R v Jones - [2018] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONES
[2018] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Lovell)
15 August 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appeal against conviction.
After a trial before a jury in the District Court, the appellant was convicted of 4 counts and acquitted of 6 counts of unlawful sexual intercourse allegedly committed between 1981 and 1983 when the complainant was aged between 14 and 16 and under the care of the Department of Community Welfare but residing close to or in the same house as the appellant.
Evidence was adduced by the prosecution from the complainant that the first person that she told about the detail of the specific incidents of sexual intercourse or fellatio of which she gave evidence was a police officer to whom she spoke, implicitly in January 2015 shortly before the appellant was charged. The complainant also gave evidence of a discussion with a detective investigating an unrelated matter, implicitly in or before 1983, and a lawyer in 1997 about her being in a sexual relationship with the appellant. Evidence was adduced from another police officer which suggested that the complainant gave a statement or evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse before speaking to a police officer in January 2015.
During closing address defence counsel referred to the fact that the Department of Community Welfare had left the complaint living with the appellant for two and a half years and there was no suggestion of any issues there about sexual conduct. On objection by the prosecutor that this offended against s 34M(2) of the Evidence Act 1929, the Judge ruled that it was not permissible to attack the credit of the complainant by submitting that, while she complained about violence by the appellant, she did not complain about the sexual relationship.
At the request of counsel, the Judge gave some but not all of the directions to the jury mandated by s 34M(4) of the Evidence Act. The Judge also directed the jury that it was impermissible for the jury to reason that, because the complainant did not report sexual offending to anyone until she went to the police many years later, that was damaging to her credibility.
The appellant appeals by permission on four grounds:
1. the Judge erred in directing the jury as to the burden of proof;
2. the Judge failed to direct the jury properly in relation to use of any doubt as to the evidence of the complainant on a particular count in respect of other counts;
3. the Judge erred in ruling that the appellant’s counsel was forbidden from attacking the credit of the complainant on a particular issue concerning violence during the relationship due to the operation of s 34M;
4. the Judge erred in giving the direction that it was impermissible to reason that, because the complainant did not report sexual offending for many years, that was damaging to her credibility and in not giving the mandatory directions required under s 34M(4).
Held by the Court (allowing the appeal on ground 4):
1. Although it would have been preferable to confine a direction about reasonable doubt to the conventional brief direction, the Judge did not err in directing the jury as to the burden of proof (at [43]).
2. The Judge did not err in directing the jury in relation to the assessment of the credit of the complainant (at [59]).
3. On the proper construction of section 34M, while it precludes suggestion by counsel and the trial Judge, it does not preclude the jury from taking into account delay in making a complaint in assessing a complainant’s credit. The Judge erred in so directing the jury (at [130]).
4. The Judge erred in not giving the mandatory directions required under s 34M(4) (at [132], [137]).
5. The proviso cannot be applied in respect of ground 4 (at [146].
6. It is unnecessary to determine ground 3 (at [163]).
7. Appeal allowed. Convictions set aside. Matter remitted for fresh trial (at [167]).
Evidence Act 1929 (SA) Sections 34M and 34R., referred to.
Green v R (1971) 126 CLR 28 126 CLR 28; La Fontaine v R (1976) 136 CLR 62; R v Markuleski (2001) 52 NSWLR 82; Weiss v The Queen (2005) 224 CLR 300; R v B, P [2006] SASC 229; R v Hare [2007] SASC 427; R v J, JA (2009) 105 SASR 563; R v J, JA (2009) 105 SASR 563; R v S, SD (2010) 109 SASR 46; R v H, T (2010) 108 SASR 86; R v Usher [2014] SASCFC 32; R v P, S [2016] SASCFC 97; R v Dookheea (2017) 91 ALJR 960; R v Moores (2017) 128 SASR 340; R v Ricciardi [2017] SASCFC 128; R v Rendell [2018] SASCFC 71; Kalbasi v Western Australia [2018] HCA 7; R v Lane [2018] HCA 27, discussed.

R v JONES
[2018] SASCFC 80
Court of Criminal Appeal: Kelly, Blue and Lovell JJ
THE COURT:

The appellant, Steven Jones, was tried before a jury on 10 counts of unlawful sexual intercourse with respect to the complainant (LC). He was found guilty of counts 1, 3, 9 and 10. Verdicts of not guilty were returned on counts 2, 4, 5, 6, 7 and 8. Of those counts, count 7 was a directed acquittal, LC having given no evidence of any act the subject of that charge.
The charged offences were all alleged to have occurred between 1981 and 1983 when LC was aged between 14 and 16 and the subject of a guardianship order placing her under the care of the Department of Community Welfare. At the relevant times the appellant was 24 to 26 years old.
Initially LC was placed in a group home nearby to a delicatessen run by the appellant. However over time LC and the appellant became friendly and on LC’s evidence began a sexual relationship. In November 1981 LC commenced to live with the appellant in the residence attached to the deli. In 1983 she left the relationship.
The ten counts on the information spanned the entirety of the alleged sexual relationship between LC and the appellant.
On 10 July 2018 we allowed the appeal, set aside the convictions on counts 1, 3, 9 and 10 and remitted the matter to the District Court for a fresh trial. These are our reasons for doing so.
Appeal grounds
The appellant originally appealed on three grounds: first that the Judge erred in directing the jury as to the burden of proof; secondly that the Judge failed to direct the jury properly in relation to the use to be made of any doubt the jury had as to the uncorroborated evidence of LC in respect of particular counts and how that should be used in respect of the other counts; and thirdly that the Judge erred in ruling that the appellant’s counsel was forbidden from attacking the credit of LC on a particular issue concerning violence during the relationship due to the operation of s 34M of the Evidence Act 1929 (SA) (the Evidence Act).
Permission to appeal on all grounds was granted by a single Judge. At the hearing of the appeal, the appellant sought leave, which was not opposed, to add a further ground of appeal complaining that the Judge erred in not giving the mandatory directions that were required under s 34M(4)(a)(ii) and s 34M(4)(c) of the Evidence Act and that the directions that were given in respect of complaint evidence were incorrect and prejudicial to the appellant.
Background
Before discussing each ground of appeal it is necessary to set out in some detail the evidence at trial.
The evidence of LC
LC was born in 1967. She gave evidence in relation to her care and living arrangements between 1981 and 1983. She gave evidence about uncharged as well as charged acts.
LC gave evidence that she was taken into care in 1981, first residing at a temporary accommodation facility near the deli. The deli was owned and operated by the appellant. His residence adjoined the deli. After beginning a sexual relationship with the appellant, LC moved into the residence. At the time the appellant’s aunt Ruby Milne (Ms Milne) and her daughter Angela lived there. For a time Ruby’s son Ricky Milne and her husband George Milne also lived there. Initially LC and the appellant occupied one bedroom (the second bedroom) furnished with two single beds. Ruby and Angela resided in the front bedroom. At some stage the Milnes moved out and LC and the appellant moved into the front bedroom which had been occupied by his aunt and cousin. That bedroom was furnished with a double or queen bed.
At about the time that the Milnes moved out, George and Ricky Milne were charged with an unrelated murder. The detective in charge of the murder investigation spoke to LC in the course of that investigation.
LC gave evidence that she took steps to conceal the sexual relationship she had with the appellant during visits from officers from the Department of Community Welfare. They presented the bedroom as though it were not shared by them. While she worked at the deli, LC did not receive wages or cash payments but was remunerated with chocolate, cigarettes and meals from the deli.
Charged acts
The first count was alleged to have occurred before LC moved into the appellant’s residence. She was 14 years old at the time. LC gave evidence that at some stage during daylight hours she went into the second bedroom where the appellant was sitting or standing on one of the beds near the doorway. He pulled his penis out and LC ended up on her knees facing the appellant between his legs. At that stage she observed his penis to be erect and noticed a raised lump on the glans of his penis. She estimated the lump to be “a couple of centimetres” in size, “a bit discoloured and kind of elliptical shaped, egg shaped”. She queried the lump with the appellant who said something to the effect of “don’t worry about that” and explained that he was injured by a wind-up toy when he was younger. LC then performed oral sex on the appellant and he ejaculated in her mouth. She re-dressed and returned to the deli. She said that as she exited the second bedroom there were two other people in the back room of the deli. One was Ms Milne and the other was Dianne Edwards. Ms Edwards was called as a witnesses at trial by the prosecution. The jury returned a unanimous verdict of guilty on this count.
The second count was also alleged to have occurred before LC moved into the appellant’s residence. LC gave evidence that this incident occurred in September 1981 when she was about 14 years of age and that it happened some weeks after the first incident of oral sex the subject of count 1. At the time Ms Milne, and possibly Ms Edwards and Angela, were present inside the house. LC went into the second bedroom where she was encouraged to rub the appellant’s penis on the outside of his jeans. The contact between the two escalated. They kissed and the appellant had her place her hand on his penis. There was pre-ejaculate discharge coming from his penis. He then pushed his penis into her vagina. The third count was alleged to have occurred a few months after LC moved into the appellant’s residence. LC gave evidence that this incident took place in the deli behind the counter at a time when the appellant stored guns in that location. She was wearing a long skirt, a t-shirt and no underwear. LC had penile-vaginal intercourse with the appellant on the floor behind the counter. She was not sure whether she or the appellant was on top; however she described the carpet as scratchy and itchy and remembered that she suffered carpet burn. The appellant ejaculated and they quickly got back to normal. LC said anyone who came through the front door of the deli would have to have been right up against the counter to have seen anything going on behind the counter. She also said that there was a high pitched alarm that went off as people walked through the front door. The jury by majority convicted the appellant on this count.
The incident the subject of count 4 was alleged to have occurred during a shooting trip. LC gave evidence that she went with the appellant to Kuitpo Forest. Two friends of the appellant, namely Greg Wallace and Gary Turton, also attended. They travelled in Mr Wallace’s vehicle. There were two guns in the car, one of which was an elephant gun that was special to Mr Wallace. LC and the appellant were seated on the front bench seat alongside Mr Wallace who was driving the vehicle. LC and the appellant had penile-vaginal intercourse in the car during the drive. LC was positioned on the appellant’s lap facing backwards and the appellant facing forwards. LC said neither Mr Wallace nor Mr Turton reacted during the sexual intercourse. She explained that this could have been because on previous occasions the appellant had touched her intimately in front of them. LC described screaming as they went over a bump in the road and the appellant’s penis entered her anus. She thought that Mr Wallace and Mr Turton were also shocked at the time. The appellant was acquitted of this count.
The events giving rise to counts 5 and 6 were alleged to have occurred during a trip to Port Augusta. LC gave evidence that the purpose of that trip was to tow a broken down car belonging to Ms Edwards. Terry Hawkett accompanied them on the trip. Mr Hawkett steered the broken down vehicle and the appellant and LC drove in the car which was towing it. During the trip LC performed oral sex on the appellant while he was driving. She then sat on his lap and they had penile/vaginal intercourse as he was driving. She cleaned up with toilet paper and threw it out the window which made Mr Hawkett laugh. The appellant was acquitted of both these counts.
Count 7 was particularised as an act of penile/vaginal sexual intercourse. LC gave evidence that the appellant bought a vibrator for her when she was about 14 or 15 years old. While they were in the second bedroom he inserted the vibrator into her vagina; however she did not give evidence about any act of intercourse following that incident. On that basis the jury was directed to enter an acquittal on count 7.
The events which gave rise to count 8 were said to have occurred at the deli during daylight hours. LC gave evidence that there was a television monitor in the back room; however the light was off. The appellant bent LC over in the area near where the television monitor was on top of some milk crates and inserted his penis into her vagina. A customer entered the deli and she heard the alarm. After the incident LC went out to serve the customer and could feel ejaculate moving down her leg. The jury returned a verdict of not guilty in respect of this count.
The final two counts, 9 and 10, were alleged to have occurred in the front bedroom at the appellant’s residence while the appellant and LC were watching a movie called Caligula. LC gave evidence that the film involved a lot of sexual and violent scenes. The appellant became aroused and wanted to have sex doggy style. The appellant and LC engaged in penile/vaginal intercourse (count 9). In the middle of penile/vaginal intercourse the appellant tried to talk LC into trying something new. The appellant then attempted to put his penis in her anus (count 10). LC was not happy about this but she did not indicate that very clearly to the appellant. She said it really hurt and she tried to move away but could not because he had a hold of her. Eventually she managed to get away. The jury returned verdicts of guilty by majority in respect of counts 9 and 10.
Uncharged acts
The prosecution led evidence of numerous uncharged sexual acts. These were alleged to have occurred during a houseboat trip in early 1982, at a farmhouse rented by Mr Wallace and another incident which was alleged to have occurred in the deli at the front counter while LC was bent over the counter. LC gave evidence that if someone had walked into the deli they would have seen the top half of the appellant and her. She recalled the appellant ejaculated on this occasion and the mess going down her leg. In cross-examination LC was unable to say when, in the history of their sexual relationship, this incident took place.
LC also gave evidence of uncharged acts which occurred in front of Mr Hawkett, Ms Christine Hawkett and Mr Turton.
In addition to uncharged sexual acts, LC also gave evidence that the relationship between the appellant and her changed over time. The relationship became physically violent. Initially it started with the appellant slapping her across the face. It progressed to incidents which caused her to have bruising and lumps on her body from time to time. She said thatafter these assaults the appellant was really sorry and told her that he loved her.
LC recalled a specific incident when staff from the Department of Community Welfare attended at the appellant’s residence and she had a very slight black eye. She told the staff that the appellant had given her a black eye. She also described an incident when the appellant tried to choke her outside of the deli one night. She said that the police pulled up and witnessed the incident. She also gave evidence of an incident when the appellant took hold of her hair and smacked her head against a stone mantle. She said that both Terry and Christine Hawkett were present at the time and were quite shocked.
LC said that she did not tell anyone in the Department of Community Welfare at the time about the relationship because she and the appellant were trying to keep it secret from the Department.
LC gave evidence that she did complain to Mr Portolesi, an officer of the Department of Community Welfare, that she had received a black eye from the appellant. In cross-examination it was put to her that no sexual relationship ever existed between her and the appellant and that their relationship was confined to her work at the deli, which she rejected.
LC gave evidence that she raised the issue of the sexual relationship with a lawyer in 1997 but was advised that due to the statute of limitations no prosecution was possible. LC later reported the sexual incidents to the police. This evidence is the subject of ground 4 considered in detail below.
The evidence of Dianne Edwards
Ms Edwards said that she lived near the deli. She commenced working at the deli after the appellant’s wife left him. She remembered LC coming into the deli first as a customer. She observed LC’s interactions with the appellant to be quite flirtatious. LC later moved into the deli, first sleeping in the lounge room but later on sharing the front bedroom with the appellant. She described LC and the appellant as “obviously a couple”. She observed LC sitting on the appellant’s lap, the two holding hands and LC accompanying the appellant to social occasions. She recalled a few occasions when LC was in the front bedroom with the appellant with the door closed. She referred to three specific incidents which involved the appellant and LC. The first incident was when her car broke down on the way to Adelaide. Ms Edwards left the car to be repaired in Port Augusta. An arrangement was made for the appellant, LC, and Ricky Milne to collect the car, which they did.
The second incident that Ms Edwards recalled was an occasion when LC took an overdose of pills. Ms Edwards attended at the back bathroom in the deli and observed LC distressed. Ms Milne was trying to make LC vomit. The appellant and Ms Edwards took LC to Flinders Medical Centre.

The third incident that Ms Edwards recalled was when LC came to her house late one evening wearing nothing but a dressing gown. LC revealed that she had had an argument with the appellant. Ms Edwards headed back to the deli to find out what had happened. She encountered Ricky Milne on the way, who said that the appellant had left the deli. LC stayed the night at Ms Edwards’ property. She advised LC that she should remove herself from the relationship with the appellant. In cross-examination Ms Edwards agreed that she assumed that the appellant and LC were in a relationship; however after the third incident to which she referred she said it was past being an assumption. That was because the two of them spent all the next day in the front bedroom with the door shut.
The evidence of Greg Wallace
Mr Wallace gave evidence of a general nature about going to Kuitpo for picnics, blackberrying and drinking but he did not recall shooting any high-powered rifles there. In cross-examination he said that he did not think that he had ever seen LC and the appellant having sexual intercourse. He was clear that he had not seen LC and the appellant having sexual intercourse in a car at Kuitpo, nor had he seen the appellant reach under LC’s skirt and touch her vagina. He could not recall going to Kuitpo or his farmhouse with LC and the appellant. He said however that he used to do a lot of drinking in those days and consumed marijuana quite often and this could have quite possibly affected his memory.
Mr Wallace also gave evidence about an incident when he along with the appellant, LC and Mr Hawkett had been out drinking. LC and the appellant had an argument and the appellant pulled LC’s hair. He stepped in after LC fell to the ground, the appellant hit him and he retaliated. LC and Mr Wallace left and went to stay at his father’s house. He was not sure of the nature of the relationship between the appellant and LC but thought that they were fairly close and they might have been boyfriend and girlfriend.
The evidence of the investigating officer
The investigating police officer gave evidence about unavailable witnesses including Mr Turton who was not prepared to cooperate with the investigation. It was an agreed fact that Mr Hawkett died in 1985. The investigating officer gave evidence that Mrs Hawkett declined to provide a statement.
Record of interview
The appellant did not give evidence at trial. Evidence of a record of interview between the investigating officer and the appellant was led. The appellant said that he “took in” LC, she worked in the deli and they had separate bedrooms. He described LC as “a tearaway” and “a nightmare from the start” and said that she stole money from him. He received a financial benefit and assistance for having LC live and work with him. The deli actually had a three bedroom residence at the back. Ms Milne lived at the deli for some time with a person called “Kiwi”. When questioned about the lump on his penis, he said that LC might have seen him in the shower. Initially he denied having a lump on his penis but later, in the context of being asked about any injury involving a wind-up toy, he said that he did have an injury and that he told everybody that story. He later said that he was born with the lump and denied saying it was the result of an injury. Photographs of the appellant’s penis exhibiting an injury of the kind described by LC were tendered at trial.
The appellant said that he had no sexual contact with LC and denied ever strangling her or trying to drag her down the road at night. He said that he might have slapped her once when she tried to commit suicide. He did not recall any driving trip to Kuitpo. He denied that he ever supplied drugs or alcohol to LC. He denied watching pornography with her or purchasing a vibrator for her. He said that LC left his care by simply “nicking off”. He did recall having a conversation with a male social worker about the living situation with LC being inappropriate.
We turn now to ground 1.
Ground 1 – Directions as to burden of proof
The appellant complains that the direction that the trial Judge gave to the jury as to the burden of proof, in departing from the time-honoured formula approved in cases such as Green v The Queen[1] and La Fontaine v The Queen,[2] had the effect of misdirecting the jury’s attention to the question of what was a “reasonable person”, instead of directing attention to the critical question which was whether the jury was satisfied beyond reasonable doubt of the appellant’s guilt.
[1] (1971) 126 CLR 28.
[2] (1976) 136 CLR 62.
The trial Judge’s direction is set out below:
In respect of each ingredient of each of the charges, the prosecution bears the onus of proving that ingredient to you and proving it beyond reasonable doubt. Unless the prosecution does so, the accused is entitled to a verdict of not guilty. The accused bears no onus of proof.
I have used the expression ‘beyond reasonable doubt’ and counsel have used it too. I say something about it. A reasonable doubt is one which you, as reasonable jurors, are prepared to entertain. The expression requires no other explanation than that. It is simply a doubt that a reasonable person entertains and you as jurors are presumed to be reasonable persons. At the end of the day you ask yourselves ‘am I in doubt, as a reasonable person acting reasonably, about the guilt of the accused?’ You ask that question in respect of each ingredient of each of the charges.
The appellant submits that in adding the rider “at the end of the day you ask yourselves ‘am I in doubt, as a reasonable person acting reasonably …’”, the jury members might have been led to consider that they must apply some objective standard of reasonableness other than their own.
When the passage is read in context, we do not accept that it could have conveyed a misleading message in the way submitted by the appellant. Immediately before the impugned passage, the Judge told the jury members that they as jurors were presumed to be reasonable persons, which made it clear that any reference to reasonable persons was a reference to the jury. The jury already understood from the standard direction about acting rationally and dispassionately that it was required to act reasonably. The reference to “acting reasonably” was in the circumstances tautologous. The Judge was merely reiterating that a reasonable doubt is a doubt which the jury considers to be reasonable. As the High Court said in R v Dookheea,[3] the question is the import of the words spoken in the summing up as a whole and how a jury listening to them might understand them, not upon a subtle examination of the transcript record or by undue prominence being given to any of its parts.
[3] (2017) 91 ALJR 960.
When the passage is read as a whole and in context, the Judge did no more than reiterate to the jury the undoubtedly correct proposition that a reasonable doubt is a doubt that “a reasonable jury considers to be a reasonable doubt”.[4]
[4] R v Dookheea (2017) 91 ALJR 960 at [41] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ.
Nevertheless, for the benefit of trial judges who are sometimes inclined to depart from the time-honoured formula, the penultimate paragraph in Dookheea is a timely reminder to keep it simple:[5]
[5] R v Dookheea (2017) 347 ALR 529.
Second, although, as authority stands, it is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities), the practice ordinarily followed in Victoria, as it was in this case, and often followed in New South Wales, includes contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities. That practice is to be encouraged. It is an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
[footnotes omitted]
This ground of appeal is not established.
Ground 2 – Directions as to veracity of LC’s evidence
Ground 2 is a complaint that the Judge failed to direct the jury in relation to the use to be made of any doubts the jury may have entertained about the uncorroborated evidence of LC in respect of particular counts and how they might impact on its consideration of the remaining counts. Secondly, it is a complaint that, when the Judge did give a direction in response to counsels’ request, he erred in predicating that direction on the need for the jury first to find that LC had lied about a particular count before they could take that into account in assessing the remaining counts.
It is necessary to examine the directions that the Judge did give and then assess those directions in the context of the issues that arose at trial.
During the trial, defence counsel questioned the credibility of LC on numerous occasions. It was specifically put to LC that no sexual relationship ever existed between her and the appellant. During his address to the jury, defence counsel repeatedly suggested that the evidence of LC lacked credibility, was inherently absurd and that she lied on occasions and had been caught out. He went on to suggest that the credit of LC had been destroyed, that the jury should have serious concerns about her credibility and that it could not rely on anything she said to prove anything beyond reasonable doubt. He suggested that if the jury found LC to be unreliable or lacking credibility in relation to one count, particularly count 4, it was entitled to take that into account when considering all of the other counts. The theme of that submission was repeated throughout counsel’s address.
Early in the summing up the Judge gave the usual direction instructing the jury to give separate consideration to each count. His Honour noted that the evidence relating to each count was different.
The Judge during the course of the summing up reminded the jury of the submissions of defence counsel summarised at [46] above. His Honour also reminded the jury about the specific submission made by defence counsel that, if it found LC had lied in relation to the events said to be the subject of count 4, it was entitled to take that into account when considering all of the other counts.
After some discussion between counsel, both counsel requested the Judge to direct specifically that the requirement to give separate consideration to each count did not undermine the ability of the jury to use any adverse finding of credibility about LC on one count in its assessment of the others. Accordingly, the Judge directed further as follows:
Correctly, as a matter of law, I told you that you should give separate consideration to each count, and that is correct, but that does not prevent you from using, if you saw fit to do so, any lie that you found that [LC] had told about one count when you consider another count.
I did not mean to undermine what [counsel for the defence] had said about if you found that [LC] had lied about any particular count, you can use that finding when you came to consider the other counts. You can. You can do that. I did not mean to prevent you doing that when I said give separate consideration to each count. I mean look at the evidence relating to each count.
On appeal the appellant submits that the direction that the Judge did give was more prejudicial to him than if he had not given any direction at all. The appellant submits that limiting the adverse findings the jury might make to only lies which the jury found LC had told effectively precluded the jury from using any doubts about LC’s credibility between the counts, where such doubts did not reach the level of a finding that she had actually lied. The direction did not make it clear that in fact any conclusion that LC was unreliable in respect of a particular count could also be used in the jury’s assessment whether she was reliable in relation to the other counts.
The appellant points to some of the unusual features of LC’s evidence which might have justified a finding that she was unreliable, even if not elevated to a finding of actual dishonesty. Those matters include the complete absence of any reference to the charged act which was the particular of count 7, on which the jury was ultimately directed to acquit; the unusual circumstances in which the sexual intercourse was alleged to have taken place on the trip to Port Augusta; and the inconsistent evidence of Mr Wallace in relation to count 4 being the alleged sexual intercourse on the trip to Kuitpo Forest. It is submitted that these matters gave rise to the need for the Judge to give a direction in line with the directions suggested in R v Markuleski.[6]
[6] R v Markuleski [2001] NSWCCA 290, (2001) 52 NSWLR 82.
In Markuleski the New South Wales Court of Criminal Appeal held that it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count. However, although holding that some form of direction assisting the jury in this respect is desirable, Spigelman CJ went on to say that its absence is not necessarily fatal. Furthermore, “the general rule” does not apply when the peculiar facts of the case do not suggest the need for a warning to restore a balance of fairness.[7]
[7] R v Markuleski (2001) 52 NSWLR 82 at [187].
This Court has generally concluded that such a direction at trial is unnecessary. In R v B, P[8] Doyle CJ (with whom Gray and Vanstone JJ agreed) observed that the jury can be expected to understand that a doubt about credibility or reliability on one count Could impact upon another without any need for a direction. In R v Hare[9] Vanstone J (with whom Nyland and Bleby JJ agreed) came to the same conclusion:[10]
[8] [2006] SASC 229 at [6].
[9] [2007] SASC 427.
[10] R v Hare [2007] SASC 427 at [22].
It is undesirable to burden juries with unnecessary directions. That is particularly so where such a direction may introduce an imbalance which would need to be redressed. Because just as an infirmity could adversely affect judgement of credibility as a whole, so an acceptance of a complainant’s account of a disputed event (and a rejection of the version of an accused person) could flow through to other counts in a way which assisted the prosecution case. If a [Markuleski] direction as sought upon this appeal is to be given, then it raises the question of whether a counterbalancing direction would also be required.
More recently, in R v Moores[11] Blue J (with whom Vanstone and Doyle JJ agreed) concluded:[12]
[11] [2017] SASCFC 95, (2017) 128 SASR 340.
[12] R v Moores (2017) 128 SASR 340 at [184].
In South Australia, a judge is not required to direct a jury that, if it entertains a reasonable doubt about one count, it must carry that doubt into its consideration of the other counts where multiple counts of sexual charges rest of the evidence of a single complainant. Ordinarily there is no need for a judge to direct a jury that it may carry such a doubt about one count into its consideration of the other counts. In exceptional circumstances it may be desirable or even necessary for a direction of the latter kind to be given.
[emphasis in original]
Here, in light of the way in which the evidence unfolded, in particular the cross-examination of LC, it was evident that the key issue at trial was the truthfulness and reliability of LC. That is why defence counsel during his address repeatedly pointed to alleged lies told by LC and invited the jury on more than one occasion to take her lack of truthfulness into account when considering her credibility on other counts. It was in that particular context that counsel sought the directions about which complaint is now made.
In directing the jury as requested by both counsel, the Judge tailored the direction specifically to the key issue at trial, namely whether LC made up the allegations of a sexual relationship with the appellant.
We do not consider that there is any risk that the jury would have understood the direction to be that it should ignore any doubt it had about LC’s credibility and reliability not based on a specific lie it found that she told. Such an approval would be highly counter-intuitive. The direction given was a common sense direction crafted in response to the way in which the issue was fought at trial and in light of both counsels’ addresses. It was adequate to convey to the jury that it was entitled to take into account any assessment it made about the credibility of LC on one count when assessing the remaining counts, even when such an assessment did not amount to a finding of a lie but extended to a doubt about credibility or reliability.
The verdicts are consistent with the jury having accepted beyond reasonable doubt the truthfulness of LC but not her reliability about all of the events which she purported to recall. Having accepted LC as basically a truthful witness, the jury was not prepared to convict on those counts where there was any doubt about the reliability of her memory on a specific occasion. In this respect, it is notable that the jury acquitted on those counts where there was contradictory evidence to some extent as to the circumstances of particular occasions described by LC or simply a paucity of evidence in respect of a particular count.
This ground of appeal is not established.
Grounds 3 and 4 – complaint evidence
Grounds 3 and 4 concern a ruling by the Judge relating to defence counsel’s address and directions by the Judge to the jury in relation to evidence of complaint.
The evidence about complaint
The evidence about complaint adduced from LC in chief was extremely brief. LC was asked:
Q    These specific incidents of sexual intercourse or fellatio that you’ve told us about in the course of your evidence, is it the case that the first person that you told about the detail of each of those incidents was a police officer that you spoke to?
A    I don’t think it would be in the first instance but when the murder was happening, around about that time, when the police were involved I did – the detective in charge knew that Steve and I had a relationship.
Q    What I’m talking about is though is the detail of each separate sexual incident that you’ve told us about today.
A    Yes, yes, it was a police officer.
Q    Is it the case that you raised the relationship in a general sense with a lawyer back in 1997?
A    Yes, that’s right, yep.
Q    And is it the case that you received some advice back then that there was a Statute of Limitations, which meant that too much time had passed and it couldn’t be prosecuted?
A    That’s correct.
LC was not asked when she made the statement to a police officer, who the officer was or what she said. Detective Brevet Sergeant Rivett later gave evidence that a statement was taken from LC by a police officer at the Special Crimes Investigation Branch in January 2015. No evidence was adduced from the unnamed police officer who took the statement or otherwise as to its content.
There is no explanation in the transcript why the evidence was led in this manner. Given that the evidence was adduced by leading questions and there was no objection by defence counsel, it is likely that there was some agreement between counsel but if so the transcript does not show that it was disclosed to or discussed with the Judge. The manner in which the evidence was led was undesirable in several respects. It placed the trial Judge in an invidious position when it came to directing the jury about the evidence. If there was an agreement between counsel about the leading of the evidence, it would have been preferable that it be disclosed to the Judge and the question of what directions should be given about the evidence discussed between counsel and the Judge.

Section 34M of the Evidence Act is set out in full later in these reasons. For present purposes its provisions include:
34M—Evidence relating to complaint in sexual cases
…
(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 degree of consistency of conduct of the alleged victim, and
(b)     it is not admitted as evidence of the truth of what was alleged;
…
(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).
Complaint evidence is one of a limited number of exceptions to the rule prohibiting proof of prior, out of court, consistent statements. The purpose and relevance of complaint evidence in a prosecution case is to “boost” the credibility of a complainant. It is therefore important evidence. As Kourakis J (as his Honour then was) explained in R v H, T:[13]
The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak of its occurrence.
65 Duggan J observed in R v J, JA[14] that consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency in the content of the allegations.
[13] [2010] SASCFC 24, (2010) 108 SASR 86 at [106].
[14] [2009] SASC 401, (2009) 105 SASR 563 at [95].
A complaint will have probative value if it shows how the allegation first came to light and is evidence of the degree of consistency of conduct of the complainant which in turn is relevant to the credit and reliability of the complainant’s evidence.
Unlike the common law, s 34M does not require the complaint to be proximate in time to the alleged offence and evidence of the first complaint is admissible notwithstanding that it might be made many years after the alleged offence. Nor does s 34M preclude evidence of complaint being adduced only from the complainant without evidence being adduced from the person or persons to whom the complaint was said to be made.[15] Nevertheless, the probative value of complaint evidence will vary greatly from case to case.
[15] R v P, S [2016] SASCFC 97 at [70]-[74] per Nicholson and Lovell JJ (with whom Parker J agreed).
While s 34M renders admissible evidence of complaint, it is only the “initial” complaint that is rendered admissible. In one sense, there can only be one initial complaint; however the section also permits evidence to be adduced of a later complaint provided that it is “by way of elaboration” of the earlier complaint. Accordingly, unless a later complaint is an elaboration of the initial complaint, evidence can only be led of one complaint and that complaint must be the complaint first in time.[16] An initial “complaint of an alleged sexual offence” must be referable to the offence but need not necessarily refer to the details of the occasion charged in the count under consideration. It is sufficient if it is relatively general provided that it encompasses, and in that sense is referable to, the charged offence.[17]
[16] R v S, DD (2010) 109 SASR 46 at [96]-[97] per Peek J (with whom Duggan and Anderson JJ relevantly agreed); R v Moores (2017) 128 SASR 340 at [46] per Blue J (with whom Vanstone and Doyle JJ relevantly agreed).
[17] R v S, DD (2010) 109 SASR 46 at [4] per Duggan (with whom Anderson J agreed); R v Moores (2017) 128 SASR 340 at [46] per Blue J (with whom Vanstone and Doyle JJ relevantly agreed).
In the present case, the evidence established that LC revealed four possible complaints, not one.
The possible complaint first in time of which LC gave evidence was the conversation between her and the detective investigating the death in respect of which George and Ricky Milne were charged with murder (the murder detective complaint). Evidence was not adduced when this conversation occurred, but it must have been not later than 1983 because it occurred while LC was living at the deli. LC said that the detective knew that she was in a relationship, implicitly a sexual relationship, with the appellant. Although she did not say so, it might be inferred that she told the detective that she engaged in sexual activities with the appellant.
A fair reading of the transcript indicates that the prosecutor was caught by surprise by that answer. The answer could be interpreted as perhaps being the “initial complaint” by LC. However the prosecutor did not pursue the topic with LC. The status of the evidence, and in particular whether it comprised evidence of initial complaint, was not explored further.
The possible complaint second in time was elicited by a leading question from the prosecutor that LC “raised in a general sense” the “relationship” with a lawyer back in 1997 (the lawyer complaint). The fact that the discussion included a reference to the Statute of Limitations coupled with the observation that “it” could not be prosecuted clearly suggested that this was a complaint about sexual conduct by the appellant, again unspecified. We note that no objection was taken by defence counsel to the question asked by the prosecutor, either on the ground that it was leading or that it was not calculated to adduce evidence of initial complaint.
We make four observations about this evidence. First its content was only led in the most vague and general terms. Secondly, on the face of the evidence (because the evidence of each conversation was so general), it was no different to the evidence of the conversation with the detective investigating the murder in the early 1980s and if so it was not admissible because it was neither the first nor an elaboration on the first complaint. Thirdly, when led it was not announced to the Judge that it was led as complaint evidence. Fourthly, when the Judge was discussing with counsel at the end of the trial directions as to complaint evidence, the prosecutor specifically asked the Judge to ignore the evidence of the discussion with the lawyer. If that was always the prosecution position, the evidence self-evidently should not have been led. If it was not led as complaint evidence, LC’s discussion with a lawyer was irrelevant and inadmissible.
The possible complaint last in time of which evidence was given was that LC told a police officer (implicitly in January 2015) about the detail of each incident charged (the police officer complaint). No explicit evidence was adduced of the content of what she told the police officer, nor of how she came to make the complaint to the police officer. On the other hand, the inference might have been drawn that what she said to the police officer matched her evidence in court. This highlights the vice in the way the evidence was led. It may be that these matters were as a result of an agreement between counsel. When led, it was not announced to the Judge that it was led as complaint evidence.
We have several concerns about the leading of this evidence. First its content was only led in the most vague and general terms. The matters enumerated in ss 34M(3) under the heading “Examples” appear to contemplate that evidence of all of the circumstances leading to and the content of the complaint will be before the jury. In R v P, S,[18] this Court highlighted the importance of counsel considering the admissibility of complaint evidence before empanelment of the jury. Nicholson and Lovell JJ (with whom Parker J agreed), in summarising the general principles relating to complaint evidence, said:[19]
Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved. It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count. In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.
Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.
[footnotes omitted]
[18] [2016] SASCFC 97.
[19] At [22]-[24].
No objection was taken by defence counsel to the adducing of the evidence in this form and it may be that defence counsel made a forensic decision that this was preferable to the jury hearing evidence chapter and verse of the complaints made by LC to the police officer. As the point is not raised on appeal, we assume that the evidence was not inadmissible in the absence of express evidence as to the content of the conversation. Nevertheless the manner in which the evidence was adduced greatly reduced its probative value.
Our second concern is that, as observed above, unless it is an “elaboration” as contemplated by the Evidence Act, evidence of initial complaint is meant to be evidence of the first time a complainant reveals to anyone (not necessarily a police officer) sexual conduct referrable to the charges on the information. Again, leaving aside elaboration, it certainly does not have to be “the first person that you told about the detail of each of those incidents”. Implicit in the question was the assumption that the witness had told another person or persons something about the conduct the subject of the charges. Indeed, as it transpired in the evidence and as summarised above, that is most likely what had occurred in the early 1980s and again in 1997.
For any later “complaint” to be admissible, it had to be an “elaboration” of the initial complaint. If what LC said to the detective involved in the murder investigation in the 1980s amounted to a “complaint” and was referrable to these charges, it would be the initial complaint. Whether what was said to the police officer who took a full statement later in time amounted to an elaboration of the initial complaint is unknown because evidence was not adduced of the content of either conversation. Equally, if what LC said to the lawyer in 1997 amounted to a “complaint” and was referrable to these charges, subject to the murder detective complaint being the initial complaint, it would be the initial complaint. Whether what was said to the police officer in January 2015 amounted to an elaboration thereof is unknown because evidence was not adduced of the content of either conversation.
Our third concern is that, when the Judge was discussing with counsel at the end of the trial directions as to complaint evidence, the prosecutor specifically disclaimed any contention that the evidence of the statement to the police officer was probative of the degree of consistency of conduct of LC. The prosecutor did contend that it was evidence of how the allegation first came to light. This was incorrect for two reasons. First it is likely that the allegations came to light much earlier. Secondly, all that was elicited about the January 2015 conversation was that LC gave a detailed statement to a police officer. No evidence was elicited to explain how LC came to give the statement to the police officer. The evidence was in fact incapable of showing how the allegation first came to light.
Although LC did not give evidence of any other complaint, an examination of the evidence of Brevet Sergeant Rivett discloses a possible further complaint being third in time (the Royal Commission complaint). Brevet Sergeant Rivett gave evidence in chief that she was currently, and since the beginning of 2015 had been, stationed at the Royal Commission Investigation Section of the police force. This section received referrals from the Royal Commission into Institutional Responses to Child Sexual Abuse when it was indicated that there “might be a criminal element for an investigation.” The involvement of the Department of Community Welfare gave rise to the institutional aspect in this case.
Brevet Sergeant Rivett described her function at the Royal Commission Investigation Section as being “allocated” investigations that “arose out of those referrals”. In January 2015 she was “allocated” this matter.
It is not uncommon for this type of background experience of a police officer to be led and in isolation this evidence would be unexceptional. The difficulty that arises in this case is the inevitable inference that LC had given evidence to, or at least spoken to someone at, the Royal Commission about these allegations, resulting in the matter being allocated to the Royal Commission Investigation Section. It was after this that the “detail of each of those incidents” was given to the unnamed police officer. The evidence gave rise to the inference that LC had complained to someone in authority before she spoke to the police in January 2015 but no evidence was adduced of the content of any such complaint.[20] No objection was taken to the evidence of Brevet Sergeant Rivett. No reliance was placed on this evidence by the prosecution when discussions were held with the trial Judge about directions on complaint evidence. In the circumstances, we cannot see on what basis this evidence was led.
[20] It is possible that what was said by LC at the Royal Commission was confidential.
In summary, the jury had before it evidence of four possible complaints, none of which contained any explicit detail.
It is of course the function of the prosecutor to decide whether to seek to adduce evidence of what arguably amounts to complaint evidence within the meaning of s 34M and a matter for defence counsel to decide whether to object to any such evidence (or indeed to seek to lead such evidence by the defence). However, this is a difficult area, as evidenced by the number of decisions of this Court concern the meaning and application of s 34M since it was enacted in 2008, and calls for the exercise of caution and judgment by counsel. The following matters should be borne in mind by prosecutors and defence counsel.
First, the fact that a defendant is charged with a sexual offence necessarily entails that before charges were laid the complainant made a complaint to the police referable to the charges. It is established by decisions of this Court that an “initial complaint” may comprise a statement to a police officer that led to the laying of charges. It follows that in every case evidence of initial complaint will be available to be led by the prosecution. However, the probative weight of complaint evidence can vary greatly from case to case. Leading evidence if its probative weight is small may give rise to complexities when it comes to directing the jury about the evidence. Prosecutors should not blindly lead evidence of complaint just because it is admissible without considering the consequences. They should consider whether to exercise their discretion not to lead evidence of complaint in cases where its probative value is slight.
Secondly, as was discussed in R v P, S,[21] before evidence of complaint is led, the complainant should be carefully proofed to ascertain whether there were any earlier conversations that might amount to complaint and to maximise the confidence counsel may have about the evidence that may be given in answer to questions designed to elicit evidence of complaint.
[21] [2016] SASCFC 97 at [22]-[24] per Nicholson and Lovell JJ (with whom Parker J agreed).
Thirdly, before evidence of complaint is led, it is desirable that the prosecutor and defence counsel discuss what evidence is to be led as complaint evidence and broadly what directions the Judge will be invited to give concerning it. This may not be necessary in simple cases involving a single proximate complaint but is highly desirable in complex cases such as this.
Fourthly, before evidence of complaint is led, it will generally also be desirable that the Judge be informed in advance what evidence is to be led as complaint evidence and broadly what directions the Judge will be invited to give concerning that evidence. Again this may not be necessary in simple cases but is highly desirable in complex cases.
Defence counsel’s address and the impugned ruling
During his address to the jury, defence counsel said:
You can take into account the background. His Honour will direct you in relation to that. You can take into account a whole range of evidence, and again I will take you through that, not in as much detail as my friend. The Department of Community Welfare leaving this child apparently there for two and a half years, and whilst my friend has referred to some suggestions that she wanted to leave, there was no suggestion of any issues there about sexual conduct.
[emphasis added]
At the end of that day, the prosecutor suggested to the Judge that this submission offended against the prohibition in s 34M(2).
This led to the Judge ruling that it is not permissible to attack the credit of the complainant by submitting that, while she complained about violence, she did not complain about the sexual relationship, which is the subject of ground 3.
The summing up
Before counsels’ addresses, the prosecutor raised the topic of a direction under s 34 in relation to the police officer complaint. The prosecutor said:
The first is complaint evidence. What's been led from [LC] is that first detail of the complaint about the account to the police officer in the course of giving her statement. In my submission and on the authorities I ask your Honour to give a direction about initial complaint but I don't suggest that the complaint to the police officer is capable of demonstrating consistency of conduct, but simply how it came to light, and your Honour will give the direction that's required about people have all kinds of reasons for delaying. Given the length of time and the circumstances I don't ask your Honour to say the case is consistency of conduct.

The evidentiary background against which the exchanges and the ruling took place is relevant. In examination in chief, brief evidence of complaint was led from LC which is extracted at [64] above.
In cross-examination LC was questioned about this and gave the following explanation:
Q.On no occasion of those social workers coming did you say to any of those social workers ‘I’m in a sexual relationship with Mr Jones’, did you.
A.I believe that’s true, as we were trying to hide the fact that we were in a relationship.
LC was then asked about a particular visit from a social worker named Mr Portolesi at a time when she had a blackened eye, including the following question:
Q.Do you remember having a conversation or a discussion with Mr Portolesi about how you might have received this black eye.
A.I remember telling him that Steve had given me the black eye because from my point of view it took me a lot of courage to admit this, as I had been trying to protect Steve and my relationship because I didn’t want to be removed. At this point though I was starting to feel as if, feeling that Steve shouldn’t be hitting me like he was and so I stood up for myself. Sorry, does that answer your question?
Defence counsel did not, understandably, explore the matter further in cross-examination. The effect of this evidence was that LC was a willing participant in a sexual relationship with the appellant but she did not think that the appellant “should be hitting” her. It was common ground that LC did not tell the Department of Community Welfare social workers or any of the authorities about their sexual relationship, as she wished to hide that aspect of the relationship.
The initial comment made by defence counsel to the jury is unclear and is rendered more unclear by his subsequent explanations. In light of those subsequent explanations, there are at least three possible constructions of what he was submitting to the jury. First, that there was probative value in Departmental social workers inferentially not observing a sexual relationship despite repeated visits as circumstantial evidence that there was no such relationship. Secondly, that there was probative value in LC not complaining to the social workers of a sexual relationship despite having the opportunity to complain of which she availed herself by complaining of violence. Thirdly, that LC’s explanation for not complaining to the social workers of a sexual relationship should be rejected and this adversely affected her credit.
The respondent in objecting to the submission construed it as falling within the second category. The trial Judge in making the ruling construed it in the same manner. If this was the correct construction, the ruling was correct. Defence counsel cannot suggest that a failure to make a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. In this respect, “‘consistency of conduct’ includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged”.[38]
[38] R v J, JA (2009) 105 SASR 563 at [95] per Duggan J.
The third construction is not one which appears from defence counsel’s submission to the jury. That submission contained no reference to LC’s evidence during cross-examination extracted at [155] above that she willingly engaged in the sexual activities but not in the physical violence, which was as close as she came to giving an explanation for complaining of the violence but not the sexual activities. That explanation was in no sense inherently unbelievable and it is likely that defence counsel did not wish to emphasise it by criticising it as an explanation affecting her credibility. Nonetheless, for the sake of completeness, it should be noted that, when an explanation is given by a complainant for not complaining of sexual activities, defence counsel is entitled to comment on the plausibility of that explanation.
The purpose behind the prohibition in s 34M(2) is not to stop comments about any explanation given by a complainant. As Kourakis J, as his Honour then was, observed in R v H,T:[39]
[39] (2010) 108 SASR 86 at [106].
Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
[emphasis in original].
What is prohibited is a comment that the failure to complain of itself is probative; the explanation for any suggested failure can be the subject of comment. Whether a comment breaches the prohibition in any particular case will depend upon the particular facts of the case. Unless care is exercised by defence counsel in addressing the jury, it may not always be easy to determine whether a comment about an explanation given by a complainant as to why a complaint was not made at a certain time is a comment about the delay “of itself”.
The first construction was the one that defence counsel ultimately told the jury it had been his intention to make. No complaint was, or could be, made by the prosecutor about the submission ultimately made to the jury. This reflects the fact that, provided it has probative value, defence counsel pointing to conduct by others as circumstantial evidence does not offend against ss 34M(2) because this says nothing about complaint. While the probative value in this respect in the present case must have been slight, there was no suggestion by the prosecutor that it had no probative value.
Given our conclusion that the appeal must be allowed on ground 4, it is not necessary finally to decide whether defence counsel’s initial comment breached the prohibition in ss 34 M(2). However, this case illustrates the importance of counsel carefully considering any submission to the jury that might touch on the topic of complaint. It is a desirable practice for counsel in such circumstances to articulate precisely what counsel intends to say when it is potentially problematic and seek the Judge’s ruling on it before addressing the jury.
It is well-established that a trial judge should tailor directions of law to the facts. However, when a provision - such as s 34M or s 34R of the Evidence Act - mandates that certain directions must be given to a jury, generally it will be good practice to incorporate the statutory words into the direction. In the case of ss 34M(4), generally it will be good practice for a trial judge to include within the directions on the topic of complaint:
1.identification of the “complaint” evidence (and to the extent necessary a summary of the parties’ respective cases in relation to the evidence);
2.a direction that the evidence is admitted to inform the jury as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant;
3.a direction that the evidence is not admitted and cannot be used as evidence of the truth of what was alleged;
4.a direction 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; and
5.a direction that, subject to those directions, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
The extent to which a trial judge should refer to or tailor the directions to the circumstances of the case will of course vary greatly according to those circumstances. However, in general it will be preferable not to depart significantly from the statutory wording, notwithstanding that ss 34M(5) does not require that any particular form of words be used.
Finally, we note that, despite the explanation ultimately given to the jury by defence counsel which cured the problem on any view, the prosecutor later insisted that the Judge give a specific direction correcting counsel’s earlier submission. Given the ambiguous nature of the initial comment and the clarity of counsel’s later explanation to the jury, it was in our view unnecessary and undesirable for the Judge to consider giving any direction during the summing up about counsel’s earlier remark.
Conclusion
For the above reasons, we allowed the appeal on ground 4, set aside the convictions and remitted the matter to the District Court for a fresh trial.