R v Humble - [2009] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMBLE
[2009] SASC 51
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Kourakis)
27 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR OFFENCES
Appeal against conviction - appellant charged with seven counts of a sexual nature in relation to a young girl - convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of twelve years contrary to s 49(1) of the Criminal Law Consolidation Act 1935 - grounds of appeal alleged that trial judge's directions inadequate in relation to recent complaint - Longman warning - effect of prior inconsistent statements - motive to lie and other matters.
Held by majority (Kelly and Kourakis JJ, White J dissenting): - although trial judge's directions contained defects, they did not cause a miscarriage of justice - appeal dismissed.
Criminal Law Consolidation Act 1935 s 49(1); Evidence Act 1929 s 34, s 34M, s 12(a); Statutes Amendment (Evidence and Procedure) Act 2008 s 22, referred to.
The Queen v Gallagher (1986) 41 SASR 73; R v Corrigan (1998) 74 SASR 454; Jones v The Queen (1997) 71 ALJR 538; Breen v The Queen (1976) 180 CLR 233, applied.
Palmer v The Queen (1998) 193 CLR 1, distinguished.
R v Sluczanowski [2008] SASC 185; R v E (1996) 39 NSWLR 450; R v Tanda (1986) 43 SASR 161; R v Wilson (1986) 42 SASR 203, discussed.
Kelleher v The Queen (1974) 131 CLR 534; R v Corkin (1989) 50 SASR 580; R v Roissetter [1984] 1 Qd R 477; Daniels v The Queen (1989) 1 WAR 435; R v Stoupas [1998] 3 VR 645; Kilby v The Queen (1973) 129 CLR 460; R v Lillyman [1896] 2 QB 167; R v Uhrig (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 24 October 1996, Judgment No. 60200 of 1996); R v Noonan [1998] VSCA 8; R v Freeman [1980] VR 1, considered.

R v HUMBLE
[2009] SASC 51
Court of Criminal Appeal: White, Kelly and Kourakis JJ

WHITE J: The circumstances of this appeal are set out in the reasons of Kelly and Kourakis JJ.
The appeal, and the application for permission to appeal in respect of two further grounds, raise the following issues:
1(a) Whether the complaint of the complainant to her mother said to have been made five days after the incident alleged at Henley Beach was admissible as evidence of recent complaint;
(b) If so, whether the trial Judge’s directions concerning the recent complaint evidence in relation to the Henley Beach incident were adequate.
2Whether the trial Judge’s directions concerning inconsistent statements by the complainant were adequate.
3Whether the trial Judge should have warned the jury against a form of impermissible reasoning in relation to motive.
4Whether the trial Judge had directed the jury adequately in relation to the lateness of the reports by the complainant’s sister of behaviour of the appellant which supported in some respects the evidence of the complainant.
Recent Complaint
I agree with the reasons of Kelly and Kourakis JJ for concluding that the evidence of the complainant about her report to her mother some five days after the incident at Henley Beach was properly admitted.[1] The case is borderline, as the elapse of five days suggests that there may have been opportunities for the complainant to have made a report earlier. However, I consider that it was appropriate for the Judge to consider that the jury could conclude that the complaint had been made at the first reasonable opportunity. In this respect it is relevant that the complainant was only nine years old at the time. Her mother was in a relationship with the appellant and it is evident that the appellant was a person in whom the complainant was placing trust and confidence. As Kelly and Kourakis JJ point out, the evidence of the mother’s inebriation from time to time was also relevant to the question of whether the complaint was made at the first reasonable opportunity.
[1] Section 34M of the Evidence Act 1929 (SA) concerning the admissibility of evidence of recent complaint had no operation in the circumstances of the appellant’s trial. By virtue of s 22 of the Statutes Amendment (Evidence and Procedure) Act2008 (SA), s 34M applies only to proceedings commenced on or after 23 November 2008.
The evidence of the mother that a complaint had been made to her on the night of the alleged incident did not make the complainant’s evidence of her complaint inadmissible.[2] The evidence of each witness on the topic of recent complaint does not have to be consistent. It is the consistency of the making of a complaint with the conduct which is alleged which is important.[3]
[2] Breen v The Queen (1976) 180 CLR 233.
[3] R v Wallace [2008] SASC 47 at [55], [104]; (2008) 100 SASR 119 at 130, 138.
This case did not involve circumstances of the kind considered by Johnston J in R v Wilson[4] and in R v Tanda[5] in which the prosecution had sought to lead evidence from the complainant of two separate complaints. Johnston J considered that it was the first complaint only which was admissible, and that evidence of a series of complaints by a complainant was not admissible. Other authorities have suggested that evidence of more than one complaint by a complainant may be admissible providing that each complaint can be said to have been made at the first reasonable opportunity after the offence.[6]
[4] (1986) 42 SASR 203.
[5] (1986) 43 SASR 161.
[6] R v Slater (1989) 152 LSJS 268 at 270; R v Corkin (1989) 50 SASR 580 at 581; R v Freeman [1980] VR 1; R v Roissetter [1984] 1 Qd R 477; Daniels v The Queen (1989) 1 WAR 435; R v Stoupas [1998] 3 VR 645.
Directions Concerning Recent Complaint
Evidence of a complaint made at the first reasonable opportunity after the commission of an alleged sexual assault is admissible as an exception both to the hearsay rule and to the rules concerning self-serving statements because the complaint may demonstrate, first, consistency between the complainant’s behaviour, including her reaction, at the time of the alleged incident and her account in the witness box of what occurred and, secondly, consistency in her accounts of what occurred.[7] In R v E[8] Sperling J, having referred to Kilby v The Queen[9] and to R v Lillyman,[10] summarised the uses to which evidence of a complaint by the victim of an alleged sexual assault may be put in the following terms:
Evidence of complaint is an exception to the hearsay rule. Whatever the historical origin of the exception, it is now justified as a matter of practical necessity. If no evidence of complaint is adduced, a jury is likely to assume that the victim did not complain and to draw an inference against the Crown case on that account; where there has been a complaint, evidence of the complaint is admitted to avoid any such inference being drawn…
Evidence of complaint is also relevant to the credit of the complainant. If a complaint has been made in substantially the same terms as the complainant’s sworn evidence, that may be treated as enhancing the credibility of the sworn account. If, on the other hand, a complaint has been made in substantially different terms (because it was altogether different or because it contained additional allegations or did not contain all the allegations made in the sworn evidence), that may be treated as detracting from the credibility of the sworn account of events. This is because consistency, in giving the same account after the event as in the sworn evidence, may be treated as enhancing the likelihood that the sworn account is true, and inconsistency may be treated as having the converse effect…[11]
[7] Jones v The Queen (1997) 71 ALJR 538; R v Wilson (1986) 42 SASR 203 at 208.
[8] (1996) 39 NSWLR 450.
[9] (1973) 129 CLR 460.
[10] [1896] 2 QB 167.
[11] (1996) 39 NSWLR 450 at 457. See also R v Stoupas (1998) 3 VR 645 at 656.
Evidence of a complaint may not be used by the jury as evidence of the truth of the matter stated in the complaint. It may be used only for the limited purposes stated above. Judges are required to direct the jury as to both the permissible and impermissible uses of the complaint evidence. The giving of appropriate directions can be difficult because the distinction between the use of evidence as a buttress to the credit of the complainant, on the one hand, and the use of evidence as truth of the matters stated in the complaint, on the other, is not always easy to grasp.[12]
[12] Jones v The Queen (1997) 71 ALJR 538 at 539; R v Tanda (1986) 43 SASR 161 at 169.
In the present case, the trial Judge’s task was made more complex by the conflicting evidence about the occasion on which the complaint was said to have been made. The evidence of the mother and of the complainant indicated that the complaint had been made at different times and in different circumstances. It seems to have been common ground at the trial that the different accounts of the complaint given by the mother and by the complainant could not be reconciled on the basis that each of the complaints which they recounted had been made, with the mother remembering only the first, and the complainant remembering only the second. In other words, it seems to have been common ground that the evidence of at least one of the mother and the complainant as to when, and the circumstances in which, the complaint was first made was mistaken.
This meant that the directions had to be tailored to the conflicting evidence of the mother and the complainant. The jury had to be directed to consider whose evidence on the topic (if either) they regarded as reliable. If they were satisfied by the mother’s evidence that the complainant had spoken to her on the jetty, they then had to consider whether what she had said was a complaint concerning the incident alleged by the complainant; and, if so, whether that complaint had been made at the first reasonable opportunity. The jury had then to be directed that if they were satisfied of each of those matters, they had to consider whether the fact of the complaint on the jetty showed a consistency of conduct with the account of the incident given by the complainant in the witness box, and whether the content of the complaint, as recounted by the mother, was consistent with the complainant’s account in evidence. The jury then had to be directed expressly that if they were satisfied that the complainant had complained to her mother on the jetty, that the mother’s evidence concerning the complaint could not be used as evidence of the truth of the matters recounted by the complainant. That is to say, the jury had to be directed that the evidence of the complaint could not be used to establish the facts of the offence, and could be used only in their assessment of the credibility and reliability of the complainant as a witness.[13]
[13] R v Gallagher (1986) 41 SASR 73; R v Freeman [1980] VR 1 at 6; Jones v The Queen (1997) 71 ALJR 538 at 538-539.
Because it was open to the jury to be satisfied that it was the complainant’s evidence of the report to her mother some five days later which was correct (and not that of the mother), similar directions had to be given in relation to that evidence. The subject of those directions would of course have to be the report (including its content) made five days after the alleged incident.
Given that the evidence concerning the circumstances in which the complaint was said to have been made could not be reconciled, the jury had to be directed to consider which piece of evidence, if either, they accepted. It was only that evidence of the complaint and the circumstances in which it was made about which the jury was satisfied which could be used to buttress the complainant’s credit. Even if the jury considered that the evidence of the mother and of the complainant in combination indicated that a complaint had been made at some stage, it still had to consider when that complaint had been made. In this way, this appeal raises an issue to which the judgments of the Full Court in R v Wallace adverted, but which it was not then necessary to decide.[14]
[14] R v Wallace [2008] SASC 47 at [59] – [60] (Bleby J), at [108] (Vanstone J); (2008) 100 SASR 119 at 131, 138.
In the course of her chronological summary of the evidence given by each witness, the Judge did remind the jury of the evidence of complaint given by the complainant and her mother. Later, and towards the end of the summing up, the Judge gave a direction about the use of the evidence concerning “recent complaint”. That direction is set out in full in the joint reasons (at [69]), and it is not necessary to repeat it.
In my respectful opinion, there were deficiencies in the Judge’s direction. The Judge did draw the jury’s attention to the difference between the evidence of the mother and of the complainant concerning the time and location of the making of the complaint. But the Judge did not direct the jury that it was necessary for them to consider which, if any, evidence on this topic they were prepared to accept. The Judge referred several times to “the complaint” without distinguishing between the differing evidence concerning it. The Judge did not direct the jury that they could be satisfied that one, but not both, of the complaints recounted in the evidence had been made. In this respect the Judge’s statement that “[i]t is a matter for you what you make of [the complainant’s] evidence and that of her mother on that topic” was not helpful. That direction was correct, so far as it went, but it did not inform the jury that they could not accept the evidence of both the mother and the complainant (on the topic of complaint) and did not inform the jury that it was only that evidence of complaint about which they were satisfied which could, if they were satisfied that it showed consistency of conduct with the account given by the complainant in the witness box, be used to bolster her credit.
Because the Judge directed the jury regarding the two pieces of evidence concerning complaint in a composite way, the direction tended to gloss over an important matter. In the circumstances of this case, if the jury was satisfied about the reliability of the mother’s evidence of complaint, they would inevitably have been satisfied that the complaint was made at the first reasonable opportunity. But that could not be said of the complaint which the complainant said she had made five days later. Before being able to make any use of the complainant’s evidence concerning complaint in the way which was sought by the prosecution, the jury had to be satisfied that the complaint had been made at the first reasonable opportunity.[15] The Judge’s direction “if you accept that the complaint was made … at the first opportunity …” did not highlight for the jury this important issue in relation to the complainant’s evidence of complaint.
[15] R v Mustafa [2005] SASC 66 at [61]; (2005) 91 SASR 62 at 77.
Further again, the jury was not directed that if they accepted the complainant’s account of the making of the complaint, it was that complaint which had to be considered in relation to consistency of reaction at the time of the incident with the account given in the witness box.
Finally, a consequence of the Judge having directed the jury in the way that occurred was that no directions were given to the jury as to the consequences, in their assessment of the mother’s and of the complainant’s evidence, of the rejection of one or other of their accounts concerning the making of the complaint. If the jury was satisfied that the mother’s evidence concerning the making of the complaint was correct, but not the complainant’s, that was a matter which could be considered by them in their assessment overall of the credibility and reliability of the complainant’s evidence. The converse applied if the jury was not satisfied that the mother’s evidence was correct. The jury was given no direction about these matters.
For these reasons, I consider that the directions on the topic of recent complaint were not adequate. I will address the consequences of this conclusion shortly.
Previous Inconsistent Statements
I agree, generally for the reasons given by Kelly and Kourakis JJ, that Grounds Three and Four should be dismissed and that permission to appeal should be refused on Grounds Five and Six.
It may have been preferable for the directions concerning the use of previous inconsistent statements of the complainant to be related more closely to the particular passages of her evidence in question. In addition, it may have been preferable for the evidence from the complainant concerning her hearing “voices” to have been included in the Longman direction.
But this was a relatively short trial. The matters of the previous inconsistent statements and “voices” were prominent in the cross-examination of the complainant and in the closing addresses of both counsel. Furthermore, their significance to the assessment of the complainant’s credibility and reliability must have been obvious to the jury, and a question asked by the jury tends to confirm that was so. In these circumstances, I am satisfied that these grounds of appeal are not made out.
Ground Eight: Absence of a Motive Direction
The evidence in chief of the appellant concerning the circumstances in which he first heard of the allegations concerning the Henley Beach incident are summarised in the joint reasons at [102]–[103]. I agree that the clear implication of that evidence was that the complainant had fabricated the allegation concerning the Henley Beach incident because she had been chastised by the appellant over an unrelated matter.
The proposition that the complainant had fabricated her complaint concerning the Henley Beach incident for this reason was not put to her in the course of her cross-examination. However, in the light of the appellant’s subsequent evidence in chief, it can be seen to have been touched on in the following cross‑examination of the complainant:
Q.Not long after the family had gone to Henley Beach, did Mr Humble tell you off for not helping your mother out. Do you ever remember him disciplining you for not giving your mother enough help around the house.
A.No
Q.Every week you would be at your father’s for some of the time and your mother’s for the rest of the time.
A.Yes.
Q.Did you ever tell your father that Mr Humble had done something to you and then he rang up your mother to ask her about it
A.Not until very much later. There were some questions asked by my father about something.
Q.But not about the Henley Beach incident and not around about this time.
A.I don’t believe it was around about that time, no, but it was to do with the Henley Beach incident.
Q.Were there ever occasions when Mr Humble would tell you off, or the other children, or discipline you in any way.
A.Not so much. Occasionally he had run-ins with my brother but he didn’t really have much interaction. I remember one time he told us off, we were on holidays and we were nagging mum for some ice cream and he sort of snapped at us then, but I can’t remember too many times when he actually told us off.
In can be seen in this cross-examination that, although the prospect of the appellant having chastised the complainant shortly before she made the complaint to her father was raised, it was not put to her that she had made the complaint because of some chastisement by the appellant.

Given this evidence and the appellant’s own evidence in chief, it was appropriate for prosecution counsel to address the motive for fabrication which had been raised. Having reminded the jury of the appellant’s evidence in chief, counsel said:
You see, ladies and gentleman, he is there suggesting motive and he doesn’t have to in a trial suggest any motive for someone making it up but I suggest there he has proffered a motive.
Counsel then went on to challenge the plausibility of the appellant’s evidence concerning the suggested motive.
In her summing up, defence counsel did not refer expressly to the appellant’s evidence concerning a reason for the complainant to fabricate her evidence about the Henley Beach incident. Counsel did however refer to motive in a more general way in the following passages:
…..you would have all instinctively asked yourself the question “Why would she lie?” There is no logic or truth in thinking that the more horrendous the accusation, the harder it is to think why would someone lie about that and the more likely it is to be true…
A criminal trial is not about you finding all the answers. You don’t have to solve the riddle of why [the complainant] has said her mother’s boyfriend did these things so many years ago and it is not a matter of working out who is telling the truth or where the truth lies, you may never know. You don’t have to get to the bottom of the riddle of why she would lie or whether the voices have told her that is so or whether she has convinced herself this has happened.
In summary, the existence of a possible motive for the complainant to be untruthful about the Henley Beach incident had been raised by the appellant’s own evidence, and addressed firmly (but appropriately) by prosecution counsel. Defence counsel had addressed the issue of motive in a more general way suggesting to the jury that they did not have to consider the question of motive at all.
With one limited exception, the Judge did not direct the jury about motive at all. The exception is that in her general directions, the Judge did tell the jury that in assessing the evidence of each witness, they could consider whether they detected any motive for bias or falsehood in that witness’ evidence.
The submissions of the appellant on appeal relied very much upon the judgment in R v Sluczanowski.[16]In that case, Duggan J (with whom Doyle CJ and Anderson J agreed) referred to the two principal kinds of direction concerning motive which may be appropriate in a criminal trial. First, a direction that the jury should not speculate that because there was no apparent motive for the complainant to lie, there was in fact no reason, and hence that the complainant must be telling the truth.[17] Secondly, a direction that if a jury rejects the motive to lie which is relied upon by the defence, that does not mean that the prosecution case is thereby strengthened.[18] Duggan J considered that a direction of the former kind was appropriate if made in response to a prosecution submission along the lines of the rhetorical question “Why should the complainant lie?”[19] Such a direction would be inappropriate however as a general proposition in a case in which there was no evidence which required the jury to consider whether the complainant had a particular reason for making false allegations. In a case in which a motive to lie has been raised, a direction not to speculate about possible motives would also ordinarily not be appropriate because the jury in such a case would necessarily have to consider the matter of motive in their assessment of the complainant’s evidence. In this respect, Duggan J referred to passages in the judgment of Hunt CJ at CL in R v Uhrig[20] and of Charles JA in R v Noonan.[21]
[16] [2008] SASC 185.
[17] Ibid at [43].
[18] Ibid at [42].
[19] Ibid at [49].
[20] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ at CL, Newman and Ireland JJ, 24 October 1996, Judgment No. 60200 of 1996).
[21] [1998] VSCA 8 at [12].
In the present case, the number of counts made an application of these principles a little complex. A motive for the complainant to lie in relation to Count One (the Henley Beach incident) had been raised by clear implication in the appellant’s own evidence. But no motive had been suggested in relation to the remaining Counts, including Count Five upon which the appellant was also found guilty. Considered by itself, the implied motive in relation to Count One did not require a warning from the Judge against speculation about the complainant’s possible motives, as the jury had to consider the actual motive which had been advanced by the appellant. However, given that it was open to the jury to reject the appellant’s proffered motive in relation to Count One, it was appropriate, in my opinion, for them to be given the second kind of direction, namely a direction that such a rejection would not have the effect of strengthening the prosecution case. The inappropriateness of reasoning along the lines that the prosecution case had been strengthened would not, in my opinion, have been obvious to the jury. In considering the appropriateness of this direction I consider it to be immaterial that it was the appellant who raised the issue of possible motive in relation to Count One. It will commonly be the case that it is the accused’s evidence which raises an issue of motive.
Further, in my opinion it was appropriate for a direction against speculation as to possible motive to have been given in relation to the remaining counts. Two factors in particular incline me to that view. First, the jury must have been aware that although a motive had been suggested by the appellant in relation to Count One, none had been suggested in relation to the remaining Counts. That contrast by itself may have led to an impermissible form of reasoning. Secondly, the appellant’s own counsel’s address had raised, in an appropriate way, a warning against the jury speculating as to motive. In the course of doing so, the appellant’s counsel had raised the rhetorical question “Why should the complainant lie?” That possible line of reasoning having been mentioned, it was necessary in my opinion for a direction carrying the weight of judicial authority to be given.
In short, in my opinion each of the two kinds of directions concerning motive to which Duggan J referred in Sluczanowski should have been given.
The appellant’s counsel did seek a redirection from the trial Judge on the issue of motive. However, the request was not made until the jury had been considering their verdict for over five hours. In those circumstances, it is quite understandable that the Judge was reluctant to give the redirection, in particular, because the very giving of it at that stage may have given the issue an undue prominence in the minds of the jury. However, the jury subsequently asked further questions and the Judge twice returned to Court to answer them. The motive direction which had been sought by the appellant could have been given appropriately on either of those two occasions, without giving it an undue prominence. Although the appellant’s counsel did not repeat the request for a redirection, it had not been abandoned.
I consider therefore that this ground of appeal should be upheld.
The Directions Concerning the Evidence of the Complainant’s Sister
I agree with the reasons of Kelly and Kourakis JJ concerning this ground.
Conclusion
In my opinion, it should be held that there was a miscarriage of justice in the trial. If the absence of a direction concerning motive had been the only error in the summing up, there would have been a question in my mind as to whether that was sufficient to amount to a miscarriage of justice. However, it is not necessary to consider that as I regard the inadequate direction on the topic of recent complaint as particularly important in the context of this trial. The jury must have had some doubts about the reliability of the complainant’s evidence as they found the appellant not guilty on four Counts and were unable to reach a verdict on another. The two guilty verdicts were majority verdicts. The evidence of recent complaint was important because it was evidence, which was independent of the complainant, by which her credibility could be bolstered. It was particularly important therefore that the jury be properly directed as to the matters to be addressed before it could use the evidence in that way.
I do not consider that this is a case for the application of the proviso. Accordingly, I would allow the appeal and would set aside the convictions on Counts One and Five. I would order a retrial on those Counts.
KELLY and KOURAKIS JJ:
Introduction
The appellant was found guilty by jury verdict of two counts of unlawful sexual intercourse with a girl under the age of twelve years contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of five other charges of a sexual nature allegedly committed against the same girl.
The complainant was born in 1979. The appellant formed a relationship with the complainant’s mother. The case against him was that all seven offences with which he was charged occurred during the course of that relationship when the complainant was between nine and thirteen or fourteen years old.
Permission to appeal was granted by a single judge in respect of six grounds. The appellant seeks permission to appeal in respect of two grounds refused by the single judge.
The appellant’s main arguments centred around five issues. The first issue was whether the evidence of the complaint made by the complainant to her mother was admissible at the trial and if it was, whether the learned trial judge’s directions with regard to the complaint were in error. Secondly, the appellant argued that the trial judge failed to give any real assistance to the jury in relation to certain out of court statements made by the complainant to a doctor in the light of the fact that there were material inconsistencies between what the complainant said to the doctor, what she said in court and what she said to the police about certain topics. Thirdly, the appellant argued that the warning (commonly referred to as the Longman warning) given by the trial judge in respect of the complainant’s evidence, was inadequate. The fourth issue was that the trial judge failed to direct the jury against any impermissible reasoning by virtue of the prosecutor’s comment in addresses on the topic of the suggested motive that the complainant had to lie. Finally, the appellant contended that the trial judge’s directions were inadequate in alerting the jury to some of the defects in the evidence of the complainant’s sister.
Before dealing with the arguments on appeal, it is necessary to refer to the facts in so far as they are relevant to each of the identified grounds.
Background
The prosecution case was based on the evidence of the complainant, her sister, their mother and two childhood friends of the complainant. The prosecution alleged a course of conduct against the appellant including the seven charged counts of a sexual nature, as well as a number of uncharged sexual acts which occurred during the time when the appellant was in a relationship with the complainant’s mother.
The events the subject of count 1 occurred late in 1988 during a family visit to Henley Beach. The complainant’s evidence was that during horseplay with her on the beach the appellant moved aside her bathers and licked her vagina. She said that she did not tell her mother about this incident until about five days later. The evidence of her mother was to the effect that the complainant informed her very shortly after the incident at the beach that she had been touched on her private parts by the appellant. The mother spoke to the appellant about the incident, and although she was not able to say exactly when or where she spoke to him, her recollection was that he had indicated that it was an accident.
The appellant testified that he recalled an incident at Henley Beach when his face came into contact with the complainant’s crotch. He gave an explanation that it was an entirely innocent incidental touching. The appellant testified that he was not confronted by the mother about that incident until several weeks later and that was only after the children’s father had telephoned the mother. The appellant was convicted of this count.
The events the subject of count 2 are alleged to have occurred in 1989 at the home of a friend of the appellant in Black Forest. At the date of the trial that friend was deceased.
The events the subject of count 3 were alleged to have occurred at the complainant’s grandmother’s house at Christies Beach on New Years Day in 1990. In that incident the appellant allegedly instructed the complainant and her cousin, to simulate sexual intercourse with each other.
The events the subject of count 4 allegedly occurred on a houseboat at Berri in about January 1990 during a holiday weekend with friends including the complainant’s brother, sister, mother and her brother’s friend. The appellant was acquitted of counts 2, 3 and 4.
The events the subject of counts 5 and 6 occurred at the family home at Klemzig. There was evidence that the complainant and her sister shared bunk beds in the bedroom. Both the complainant and her sister gave evidence to the effect that the appellant often came into the bedroom at night and got into bed with the complainant.
Count 5 relates to a particular incident recalled by the complainant after a night out when the family had been to the Feathers Hotel. The allegation was that the appellant performed cunnilingus on the complainant as she lay in her bed after their return home from the hotel that night. The complainant’s sister was present, sleeping in the bunk bed above.
Count 6 was an allegation of indecent assault when the appellant allegedly touched the complainant around the area of her anus. On this occasion her sister was not present, but was staying with friends elsewhere. The appellant was convicted of count 5 and acquitted of count 6.
The events the subject of count 7 allegedly occurred when the complainant was either twelve or thirteen years old in about 1993. She and the appellant were travelling home in a taxi from a restaurant in North Adelaide when the appellant indecently assaulted her by touching her in the area of her crotch outside her underpants. The appellant was acquitted of this charge.
There was also evidence of a number of uncharged acts attested to by both the complainant and her sister. The evidence of the complainant’s sister was not capable of corroborating any particular incident the subject of the charges. However it was, if accepted by the jury, capable of supporting the complainant’s evidence that the appellant had a sexual interest in the complainant, on which he acted. The appellant denied all the charges and with the exception of count 1 which he said was an accident, denied ever touching the complainant on her private parts.
The last incident complained of occurred in about 1993. Apart from the complaint to her mother after the incident the subject of count 1, the complainant did not make any complaint about this matter to the police until 2004.
Against that background we turn to consider the complaints which have been made about the conduct of the trial and the trial judge’s directions.
Grounds 1 and 2 – Recent Complaint
The first issue for consideration is whether the complainant’s complaint to her mother after the events giving rise to count 1, was admissible as evidence of recent complaint.
The appellant contended that the account given by the complainant, both as to what transpired, and the timing of the complaint, was so inconsistent with the account given by her mother, that the two witnesses must have been recounting entirely different conversations. It was conceded that if the mother’s evidence about the complaint was accurate, then her evidence justified the admission of the complaint as evidence of recent complaint. However, it was contended that if the complainant’s account was accurate, then a complaint made five days later could not be described as recent and was therefore inadmissible.
In any event, the appellant contended that the trial judge’s failure to properly address and sheet home to the jury the implications of the inconsistencies between the respective accounts given by the mother and the complainant, both as to the content and timing of the complaint, resulted in a miscarriage of justice. The appellant argued that the trial judge failed to adequately direct the jury to the effect that if they did not find the complaint was made at the first reasonable opportunity, then they could not use that evidence to bolster the complainant’s credibility. He maintained that this was particularly important given that the jury acquitted the appellant of five counts, but found him guilty only of the two counts where the complainant’s testimony was supported by other evidence. In these circumstances the appellant contends there was a real risk that the jury may have misused the evidence of the recent complaint.
Recent Complaint – Relevant Principles
Evidence of a complaint made by a complainant at the earliest reasonable opportunity is admissible in a trial involving allegations of sexual interference, not as evidence of what occurred, but as evidence showing consistency of conduct on the part of the complainant. The test for admissibility at common law is contained in a well known passage from the judgment of King CJ in The Queen v Gallagher (1986) 41 SASR 73 at 77-78:
…I adopt the statement of law appearing in the judgment of the Full Court in Reg. v. Freeman:
“Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne’s case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading.
The ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.
This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proferred [sic] evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.”
Footnotes omitted
The rationale of the rule is that it is to be expected that the victim of a sexual assault will make a complaint at the first reasonable opportunity and the making of such a complaint is therefore conduct consistent with the allegation made by the complainant in court. What is rendered admissible by the rule, as King CJ pointed out in The Queen v Slater (1989) 152 LSJS 268 at 270 is not a statement made after consideration to the police or other authorities, but a complaint made as a spontaneous response to the assault which has occurred.
Until recent legislative amendments not relevant to the disposition of this appeal, Gallagher remained the test for admissibility of evidence of a recent complaint at common law. In the years since, that test has been applied in determining the admissibility of complaints made by both adult and child complainants in a variety of circumstances involving complaints made either immediately after the event complained of, or in some cases up to a week after the alleged event. See for example R v Koolmatrie [2003] SASC 412 in which a complaint made by an eight year old child over a week after the alleged event was admitted: R v Valentine [1996] 2 Cr. App. R 213 in which a complaint made by an adult complainant the day after the alleged events was admitted: R v Wallace (2008) 100 SASR 119 in which evidence of a complaint made by an adult complainant either a day or a week after the event, was admitted.

In R v Mustafa (2005) 91 SASR 62 Besanko J summarised a number of matters relevant to the issue of admissibility of complaints which are of particular relevance in cases involving those made by children. He said at [56]:
…Relevant matters in the case of the requirement of first reasonable opportunity include the complainant’s age, the length of the delay, the extent to which the complainant was with the accused during the period of the delay, the nature of the relationship between them, the opportunity the complainant had to speak to other persons and her relationship with those persons. Relevant matters in the case of the requirement of spontaneity include the complainant’s age, the extent of her education, her relationship with the person to whom she is speaking and the nature of the questions asked. The matters which I have identified are by no means exhaustive.
It is, as Debelle J pointed out in Mustafa at [1], a question of the trial judge first deciding whether the statement is capable of satisfying the conditions for the admissibility of the complaint. It is then for the jury to assess whether it is a recent complaint and what weight ought to be placed upon it. For example, if the jury were not to be satisfied that the complaint was made by the complainant at the first reasonable opportunity, then they should be directed that the complaint could not be used to bolster the complainant’s credibility.
Analysis
In this case the trial judge resolved the issue of the admissibility of the complaint on the declarations. Nothing much turns on that as the evidence given by both the complainant and her mother was basically consistent with the statements they made to the police, although it might justifiably be said that the evidence of her mother at trial was somewhat more vague. The trial judge noted the inconsistency between the account given by the complainant and the account given by her mother and resolved the issue at that stage by determining that the complaint on either basis was admissible as evidence of recent complaint.
The determination of whether a complaint can be regarded as recent for the purpose of the common law depends, as the authorities show, on all of the facts and circumstances surrounding the making of that complaint. In this case the salient facts are that at the relevant time the complainant was a child of about nine years of age. The evidence of the complainant and her sibling, which was not disputed, was to the effect that at the relevant time the complainant’s mother was in the early stages of her relationship with the appellant. It was a relationship which was characterised by excessive drinking and the mother was often inebriated. Indeed, the evidence was that during the later events which are the subject of count 2, the mother had completely passed out through excessive alcohol consumption. It would hardly be surprising if, in those circumstances, a child experienced some reticence about complaining instantly to her mother about the appellant’s behaviour.
Whilst in other circumstances, particularly involving an adult complainant, a delay of approximately five days may represent a significant period of time, we are satisfied that in all the circumstances in this case, it was open to the jury to find the complaint was made within the time that a child in the complainant’s position could reasonably be expected to first complain.
The differences between the respective accounts of the mother and the complainant about the timing and content of the complaint were, as counsel for the appellant submitted, matters which might properly reflect upon the credibility of either or both of those witnesses, depending on the view the jury took of that evidence. That is a matter which went to the weight of the evidence, not to its admissibility.
We consider that the trial judge’s ruling that it was open to the jury, in respect of either the mother’s or the complainant’s account, to find that the complainant had made a complaint to her mother at the first reasonable opportunity, was correct. It was a matter for the jury to consider the conflict between the evidence of the mother and the complainant as to the timing and circumstances of the complaint. As Vanstone J pointed out in Wallace, such conflicts are not unusual.
In her directions to the jury the trial judge accurately summarised the complainant’s evidence of the complaint to her mother. She also referred to the mother’s account of the complaint when dealing with her evidence.
It is also significant, that the appellant gave evidence that he was confronted by the mother at some stage about the events which had occurred at Henley Beach. The trial judge referred to the appellant’s account of that confrontation when summarising his evidence and also referred to the inconsistency between the respective accounts of the witnesses as to the timing of the complaint. She said:
Now, another factor which you may use when considering [the complainant’s] credibility and reliability, as a witness is the evidence of what is called in law ‘recent complaint’. In this case this is the evidence of the complaint made by [the complainant] after the Henley Beach incident in count 1 assuming you are satisfied that she indeed made that complaint. In considering whether the complaint was made you should note the inconsistency between the evidence of [the complainant] and her mother. [The complainant] saying she didn’t complain immediately, rather some five days later. Her mother on the other hand saying her complaint was made on the jetty fairly shortly after the alleged incident. It is a matter for you what you make of [the complainant’s] evidence and that of her mother on that topic. What I need to make clear to you is that evidence of complaint is not admitted for the purpose of proving the truth of [the complainant’s] complaint, the law allows that such complaints may be admitted for only a limited purpose. If you accept that the complaint was made and if you accept that it was made at the first reasonable opportunity and made to a person to whom [the complainant] might reasonably be expected to complain if she had indeed been touched in the way she described, then you may use that evidence on the basis that it shows consistency of conduct, it shows whether [the complainant] behaved in the manner that is consistent with the allegation of unlawful sexual intercourse in count 1.
In that passage the trial judge correctly directed the jury that before they could use the complaint as evidence of consistency of the complainant’s conduct, they must first be satisfied that a complaint had been made by the complainant and that it had been made by her at the first reasonable opportunity. At the same time the trial judge drew the jury’s attention to the inconsistency between the respective accounts and quite properly told the jury that it was a matter for them to consider.
Having already determined as a preliminary matter that the evidence was admissible as recent complaint on either version, nothing further was required. We would therefore dismiss these two grounds of appeal.
Grounds 3, 4, 5 and 6 – The Longman Warning
To some extent the issues arising from these four grounds of appeal overlap and it is therefore convenient to deal with them compendiously.
Ground 3 concerns the trial judge’s directions in relation to previous inconsistent statements proved to have been made by the complainant to a Doctor Teh. Grounds 4 and 5 also raise issues as to the adequacy of the trial judge’s directions concerning inconsistencies between the complainant’s evidence in court and what she said out of court on a number of topics. Ground 6, in substance, raises an issue as to the adequacy of the Longman warning which the trial judge gave to the jury.
There was evidence at the trial in the form of a statement read to the jury that a general medical practitioner named Doctor Ben Teh saw the complainant on several occasions in 1996 and made a tentative diagnosis of depression. The notes made by Doctor Teh were tendered (Exhibit P3) and the complainant was cross-examined about what she had told him. The complainant agreed that she had told the doctor that since the age of eight she had heard voices telling her various things. There was also evidence that the complainant told Doctor Teh that the voices had been telling her things from the past including that she had been abused by her mother’s ex-partner but she could not remember any such things happening. She admitted that she had lied to Doctor Teh when she told him she had been hearing voices.
The complainant was also cross-examined about various inconsistencies between what she told the police, what she told a solicitor (Ms Susannah Paton) at the Office of the Director of Public Prosecutions and what she told the jury. There were also admitted inconsistencies between the complainant’s evidence and what she had told the police out of court in her statement in relation to the acts which were the subject of counts 1 and 6.
Counsel for the appellant argued that the fact that the complainant told Doctor Teh that she could not remember any sexual abuse happening, was materially inconsistent with the allegations she made in court about multiple acts of sexual interference by the appellant. It was argued that the trial judge’s failure to identify these particular inconsistencies in the context of directing the jury as to their effect, created a risk that the jury may not have fully appreciated the importance of Doctor Teh’s evidence and its potential impact on the complainant’s reliability and credibility.
In considering whether this ground of appeal is made out, the directions as a whole need to be considered. The trial judge commenced the summing up with the usual general directions, one of which related to the assessment of the credibility of the witnesses. In the course of that general direction her Honour made particular reference to the prior inconsistent statements made by the complainant to the police and doctor. The trial judge indicated at that stage that she would refer to those inconsistencies in more detail in her summary of the evidence. She then reminded the jury in general terms of the basic principle that evidence of prior inconsistent statements can be used as part of the process of evaluating the honesty and reliability of the witnesses and in considering whether ultimately they were prepared to accept that witness’ evidence. The jury were directed that they could not use the prior inconsistent statements as evidence given on oath in the trial, going to prove the events.
Her Honour then went on to direct the jury as to the elements of the offences, before summarising in detail the evidence at trial. It is apparent from the summary of the evidence that the trial judge simply recited in summary form the evidence in the chronological order in which it was called rather than summarising the evidence by reference to the issue to which it related.
On the topic of the inconsistencies in the complainant’s evidence and the evidence of what she had previously told Doctor Teh and the police, the trial judge said:
There was also cross-examination about what [the complainant] said to Dr Teh about hearing voices. You will recall her evidence that she made this up. You have also heard her explanation for telling lies to Dr Teh. Again, you have heard submissions from both counsel as to what you should make of this evidence and what effect it might have on your view of [the complainant’s] credibility. Again, it is a matter for you and you alone to determine.
Apart from a general reference at the outset that the jury needed to consider whether they detected from the evidence any motive, bias or falsehood in any witness’s evidence, and the comment to which we have just referred, the trial judge did not give any particular warning about the complainant’s evidence until later in her summing up in the context of warning the jury generally about the effect of delay.
The trial judge at that stage, after referring to the considerable delay in the reporting of the matter to the police and the effects of that delay in terms of the forensic disadvantage to the appellant, said:
Third, the delay in making the complaint itself may cast some doubt on the reliability of the evidence given by [the complainant]. In these circumstances you should scrutinise [the complainant’s] evidence with great care, you should not act on that evidence unless you are completely satisfied as to its truth and accuracy. I want to make it clear that I am not saying that you cannot convict the accused on [the complainant’s] evidence, just that it is dangerous to act upon that evidence unless you are satisfied of its truth and accuracy.
The trial judge then directed the jury about the recent complaint, to which reference has already been made and shortly after, the jury were sent out to consider their verdict. After deliberating for approximately one and a half hours the jury returned with the following question:
In situations where it is purely the word of the victim against the accused, is the word of either party enough evidence alone to bring back a verdict ie no eyewitness accounts or any hard circumstantial evidence.
It was not until the trial judge was required to answer the jury question that she related the warning to one of the important features of the evidence which called for the warning. That was the fact that the prosecution case really depended solely on the evidence of the complainant and that she had, on her own evidence, demonstrated a preparedness to lie.
It would have been better if the trial judge had clearly given that direction in the main body of the summing up at the time when she was summarising the evidence for the jury. However, we consider that even though this direction was supplementary and was given shortly after the jury had gone out to deliberate, it was adequate to meet the circumstances of the case. The direction provided as follows:
The short answer to that question is yes, but I must remind you of a couple of the directions that I made about the evidence. Because I have got a situation here in effect of one person’s word against another, I told you that you should scrutinise [the complainant’s] evidence with great care. You should not act on that evidence unless you are completely satisfied as to its truth and accuracy. I want to make it clear to you that I am not saying you cannot convict the accused on [the complainant’s] evidence, just that it is dangerous to act on that evidence unless you are satisfied of its truth and accuracy.
I would also like to remind you of what I said that the onus is on the prosecution to prove beyond reasonable doubt that the accused is guilty of the charges against him. So it is not a question of preferring one witness against the other, or one version of events against the other, the sole exercise is to determine whether the prosecution has proved the elements of each charge considered separately beyond reasonable doubt.
I will just remind you again of what I said about ‘beyond reasonable doubt’. ‘Beyond reasonable doubt’ are three plain English words and they mean exactly what they say. A reasonable doubt is a doubt that reasonably arises after consideration by you of all the evidence that you have heard and it is a doubt which you as reasonable people from the community are prepared to entertain. So I hope that that answers your question…
The appellant argues that the trial judge’s warning to scrutinise the evidence of the complainant was not strong enough given what she described as the known psychiatric illness of the complainant. This submission must be evaluated in the light of the authorities which discuss the duty of trial judges to warn juries about certain categories of evidence and witnesses.
Relevant Principles – Suspect Witnesses
At common law a rule of practice developed that required a trial judge to warn a jury that it is dangerous to convict upon the uncorroborated evidence of certain categories of witnesses. The common law, as it developed, applied in the case of accomplices, child witnesses and complainants in sexual cases.
The rationale for the warnings was based upon what was said to be the generalised experience of the judiciary which showed that witnesses falling into those categories may be unreliable and that a jury may be unlikely to appreciate, from its own experience, the inherent dangers in acting upon their evidence. See for example Longman v The Queen (1989) 168 CLR 79 at 85-87: Bromley v The Queen (1986) 161 CLR 315 at 324-325 and Kelleher v The Queen (1974) 131 CLR 534 at 553. In Longman the court held that when the evidence of a witness may be potentially unreliable for some reason but the witness does not fall within one of the established categories, the trial judge is obliged to warn the jury in relation to acting on that witness’s evidence if there is a perceptible risk of a miscarriage of justice. The trial judge has a discretion as to the form of the warning, having regard to the circumstances of the case.
In Bromley the High Court rejected an argument that the trial judge had erred in failing to direct the jury that it would be dangerous to convict on the uncorroborated evidence of a witness who suffered an attack of schizophrenia on the night of a murder that he purported to witness. In that case the trial judge directed the jury to scrutinise the evidence of the particular witness with care. Gibbs CJ (with whom Mason, Wilson and Dawson JJ agreed) held that if it appears that the witness whose evidence is important, has some mental disability which may affect his capacity to give reliable evidence, then the jury should be given a warning in relation to acting on the testimony of that particular witness unless it is confirmed by other evidence. There is no particular formula that must be used, the words must depend on the circumstances of the case. In assessing the adequacy of the warning given in Bromley, the court was influenced by the fact that in the circumstances of the case the possibility of unreliability by reason of mental illness would have been apparent to the jury.
As Brennan J said at 324:
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer “partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind”: see also per Lord Ackner and per Lord Diplock in Hester. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given…
Footnotes omitted.
His Honour went on to say at 325:
…But in truth the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice: cf. Chamberlain v The Queen [No. 2]. When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content…
Footnote omitted.
The common law practice in relation to child witnesses and complainants in sexual cases was modified by legislative amendment to the Evidence Act 1929 (s 34 and s 12(a)). We mention that recent further amendments to the Criminal Law Consolidation Act and the Evidence Act, whilst not relevant to the disposition of this appeal, have made substantive changes to the law concerning both recent complaint and the need for trial judges to give a Longman warning. However this appeal must be determined on the basis of the principles which applied at the time of this trial.

A useful summary of the relevant principles governing warnings in sexual cases and in relation to child witnesses is contained in the judgment of Doyle CJ in R v Corrigan (1998) 74 SASR 454, at 465-466:
The effect of the decision of the High Court in Longman is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman at 90-91 per Brennan J, Dawson J and Toohey J; at 100-101 per Deane J; at 107-109 per McHugh J; see also Bromley v The Queen (1986) 161 CLR 315 in particular at 323-325 per Brennan J.
In my respectful opinion the Court should avoid requiring resort to a particular formula. It is better that the warning be tailored to the circumstances of the case. The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury, and whether the overall effect of what the judge says to the jury is adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: cf Longman at 86 per Brennan J, Dawson J and Toohey J. As Longman illustrates, there are cases in which a warning of the traditional kind is called for, but it would be wrong to hold that if some sort of warning or caution is called for, it must always be in the traditional terms.
It must also be borne in mind that, if a warning is to be given, however that warning may be expressed it should not be unbalanced. It is appropriate for the judge to put the warning in context. It is appropriate for the judge, when dealing with matters that give rise to the need for a warning, to deal at the same time with possible explanations or answers.
Analysis
In this case proof of the charges against the appellant depended principally on the evidence of the complainant. It is correct that the mother’s evidence generally supported the complainant’s evidence that she had complained to her mother after the Henley Beach incident. There was also evidence from the complainant’s sister which was generally supportive of the complainant’s evidence that the appellant came into her bedroom in the Klemzig house on a regular basis at night. Nevertheless, there was no other evidence to support the evidence of the complainant as to the incidents the subject of the seven counts.
Therefore before convicting the appellant the jury needed to be satisfied beyond reasonable doubt that the complainant was truthful and reliable in relation to all of the essential allegations in each of the counts.
There were features in the complainant’s evidence which were capable, depending on the way the jury evaluated that evidence, of impacting adversely on the complainant’s reliability and credibility. One of those matters was her admitted preparedness to lie. In her evidence the complainant accepted that she did tell lies to Doctor Teh. She said she was prepared to lie to the doctor about hearing the voices for the purpose of setting up an insanity defence if she went through with her admitted plan to kill the appellant.
For the purpose of evaluating the submissions in relation to these grounds of appeal we have given weight to the appellant counsel’s description of the complainant as suffering from a known psychiatric illness, even though an examination of the transcript of the trial does not really bear out this submission. In this regard we note that at the relevant time Doctor Teh was a general medical practitioner in training as a paediatrician. After seeing the complainant on a couple of occasions he identified depression only as a possible diagnosis. Nevertheless it was a matter relevant to the jury’s consideration.
It is not unusual in cases involving allegations of child sexual abuse that the complainant may have seen doctors, psychiatrists or counsellors before giving evidence. Prior inconsistent statements to various health professionals, police or other persons are not uncommon in this context. When these features are present it is necessary for trial judges to identify these matters and ensure that they are properly brought to the attention of the jury. In this case we consider that the trial judge did adequately bring these matters to the jury’s attention in the passages already identified. She was correct to tell the jury it was a matter for them to consider what they made of these various inconsistencies.
In this context it is also significant that both counsel in addressing the jury, focussed on these inconsistencies and the other defects said to be inherent in the complainant’s evidence. It could hardly be said that the jury were not alive to the issues for their consideration when assessing the credibility and reliability of the complainant.
Against that background we consider that the warning given by the trial judge in this case was adequate. It is true that she did not specifically relate that warning to one of the critical features of the complainant’s evidence that may have called for such a warning until after the jury had returned with the question. Nevertheless, at that stage the jury were directed clearly that the complainant’s evidence was the critical evidence on which the prosecution relied and that before convicting, the jury must be satisfied beyond reasonable doubt about the truth and accuracy of her evidence. We are satisfied that the way in which the trial was conducted, the summing up and the redirection would have alerted the jury to the aspects of the complainant’s evidence that required careful consideration. It was then a matter for the jury whether they were satisfied beyond reasonable doubt of the appellant’s guilt on the whole of the evidence before them.
In the end, the question on appeal is not simply whether the judge could have helped the jury more with the factual issues arising from the evidence. The question is whether the jury’s consideration of the issues were so compromised by the directions given, or by reason of any omission, that the appellant has lost an opportunity of acquittal that was fairly open to him. For the reasons we have given we are satisfied that he has not and we would therefore dismiss these grounds of appeal.
Ground 8 - Failure to Direct on Motive to Lie
This ground is a complaint that the trial judge erred in failing to direct the jury as to motive and in particular, failing to warn against impermissible reasoning in relation to motive. It is necessary to refer briefly to the evidence which was said to give rise to the need for such a direction.
The suggestion that the complainant had a motive to lie was first raised by the appellant in evidence in chief. In answer to a question from his counsel, the appellant said that it was not until about two or three weeks after the events the subject of count 1 (the Henley Beach trip), that he first heard anything about the allegations. He said that some time after the trip to Henley Beach he had chastised the children about some unrelated matters. It was not until after the children had returned from visiting their father that the mother received a phone call from the father enquiring about the events at Henley Beach on the evening in question. The clear implication from that evidence was that the complainant had fabricated the allegation about the Henley Beach incident because she had been chastised by the appellant.
The appellant was briefly cross-examined about that evidence and he maintained that there was a phone call from the complainant’s father and that the complaint was first communicated to him in that context.
In her address to the jury the prosecutor made submissions as to the credibility of the appellant’s explanation for the events which gave rise to count 1. She pointed out that his evidence about the phone call and its timing was at odds with the complainant, her mother and father. She invited the jury to reject the appellant’s account including his suggestion that the allegation was fabricated because the complainant had been chastised by him. In those remarks, which occupied a relatively brief portion of the prosecutor’s address to the jury, the prosecutor was careful to preface her comments by reminding the jury that in a criminal trial the appellant does not have to suggest any motive. She then invited the jury to reject the appellant’s evidence and suggested that an examination of all of the evidence in relation to count 1 would assist the jury in deciding who was telling the truth and who was not.
In her address to the jury counsel for the appellant on two occasions reminded the jury generally to the effect that speculation as to any motive the complainant might have to lie, would be both irrelevant and wrong and that it would in effect undermine the presumption of innocence.
In her summing up the trial judge did not refer specifically to either counsel’s submissions in relation to the appellant’s evidence on count 1 or on the topic of motive generally. However, she did give a general warning to the jury when assessing the evidence of all of the witnesses to consider whether they had detected from the evidence any motive, bias or falsehood in that witness’ evidence.
Neither counsel requested the trial judge to give a direction about the topic of motive until about 11.45 am on the second day of the jury deliberations. At that stage counsel for the appellant, relying on the recent authority of R v Sluczanowski [2008] SASC 185, asked the trial judge even at that late stage, to give a direction. The prosecutor opposed the giving of the direction at that late stage partly because of the timing and partly because in the prosecutor’s submission the trial judge had already made the onus of burden and proof abundantly clear to the jury. Her Honour declined to give a direction.
On appeal, counsel for the appellant submitted that the effect of this Court’s decision in Sluczanowski is that given motive was raised in the trial, it was then necessary for the trial judge to give the jury a direction that even if they were to reject the appellant’s suggestion that the complainant may have had a motive to lie, it would not necessarily follow that the prosecution had discharged its burden of proof. In considering the strength of that submission it is necessary to look a little more closely at the problem which confronted the court in Sluczanowski.
In that case a possible motive for the complainant to lie had been suggested for the first time in closing addresses. That motive had never been put to the complainant in cross-examination. In response to concerns expressed by the prosecutor, the trial judge in his summing up warned the jury about placing too much weight on the suggested motive. He then concluded by directing the jury that they were not to speculate as to whether the complainant had any motive to make any false allegations of rape against the accused.
It was in this context in Sluczanowski that Duggan J (with whom both Doyle CJ and Anderson J agreed) said at [42]:
Impermissible reasoning in relation to motive can arise in another way. If a trial judge addresses the issue of motive in the summing up it is usually necessary to warn the jury that if the jury rejects the motive to lie which is relied upon by the defence, that does not mean that the prosecution case is strengthened. In the joint judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer vR their honours said:
...a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral.
He went on to say at [49]:
A direction not to speculate as to whether the complainant had a motive for making false allegations is appropriate if made in response to a prosecution submission along the lines of the rhetorical question “Why should the complainant lie?” However, it is inappropriate when put as a general proposition in a case where, as here, there was evidence which required the jury to consider whether the complainant had a particular reason for making false allegations.
The court concluded that in the context of the problem that had arisen in that case, the jury should have been instructed that despite the failure to cross-examine the complainant on the topic of the suggested motive, there nevertheless remained a requirement for the jury to consider the possibility of the suggested motive to fabricate. The court concluded that the jury should have been reminded of the evidence relied upon by the accused in that case and they should also have been directed that the absence of such a motive was not relevant to their consideration.
Analysis
The facts here are relevantly different from the facts in Sluczanowski. Here, the issue first arose in the context of the appellant’s explanation about events occurring subsequent to the incident at Henley Beach. Counsel for the prosecutor then dealt with the appellant’s suggestion as to motive by inviting the jury to reject it and pointing to the features of the evidence which she said supported the submission that the jury were entitled to accept beyond reasonable doubt, the truth of the allegations made by the complainant. Both counsel in their addresses were careful to remind the jury that there was no onus on the appellant either generally or in the particular context of the topic of any motive to lie.
This was not a case where it could be said that the cross-examination of the appellant on that topic or any comment made by either counsel in addressing the jury, had any tendency to focus the attention of the jury on irrelevancies. The trial judge correctly directed the jury as to the onus and standard of proof.
We do not consider that the appellant’s submissions on this ground of appeal gain any support from an examination of the High Court decision in Palmer v The Queen (1998) 193 CLR 1, which was also referred to by Duggan J in Sluczanowski. That case is not authority for the proposition that every time the topic of a complainant’s motive to lie is raised in a criminal trial, it automatically follows that a trial judge must give a direction to the effect that if the jury find an absence of any motive on the part of the complainant, then that cannot bolster the complainant’s evidence.
The facts which gave rise to the decision in Palmer were also relevantly different from the circumstances here. In that case, the accused had acknowledged that he could offer no reason to impeach the credit of the complainant. It was against that background that the majority in Palmer held that the questioning of the accused about his lack of knowledge of any reason why the complainant should lie, had effectively invited the jury to conclude that unless they were satisfied that the complainant did have a motive to lie, then they should accept her evidence and convict. In the circumstances of that case those questions were held to have occasioned a miscarriage of justice.
In this case, there has been no suggestion that either counsel asked questions or addressed the jury in such a way as to deflect them from their task of assessing whether, on the whole of the evidence, they were satisfied beyond reasonable doubt of the charges. Moreover the issue arose in a relatively discrete way in the context of evidence concerning the events the subject of count 1. It was dealt with relatively briefly by the prosecutor in her address. In these circumstances we consider that it was not necessary for the trial judge to mention the topic. Had the trial judge directed in the way suggested by counsel for the appellant, the jury’s attention would have been drawn to the appellant’s evidence on this topic, which may well have disadvantaged him.
In any event we consider that the trial judge’s directions on the onus and standard of proof were correct. She repeated them in response to the specific questions asked by the jury. For these reasons we are of the view that the failure of the trial judge to give a direction on this topic has not led to any miscarriage of justice.
Therefore we would dismiss this ground of appeal.
Ground 9 – Evidence of Complainant’s Sister
This ground is a complaint that the trial judge’s directions about the evidence of the complainant’s sister were inadequate. It was submitted that the trial judge failed to direct the jury as to how certain aspects of the sister’s evidence might reflect on the credibility of both her and the complainant. Specific matters which were said to go to the sister’s credibility included the fact that this witness did not speak with the complainant or to the police about her observations of the appellant going into her bedroom on a number of occasions, nor did she make any report to the police about these matters until after the complainant had told her that she herself had made a complaint to the police. The fact that the sister did not tell police what she later said in evidence about the appellant’s actions in other respects, was also said to reflect on the witness’ credibility.
These matters were the subject of cross-examination of the sister and both counsel made quite detailed submissions to the jury about the effect of her evidence. Those submissions included suggestions and submissions to the jury as to how they might approach these particular aspects of the sister’s evidence. The trial judge dealt with her evidence as part of the narrative of the prosecution case. After accurately summarising the cross-examination of the sister the trial judge concluded that portion of the summing up with the following comment:
You will also recall the cross-examination about her conversations with [the complainant] about these events and what Miss Fuller said to you about these issues in her address. They are matters for you to consider when you assess [the sister’s] evidence.
The trial judge returned to the sister’s evidence in the context of the directions which she gave about the uncharged acts. At that stage the trial judge did not refer to the prosecutor’s submissions as to how this evidence could be used to strengthen or confirm the complainant’s account of the appellant’s frequent visits to her bedroom at night. Nor did she explain that the evidence was capable of establishing that the appellant had a sexual attraction towards the complainant. That was the critical use which the prosecution sought to make of this evidence.
Not surprisingly the jury sought further directions as to the use that could be made of the sister’s evidence. This question came after the earlier question, and provided:
As [the sister’s] evidence relates to events at Klemzig, relates to a pattern over a period of time, can as much weight be given to her evidence as if it was specifically tied to a specific time?
At that stage the answer to the question went some way to assisting the jury with the use which could be made of the sister’s evidence. The trial judge said:
The first question deals with how you are to use [the sister’s] evidence of the uncharged acts and I will say at the outset that you must be satisfied of her evidence beyond reasonable doubt before you can use it at all, and I remind you what I said yesterday about being beyond reasonable doubt. If you are satisfied of her evidence beyond reasonable doubt then it does not, as you have noted in your question, directly corroborate [the complainant’s] evidence in relation to counts 5 and 6 because she is not specifying a particular date and time. But you can use it in evaluating [the complainant’s] evidence as to the charges in the following ways: first, because it gives you the whole context of [the complainant’s] allegations about the charges, so you have got the background material to those charges. It may also, if you accept it, explain why [the complainant] submitted to the behaviour that she has alleged without complaint and why the accused may have felt that he was able to continue with that behaviour.
It also shows if you accept it, that there was a sexual attraction of the accused towards [the complainant]. And it also explains, if you accept it, why [the complainant] was unclear about precise dates and times for the offences that she has alleged.
I should also remind you of the caution I gave you yesterday about using evidence of uncharged acts and the first is that you should not use it unless you are satisfied beyond reasonable doubt that [the sister’s] evidence is correct and that what she has alleged has been proven to have occurred.
Second, if you are satisfied that the accused has perpetrated some or all of the uncharged conduct that you have heard about from [the sister], then you must not reason that, because of that, he has committed the offences with which he is charged. You must look at the offences with which he is charged separately and independently.
Third, if you conclude that he did do the other conduct, it is also wrong for you to conclude that he is the sort of person who would be likely to commit the offences with which he has been charged.
If you are not satisfied that some or all of the uncharged conduct has been proved then you put it to one side and disregard it.

The sister’s evidence was not capable of directly confirming the evidence of the complainant in the sense that there was no direct eyewitness to the events which were the subject of counts 1 to 7. That included the two counts 5 and 6 which were said to have occurred in the bedroom shared by both the complainant and her sister at the Klemzig home. Nevertheless the evidence was, if accepted by the jury, capable of confirming and strengthening the account given by the complainant as to the appellant’s behaviour in going into the bedroom at night and climbing into the complainant’s bed. As such it was capable, if accepted by the jury, of establishing that the appellant was sexually attracted to the complainant and from time to time, acted upon it. That was the effect of the sister’s evidence.
In my respectful view, the trial judge’s directions on this topic could have been much clearer. Nevertheless the criticisms which might be made of the summing up in this regard do not lend any support to the appellant’s arguments.
Strictly speaking, if the sister’s evidence was accepted, then it was capable of confirming the complainant’s account, not just in relation to counts 5 and 6, but on each count on the information. The fact that the jury convicted the appellant on only counts 1 and 5, supports the conclusion that the jury used the sister’s evidence in a very limited way. Any misunderstanding by the jury as to the extent to which the sister’s evidence was confirmatory of each of the counts on the information, appears to have been resolved in favour of the appellant
Therefore whilst we consider the trial judge’s directions could have been more helpful to the jury as to the sister’s evidence, we do not consider that the inadequacies that we have identified, have in any way prejudiced the appellant. On the contrary in the light of the verdicts, it could be argued that the deficiencies in the trial judge’s directions actually advantaged the appellant.
As to the specific complaint that the trial judge should have given more assistance with regard to the difficulty said to be inherent in the sister’s evidence, we do not consider that any further direction in that regard was required. There is no requirement on a trial judge to detail every submission and every argument put by an accused.
The evidence of the sister was, like the complainant’s, subject to vigorous cross-examination by counsel for the appellant. Both counsel in their addresses to the jury made submissions as to the way in which the jury might approach the alleged deficiencies in the sister’s evidence. The trial judge was correct in telling the jury that these were matters for them to consider. Nothing further was required. For these reasons we would dismiss ground 9.
Conclusion
It will be apparent from the foregoing that we are of the view that the trial judge could have given a great deal more assistance to the jury than she did. There is a real requirement for trial judges to grapple with the legal issues and to direct juries in the specific context of the evidence given at the trial. It is not always helpful to recite in narrative form, the evidence divorced from the critical directions needed in respect of that evidence.
It is not surprising that the jury returned with the questions they did. Nevertheless, notwithstanding the delay, we consider that the trial judge did ultimately identify the important factual and legal issues for their consideration. Plainly it was open to the jury on the evidence to convict on counts 1 and 5. We are satisfied that the jury were sufficiently directed to be able to evaluate the whole of the evidence, with a proper appreciation of such weakness as there was in the prosecution case. It was not a lengthy trial, nor were the issues for the jury’s consideration particularly complicated. The verdicts ultimately arrived at by the jury suggests that they approached their task carefully and cautiously. In these circumstances we do not consider that any of the deficiencies which have been identified in the summing up caused any prejudice to the appellant. On the contrary, the deficiencies may well have operated in the appellant’s favour for the reasons we have given. There has been no miscarriage of justice.
In these circumstances we would refuse permission to appeal on grounds 5 and 6 and we would dismiss this appeal.