449.
However, the situations in MWJ and the present case were very different. In MWJ, the suggested inconsistency was between two prosecution witnesses; the defence position was constant that no interference occurred at any location. But in the present case, there was no inconsistency between the two prosecution witnesses Carl and A; Carl had described his memory of an event that involved the appellant and his mother but had not said that he saw or heard A do anything and A had not been asked any questions concerning the incident.
Further, and of major importance, the appellant was here putting a positive assertion that the appellant’s position was that he had taken A to the doctor at the time of the grass seed incident (as to which he did give such evidence in due course). Notably, he had not suggested that to A in cross-examination and there is no suggestion that the prosecution might have been aware that the appellant would give evidence that A was taken to the Doctor on this occasion, thus giving the prosecution the opportunity to lead evidence on this topic from A in evidence-in-chief. Indeed Mr Koehn frankly stated that he had deliberately abstained from revealing this as a tactical decision.[28]
[28] See the emboldened passage reproduced above: “No, I wasn’t going to reveal what my instructions were about that.”
In these circumstances, the prosecution had every right to take the course of recalling A and offering her for further cross-examination. It seems that they were in the process of arranging to do just[29] that when Mr Koehn in effect bowed to the inevitable and himself suggested that she be recalled for further cross-examination.
[29] See the emboldened passage reproduced above: “I have just had an inquiry made. I’ve just had a note passed by my instructor and I understand that A can be here within 15 minutes.”
While this all now appears quite clear, we are prepared to accept that Mr Koehn did not interpret MWJ correctly; we are fortified in that acceptance by the exact same failure of the appellant’s senior counsel on the appeal.
In any event, Mr Koehn appears to have thought that he had been somewhat overborne by the threat of an adverse comment and perhaps this distracted him. But whatever the reason, his choice of the phraseology “as far as you are aware” in his further cross-examination of A was a very unhappy one. It almost invited an answer by reference to hearsay information and, of course, the response by A was a devastating one.
There are at least three matters of concern.
First, the Judge had been made aware by counsel that A’s mother had dementia and was 86 years old. A had said that her mother had “recently” told her about the grass seed incident. A real question thereby arose as to the reliability (over and above the hearsay nature) of her recent statements and, perhaps, whether she had made similar statements to Carl in some way influencing his evidence.
This was to be seen against the background that an important part of the appellant’s defence was that he and his ex-wife had been on good terms until recent times when they became alienated for financial reasons, with A siding with her mother against the appellant; the timeframe of this alienation corresponded with A making the complaint to police which brought about this prosecution. A representative portion of the cross-examination of A by counsel for the appellant was the following:
QA, there have been times in your adult life when you’ve gotten on quite well with your father, haven’t there?
A Yes.
Q You used to run the hotel at Littlehampton, is that right?
A Yes.
Q That was for a period of about six years in the 1990s, is that right?
A Yes.
QDuring that time your father would come to the hotel at your invitation basically, every day?
A He would come to bet and stay and clean up the grounds.
Q So he would help out and do jobs around the place?
A Yes, but he took all the empty bottles as payment.
…
Q But basically you were getting on well with him then?
A Yes.
Q But in recent times you have had a falling out with him, haven’t you?
A Yes.
QThat falling out coincided with your mother leaving the matrimonial home, is that right?
A There’s been many times when we have been estranged.
QBut in recent years, the most significant tension between you has related to the support that you have given to your mother in separating from him, is that right?
A Yes.
QBecause you assisted your mother to move out of the matrimonial home into a hostel, is that right?
A I did, that was her choice.
QAs far as you know it was suggested to your father that she needed to go there for medical reasons, is that right?
A No.
…
QYou said to him that your mother had separated from him, is that right, you announced that to him?
A I told him she was never coming back.
Q So that’s -
A That is when she left.
QThat whole issue, the separation of your mother from your father, it’s the root of tensions that exist to this day between you, isn’t it?
A No.
QThere were court proceedings that you were involved in that related to that, weren’t there?
A Yes.
Q You acted on your mother’s behalf to instigate those proceedings, didn’t you?
A Yes.
Q You changed the title to the matrimonial home for your mother, is that right?
A Yes, so that she could make a will.
Q You helped her to change her will?
A I didn’t help her, that was her decision.
QThese things have caused ongoing tension between you and your father, haven’t they?
A No, because he wasn’t aware of these things.
QHe was forced to engage a lawyer, wasn’t he, to contest the family court proceedings?
A No, he wasn’t.
Q But he did engage a lawyer to contest them, didn’t he?
A He did.
Q And the family court proceedings continue right until this year, didn’t they?
A Yes.
The second matter of concern is the degree of assistance that was given to the jury by the Judge.
Of course, if the trial had been by Judge alone, the direction that the Judge gave would have been adequate; Judges are assumed to have an ability to put such things aside and the terms of the direction would be sufficient to explain to the appellant that that ability was being engaged and the reasons why the evidence of the complaint would be ignored.
However, this was a jury trial and the Judge was telling the jurors something that would be quite surprising and foreign to them. Further, the evidence in question might have been perceived by the jury as potentially very significant. The Judge told them why he was directing them to put inadmissible evidence out of their minds, but gave them no assistance as to how they might approach that rather daunting task. Looking at this second aspect, the direction to the jury to ignore something they had clearly heard was quite peremptory. Further assistance was required here if the matter was to proceed upon the basis that the jury really would put this matter out of their minds.
However, having said that, there remains the third matter of concern that while some explanation as to the ways in which items of information may generally be segregated and ignored during a decision making process might have been attempted, it is difficult to be confident that the jury could ever have complied with such a direction, no matter what additional explanation and assistance they received. However, we do not consider that it is necessary to come to a final view on that matter.
Disposition of the appeal
Having regard to the combined effect of the matters discussed under ground 1 of appeal and under grounds 2 and 3 of appeal, we consider that the proviso cannot be applied here (and the respondent did not argue that it could).
We would allow the appeal and order a re-trial.
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