R v K

[1997] SASC 6193

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Criminal law - jurisdiction, practice and procedure - summing up - juries --appeal against conviction - appellant convicted of indecent assault - directions to jury - delay in complaint - whether direction regarding inferences open to jury as to credit of complainant required - both the delay and the circumstances of the complaint called for a clear warning by the trial judge - the failure to warn about the delay and about the circumstances of the complaint constituted an error of law. Longman v R (1989) 168 CLR 79; Crofts v R (1996) 70 ALJR 917, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether jury were indequately directed as to the use they could and could not make of evidence - submission rejected - direction was adequate. R v Dolan (1992) 58 SASR 501, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether trial judge erred in law by telling jury, in summing up, of their power to return a majority verdict after they had been deliberating for at least four hours - submission rejected - impractical to conceal from the jury knowledge of what the law provides in this respect - Parliament has given the jury power to return a majority verdict and that power cannot and should not be withheld from them. Cheatle v The Queen (1993) 177 CLR 541, discussed. Rusovan v The Queen (1994) 62 SASR 86, considered.

Criminal law - jurisdiction, practice and procedure - summing up - whether verdict unsafe or unsatisfactory - submission rejected.

Criminal law - jurisdiction, practice and procedure - summing up - whether retrial should be ordered - in the particular circumstances this was a case where a verdict of acquittal was appropriate rather than a retrial - convictions quashed - convictions substituted for an acquittal.

ADELAIDE, 20 May 1997 (hearing), 13 June 1997 (decision)

#DATE 13:6:1997

Representation:

Appellant:

Counsel: Mr D H Peek

Solicitors: Peter J Duffy

Respondent:

Counsel: Ms W J Abraham

Solicitors: DPP (SA)

Order: appeal allowed.

DOYLE CJ

Introduction

1. This is an appeal against conviction.

2. The appellant was charged with two counts of indecent assault upon B, his nephew, contrary to s56 of the Criminal Law Consolidation Act. He was further charged with two counts of unlawful sexual intercourse with B, a person under twelve years of age, contrary to s49(1) of the Criminal LawConsolidation Act.

3. At the time of the first alleged offence, B was probably almost ten years of age. At the time of the other three offences he was probably between ten and eleven years of age. Because of some confusion about the dates of the offences, it is possible that B was a year older than the ages just given by me.

4. The jury convicted the appellant on counts 1 and 2, the two counts of indecent assault, and acquitted him on counts 3 and 4, the two counts of unlawful sexual intercourse.

5. The grounds of appeal are, in brief, as follows. First, complaint is made of a failure by the trial judge to instruct the jury adequately about the significance of delay by B in complaining about the appellant's conduct, and of a failure to instruct the jury adequately about deficiencies in the prosecution case.

6. Secondly, complaint is made of a failure by the trial judge to instruct the jury adequately about the use to be made of evidence of other acts of indecency, that is acts other than those charged, and in particular of a failure to instruct about how that evidence should not be used.

7. Thirdly, complaint is made about what the trial judge said to the jury in relation to a majority verdict.

8. Fourthly, it is submitted that in all the circumstances the convictions are unsafe and unsatisfactory.

Facts

9. B was born in July 1978.

10. He lived with his parents at Whyalla. The appellant is the brother of B's father. The appellant came to Whyalla, according to the appellant, in early 1988. B's mother said it was in early 1989. That is what gives rise to the difference between the prosecution case and the defence case about when things happened. However, nothing of significance turns on that, because the occasion of the alleged offences was adequately identified by reference to place and other events. When the appellant came to Whyalla he lived for a time with B's family.

11. The evidence was that the house in which B's family then lived had three bedrooms. One was occupied by the parents, one by B's sister and one by B. At this time the appellant was in his early twenties.

12. On the very first night that the appellant came there, B said that the appellant slept in his bed, a double bed. B said that he went to bed at about 7.30pm, and later woke up and realised that the appellant had his hand down B's pyjamas, the hand being around B's penis. B said that the appellant moved his hand up and down several times. That was the subject of count one.

13. B said that he felt scared. The next day he did not tell anyone, because he was scared that no-one would believe him.

14. B's mother said in evidence that on that first night "...we sort of bunked him [the appellant] in with B, but I can't be sure."

15. The effect of B's evidence was that for some time thereafter he and the appellant shared the one bed. On the other hand his mother said that she was sure that there were two beds in the bedroom, and that the appellant slept in a bed by himself after the first night. In the context of his evidence about them sharing a bed, B said that a number of similar incidents involving the touching of his penis occurred over a period of time.

16. A few months later the family moved to another house in Whyalla. The appellant went with them, but only for a short time. During this time B said that A continued with the indecent touching, both in the bed and elsewhere.

17. The appellant then moved to his own house at Scott Street in Whyalla. B's evidence was that quite often he went to the appellant's house. B said of the appellant that he "respected him because he was my uncle." B's mother confirmed in evidence that B seemed to get on well with the appellant, and that they shared an interest in cars. She said that the appellant was her children's "favourite uncle".

18. Count two was identified by B as occurring on an occasion when the appellant was living at Scott Street. On that occasion B said that he helped the appellant take a white utility to the dump using a trailer. In the course of doing this he got dirty, and the appellant told him to have a bath. He had a bath back at the appellant's house. While B was having the bath, the appellant went to B's home to get clean clothes. On the appellant's return B got out of the bath, clad only in a towel, and went to the bedroom where the appellant was. The appellant was fully clothed. The appellant then pulled down his pants and underpants, lay on his bed, and drew B to him. He put B on his back on the bed, and then lay on top of B, moving up and down, and trying to kiss B. The appellant ejaculated on B's stomach. B said he felt "dirty" but didn't tell anyone because he was scared he would not be believed.

19. The incident the subject of count three also occurred at Scott Street. At this time another uncle of B, one JJ, was staying there. B said that JJ had a video cassette recorder. On this occasion B said that the appellant took him into his room. He got B to pull his pants down, then the appellant did the same, then the appellant lay on his back with B on his back on top of the appellant, and then the appellant "tried sticking the top of his penis up my rear end". After that they watched a video, which appears to have been of a pornographic nature, on the video cassette recorder. While this was happening, B said that the appellant masturbated himself.

20. Count four was an occasion, not identified by reference to any other event, when the appellant sucked B's penis.

21. B said that incidents of the type the subject of counts 2, 3 and 4 occurred on one occasion only. The touching of his penis occurred on many occasions.

22. In cross-examination B later said that he had got mixed up in relation to count three and count four, and that it was the sucking of the penis that was linked to the watching of the video, not the penetration or attempted penetration of his anus.

23. B said that he did not like any of these things that were done to him, that he felt dirty and uncomfortable. He said that he did not hate the appellant, but that he hated what the appellant did.

24. In cross-examination B said that in 1994, some five or six years after the events, he was living with his sister. She had some videos about sexual abuse. They watched these videos and his sister asked B whether he had ever been abused. He said that he had. When she asked him by whom, he would not say so, but eventually, in response to persistent questioning by his sister, said that the abuse was by the appellant.

25. B's mother gave evidence that B had always been a disturbed child, even when quite small. He had been aggressive and suffered fits of rage. She said that she and B's father separated in late 1988 or early 1989. Her evidence was that she was still living with B's father when the appellant first came to Whyalla. I get the impression that the separation was after count one and before count two. I say this because count two was related to the use of a trailer borrowed from the second husband of B's mother, who was living with B's mother at the time of count two. B's mother said that B did not cope at all well with the separation from his father, with the other man moving in, nor with the fact that his father then became friendly with another woman. During this period she said that B caused a lot of problems.

26. In brief, the appellant's evidence was as follows. He denied all allegations of improper behaviour. He said that on the first night he spent at the family house, he slept on the lounge. Thereafter he slept in B's bedroom, but on a bed which he himself purchased. As already noted, B's mother supports the appellant against B's evidence on the point that they did not share a bed after the first night.

27. The appellant confirmed that B often came to his house at Scott Street.

28. The appellant gave evidence of an occasion when he took a utility to a dump using a trailer, accompanied by B. The trailer was borrowed from the man then living with B's mother. While he was using the trailer he was stopped by the police and a defect notice was issued in respect of the trailer. Both the appellant and the man living with B's mother were "issued with some tickets" by the police. On that occasion he returned B to his home, and not to the appellant's home at Scott Street. B's mother provided some indirect support for the appellant's evidence, because she confirmed that there was an occasion when the two men were both fined over the trailer. But that was all she could say about that.

29. As to count three, the appellant said that neither he nor JJ owned a video cassette recorder at the relevant time. JJ was called by the defence and confirmed that fact.

30. In the nature of things, it was not possible for the appellant to give any specific evidence relating to count four.

Ground One

31. In South Australia a judge must warn a jury about the danger of acting upon particular evidence "...whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case": Longman v The Queen (1989) 168 CLR 79 at 86 Brennan J, Dawson J and Toohey J. As Deane J said in that case (at 95-96):

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury." 32. It is established that delay by the victim in complaining of sexual misconduct, in a case involving a charge of sexual misconduct may, although it does not necessarily, cast doubt upon the reliability of the evidence given by the complainant. Everything depends upon the circumstances and the explanation for the failure to complain sooner: see Crofts v The Queen (1996) 70 ALJR 917 at 920 Dawson J, and at 928 Toohey J, Gaudron J, Gummow J and Kirby J.

33. Delay in making a complaint goes only to the credibility of the complainant. It does not go to disprove the facts of which the complainant gives evidence.

34. As I have already said, the need for a warning and the terms of any warning to be given will depend upon the circumstances of the particular case.

35. In the present case the delay between the alleged conduct and the first complaint was about five or six years. That is a substantial delay. In addition, the circumstances of the first complaint warrants some attention. The evidence of B suggests that the complaint was made only as a result of an inquiry by his sister, and that he identified the appellant as the alleged offender only after being pressed by his sister to identify the person involved.

36. In my opinion, both the delay and the circumstances of the complaint called for clear warning by the trial judge. There were three matters to be dealt with. First, consistently with the principles referred to above, a warning that the jury should consider whether the delay reflected adversely upon the credit of B. Of course, the judge would have to point out to the jury both why it might reflect adversely and why it might not. Obvious matters to consider under the latter heading are the age of B at the time, his relationship with the offender and the confusion and uncertainty that might affect a relatively young person. Any warning would have to be balanced. But in my opinion the delay was sufficient to call for a warning. The second aspect to be dealt with was the circumstances of the complaint. The third aspect of the warning that should be given is that it must be related to the facts of the case, and that the reason for the warning be explained. This is necessary to assist the jury in deciding whether, in the particular circumstances of the case, it will draw any inference adverse to B's credibility from the delay and from the circumstances of the complaint. In relation to the reason for the warning, it would be necessary to refer to the risk of concoction and to the significance of the evidence about B's disturbed behaviour as a child.

37. The trial judge gave a clear and adequate warning about the danger of acting on the unsupported evidence of a young child. It is not necessary to repeat what he said, although I note that he did refer to the fact that memories of events occurring as a young child can be false or distorted. However, on the question of delay and of the circumstances of the complaint all he said was this:

"I remind you of what [counsel for the accused] properly and accurately told you. Faced with allegations such as those made by [B], an accused person can often do little or, indeed, nothing else but stand up and deny the allegations, so belatedly made, years after the events are alleged to have occurred, and made known only when, as [B] told you, he was pressed by his sister in 1994. No-one else was present when these alleged offences were committed." 38. In my opinion that was an inadequate warning in the circumstances of the case. First of all, it was expressed as a reminder of what counsel said, and not as a warning given with the authority of the judge. When a warning is called for, it should be given with the judge's authority behind it. Secondly, there was no warning about the significance of delay as such, about the reasons why delay might be significant and about the way in which the facts of this particular case were related to the principles underlying the warning.

39. It is true, as counsel for the Director of Public Prosecutions argued, that this was a short trial and that the issues should have been clear. It is also true that the delay was self-evident. The delay will be self-evident in most cases, but the law still requires a warning in appropriate circumstances, and in my opinion these were appropriate circumstances for a warning. It is also true that there was no request for a further direction on this matter. In some cases that will be significant because the absence of any complaint or request for a further direction will indicate that, in the context of the trial, what might seem on appeal to be an error or omission, did not in fact have the significance that it appears to have. However, in the present case in my opinion there was a clear need for a warning to ensure a fair trial, and the omission by counsel at the trial to seek a warning cannot alter that fact.

40. In my opinion the lack of a warning was compounded by two other matters. First, in my opinion the trial judge did not direct the jury adequately about the significance of certain difficulties in the prosecution case, and the fact that the jury might consider that those difficulties reflected adversely on the credibility of B. If it did, then it might adversely affect the jury's attitude to the evidence of B not just on the particular count in relation to which the difficulty arose, but more generally. The second compounding factor is the failure of the trial judge to explain to the jury adequately the difficulty caused for the defence by the delay in the making of the complaint.

41. I will deal with the second of these points first.

42. In the passage set out above, the trial judge did allude to the problem of a belated allegation. But he did so only in a very general way. I consider that more, although not much more, was called for. In my opinion the trial judge should again have given the point his own authority. He should have brought home to the jury more clearly the difficulty which may face an accused person in providing details or background circumstances to events which have occurred some years in the past. It was important to bring home to the jury that the delay in the making of the complaint may have put the accused in the position that he was unable to grapple fully with the prosecution case.

43. I return now to the first matter. There were some difficulties in the prosecution case. The first of these is the evidence of B's mother to the effect that the appellant slept in a separate bed with the possible exception of the first night that he stayed at the family home. In his evidence B was quite definite that he and the appellant shared a bed from some time. Secondly, there was the evidence of JJ, to the effect that his video cassette recorder was never at Scott Street. Once again, the victim was quite definite that count three was associated with the use of a video cassette recorder.

44. The trial judge did not overlook these matters. He said:

"Some of the evidence you have heard, if you accept it upon what I might call associated matters, such as whether there was only one bed in [B's] bedroom, whether [JJ's] VCR, if he had one, was ever at Scott Street, whether on the day the car was dumped the accused took [B] to Scott Street or home to Loring Street, on those associated matters there is, you may think, support for what the accused told you about them." 45. He did allude to these matters at other points. But nowhere did the trial judge point out to the jury that if they had doubts about B's evidence on these matters, he having been quite definite on them, those doubts had the capacity, although it was for the jury to decide, to undermine his credibility more generally. The evidence of B's mother about B and the appellant not sharing a bed had a particular capacity to undermine the allegation by B of a course of conduct involving touching of his penis while the bed was shared. In my opinion, this case called for this matter to be dealt with more thoroughly than did the trial judge.

46. Although subsequent events cannot impact upon the duty of the trial judge, it is relevant to note that the jury must have had some reservations about B's evidence. They acquitted the appellant on count three and on count four. The acquittal is not explicable on the issue of penetration, because the jury were also directed on an alternative verdict of attempt. The acquittal might well be due to confusion which emerged in B's evidence about whether it was count three or count four that was linked to the video cassette recorder. Be that as it may, the jury must have had some doubts about B's evidence at the end of the day. This simply reinforces the point that this was a case in which it was desirable for the jury to be guided in the way in which doubts in relation to a particular count might affect evidence in relation to other counts.

47. In this context I mention that I do not accept a further submission for the appellant that the prosecution case, and the evidence of B, were inherently implausible. Presumably, the purpose of this submission was to support an argument that a warning along those lines should have been given to the jury. In my opinion other cases show that the features of this case relied upon by counsel for the appellant are not uncommonly present in such cases. I refer in particular to the fact that some of the alleged offending occurred while other people were close at hand, to the failure to complain, to the continuing association between B and the appellant and to the fact that the appellant allegedly embarked upon this conduct on the very first night on which he stayed at the family home.

48. In the circumstances of the case the failure to warn about the delay and about the circumstances of the complaint constituted an error of law. In the two respects indicated, the summing up also failed to give the jury the guidance that was required for the presentation of the case in a balanced fashion.

49. In my opinion this is not a case in which one can say that the jury would have convicted in any event. I consider that the appellant has lost a chance of an acquittal reasonably open to him. Accordingly, the convictions must be quashed.

Ground Two

50. I have already referred to the evidence given by B that on numerous occasions the appellant touched or handled his penis, sometimes in bed and sometimes not.

51. I reject the submission that the summing up by the trial judge could have left the jury thinking that the appellant was on trial in relation to a general course of conduct. The summing up made it clear that that was not so. In particular the trial judge said:

"You should concentrate on the accounts [B] says he does remember. That is these four counts. These are the only offences charged against the accused. Even if you were to be satisfied that these alleged, not charged, incidents of touching or holding of [B's] penis occurred, that does not mean the accused committed the offences charged, or any of them. Those other alleged incidents were led only to, as it were, set what the Crown says was an ongoing illicit relationship between [B] and the accused. In any event, you may think they lacked any real specificity. It is a matter for you and what assessment you make of [B's] evidence as a whole having regard to all the evidence you have heard." 52. In my opinion, in this and other parts of the summing up the trial judge clearly identified the incidents the subject of each count, and of count one in particular, that being the count in relation to which the complaint of a course of conduct was particularly relevant. In my opinion there was no risk of confusion on this score. The trial judge adequately directed the jury about the need for them to find proved each of the incidents the subject of a particular count. He adequately directed them on the importance of considering each count separately.

53. However, there was a further complaint that the jury were not told adequately how they could and could not use the evidence of a course of conduct of touching and handling. I accept without hesitation what King CJ said in R v Dolan (1992) 58 SASR 501 at 503:

"In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them." 54. But in my opinion the passage from the summing up which I have just set out meets that requirement. It might have been better to say a little more than the trial judge did, but in my opinion it was adequate.

Ground Three

55. The first complaint made under this heading related to what happened after the jury had been deliberating for a little more than four hours, the period of time during which the only verdict returned can be a unanimous verdict. Not long after the four hours expired, the trial judge brought the jury back, it was argued, without reference to counsel, and reminded them that he could take a majority verdict and as well gave them a so-called Black direction.

56. In Rusovan v The Queen (1994) 62 SASR 86 this Court said that it was undesirable to bring a jury back into court as soon as they had deliberated for four hours. The Court made the point that there is no obligation to do so. The judgments indicate that it is preferable to allow the jury some additional time. Moreover, the judgments in that case appear to favour the course, which appears to me to be appropriate, of inviting submissions from counsel before the jury is asked to return and, if the jury is asked to return, of enquiring whether the jury requires more time or whether it is encountering difficulty in reaching a verdict. It is only in the latter event that it is appropriate to give a Black direction.

57. In the present case the trial judge did tell counsel that he proposed to bring the jury in. No objection was taken to that course. Counsel therefore had the opportunity to be heard. However, I must say that in my opinion it is preferable that the judge invite counsel to make submissions on what should be done, rather than simply inform them of the course of action which the judge proposes to follow.

58. I would add that in my opinion a judge should not simply proceed to give a Black direction but should first enquire of the jury whether more time is wanted and whether any difficulty is being experienced in reaching a unanimous verdict. That was not done here.

59. The main complaint was that the jury should not have been told, during the course of the summing up, of their power to return a majority verdict after they had been deliberating for at least four hours. Presumably the intent of the submission was that the jury should be told nothing of this until after the four hours had expired, and until after the jury had indicated that they were having difficulty reaching a unanimous verdict.

60. It was submitted that knowledge of their power to return a majority verdict would undermine the requirement for a unanimous verdict until after the jury had been deliberating for at least four hours, and might leave the jury thinking that it was adequate to focus on reaching a majority verdict and then waiting for the four hours to elapse. In that context, the practice of leaving written instructions in the jury room relating to majority verdicts was criticised as inappropriate. That practice was referred to without any criticism in Rusovan v The Queen (supra), and the terms of the memorandum provided to the jury are to be found in Rusovan at 94.

61. I reject that submission. In my opinion it is impractical to conceal from the jury knowledge of what the law provides in this respect. It is quite likely that the jury in a given case will include people who have been called for jury service on a previous occasion, or who will know from other sources that the law provides for a majority verdict. As the month for which a jury is called for service wears on, it becomes increasingly likely that the jury will include a juror who has served on a jury which has already returned a majority verdict. Failure to say anything about the power to return a majority verdict in the course of a summing up may lead to confusion in the jury room, as a result of jurors aware of the power raising the matter in the course of the jury deliberations.

62. Of course, I accept what the High Court said in Cheatle v The Queen
(1993) 177 CLR 541 at 552-553 about the significant difference between a deliberative process in which a verdict can be returned only if agreement is reached by all jurors, and a process in which a majority verdict can be returned. But in this State, Parliament has given the jury the power to return a majority verdict after they have been deliberating for at least four hours, and in my opinion knowledge of that power cannot conveniently and should not be withheld from them.

63. On the other hand, I agree wholeheartedly with the thrust of what was said by the Court of Appeal of Victoria in R v Muto and Eastey [1996] 1 VR
336. There, the effect of what the Court said was that in the context of explaining the unanimous verdict that is required, the trial judge should refer to the power to return a majority verdict, but that the emphasis in the summing up at the outset should be on the returning of a unanimous verdict. There are various ways in which this can be done. It is a matter of ensuring that the jury's attention is focussed upon the delivery of a unanimous verdict, while at the same time informing them that a power to return a majority verdict does arise once they have deliberated for at least four hours.

64. In Rusovan v The Queen (supra) no member of the Court made an adverse comment upon the practice of informing the jury, either in the summing up or by way of the memorandum in the jury room, of their power to return a majority verdict. In R v Harrison ((1997) 68 SASR 304) this point was touched upon. In an ex tempore judgment, which makes no reference to Rusovan, Cox J described as undesirable the practice of drawing explicit attention in the summing up to the power of the jury to return a majority verdict. Olsson J expressly reserved his position on the question, and Williams J agreed with the reasons given by Cox J.

65. As I have already indicated, I favour the view implicitly endorsed in Rusovan, but it is not necessary to decide the point in this case and I refrain from doing so. It suffices to say that in the present case, in my opinion, there was no undesirable emphasis upon the ability of the jury to return a majority verdict.

Ground Four

66. I reject the submission that the verdict was unsafe and unsatisfactory, in the sense that the evidence was insufficient to support the two verdicts of guilty. I also reject the submission in the sense that a properly directed jury should have had a reasonable doubt about the guilt of the appellant. Despite the problems created for the prosecution by the difficulties in its case to which I have alluded, by the doubt which might arise from the delay in the making of the complaint and the circumstances of the complaint, and from the lack of particularity, I consider that the evidence presented by the prosecution suffered from no significant inherent flaws and was evidence upon which a reasonable jury could convict. In that context I observe that the two acquittals are explicable on the basis of confusion in B's evidence about which count was related to the use of the video cassette recorder, and I also observe that the delay in complaining was explicable by reason of the age of B and his relationship to the alleged offender.

Conclusions

67. For the reasons that I have given, in my opinion the two verdicts of guilty must be set aside.

68. The question of whether a retrial should be ordered must be considered in the light of the circumstances of each particular case: R v Cheatley (1981) 5 Aust Crim R 114. Notwithstanding that, it is not uncommon for an order to be made for a retrial.

69. But there are particular circumstances in this case which lead me to a different conclusion. To begin with, a trial on the two remaining counts would be significantly different from the trial already conducted. In particular, the appellant would lose the benefit of the impact of the evidence given by JJ at the first trial in relation to the video cassette recorder. The appellant would also lose the benefit that he should have got at the first trial from an adequate direction about the possible significance for B's credibility of the difficulties in the prosecution case relating to counts three and four, and the manner in which those difficulties and any doubt arising from them could affect the jury's approach to counts 1 and 2. Nor can it be said that the prosecution case is a particularly strong one. In addition, we were informed that the appellant has already served almost six months of the ten month non-parole period fixed by the trial judge when he sentenced the appellant on count one and count two.

70. Taking all those matters into account, I consider that this is an appropriate case in which to substitute a verdict of acquittal rather than to order a retrial.

71. Accordingly, I would allow the appeal, set aside the convictions recorded in the District Court and substitute for those convictions an acquittal on count one and count two.

LANDER J

72. I have had the advantage of reading in draft the reasons of Doyle CJ and Bleby J. Whilst I agree with Bleby J that it could not be said a properly directed jury was unlikely to convict or that it would probably acquit there are particular circumstances in this case that make it inappropriate to order a retrial and appropriate to substitute a verdict of acquittal. Those circumstances are identified in the reasons of Doyle CJ. The appellant would lose significant forensic benefits which were available to him on the trial of all four counts but would not be available to him on a retrial of counts one and two. In a matter which depends so much on the assessment of the credibility of the complainant those forensic advantages ought not to be underrated.

73. I agree with the reasons and the orders proposed by Doyle CJ.

BLEBY J

74. For reasons given by the Chief Justice I agree that the appeal should be allowed and the two verdicts of guilty set aside. However, I have the misfortune to disagree that acquittals should be substituted on Counts 1 and 2. In my opinion, a retrial should be ordered on those counts.

75. The grounds on which I agree that the convictions should be set aside are that the jury was inadequately directed as to the effect on the credibility of the complainant of delay in the making of the complaint, the circumstances of the making of the complaint and inconsistencies led by the prosecution. The convictions are not set aside by virtue of their being unsafe and unsatisfactory because the evidence was insufficient to support the two verdicts of guilty. As the Chief Justice has observed, the evidence presented by the prosecution suffered from no significant inherent flaws, and was evidence upon which a reasonable jury could convict. The convictions are not set aside as being unsafe and unsatisfactory because there was insufficient evidence to support the two verdicts of guilty in the light of the acquittals on Counts 3 and 4. In that respect, the situation in R v Dolan (1992) 58 SASR
501 is to be distinguished. The two counts of unlawful sexual intercourse on which the appellant in that case was found guilty involved vaginal penetration by the finger. The two counts on which he was found not guilty involved penetration by a dildo in one count and by the penis in another. Particulars which had been given of the counts were rudimentary, to say the least, and there was evidence of a course of conduct of multiple incidents of each type of unlawful sexual intercourse with which he was charged. The Court of Appeal considered that in the circumstances of that case and the way it was presented, if the complainant's credibility was in doubt on two of the counts, it was impossible to feel any confidence about the truth of the other charges. That in itself was an important reason why the verdicts of acquittal were substituted. It was also held, that as the evidence on a retrial could not reasonably include any of the incidents relating to dildo or penile penetration, and as the lack of particularity necessarily required some reference to a course of conduct, it would be a "fundamentally different story" from that in the first trial.

76. This case does not suffer from those difficulties. The acquittal on Counts 3 and 4 is referrable to doubt in the jury's mind either as to whether the incidents concerning the video occurred at all, or factors giving rise to doubt as a result of the complainant's acknowledged confusion about whether the video was linked with Count 3 or Count 4. That in itself does not necessarily render inherently unreliable the complainant's evidence in relation to Counts 1 and 2, being incidents of a quite different type from the unique incidents the subject of Counts 3 and 4, and which, if the complainant is believed, arose under quite different and identifiable circumstances.

77. This is therefore not a case where a verdict is set aside on the ground that the evidence was insufficient to justify conviction by a reasonable jury properly instructed, and where, if there were a retrial, the prosecution would have a second chance to make good any evidentiary deficiencies. In such cases a verdict of acquittal is properly substituted: Reid v R [1980] AC 343; Andrews v R (1968) 126 CLR 198; Gerakiteys v R (1983) 153 CLR 317.

78. If there is evidence on which a properly instructed jury could convict, the general rule seems to be that a new trial may be granted to enable the faulty direction to be remedied. That general rule was stated by the majority of the High Court in Peacock v R (1911) 13 CLR 619 at 674-675 as follows:

"After carefully reading the decisions in those cases, I have been unable to gather that the Victorian Supreme Court has laid down any general principles on which it will exercise its discretion to grant a new trial in a criminal case. Perhaps it is as well that no exhaustive or rigid definition of principles should be attempted. The Court must, however, exercise a legal discretion, that is to say, must act upon some legal principle. It appears to me that one principle at least may be laid down. Where the facts proved a first trial would have been sufficient to support the conviction, if the jury had been properly directed, it seems to me that in general a new trial may be granted to enable the faulty direction to be remedied. In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused. In this case there was, as I have pointed out, ample evidence to justify a verdict of guilty, if the jury thought fit to come to that finding on the evidence. If it were not for the misdirection as to the prisoner's statement, the verdict of the jury could not in my opinion have been disturbed. I think it is now in the interests of the administration of justice, and not unjust to the prisoner, that a new trial should be granted to enable the evidence to be again submitted to another jury with a proper direction as to the prisoner's statement." 79. That principle was adopted by this Court in R v Leak [1969] SASR 172 at 175. See also DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630. However, the Court in Leak's case comprising Bray CJ, Hogarth and Walters JJ went on to say, at p176, having held that there was not a strong body of evidence against the appellant:

"We think this is a case where, to adopt with respect the words of Barton J. in Hargan's Case (1919) 27 CLR 13, a jury properly directed would probably acquit. If anything said in Bailey's Case (1956) SASR 153 can be construed as meaning that a new trial ought not to be ordered unless the appellate court can say that a jury properly directed not only could but ought to convict then that probably goes too far. We think that if there is evidence on which such a jury could reasonably convict and might not improbably convict, the interests of the administration of justice will generally demand a new trial unless in the particular circumstances that would be unjust to the accused: but that where the case is as weak as we think the present case is and a jury properly directed would probably acquit, as we think it would, then the considerations mentioned in Bailey's Case (1956) SASR 153, and particularly the hardship on the appellant of having to bear the costs of two trials and an appeal, can assume a weight which they might not otherwise bear, and incline the court in its discretion to refuse to order a new trial." 80. That passage was approved by this Court in R v Slobodian (1982) 30 SASR 161.

81. I do not think it can be said in this case that a properly directed jury is unlikely to convict or that it would probably acquit. The interests of the administration of justice, in my opinion, require that there should be a new trial. I am not persuaded that other factors require the substitution of an acquittal. Contrary to what was put to us at the hearing, it appears that the appellant has served approximately two and a half months of a two year imprisonment term with a 10 month non-parole period. That commenced on the date of his being sentenced, 13 September 1996, and was perhaps longer than necessary because of a late Notice of Appeal (filed on 23 October 1996) and two adjournments of his Application for Leave to Appeal at the request of the appellant for a period of three weeks in total. It appears that those delays may not have been entirely of the appellant's own making, but I am not persuaded that in the circumstances the length of the sentence served, either alone or in combination with any other factors, requires substitution of an acquittal.

82. The evidence at a retrial will, of necessity, be different from that led in the trial already conducted, and the appellant will lose the benefit of the conflict of evidence in relation to the video cassette recorder. He may also lose some benefit which he would have had at the first trial from an adequate direction about the possible significance for the complainant's credibility of the difficulties of the prosecution case relating to Counts 3 and 4, but that relates again principally to the existence or non-existence of the video cassette recorder. There were many other conflicts surrounding Counts 1 and 2 and the course of conduct associated with them which the appellant will be able to exploit if similar evidence is led. If the prosecution had proceeded initially only on Counts 1 and 2, the appellant would not have had any benefit from the one significant conflict which emerged in relation to Counts 3 and 4 anyway.

83. I would therefore allow the appeal, set aside the convictions recorded in the District Court and direct a retrial on Counts 1 and 2.