R v Karapandzk - [2008] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KARAPANDZK
[2008] SASC 126
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
13 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant convicted of one count of committing an act of gross indecency in the presence of a person under the age of 16 years - three counts of unlawful sexual intercourse with a person under the age of 17 years - and one count of attempted unlawful sexual intercourse pursuant to s 49(3) and s 58 of the Criminal Law Consolidation Act 1935 (SA) - whether the trial Judge erred in permitting the prosecutor to lead evidence of prior consistent statements which tended to rebut an argument that the complaints were a recent invention - whether evidence more prejudicial than probative - whether evidence tended to support statements made by the complainant in cross-examination - whether trial Judge failed to direct the jury adequately as to the function of that evidence - whether trial Judge failed to direct the jury adequately as to the evidence of the complainant - whether verdicts are unreasoanble and cannot be supported - appeal dismissed.
Permissible scope of defence opening address pursuant to s 288A of the Criminal Law Consolidation Act 1935 (SA).
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 58, s 288A; Criminal Procedure Act 1986 (NSW) s 159, referred to.
R v Martin (1996) 65 SASR 590; Nominal Defendant v Clements (1960) 104 CLR 476; R v MacBeth [2008] SASC 71; R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148, applied.

R v KARAPANDZK
[2008] SASC 126
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: Mr Karapandzk appeals against convictions recorded by the District Court.
After a trial before a jury, Mr Karapandzk was convicted on five counts, and acquitted on one count. The offences were alleged to have been committed between 1981 and 1985. The complainant in each case was the same girl. I will refer to her as JA. She was aged between 12 years and 16 years when the alleged offences were committed. She turned 17 years of age on 17 October 1985. Mr Karapandzk was in his fifties at the time of the alleged offences.
He was convicted of one count of committing an act of gross indecency in the presence of JA (count 1); on one count of attempted unlawful sexual intercourse with JA (count 2), and on three counts of unlawful sexual intercourse with JA (counts 3, 4 and 5). He was acquitted on count 6, which was also a charge of unlawful sexual intercourse with JA.
The first three grounds of appeal relate to evidence that the Judge allowed the prosecutor to lead from two witnesses. The witnesses were friends of JA, who attended school with her. They gave evidence of statements that JA made to them in about 1984 and 1985 in one case, and in 1986 in the other case. The Judge admitted the statements on the basis that they tended to rebut a suggestion to JA in cross-examination that she was fabricating her allegations to provide a basis for a claim for compensation. Mr Mead, counsel for Mr Karapandzk on appeal, submits that the evidence was not admissible, that the Judge should have excluded it in the exercise of his discretion, and that the Judge’s directions relating to the evidence were inadequate.
Ground 4 complains that the Judge’s directions relating to the time that had elapsed since the offences were allegedly committed were inadequate. The ground includes a complaint that the Judge did not direct the jury adequately in relation to suggested weaknesses in the evidence of JA, and in relation to inconsistencies in the prosecution case. It includes a complaint that the Judge should have directed the jury (but did not) about the need to consider the case in a dispassionate manner.
Ground 5 complains that the jury, acting reasonably, must have had a reasonable doubt, having regard to deficiencies in JA’s evidence, and having regard to their acquittal on count 6.
The case at trial
The jury heard evidence over a period of 12 days. The trial as a whole occupied 13 days. The whole of this time was occupied by the prosecution evidence. There was no evidence for the defence.
JA was born on 17 October 1968. She was a student at a girls’ college in Adelaide between 1981 and 1985. She was in year 8 in 1981, and in year 12 in 1985. She failed the year 12 exams, and repeated that year at a TAFE College in 1986.
Mr Karapandzk was at all material times employed as a cleaner at St Francis Xavier Cathedral, which is adjacent to the girls’ college.
JA gave evidence at length. At the time of trial she was 39 years of age. What follows is a summary only, focussing on the alleged offences.
JA said that in her first year for some time she took piano lessons twice a week from a nun who was confined to a wheelchair. The lessons were immediately before the lunch break. On a number of occasions the nun asked her, and sometimes another student LC, to wheel the nun to the cathedral so that she could attend mass. This was at lunch time. JA said that she met Mr Karapandzk the first time that she took the nun to the Cathedral. JA said that Mr Karapandzk would give JA and LC money for looking after the nun, saying that their assistance meant that he did not have to look after her himself. He told JA not to tell anyone that he gave her money
It seems to have been JA’s practice to wait in a sacristy which was at the side of the cathedral, and adjacent to the door through which JA wheeled the nun. JA described an occasion when she and LC were sitting on steps in the sacristy, and Mr Karapandzk looked up her dress.
JA said that count 1 occurred late in 1981. She had taken the nun to mass. Mr Karapandzk gestured to her to follow him. She did so, expecting that he was going to get money for her. She followed him to a maintenance shed adjacent to the cathedral. They went into the shed and Mr Karapandzk locked the door. He put his arm around her, unzipped his fly and masturbated himself to ejaculation. He tried to kiss her. He gave her $20. JA said that she was stunned by this incident, but did not tell anyone about it because she thought she would get into trouble.
JA said that she could not remember what she did with the $20.
She said that this was the first time that sexual contact happened, and it was followed by other like incidents. After this first incident she masturbated Mr Karapandzk on a number of occasions. She said that Mr Karapandzk always gave her money ranging from a few coins to $20. She usually spent the money before she went home to “get rid of the money”. She spent it on herself and on school friends.
She said that the incident the subject of count 2 was the first occasion when he attempted to have anal sexual intercourse with her. It appears to have been late in 1981. It took place in a room above the sacristy. Stairs from the sacristy led to the upper room. This was the first time that she had been in that room. The incident happened at lunch time. There were cushions on the floor. JA said that Mr Karapandzk put her on the floor, took off her underwear and his trousers and underwear, lifted up her legs so that her buttocks were off the floor, and then attempted to penetrate her anus with his penis. She resisted. He became angry, he slapped her and swore at her. Then he masturbated himself. He did not penetrate her anus. After the incident she heard footsteps and noises downstairs. She said that Mr Karapandzk went down the stairs, motioning her to stay where she was. She did so and came down later after he signalled to her to come down.
After the incident, there were regular acts of anal sexual intercourse.
The first such occasion was the subject of count 3. This was at lunchtime, a couple of days after the incident the subject of count 2.
This incident took place in a room in a building next door to the Cathedral. JA did not recall how she came to be there. On this occasion Mr Karapandzk used KY jelly as a lubricant. Mr Karapandzk penetrated JA’s anus with his finger and then with his penis. She did not remember if Mr Karapandzk gave her money on this occasion.
After this JA said that Mr Karapandzk routinely used KY jelly as a lubricant when sexual intercourse occurred.
JA was unable to say how often intercourse occurred because it was “so often”. [T154] Intercourse took place in a number of places and rooms at the Cathedral site. On some occasions Mr Karapandzk used an attic like room above the organ loft. On some other occasions he used a bedroom in what JA described as the priests’ quarters. Other evidence suggested that these were quarters used by Cathedral staff and sometimes by Mr Karapandzk. Other places were used. JA described incidents in which she would crouch over Mr Karapandzk and masturbate him, and he would penetrate her vagina. Vaginal penetration occurred using Mr Karapandzk’s penis and with his fingers.
This pattern continued through 1981 and 1982, and beyond. JA said that she began to menstruate at the end of 1982. Mr Karapandzk did not at any stage use a contraceptive. He told JA that his penis was too small to make her pregnant. She never became pregnant.
Count 4 (anal intercourse) and count 5 (vaginal intercourse) were related to a particular incident in 1982. JA was standing in front of Mr Karapandzk, bending forward. Mr Karapandzk inserted his finger into her anus. She felt a sharp pain, due to him tearing her anus with his fingernail. He then penetrated her anus and her vagina with his penis. JA later bled from her anus.
JA described an act of oral masturbation on Mr Karapandzk.
Count 6 was an occasion when Mr Karapandzk penetrated JA’s vagina with a dildo. This was after she turned 16 (in October 1984) and before she turned 17 (in October 1985). This incident took place in a kitchen in a newly built building next to the Cathedral. Mr Karapandzk produced the dildo from a bag. He lubricated it, attached it around his waist and then penetrated JA’s vagina from behind. JA said that this was extremely painful. She was “jumping around”. Mr Karapandzk became angry. He removed the dildo and then penetrated her anus with his finger and her vagina with his penis.
JA said that sexual activity continued in 1986 after she had left the College and had begun attending a TAFE College. Sexual activity happened about a dozen times in 1986. JA agreed that she continued the relationship because she wanted to get money from Mr Karapandzk, and needed money.
JA said that the relationship ended in October or November 1986. She said that she did not “want to continue with [Mr Karapandzk] any more”. She talked to Mr Karapandzk in the organ loft at the Cathedral. She told him that he had “molested” her. He denied this, and said that he loved her. She said “give me some money and I will go”. He did so, and she had no further contact with him.
In cross-examination it was established that JA did not complain to the police about Mr Karapandzk until about October 2004. JA agreed in cross-examination that she continued the relationship in 1986 because she wanted and needed money.
It was put to JA in cross-examination that a sexual relationship between JA and Mr Karapandzk did not begin until after she had turned 17 and had gone to TAFE. It was suggested that Mr Karapandzk then became a “client” of JA, and paid her for sex. That version of events was put to JA in cross-examination in some detail. It was suggested to her that she initiated the sexual relationship with Mr Karapandzk, with a view to obtaining money from him. JA admitted that the sexual relationship continued after she left school, but denied that it began then.
There was a good deal of background evidence. I will refer to some of it when dealing with the grounds of appeal. The evidence of Ms Marsland was of some significance. She worked in a TAB agency, and had got to know Mr Karapandzk as a regular customer. The acquaintance continued from 1982 until July 2004. Mr Karapandzk was a regular and substantial gambler. Ms Marsland said that she became something of a confidant of his. She would explain documents and letters to him. He discussed personal matters with her. He discussed sexual matters with her. She said that in 1982 or 1983 he showed her letters from a woman whom he said was in Sydney, with a name similar to that of JA. He told her that the woman was from Adelaide, and had gone to Sydney for schooling. He said that she was 14 when she left Adelaide, and that he had “got” her when she was 14. In 1984 or 1985 he told her that the girl had died. He showed her the letters because he was angry because she was asking for money. Ms Marsland read the letters, and said that the writer was asking for money.
Ms Marsland said that in July 2004 Mr Karapandzk showed her a “legal letter”. It was from a lawyer, addressed to Mr Karapandzk. It set out allegations of sexual misconduct made by JA against Mr Karapandzk. The letter stated that this happened when JA was a student at the College. Ms Marsland had made notes about the letter and their conversation. Ms Marsland said that Mr Karapandzk was angry, and said “why would [JA] come back now, why was it alright back then? She just wants money.” He said things like “why was it alright back then?” He said that he had paid her. On another occasion he told her that he had been to see a lawyer about the letter. She said that he talked to her about the letter and the allegations on a number of occasions. He said things like “she took money, she’s nothing but a prostitute”. When she commented to him that he was in trouble because it happened in the Church, he had said “not in the Church, in the Church hall and the little rooms”. He said this more than once.
The significance of this evidence is that it was capable of being regarded as an admission of misconduct by Mr Karapandzk, and capable of being regarded as an admission of misconduct with JA when she was a student at the College.
Mr Karapandzk did not give evidence at the trial.
I diverge for a moment to deal with a matter that arose early in the trial.
After the conclusion of the prosecutor’s opening address, counsel for Mr Karapandzk addressed the jury briefly. This was done in exercise of the right conferred by s 288A of the Criminal Law Consolidation Act 1935 (SA). That section relevantly provides as follows:
288A—Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution
(1)On the trial of an offence on information, the judge is to invite the defendant, at the conclusion of the prosecutor's opening address, to address the court to outline the issues in contention between the prosecution and the defence.
(2)The defendant may then address the court accordingly or decline the invitation.
…
Defence counsel began with some general observations. He reminded the jury that what they had heard in the prosecutor’s opening was no more than allegations; that they should keep an open mind until they had heard all of the evidence; that an accused person is presumed innocent of a criminal charge; and that Mr Karapandzk did not have to prove his innocence, but that it was for the prosecution to prove the charges beyond reasonable doubt.
Counsel then said that he would “define some of the issues in this trial in broad terms …”.
He told them that Mr Karapandzk was an elderly man, 77 years of age. He told them he had a Croatian background and was not fluent in the English language; that it was not disputed that he worked at the cathedral as a cleaner and handyman between 1981 and 1985; that it was not in dispute that he knew JA while she was a student at the College. He then told them that Mr Karapandzk denied any sexual relationship with JA while she was at the College, but said that the nature of their relationship changed after she left school, when Mr Karapandzk became a client of JA’s, and “paid her for sex”, after she was over the age of 17. He said that that relationship persisted for some time. Counsel then repeated, briefly, the denial of sexual activity while JA was at school, and the admission of a sexual relationship after she turned 17.
The trial Judge did not comment on the address by defence counsel. Nor was the issue raised on appeal. After submissions had been completed, the Court invited counsel to put submissions on the question of whether the address went beyond what s 288A permits. The Court considered that the question was of some practical importance, although it would not affect the outcome of the appeal. The Court allowed the South Australian Bar Association and the Law Society of South Australia to put submissions by counsel, having regard to the practical importance of the issue.
Section 288A permits an address “… to outline the issues in contention between the prosecution and the defence”.
There is no reason to read s 288A in a narrow or pedantic manner. But it must be remembered that it requires a trial judge to allow counsel “to outline the issues in contention”. The section does not permit counsel to address the jury on the defence case generally, or even on such aspects of the defence case as counsel might wish to raise with the jury. Nor does the section allow counsel to address the jury on the case at large, or on matters, such as the burden of proof, that routinely arise in a criminal trial.
There is a distinction between identifying issues in contention, and referring to the evidence relevant to those issues. That distinction should be observed. There may be circumstances in which the identification of an issue calls for a brief reference to the facts of the case, but that should be so in exceptional circumstances only.
Although it is implicit in what I have already said, I add that s 288A does not contemplate or permit anything along the lines of an opening address, outlining the case to be advanced by the defence. The focus must be on the identification of issues in contention.
The Parliament of New South Wales has enacted a somewhat similar provision in s 159 of the Criminal Procedure Act 1986 (NSW). The New South Wales provision appears to give somewhat more latitude to counsel than does s 288A. However, I agree with the following observations made by Howie J in R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 at [139], where his Honour said, referring to the New South Wales provision:
… It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it.

The point that his Honour makes about a trial Judge ensuring that defence counsel is aware of the limitations upon what defence counsel may do, is a pertinent one. It is the responsibility of defence counsel to ensure that they observe the limitations set by s 288A. Nevertheless, on occasions it may be desirable for the trial Judge to take some precautionary steps before counsel addresses the jury under s 288A.
It is in the interests of the administration of justice that the parties identify the matters in issue, narrow them down as far as possible, and inform the jury of the issues that are in contention between the prosecution and the defence. But the process of identifying and outlining issues should not become an occasion for the defence to argue its case, either by reference to general principles of law or by reference to aspects of the facts of the case. In the present case, while the address by defence counsel was brief (occupying only two pages of transcript), there are aspects of it that, in my opinion, travel beyond the scope of s 288A.
I turn now to the address to the jury in the present case.
Counsel’s general observations did not contribute to the outlining of issues in contention. They were accurate, so far as they went, and in a sense harmless. But it is not appropriate for defence counsel, at this stage of the proceedings, to embark upon an outline of general principles relevant to the trial that is about to unfold. If this were to be permitted, sooner or later the question would arise of where the outline is to stop. The function of the address by defence counsel at this stage is to identify issues in contention, and to outline them, not to remind the jury of their duty.
In what counsel said about the facts of the case, counsel went beyond what is permissible under s 288A. It was permissible, in the circumstances, to inform the jury that the existence of a sexual relationship between JA and Mr Karapandzk, involving the payment of money by Mr Karapandzk, and after 1985, was not in issue. It was permissible in that context to inform the jury that the existence of any sexual relationship between JA and Mr Karapandzk while JA was a school girl, and under the age of 17 years, was in issue.
The approach taken by defence counsel when identifying the issue in contention was one more appropriate to an opening, rather than to an identification of matters in issue and matters not in issue. Telling the jury that Mr Karapandzk was an elderly man, of Croatian background, and was not fluent in the English language, had nothing to do with the identification of issues in contention. It might be seen as preparing the jury for the fact that Mr Karapandzk would not give evidence.
It was not appropriate to speak of Mr Karapandzk denying matters, nor was it appropriate to make positive assertions based on Mr Karapandzk’s instructions. This is the language of an opening address, rather than an outline of issues in contention. Section 288A does not permit counsel to state the accused’s version of events based on the accused’s instructions, in such circumstances.
Moreover, if counsel knew that Mr Karapandzk was not intending to give evidence, or at least had not been instructed that he would give evidence, it was particularly important to avoid the use of expressions that would be appropriate, even in an opening address, only if Mr Karapandzk was to give evidence. In explaining to the jury that there was no issue as to the sexual relationship between Mr Karapandzk and JA after she had turned 17, counsel used language that even in an opening address would not be appropriate if the matters were to be raised only by cross-examination, and not by way of a positive case for the defence.
I have referred to these matters so that in future more attention will be paid to the permissible scope of an address under s 288A.
In the present case, there is no suggestion that the manner in which counsel at trial addressed the jury had any adverse effect on the conduct of the trial. And, in fairness to counsel, it should be borne in mind that no point was taken at trial in relation to counsel’s address. The Court was told that counsel for Mr Karapandzk had not appreciated the limits imposed by s 288A, and there is no reason to doubt that explanation.
Ground 1 - Admissibility of the previous consistent statements by JA
As I have already noted, JA readily agreed that she regularly and frequently received money from Mr Karapandzk when she engaged in sexual acts with him. She was cross-examined on the basis that this occurred, but only from 1986, and that before 1986 there was no sexual relationship with Mr Karapandzk.
She was cross-examined at length. Her cross-examination lasted from about midday on a Wednesday to about midday on a Friday. There were some interruptions along the way.
Defence counsel put to JA that she had asked Mr Karapandzk for cigarettes and for spare change from time to time, mainly in 1984 and in 1985, and that there was no sexual relationship between them at this time. Counsel put to her that a sexual relationship began in 1986, arising from JA’s pressing need to obtain money.
The cross-examination relevant to this ground of appeal came at the very end of the cross-examination. Counsel put to her that, on her evidence, most of the sexual acts occurred while she was “in the care of” the College she attended, and asked her if she had turned her mind to seeking “compensation” from the College. JA said that she had not. She said she might later decide to make a claim. Counsel put to her that much of the alleged abuse occurred on Church premises in and around the Cathedral, and that Mr Karapandzk was an employee of the Church. Counsel asked if she had considered seeking “compensation” from the Church. JA said that she had, but had not made a decision. She agreed that she had participated in a Church program called “Towards Healing”, which involved counselling. JA agreed that she was aware of the Criminal Injuries Compensation Fund but said she did not know the maximum amount that could be claimed under the Fund. The final question in cross-examination and answer were as follows:
QSo, a massive compensation claim against [the College], the Church, and that Criminal Injuries Compensation Fund is not your motivation for saying these things.
AAbsolutely not, no, it isn’t.
The prosecutor submitted to the Judge that the cross-examination involved the suggestion, and prepared the way for a submission to the jury, that JA had made up her allegations of a sexual relationship between 1981 and 1985, had done so years after the alleged events, and in adult life, and had done so once she realised she could claim compensation, and that she did so with a view to claiming compensation. Counsel argued that there was a clear implication that this was a plan formed by JA in her adult years.
The prosecutor submitted that this entitled him to lead evidence of conversations between 1984 and 1986 with two school friends of JA, who were in any event to be witnesses but would not have been led on the topic of the conversations but for the cross-examination. The relevant evidence was in the statements provided to the defence before the trial began.
Counsel for Mr Karapandzk opposed the application, but seems to have accepted that the main issue is whether the trial Judge should exercise his discretion to exclude the evidence because its prejudicial effect outweighed its probative value.
The Judge ruled that the evidence was admissible.
LF, a school friend of JA, gave evidence of a number of matters of a circumstantial nature, which, if accepted by the jury, could support the evidence of JA. As a result of the Judge’s ruling she gave evidence of a conversation that took place at the end of 1984 or in early 1985, at the beach. It was a conversation about sexual matters and the Church. LF said that JA had said to her “… that it didn’t really mean too much if you didn’t look at the person while you were giving them a hand job”. (To the extent that this referred to an act of masturbation, it was consistent with evidence by JA that she had not looked at Mr Karapandzk when masturbating him.) LF said that on another occasion, when again they were talking about “where matters of a sexual nature took place”, JA “said that there was a room at the back of the cathedral that she used to go to”. LF said that she understood this to refer to “where things would happen”. JA gave evidence that she had no memory of this conversation.
CS was another school friend of JA. She said that in 1986, in what was a “difficult conversation”, because there was “something that [JA] wanted to say, “[JA] had said … that she had had sex with [Mr Karapandzk] and that it was sick”. She had said this happened “many more than once”. JA had said it started when JA was in year 8, and that Mr Karapandzk had given her money. CS also gave evidence of circumstantial matters which, if accepted, tended to support the evidence of JA.
I consider that this evidence was admissible.
The concluding part of the cross-examination of JA contained a clear implication, in my opinion, that after the admitted sexual relationship had ended, and in her adult years, JA had decided to make false allegations with a view to claiming compensation. No listener would have thought that counsel was suggesting that JA hatched this plan in her school years. First, that is inherently unlikely. But second, if she had hatched such a plan why would she have done nothing about it until 2004? The implication was that this was a plan hatched in later years, even though no particular time can be identified. For the purposes of the relevant principle, an implicit imputation of fabrication is no different from an explicit one: R v Martin (1996) 65 SASR 590 at 592-593 Doyle CJ.
I acknowledge the care that must be taken before deciding that evidence of earlier statements by a witness can be admitted to rebut a suggestion that the witness’s testimony in court is an invention dating from a certain time or from a certain event: Nominal Defendant v Clements (1960) 104 CLR 476 at 479 Dixon CJ, at 494-495 Windeyer J. Care must be taken not to unfairly hamper legitimate cross-examination: R v Martin at 593 Doyle CJ. The opinion of the trial Judge, which will draw on the manner in which the cross-examination is conducted, is to be given due weight.
As I have said, the cross-examination carried the implication of an invention in adult life, possibly drawing on and falsely elaborating on the conceded (by Mr Karapandzk) sexual relationship in 1986. It was an implication of fabrication based on knowledge that a claim for compensation could be made, and on a desire to obtain compensation. The trial Judge evidently formed the same view. Coming at the very end of the cross-examination, it is reasonable to assume that the suggestion was made when it was, to achieve maximum effect with the jury. And, it needs to be borne in mind, the potentially rebutting evidence was contained in statements in the possession of defence counsel.
The evidence that the Judge admitted, if accepted, clearly answered the implication. If accepted it suggested that in late 1984 or early 1985, and again in 1986, JA had spoken to LF and CS about sexual acts occurring between her and Mr Karapandzk, and occurring no later than 1985 (in the case of LF, and going back to year 8 in the case of CS). If this evidence was accepted it rebutted a suggestion of invention in adult life. It rebutted a suggestion of invention after talk about the availability of compensation for victims of sexual abuse had become common place. Any counter suggestion by defence counsel (which was not advanced as far as I am aware) that JA had fabricated her allegations while still a school girl, and to obtain compensation, could not be sustained. That was inherently improbable. For those reasons, the evidence that the Judge admitted tended to rebut the implication that counsel made.
The Judge did not err in deciding not to exercise his discretion to exclude the evidence. It had clear and relevant probative effect. There was nothing unfairly prejudicial about it. Any prejudicial effect was a result of its probative value.
Ground 2 and Ground 3 – The adequacy of the Judge’s directions as to the previous consistent statements
The Judge gave the jury directions about the use of the evidence from LF and from CS about the statements by JA. The Judge told the jury that if they accepted the evidence of LF and CS they could use this evidence only to rebut the suggestion of a recent invention by JA, made to support a claim for compensation.
Mr Mead criticised a direction because the Judge did not remind the jury that there was no onus on Mr Karapandzk to establish a motive for JA to give false evidence.
The Judge did tell the jury more than once that the burden of proof throughout rested on the prosecution. Nevertheless, a direction of the kind suggested by Mr Mead would have been appropriate. Defence counsel did not ask for such a direction, even though the Judge was asked to give the jury a further direction on one aspect of his directions on the topic of previous consistent statements, and the Judge did so.
I do not consider that the omission by the Judge gives rise to a risk of a miscarriage of justice. This is not a case in which the motives of JA, or a suggested motive to lie, assumed particular or undue significance before the jury. In his address, defence counsel correctly told the jury that Mr Karapandzk did not have to establish a motive for JA to lie. There is no reason to apprehend a risk that the question of whether JA had a motive to lie would have detracted from the effect of the Judge’s directions to the jury about the burden of proof.
Ground 4 – The adequacy of the Judge’s directions relating to the time that had elapsed since the events in question; the age of JA at the time; the need to consider the case dispassionately; the evidence that tended to cast a doubt on JA’s evidence
The Judge gave the jury a direction about the consequences for the defence of the passage of more than 20 years since the events in question. He told the jury that there was not merely a risk of a prejudicial impact on the defence case. He told the jury that Mr Karapandzk had lost opportunities to test the prosecution case. He gave the jury some illustrations. He told the jury, by way of warning, that it would be dangerous for them to rely upon the evidence of JA unless, after scrutinising her evidence with great care, and taking into account his warning, they were satisfied of the truth and accuracy of the evidence.
There was no need for the Judge in the course of this direction to remind them of the age of JA at the time of the alleged events. The jury could not have overlooked that matter, nor, in the circumstances, could they have failed to pay adequate attention to it. Moreover, this was not the case of a witness so young that the jury needed to be reminded that there was a risk that she had misunderstood relevant events. This was not a case in which mistake or misapprehension on the part of JA could explain her evidence.
Some Judges might have given more emphasis to the prejudicial effect of the passage of time. But this is a matter of judgment. The direction that the Judge gave was adequate.
I agree with Mr Mead that this is a case in which it would have been appropriate to give the jury a direction to put out of their minds any feelings of revulsion, or any feelings of prejudice, arising from the nature of the allegations made by JA, or from the fact that, on her evidence, these events took place on Church premises. A direction to the jury not to be influenced by sympathy for a young girl in the position of JA would also have been an appropriate one.
It is not, however, mandatory to give such a direction. The direction was not sought by defence counsel. The summing up as a whole was clear, balanced and was itself dispassionate. There is nothing that I have noticed in the closing address by counsel for the prosecution that called for a balancing direction from the Judge.
I am not persuaded that the matters to which I have referred, in isolation or taken in combination, gave rise to a risk of a miscarriage of justice.
I do not agree that the suggested deficiencies in the evidence of JA should have been highlighted by the Judge as part of the Judge’s direction relating to the consequences of the passage of time. They are, however, relevant to the submission that the jury should have had a reasonable doubt. I will deal with them in connection with ground 6.
Ground 6 – The jury should have had a reasonable doubt
Mr Mead submitted that the acquittal on count 6, of itself, should have caused the jury to have a reasonable doubt in relation to the other five counts. He submitted that the acquittal must have been based on a doubt about JA as a reliable witness, or on a rejection of her as a reliable witness. He made the point that count 6 related to events in 1985 or 1986. He said that if the jury had a doubt about JA’s testimony relating to events later in the sequence of events, when JA was about 16 years of age, they should have had a doubt about her evidence as to earlier events.
I do not accept that submission. I do not accept the premise that in a case like this one a reasonable doubt in relation to a particular count necessarily flows through to other counts, in the manner suggested by Mr Mead. I discussed the case law and relevant principles in R v MacBeth [2008] SASC 71 at [52]-[56]. I refer to that discussion, without repeating it. The significance of an acquittal on a particular count, in relation to the proof of other counts, always depends upon an assessment of the evidence as a whole.
It is pertinent to record in relation to this submission that the Judge told the jury that they should consider each count separately. The Judge added that a doubt about JA’s credibility or reliability on any one count might affect their opinion as to her evidence on other counts. So the jury were given guidance about the significance of an acquittal on a particular count.
Moreover, there are aspects of the evidence that are capable of explaining why the jury might have acquitted Mr Karapandzk on count 6, yet accepted the evidence of JA on other counts. There was evidence that seems almost certainly to have been correct that the kitchen where JA said count 6 took place was in a building that was not erected until after March 1986, and so after JA’s seventeenth birthday. The Judge directed the jury that even if they were satisfied that the incident (the subject of count 6) described occurred in the place identified by JA, the jury might think that it was a reasonable possibility that JA was 17 years old when this event occurred. That, of course, could lead to an acquittal. In the circumstances of this case, a mistake by JA as to the timing of this particular incident did not necessarily reflect on the reliability of her evidence as to other counts.
In the light of the evidence the acquittal on count 6 is understandable, and does not give rise to a doubt about the evidence of JA in relation to other counts.
Mr Mead then pointed to various features of the evidence of JA, and of the prosecution case as a whole, to support his submission that the jury, acting reasonably, should have entertained a reasonable doubt and should have acquitted.
I will refer to the main ones.
JA gave evidence that Mr Karapandzk regularly ejaculated during vaginal intercourse, that he never used a contraceptive device, but that she did not fall pregnant. This, Mr Mead said, was incredible, bearing in mind the frequency of intercourse. Moreover, JA gave evidence that she consulted a doctor and obtained a prescription for a “morning after” contraceptive pill. She could not name the doctor nor could she say where the doctor’s surgery was. Moreover, this had not been raised in her statements to the police. On the other hand, as Mr Kimber pointed out, JA said in evidence that vaginal intercourse was “not a priority”, and that other sexual acts occurred more frequently. JA said that vaginal intercourse was “irregular”, and that the sexual act that occurred was masturbation of Mr Karapandzk “about 80% of the time”. And, as Mr Kimber pointed out, the prescription for a “morning after” pill was the only matter of significance raised for the first time in evidence, as distinct from in the statements to the police. The Judge drew to the jury’s attention this particular discrepancy between the evidence of JA and her statements to the police.

Mr Mead submitted that it was incredible that, on JA’s evidence, she was never asked by a priest or worker in the Cathedral to explain her frequent presence at the Cathedral, or her presence in particular rooms that were part of the Cathedral complex. The witnesses called by the prosecution included a man who was sacristan during the whole of the relevant period, although at times he was away. This witness had no recollection of seeing Mr Karapandzk associating with a student from the College. Another prosecution witness was a retired priest who was in charge of the day to day running of the Cathedral, and in charge of the sacristan and of Mr Karapandzk. There was no evidence from him that he had seen Mr Karapandzk associating with a girl from the College. However, the evidence of these two witnesses was very general and was not, in the circumstances, necessarily inconsistent with the evidence of JA. It does no more than raise the question that Mr Mead answered, in his submission, by submitting that the explanation for the failure of anyone to challenge JA at the time was that her evidence was false.
There was also some evidence from some witnesses that Mr Mead suggested cast doubt on JA’s claim that she regularly wheeled a nun in a wheelchair to the Cathedral. But that evidence also was not definite. In part Mr Mead relied on the College Principal, but she was not principal at the school in the first year or so, which seems to have been when JA took the nun to the Cathedral.
Mr Mead pointed to some conflicts between the evidence of JA about the layout and contents of certain rooms in the Cathedral complex, and evidence of other witnesses on that matter. I do not regard the inconsistencies, assuming one was inclined to accept the evidence of the other witnesses, as particularly significant. Furthermore, I agree with the submission by Mr Kimber that of greater significance was the fact that JA had knowledge about the layout of the Cathedral complex, and of the contents of particular rooms, for which there was no apparent explanation if her evidence was not accepted. The evidence does not disclose any other explanation for her knowing some of the things that she did know about the Cathedral complex, unless she had been taken to the relevant parts of the Cathedral complex by Mr Karapandzk.
There were some conflicts between aspects of JA’s evidence and that of her mother. For example, JA said that on occasions (in her later school years) she drove her parents’ car to school. Her mother contradicted this. But JA’s evidence was supported by CS in her evidence.
Mr Mead made the point that it was surprising that no-one seems to have seen JA associating with Mr Karapandzk at the Cathedral, if sexual activity between them occurred as frequently as JA said, and over the lengthy period during which she said it occurred. This submission is linked to his earlier submission, that one might have expected someone to question the fact that JA was in the company of Mr Karapandzk, or was in and about the Cathedral complex in the manner described by her. There is force in this submission. On the other hand, JA’s evidence suggested that Mr Karapandzk took care (not surprisingly) not to be seen with her. Moreover, Mr Karapandzk would have known the usual movements of other persons regularly in and around the Cathedral, and would have been able to organise his activities in a way to avoid being seen with JA. Moreover, there was evidence from JA’s school friends, CS and LF, which was capable of providing circumstantial support for JA’s evidence about her frequent visits to the Cathedral precinct. In particular, they provided some support for her evidence that Mr Karapandzk gave her money, because they gave evidence that JA often had ready spending money, and that she spent that money buying things for her friends.
More difficult to explain is an incident, described by JA, in which she said that a nun came into a room on one occasion when Mr Karapandzk had his hand up JA’s dress. On JA’s evidence, the nun did nothing about this conduct by Mr Karapandzk. But against this one must bear in mind that the evidence of Ms Marsland (the TAB employee) included evidence of a conversation with Mr Karapandzk, which evidence was consistent with Mr Karapandzk having admitted to Ms Marsland that something like this had occurred.
There were matters that JA could not recall, or for which she could offer no good explanation. However, as to these matters, by and large, I consider that the frequency of the alleged acts, and the lapse of time since they had occurred, was capable of providing an explanation that did not reflect upon the credibility or reliability of JA.
I have considered all of these matters in combination. Some of them are capable of causing one to doubt the credibility and reliability of JA. But it has to be borne in mind that there was a significant body of circumstantial evidence that was capable of supporting JA’s testimony. I have referred to some of this evidence, but by no means all. JA’s evidence as to particular counts was clear and, taken in isolation, credible. The evidence of Ms Marsland, about conversations that were taken as amounting to relevant admissions by Mr Karapandzk, seems to me to be significant evidence.
One must also bear in mind that the jury had the opportunity to see JA give evidence, and saw her cross-examined at length.
When one considers the case as a whole, I am not persuaded that, acting reasonably, the jury must have had a reasonable doubt. On the contrary, I consider that it was open to the jury to be satisfied beyond reasonable doubt as to Mr Karapandzk’s guilt.
Conclusion
For those reasons I would dismiss the appeal against conviction.
DUGGAN J: In my view the appeal should be dismissed. I agree with the reasons prepared by the Chief Justice.
DAVID J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.