R v Kostaras (No 2)

R v KOSTARAS (NO. 2)
[2003] SASC 323
Court of Criminal Appeal: Debelle, Nyland and Gray JJ

DEBELLE J. Appeal against conviction.
On 1 April 2003 the appellant was convicted of four counts of unlawful sexual intercourse with a boy, aged 15 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The appellant appeals against the conviction.
The Prosecution Case
The offences were alleged to have been committed at different places in the metropolitan area of Adelaide between 1 January 1987 and 31 December 1987. The complainant did not report the offences to the police until 4 April 2000, a delay of some 13 years. The complainant was aged 15 for most of the alleged offending. He turned 16 on 29 October 1987. At the time of the alleged offending the appellant was aged 26 years.
The complainant was a student at a suburban high school and the appellant was the complainant’s art teacher at that school. In 1987 the complainant was in year 11. The appellant also had responsibility as a home group teacher. He was the teacher to whom the complainant had to report at the beginning of each day.
A friendship developed between the complainant and the appellant. The prosecution alleged that the appellant allowed the complainant to drive his motor car notwithstanding that he did not hold a driving licence. It was alleged that the appellant supplied the complainant with alcoholic drinks, that he would take the complainant to his house at West Lakes where they would drink alcohol, that the appellant introduced the complainant to the appellant’s mother at his mother’s home, and that the complainant would ride a bike while the appellant was running.
The offending was alleged to have occurred at the appellant’s house and at business premises in Kent Town occupied by a business in which the appellant had an interest as well as at other locations. The first and fourth counts alleged sexual misconduct at the appellant’s house. The second count alleged sexual misconduct at the business premises at Kent Town, and the third count alleged sexual misconduct at a house in Rosewater. The sexual misconduct on each occasion was the act of fellatio. There were also allegations of masturbation.
In addition to the sexual misconduct alleged in the four counts, the prosecution led evidence of allegations concerning uncharged acts. These were said to prove that the appellant had developed an influence and hold over the complainant. The prosecution alleged that the appellant was sexually attracted to the complainant.
In 1987 the complainant was employed on a casual basis in a hotel in the City. He worked most Friday and Saturday nights. The complainant asserted that he had arranged for the appellant to pick him up after work. He alleged that the appellant picked him up on about a dozen occasions and he said that he would sexually abuse him on the way home. The complainant also alleged that the appellant would fondle his penis through his clothing and on occasions perform the act of fellatio. The complainant accepted that, on other occasions, the appellant would grab the complainant’s hands and get him to rub his penis. These occasions occurred whilst the complainant was driving or when the appellant asked the complainant to pull over and stop somewhere near his house. There were allegations of other incidents at Veale Gardens and at a point on the River Torrens.
The prosecution called five witnesses in addition to the complainant. Those witnesses included a Mrs T. She and the appellant were director and shareholders of a company which operated a fashion design business in Kent Town. The events the subject of the second count were alleged to have occurred at the premises of the business at Kent Town. Mrs T had a son J about whom evidence was given by a witness, Mrs Parha, who was called by the appellant.
This was the second trial of the appellant in respect of these allegations. The first trial had resulted in a conviction. The conviction was set aside on appeal and a retrial was ordered: R v Kostaras (2002) 222 LSJS 373.
The appellant gave evidence at the first trial but not at the second. At the second trial, the prosecution tendered the evidence given by the appellant at the first trial. The appellant called three witnesses, including a Mrs Parha.
Grounds of Appeal
The notice of appeal lists a substantial number of grounds which are grouped together to comprise five main grounds of appeal.
The first two grounds of appeal stem from remarks made by counsel for the prosecution in his closing address to the jury. As will be seen, the prosecutor spent a considerable time examining the question “why should the complainant and the prosecution witnesses lie?” He then commented at some length on the failure of the appellant to give evidence and late in his address made remarks concerning the witness called by the appellant named Mrs Parha, remarks which the appellant contends were inappropriately inflammatory. For the reasons which follow, the remarks made by the prosecutor were so inappropriate and went so far beyond the proper discharge of the prosecutorial function that they had the potential to cause a miscarriage of justice. I deal first with these two grounds of appeal.
The first two grounds of appeal are in these terms:
“1.A miscarriage of justice has occurred due to the cumulative effect of the closing address of the prosecutor including:
1.1   an impermissible assertion that the appellant had falsely suggested that there was a ‘grand conspiracy’ and the raising of the associated questions of ‘Why would all of these persons (including the complainant) lie and conspire?’
1.2   an impermissible assertion that the evidence by the appellant at the previous trial had been given in a way apparent to the prosecutor, but not to the present jury, that demonstrated lack of credibility and consciousness of guilt coupled with an apparent endorsement of this approach by the learned Trial Judge.
1.3 comments on the fact that the appellant had not given evidence at the present trial in breach of Section 18 (1) (II) Evidence Act 1929.
1.4   an impermissible argument that the delay in complaining should be viewed as being potentially disadvantageous to the prosecution in that a timely complaint may have led to further evidence adverse to the appellant.
1.5   unfair and inflammatory statements concerning the evidence of the witness Ms Panayoulah Parha.
1.6   together with the failure of the learned Trial Judge adequately to deal with such matters, which in any event were irremediable.
2.The learned trial Judge erred as a matter of law in that His Honour failed adequately to direct the jury concerning the suggested putting of a false case and the telling of lies by the appellant and the effect of such matters upon the onus of proof.
For the reasons which follow, I have decided that the appeal should be allowed on three of those grounds. I will therefore refer to those grounds only. An examination of those grounds of appeal does not require any further outline of the prosecution case.
The Prosecutor’s Role
At the outset, the prosecutor’s remarks must be viewed as a whole and not considered singularly. They followed one after the other and to consider them separately is to ignore their cumulative effect. It is the overall impression of the prosecution address which must be considered. When examined separately and individually, each might be capable of being excused. When viewed cumulatively, their effect is quite different. It is, nevertheless, necessary to examine the nature of each transgression before examining their effect as a whole.
Before turning to each individual transgression, it is helpful to note a recent outline of the duties of prosecution counsel by the Full Court of the Federal Court in R v Tran (2000) 118 A Crim R 218 at [132]:
“ It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In DDR [1998] 3 VR 580; (1997) 99 A Crim R 327, Tadgell JA observed that it was ‘no part of the duty of counsel for the Crown to excite passion’. In M [1991] 2 Qd R 68 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge’s summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also McCullough [1982] Tas R 43; (1982) 6 A Crim R 274; Bazley (1986) 21 A Crim R 19 at 31; Pernich (1991) 55 A Crim R 464; and DDR.”
The Prosecutor’s Question
The prosecutor made a lengthy submission to the effect “why should the complainant and witnesses for the prosecution lie?” The submission was made at an early stage in the prosecutor’s address and he returned to it on several occasions. In the course of these submissions he repeatedly referred to the appellant’s case as being one which asserted that there was a “grand conspiracy” on the part of the complainant and witnesses for the prosecution to lie.
It is now well established that it is not permissible for a prosecutor to cross-examine an accused person in a manner that poses the question, expressly or by implication, “why would the complainant lie?” or that invites the accused to suggest, or implies that the accused should be able to suggest, a reason why the complainant would be: R v Kostaras (2002) 222 LSJS 373 at [84], applying Palmer v The Queen (1998) 193 CLR 1 and R v E (1996) 39 NSWLR 450 at 464 – 466.
This principle applies with equal force to the address by prosecuting counsel to the jury: R v F (1995) 83 A Crim R 502; R v Jovanovic (1997) 42 NSWLR 520; R v Kostaras (supra) at [87]. In Kostaras (supra), Doyle CJ said:
“ It is impermissible for prosecuting counsel to address the jury on a basis that implies that a failure by the accused, or an inability of the accused, to identify a motive for the complainant or a supporting witness to lie, in some way buttresses the credit of the complainant or of the witness or strengthens the prosecution case. Any such suggestion in the address has the same unjust and unsound tendencies as does cross-examination to that effect.”
The rationale for this principle is examined in Palmer v The Queen (supra) at [8] and at [65] and [66] and in R v E (supra) at 64 when Sperling J noted that, in the absence of specific evidence, asking why a complainant would lie “is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood” and that such a question was impermissible because it was unfair to the accused and had the effect of reversing the onus of proof.
This was a constant and repeated theme. It extended beyond the question, “why should the complainant lie?” to what was at least equally, if not more, offensive, “why should all the prosecution witnesses lie and conspire?”
The clear implication of the submission by the prosecution was that the appellant was falsely accusing the complainant and the prosecution witness of lying so that, once it had been demonstrated that the conspiracy was non-existent and that the appellant’s accusation was false, it had the effect of enhancing the credibility of the complainant: R v PLK (1999) 108 A Crim R 414. The effect of the repeated assertion that the appellant had created a false conspiracy was to cast the onus of proof on the appellant.
In this case it was appropriate for the prosecutor to anticipate a defence submission that the complainant had lied for the purpose of financial gain. In cross-examination, counsel for the appellant had asked the complainant that he had consulted solicitors in New South Wales and South Australia before reporting the allegations to the police. It was put to him that he intended to make a civil claim for damages. While it was necessary and reasonable for the prosecutor to deal with any contention that the complainant was seeking some financial gain, he went well beyond what was either necessary or reasonable in asking why the prosecution witnesses as well as the complainant would lie and the repetition of that theme.
In the course of his submissions on behalf of the appellant, Mr Peek QC contended that in reality the prosecution was stating that the explanation for setting up this “grand conspiracy” of lies was that the appellant knew that the truth would implicate him in the offence. He referred to the remarks of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 and submitted that it was appropriate to give a direction as to lies in the manner required in Edwards. This is to overstate the effect of the prosecutor’s remarks. I do not think they had that effect. In any event, a lies direction was given in accordance with the model in Zoneff v The Queen (2000) 200 CLR 234. Given the following reasons, it is unnecessary to examine the issue further.
Prosecutor Comments on the Right to Silence
The complaint in ground 1.3 in the notice of appeal stemmed from comments made by the prosecutor on the appellant’s failure to give evidence at the second trial.
The principle that an accused person has the right to silence has the corollary that no adverse inference should be drawn by the prosecution from a failure to give evidence. That protection is expressly afforded by s 18(1)II of the Evidence Act 1929 which provides:
“The failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution:”
The prohibition applies to both direct and indirect allusions but regard will always be had to the particular circumstances of the case: Bataillard v The King (1907) 4 CLR 1282 at 1291 where Isaacs J said:
“ If, however, reference, direct or indirect , and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, “refrained from giving,” evidence on oath, there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.”
The history of the provision is noted in Bataillard v The King (supra) in the reasons of Isaacs J and in Bridge v The Queen (1964) 118 CLR 600 in the reasons of Windeyer J.
The provision constitutes such an important protection for accused persons that a prima facie breach of the prosecution must provide a good ground for quashing the conviction: Stuart v The Queen (1959) 101 CLR 1 at 9 where a unanimous High Court said:
“ The statute gives an important protection to accused persons, and the prohibition which it conveys is peremptory. Prima facie a breach by the prosecution of that prohibition must provide a good ground for the quashing by a court of criminal appeal of a conviction.”
The High Court went on to identify circumstances which might offset a breach by the prosecutor. They include the extent to which the trial judge has commented on the failure of the accused to give evidence: see also Siebel v The Queen (1992) 57 SASR 558 at 563.
The prohibition is quite wide in its operation. It extends to any comment on the failure of the accused to answer the prosecution case. The bounds of what is permissible and what is prohibited were described in these terms by King CJ in Siebel v The Queen (supra) at 562:
“ It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.”
When determining whether a prosecutor has transgressed the prohibition, regard is had not to what the prosecutor intended to say but what his words would have conveyed to the jury: R v Bint (1996) 187 LSJS 201 per Cox J at 213.
In this case the prosecutor breached the prohibition at least twice. He first addressed the topic in terms which included adverse comment on the appellant’s demeanour in cross-examination:
“       I will discuss what you have from Mr Kostaras himself later because it is a little different insofar as it is not evidence that you saw him give; it is evidence from a prior trial, and you were at a slight disadvantage in assessing his evidence because you didn’t see him give it at the last trial. So you only got the words, you didn’t get the other parts you can consider in forming a view about whether you believe someone or not. I will come back to that, but I suggest, even with that disadvantage - that is not having seen him give evidence - that Mr Kostaras’s evidence from the last trial is plainly unconvincing and unsatisfactory. To put it mildly, at his last trial, Mr Kostaras crumbled in cross-examination and by the end of his cross-examination, his credibility was naught. As I say, I will come back to that. I want to deal, firstly, with the prosecution case you have heard.” [Emphasis added.]
He then discussed the prosecution case and, in the course of doing so, mentioned several times the “grand conspiracy” to which reference has already been made. By this time it had become “quite a grand and complicated conspiracy”. He then returned to the topic of the reading of the appellant’s evidence at the second trial. He said:
“       I want to turn to the accused’s evidence from the last trial because you might be wondering why it was tendered as part of the prosecution case in this trial. The reason is I suggest some of what was said in evidence last time was true, some of it was partly true and some of it was a complete lie. As a legal matter, if we want to use parts of his evidence from the last trial as part of our case, we are obliged to put it all before you so you can hear both for and against him.”
These remarks were not objectionable and I quote them to put all of the prosecutor’s comments on this topic in context. A little later, the prosecutor returned to the issue, this time adding that the jury had not seen the appellant give that evidence:
“       When you look at the accused’s evidence in the last trial, there are a number of problems with it, and there is no gentle way of saying it, but I suggest he told lie after lie. His evidence was unconvincing and he was quite evasive. Unfortunately, it might not come out so well when it is just read out the once. You don’t get to see him, see him thinking, you don’t get to hear if there are pauses between questions and answers, you don’t get to hear the tone of voice he uses, but even just looking at the bare words we have, I suggest in his evidence he came across quite evasively and not credibly.”
It is apparent from this recital of his remarks that the prosecutor clearly contravened the prohibition in s 18(1)II and in somewhat extravagant terms. It was a grave departure from the standard expected of a prosecutor.
One could not be critical if the prosecutor had simply stated the fact that the appellant had not given evidence and that his evidence at the previous trial had been read. The manner in which the trial had been conducted meant that it was necessary to do so in order to introduce legitimate examination of the appellant’s evidence at the first trial. A statement of that kind would constitute a permissible reference to the fact of the absence of evidence and not a comment which contravened the prohibition. However, the prosecutor did not subject himself to the restraint of a simple statement of fact. Instead, in a somewhat unrestrained and extravagant manner, he commented quite directly and extensively on the fact that the accused did not give evidence.

Importantly, the prosecutor added a commentary on the manner in which the appellant had given his testimony at the previous trial. His reference to the fact that the appellant had “crumbled in cross-examination and by the end of his cross-examination, his credibility was naught” implied either that the prosecutor had been present at the earlier trial and was reporting on it or that he had been informed of such fact by another or had perhaps seen a recording of that evidence. He reinforced that notion in the second of the passages quoted above when he said:
“ Unfortunately, it might not come out so well when it is just read out the once. You don’t get to see him, see him thinking, you don’t get to hear if there are pauses between questions and answers, you don’t get to hear the tone of voice he uses.”
The prosecutor was, of course, entitled to subject the evidence of the appellant to close scrutiny. However, he could not engage in criticisms of this kind.
This breach of s 18 was of such an inflammatory nature and constituted such a gross violation of s 18 that it constituted a miscarriage of justice. It went well beyond mere comment. (I note in passing that the prosecutor’s remarks were a good deal more extravagant than the remarks in Siebel v The Queen (supra) which led to the verdict being set aside.) But the breach does not stand alone and cannot be viewed in isolation. It must be read with the submissions as to the “grand conspiracy”. It must also be read with statements made concerning one of the defence witnesses, Mrs Parha.
Mrs Parha is the principal of the Norwood High School. In the period from 1996 to 2000 she was principal of the Woodville High School where the appellant was then teaching. She recounted a conversation with the appellant in which the appellant had reported a conversation with a police officer who was the son of his former business partner, Mrs T, a conversation which the appellant described as being part of a “strange encounter”. She was asked by the prosecutor in cross examination whether she was a friend of the appellant. The following exchange took place.
“QAre you a friend of his.
AI’m a colleague and I was his principal.
QAt the time the allegations were made.
AYes.
QWould you regard yourself as a friend.
AI do now.
QWould you agree that you are on his side.
AYes, I would.
QYour personal view, if you like, is that the allegations aren’t true.
AYes.
QYou base that on you knowing Mr Kostaras from 1996 onwards.
ABased on daily observations of him and his interactions with students and parents in the general school life.
QYou hadn’t met him before 1996, had you.
AThat’s right.”
That exchange became the subject of the following remarks of the prosecution address which was made shortly before the last comment on the failure of the appellant to give evidence:
“ Mrs Parha agreed in cross-examination that she is on Nick Kostaras’s side. She went as far as to admit that. She decided that he was innocent without hearing any evidence. The whole reason we have a trial process like this and you hear from witnesses is so you can form an independent and unbiased view about what has been proved and what hasn’t and what happened. She doesn’t need any of that. It was, in effect, probably be more like perhaps a system over in Iraq where ‘Because I know him he is not guilty of anything’ despite what he might have done. But if he is not a friend who knows. He might end up in gaol.”
The trial took place in late March 2003 after the war in Iraq had started. The remark was as intemperate as it was unnecessary. I say nothing of the latent xenophobia. Not infrequently, an appropriate robustness of language and expression is necessary in the criminal court but these remarks clearly went beyond what could on any view be called appropriate. They were unnecessarily inflammatory.
I repeat, viewed in isolation, any one of these three aspects of the prosecutor’s address might not have constituted a miscarriage of justice. However, when viewed together, they have that result. Counsel for the appellant applied for a mistrial at the conclusion of the prosecutor’s address. In my view, the trial judge would have been justified in acceding to the application particularly as this had not been a long trial.
In my view the prosecutor’s address was likely to divert the jury from their proper task. The repeated focus on the question “why would the complainant and the prosecution witnesses lie?” was likely to reverse the onus of proof in that it effectively suggested to the jury that unless they believed the appellant they should convict him.
The trial judge dealt with the failure of the appellant to give evidence but in terms which did not criticise or amend the inflammatory remarks by the prosecutor as and in a manner which intended to endorse what had been said by the prosecutor. I have no doubt that the trial judge did not intend to endorse what had been said by the prosecutor. However, that is the unintended effect of the judge’s remarks.
Although the trial judge endeavoured to neutralise the effect of these extravagant submissions in his direction, I am not satisfied that the directions would have done so. It was necessary to deal with the cumulative effect of the remarks of the prosecution and that was clearly a difficult task. The prejudicial nature of the remarks was the greater because of the very long delay between the alleged conduct and the prosecution.
This was a case where the evidence did not clearly point in one direction or the other. It cannot be said that the prosecution case was so strong that the jury would have no alternative but to have found the case proved. There was, therefore, a real risk that the prosecutor’s remarks would have tipped the balance against the appellant. I do not think that the transgression was neutralised by the trial judge’s direction on this topic.
The remarks of Cooper J in R v M [1991] 2 Qd R 68 at 82 – 83 provide a useful reminder of the need for counsel prosecuting charges of sexual misconduct upon children to discharge their duty vigorously but within the bounds of propriety. As Cooper J observed:
“ In cases of this type prosecuting counsel are required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused. So too, the court must be quick to intervene in the interests of a fair trial whenever such conduct occurs or where the trial judge perceives a real risk that it will occur.”
Although these observations were made in respect of remarks of an even more inflammatory nature than those in this trial, they have a general application.
I do not in any sense seek to hamstring or neutralise the role of the prosecution counsel. I respectfully adopt the following observations of the Court of Appeal in New Zealand in R v Roulston [1976] 2 NZLR 644 at 654:
“... it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury’s Laws of England (3^rd ed) para 761 that prosecuting counsel ‘should regard themselves as ministers of justice assisting in its administration’ ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin’s remarks in Trial by Jury (1966 ed) 122-123:
‘... in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution’s case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge’.
The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.”
In this case, the remarks of the prosecutor, when viewed as a whole, clearly tipped the balance against the accused to such an extent that it is necessary to allow the appeal and set aside the conviction.
Given this conclusion, it is unnecessary to deal with ground 1.4.
I am reinforced in the view that the appeal should be allowed by what I believe is the inadequacy of the direction as to the uncharged acts. I turn to that question.
The Uncharged Acts
The fourth ground of appeal is in these terms:
“ The learned trial judge failed adequately to direct and warn the jury in relation to the evidence of the so-called uncharged acts and the driving of the appellant’s car by the complainant, and the consumption of alcohol at the appellant’s premises, and to direct the jury as to the correct and incorrect uses of this evidence.”
The trial judge gave a specific direction on this issue. He explained the purpose of the evidence and then concluded:
“ When, in the whole context of the evidence, you come to consider what weight you will give to the evidence of the uncharged acts of sexual activity, I direct you that you must not act upon the evidence of that activity, or any of it, unless and until you are satisfied of its truth. If you are satisfied of its truth, or the truth of any part of it, then you may use that evidence of which you are so satisfied when you consider each count on the information, and whether you are satisfied that any of those counts occurred.
I direct you, however, that there is one use which you may not make of evidence of this type. You must not reason that because you may be satisfied that some or all of the uncharged acts are proven, then that, in itself, indicates that the accused is the type of person who is likely to have committed these offences. To so reason would be wrong, and you must not do it.”
The trial judge’s direction accorded with the recommendations made by the Chief Justice in his reasons for allowing the appeal against the conviction in the first trial in Kostaras (supra) at [51] to [52]. However, in the particular circumstances of this case, it was necessary to go further.
The difficulties with evidence of uncharged acts have been identified on a number of occasions. The decisions up to and including Gipp v The Queen (1998) 194 CLR 106 have been examined in R v Nieterink (1999) 76 SASR 56. Subsequently, some members of the High Court have referred to this topic in KRM v The Queen (2001) 75 ALJR 550 and the issues were examined again in Kostaras (supra) at [32] and [60]. Nothing is to be gained by reviewing those decisions. I only state that I have considerable concern with any suggestion that uncharged acts do not have to be proved beyond reasonable doubt: see Nieterink at [83].
As the prosecutor said in his opening address, the uncharged acts were led for the purpose of explaining the relationship between the complainant and the appellant. He said they would help to explain why the complainant acquiesced in the conduct and showed that the appellant had developed an influence and hold over the complainant. In this case the uncharged acts do not explain why the complainant consented to the act which constituted the allegations in the first count. That is the first occasion on which any form of sexual misconduct is alleged to have occurred. That issue aside, it was necessary to give a strong direction because the long delay in this case meant that the accused could do little more than deny the allegations of uncharged acts, especially those acts of which the complainant gave evidence in very general terms.
In his direction the trial judge warned the jury that they should not act on the evidence of the uncharged acts unless they were satisfied of its truth. In the circumstances of this case, particularly the delay, I think that a stronger direction was necessary. I believe that a direction along the lines of that indicated in the following remarks of Dowsett J in R v Rogers (unreported, Court of Criminal Appeal Queensland, 6 May 1998) was necessary:
“ The jury should have been told that ... the evidence of other acts had no value in proving any of the individual counts other than as demonstrating that the complainant’s allegations of specific offences were made in the context of her account of a longer course of misconduct over an extended period. It should probably also have been pointed out that the fact that the complainant alleged numerous acts of misconduct did not bolster her evidence with respect to the offences charged.”
For these reasons also I believe that the appeal should be allowed and the conviction set aside.
Retrial or Acquittal?
Mr Peek QC submitted that, having regard to the delay and the fact that there had been two trials already, this Court should not order a retrial but enter a verdict and a judgment of acquittal.
The Court has a wide discretion to order or to refuse to order a new trial: Gerakiteys v The Queen (1984) 153 CLR 317 at 321; King v The Queen (1986) 161 CLR 423 at 433. The matters relevant to the exercise of the discretion have been examined in Peacock v The King (1911) 13 CLR 619 at 641, 675; Andrews v The Queen (1968) 126 CLR 198 at 211; Gerakiteys v The Queen (supra) at 321; Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 at 630-631; Reid v The Queen [1980] AC 343 at 348-349 and R v Honeysett (1987) 10 NSWLR 638 at 646-647. It is necessary to consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction for, if it is not, it would be wrong to make an order for a new trial to give the prosecution opportunity to supplement a defective case: Director of Public Prosecutions for Nauru v Fowler (supra) at 630. Even if the admissible evidence satisfies that test, the Court must nevertheless consider whether to order a new trial and then the Court must take into account any circumstances that might render it unjust to the appellant to make him stand trial again, at the same time remembering that the public interest in the proper administration of justice must be considered as well as the interests of the individual appellant: Director of Public Prosecutions for Nauru v Fowler (supra) at 630. In R v Anderson (1991) 53 A Crim R 421 at 453 Gleeson CJ identified the principle considerations affecting the public administration of justice in favour of ordering a new trial. They were the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury. Those three factors exist in this case.
There are a number of factors which point to the conclusion that there should not be a new trial. They are
·The long delay between the alleged crimes and the prosecution;
·that that delay has inevitably caused recollection of witnesses to be faulty;
·the fact that evidence given by the complainant and another witness changed between the first trial and the second trial;
·there will be a further delay before the matter can be prosecuted again which will aggravate the problems of faulty recollection; and
·that any further delay is a consequence of error on the part of counsel for the prosecution.
All of those factors are relevant: see Siebel v The Queen (supra) at 564; R v Sams (1990) 46 A Crim R 468; R v Anderson (supra) at 421; MRW (1999) 113 A Crim R 308. In each of those decisions an error on the part of counsel for the prosecution was a factor which led to the court deciding to enter a verdict of acquittal.
Another relevant factor is that there will be a third trial. On occasions that has been a sufficient ground to refuse an order for a new trial: see, for example, R v Ward (1981) 3 A Crim R 171, 179 and 195 – 196; R v Ridgeway [1983] 2 NSWLR 19 at 29 – 30. It is relevant also that the appellant has served part of his prior sentence. In this case the appellant has served five months of the term of imprisonment ordered after the first trial.
I think that a significant factor in this case is the long delay between the alleged offending and any retrial. The delay has already meant that the appellant is deprived of a material witness. The delay is perhaps one of the causes for at least two witnesses giving a different account of events at the second trial. That latter fact plainly affects the proper administration of justice. I have had due regard to the other factors bearing upon the public interest in the proper administration of justice but in the end I am persuaded that the long delay and the fact that the appellant has already been subjected to two trials requires that this Court should enter a verdict and acquit the appellant.
For all of these reasons, I would allow the appeal. I would set aside the conviction. I would enter a verdict and give a judgment of acquittal.
NYLAND AND GRAY JJ: This is an appeal against conviction.
The appellant was charged on information with four counts of unlawful sexual intercourse[1]. Each offence was alleged to have occurred in 1987 and related to a male person under the age of 17 years. The appellant pleaded not guilty. He was convicted by a jury on all counts. He appealed against those convictions. On 2 October 2002 a retrial was ordered[2]. On 1 April 2003 the jury returned verdicts of guilty with respect to each count.
[1] Count 1 Statement of Offence
[2] R vKostaras (2002) 222 LSJS 373, 133 A Crim R 399
Prosecution Case – A Summary
At the time of the offences the appellant was a secondary school teacher at Henley High School. The complainant was a year 11 student at the same school. He was then aged 15 years. The appellant taught the complainant twice weekly. The appellant and the complainant became friends.
The incidents which were the subject of the charges against the appellant occurred during 1987, the complainant’s last year at high school. The complainant had developed a close attachment to the appellant. The appellant took an interest in the complainant.
The complainant did not have a driver’s licence but said there were occasions when the appellant would let him drive the appellant’s vehicle. The complainant’s brother described an occasion when he saw the complainant driving the appellant’s vehicle with the appellant in the passenger seat. Two other witnesses who were students at the school gave evidence that in 1987 they recalled being in the appellant’s vehicle when the complainant was driving. The complainant also said that there were occasions when he would ride his bicycle to the appellant’s home at West Lakes. He would also ride his bicycle with the appellant while the appellant was running.
On the occasion the subject of the first count the complainant said he and the appellant were driving in the appellant’s vehicle. They went to a bottle shop near the appellant’s home at West Lakes. Thereafter they went to the appellant’s home and drank beer. The complainant said that he was quickly affected and became very intoxicated. The appellant, despite the complainant’s objection, removed some of the complainant’s clothing and performed an act of fellatio upon him. The appellant subsequently told the complainant that if he were to complain about the incident he would get the blame and in any event would not be believed. The complainant said that this was his first sexual encounter with the appellant and that there were many more thereafter.

According to the complainant’s evidence several months of sexual contact followed. The conduct occurred repeatedly at various locations including the appellant’s home, his business premises at Kent Town and his motor vehicle.
The second count was alleged to have occurred later in 1987 at business premises in Kent Town. This was a fashion design business in which the appellant had an interest. The complainant said that he was at the premises to undertake cleaning work as part of work experience. The appellant used to drive him to work and later return him home. The complainant said on one occasion at night the appellant performed fellatio on him in a room which was either the kitchen staff room. The complainant said they were interrupted by a co-owner of the business.
The complainant said he heard someone enter the building. The appellant told him to stay in the room and not to come out. The appellant left the room and the complainant heard voices in the passageway.
The complainant said that on several other occasions at the Kent Town premises, the appellant performed fellatio upon him in addition to the incident which was the subject of the second count.
The appellant’s partner in the business, Mrs T, was a prosecution witness. She said that on an evening in the middle of 1987, she returned to the premises to collect something she had forgotten. The premises were in darkness. When she stepped into the hallway she saw the appellant enter the hallway from the end room. She asked him what he was doing there and he said he was showing someone through the business. The next day she saw a cheque drawn on the company business. The appellant told her he had introduced a boy to clean the business and that was what he was doing the previous night. Mrs T said that the appellant told her that the boy who had been introduced to do the cleaning was one of his students.
Mrs T also gave evidence that there were other occasions when the appellant left a cheque for her to co-sign to pay for cleaning work. She never saw or met the complainant at the premises. This was despite the fact that she used to work there for very long hours. Mrs T also said that on one occasion, in about August 1987, the complainant attended the Lady Mayoress’ Fashion Awards with the appellant. The complainant’s evidence was that the appellant hired a suit for him to wear for that evening.
As far as the third count was concerned, the complainant said that he was taken to a house at Rosewater which the appellant told him he owned. The complainant said that he was taken to a front bedroom. The room was dark and the blind was pulled down. The complainant was left with pornographic magazines which showed explicit pictures of heterosexual intercourse. The complainant said he was excited by the magazines. He recalled the appellant coming into the room, approaching him and removing his lower clothing. The appellant also took off his own clothing. The complainant said that the appellant took his hand and placed it on the appellant’s erect penis. The appellant was then holding the complainant’s hand on his penis with his own hand and by so doing he made the complainant masturbate him. The complainant said that he recalled the appellant masturbating until he ejaculated. The appellant also performed an act of fellatio upon the complainant until the complainant ejaculated into the appellant’s mouth.
The fourth count related to a further incident on a Sunday at the appellant’s home at West Lakes. The complainant said that the incident occurred on a Sunday morning. He rode his bicycle to the appellant’s home. He remembered that they were both naked in the appellant’s bed. The complainant said that over a period of several hours the appellant performed fellatio on him four times. On each occasion he ejaculated into the appellant’s mouth.
The complainant also gave evidence that during 1987 he was employed as a casual worker at the Oaks Tavern on Pirie Street, Adelaide. He said he worked most Friday and Saturday nights and that there was an arrangement that the appellant collect him at the end of work. The complainant said that the appellant did so on approximately a dozen times. The appellant would let the complainant drive his car on the way home and the appellant would fondle the complainant’s penis through his clothing. He would sometimes perform fellatio on him and other times the appellant would grab the complainant’s hand and get him to rub his penis. The complainant said that these acts occurred either when the complainant was driving or when the appellant would ask the complainant to pull over and stop somewhere near his house. They would then occur in the car while they were parked on the side of the road.
The first time the complainant told anyone about the appellant’s conduct was in April 2000. The complainant made a statement to a police officer in July 2000. In cross-examination he agreed that he had spoken to unidentified solicitors in New South Wales and South Australia before he spoke to the police.
The appellant gave evidence at the earlier trial. That evidence was read into evidence by consent as part of the Crown case on the retrial. The circumstances of the tender and comments made about that evidence are discussed later in these reasons. However, it was contended by the Crown that the appellant had told lies in the course of his evidence given in the earlier trial that were relevant to his credit.
The Defence Case – A Summary
The appellant denied that he had any sexual contact with the complainant.
The defence case was that the appellant commenced teaching in 1980 when aged about 20 years. He met Mrs T in about 1986 when they were both teaching at LeFevre High School. At about the same time they started working together to set up a design business. In the first part of 1987 the business moved to Kent Town.
The appellant commenced teaching at Henley High School at the beginning of the school year in 1987. The appellant met the complainant at that school. The complainant was in his home class and his art class. The complainant was very interested in what the appellant did to the extent that the appellant said he became concerned about his behaviour.
At this time the appellant owned a Mitsubishi Colt GCR which he had purchased in 1982. The car had a manual transmission with four gears.
The appellant said that the complainant was interested in the design aspect of his work. The appellant spoke to Mrs T and advised her that he had a student who was keen to come in and have a look at the Kent Town premises and see whether he would like to do work experience. The appellant said he subsequently took the complainant to the business and introduced him to Mrs T and the people working there. He subsequently made an offer to the complainant to do cleaning work at the Kent Town premises during the school holidays. This happened on two afternoons. The appellant said he drove the complainant there on both occasions. On one occasion he drove him home and on another the complainant contacted his mother to collect him. The appellant said the cleaning was then discontinued as the business was small and it appeared unnecessary.
The appellant referred to a number of occasions on which the complainant had asked him to drive him home. He said that the complainant also asked him to take him to the appellant’s gymnasium. The appellant referred to an occasion when he drove the complainant and two other students home. The appellant dropped the other two off and then went to the complainant’s home and spoke to his mother. He told her that the complainant wanted to go to the gym with him. The appellant told her that he would go to his home and then to the gym. The complainant’s mother agreed. The appellant said that they went from the complainant’s house to his unit at West Lakes as he had to check his answering machine. They remained at the unit for no more than 10 minutes checking his machine and collecting his gym gear. They then went to the gym. Arrangements were made at the gym for the complainant to try out the equipment. The appellant then collected a sports top and shorts for the complainant to wear for his work-out. The appellant did not have any further need for the clothing so he told the complainant he could keep it. The appellant said that after they left the gym he took the complainant home in his car.
The appellant was a fitness fanatic and would often go running. The complainant would run alongside of him and talk to him. He said on at least two occasions the complainant rode alongside and talked to him.
The appellant referred to the Lady Mayoress’ Fashion Award occasion held on 5 August 1987. An arrangement was made for the appellant to collect the complainant, take him to the occasion and return him home later. The event was held at the Hilton Hotel. The appellant hired a dinner suit for the complainant to wear. He took the complainant home at about 11.30 pm.
The appellant also referred to another occasion when he took the complainant to his mother’s home at Semaphore. They had a drink at her house. His mother was packing up clothes that were to be sent overseas to relatives. The complainant saw a jacket which he liked and it was given to him. When they left his mother’s house they went to Rosewater. The appellant said this was his uncle’s house. His uncle was away so he went there to collect mail. The appellant said he collected mail from the letterbox and then returned the complainant to his home.
The appellant’s evidence referred to an occasion in September 1987 when the complainant, his brother and two other boys came to his unit. They had been driving past. They had stubbies of beer in their hands. The appellant said he told them that he did not have alcohol in the house and did not want them to consume alcohol in the house. He showed them around and offered them some snacks but said there was no alcohol in the home at that time. He did not form an impression as to whether any of them were intoxicated.
The appellant referred to another occasion when he arrived home at about 7.30 pm and discovered the complainant on his bicycle waiting outside his home. He said he told him he was not impressed and went inside. He rang the complainant’s mother to come and collect him. The appellant said that this was the last occasion on which the complainant visited his unit, although the continued to follow him around. He said he had no contact with the complainant after he left school.
The appellant said there were two occasions on which he had collected the complainant from the Oaks Tavern on Pirie Street but nothing of a sexual nature had occurred on that or any other occasion.
In the course of cross examination counsel for the appellant suggested to the complainant that the allegations of sexual misconduct were false. It was suggested that the complainant was motivated by a desire for money. The effect of the cross examination was to suggest that the false allegations had been made as part of a plan to pursue compensation.
In the course of the appellant’s evidence at the earlier trial he had recounted being approached by Mrs T’s son J. J was a police officer. J raised with him that he may hear something from the complainant. The implication from this suggestion, when considered with the attack on the complainant’s motive was that the complainant had been in contact with J. The Crown called J. Counsel for the complainant put the allegations to J. The allegations were denied.
Complaints on Appeal
The appellant complained that the trial miscarried due to the cumulative effect of a number of comments made by the prosecutor during his closing address. This complaint was linked to what were said to be inadequate directions by the trial judge to the jury concerning the putting of a false case, the telling of lies and the effect of such matters on the onus of proof.
It was also complained that the judge failed to adequately warn or direct the jury as to the defence case with respect to the delay in complaint and the significance of inconsistent statements made by the complainant and other prosecution witnesses.
It was said that the judge’s direction to the jury about the use of evidence of uncharged acts was inadequate. There was also complaint about the judge’s directions concerning the use of evidence of the driving of the appellant’s car and the consumption of alcohol on the appellant’s premises.
Finally it was said that there has been a miscarriage of justice by reason of the cumulative effect of a number of matters. These included the long delay before the complaint was made, the nature of the police investigation, matters attendant upon inconsistencies within the evidence of the prosecution witnesses, the fact that the complainant’s evidence was uncorroborated, the evidence given on oath by the appellant at the previous trial and the fact that the verdicts were by majority. It was said that the verdicts could not be supported and should be set aside.
The Appeal
The Conduct of the Prosecutor
On appeal complaints were advanced about the prosecutor’s address. It was suggested that the prosecutor had commented on the failure of the appellant to give evidence in breach of section 18(1)II of the Evidence Act 1929 (SA), that he had invited the jury to speculate about why the complainant would lie; that he had suggested that the appellant had lied out of a consciousness of guilt, in circumstances where the appellant and the defence witnesses had engaged in a grand conspiracy. It was complained that the prosecutor had used unnecessarily provocative and inflammatory language. These matters were linked to complaints that the trial judge had failed to adequately direct the jury to address the prejudices arising from these matters.
Emotive Language
The prosecutor spent some time discussing the evidence given by the appellant at the earlier trial. The prosecutor suggested that the appellant had falsely accused the complainant and other prosecution witnesses of indulging in a “grand conspiracy” against him. This comment was made with particular reference to the evidence of the appellant. The appellant said that shortly before he was charged, Mrs T’s son J, then a police officer, had chanced to meet him at the school at which he was teaching. The appellant said that in that conversation, J had brought up the complainant’s name. The appellant also said that J was present at the Hilton on the awards night. J denied mentioning the complainant’s name to the appellant at the school and both J and his mother said that J was not at the awards night although another witness said that he was.
The prosecutor referred to this aspect of the evidence and suggested to the jury that there had not been any such conversation about the complainant at the school and that the appellant had invented it to try to link Mrs T to “the big conspiracy”.
The word “conspiracy” was used on a number of other occasions by the prosecutor in the course of his address. He suggested that the appellant in his earlier evidence had endeavoured to distract the jury from what was quite a strong prosecution case.
The appellant was also critical of the comment made by the prosecutor that the delay in complaining was disadvantageous to the prosecution because a timely complaint may have led to further evidence adverse to the appellant. It was suggested that the words used by the prosecutor that there was a “real likelihood of uncertainty” may well have conveyed to the jury that the appellant may have inadvertently made mistakes about dates after so many years and forgiving apparent inconsistencies due to passage of time.
A further matter arising out of the prosecutor’s address related to a comment with respect to the evidence of Ms P. She gave evidence for the defence. The prosecutor suggested to the jury that her evidence should be rejected. In so doing he said:
She decided that he was innocent without hearing evidence. The whole reason we have a trial process like this and you hear from witnesses is so you can form an independent and unbiased view about what has been proved and what hasn’t and what happened. She doesn’t need any of that. It was, in effect, probably be more like perhaps a system over in Iraq where ‘Because I know him he is not guilty of anything’ despite what he might have done. But if he is not a friend who knows. He might end up in gaol.
The evidence of Mrs P suggests that she was partisan in favour of the appellant. If she presented in that way it was a relevant matter for the jury to take into account in assessing the weight to be attached to her evidence. Given the tenor of Mrs P’s evidence, the prosecutor was entitled to make a critical comment about it.
In R v Tran[3] the Federal Court outlined the duties of prosecutor at trial:
It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In R v R (1997) 99 A Crim R 327 Tadgell JA observed that it was “no part of the duty of counsel for the Crown to excite passion”. In R v M [1991] 2 Qd R 69 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge's summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also R v McCullough (1982) 6 A Crim R 274; R v Bazley (1986) 21 A Crim R 19 at 31; R v Pernich & Maxwell (1991) 55 A Crim R 464; and R v R (supra).
[3] (2000) 105 FCR 182 at [131-132]
At times language used by the prosecutor might be suggested to be inappropriate. However the language was used with respect to a specific challenge to credit. The language was not such as to create any undue prejudice. The language used was not such as to lead to any fear of a miscarriage of justice. In any event the trial judge’s fair and measured summing up would have obviated any risk that may have arisen.
The Failure of the Appellant to give Evidence
Section 18(1)II of the Evidence Act 1929 (SA) precludes a prosecutor from commenting on the failure of an accused person to give evidence. The section relevantly provides:
The failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecutor.
The appellant submitted that the comments made by the prosecutor with respect to the appellant’s earlier evidence infringed this section. The evidence given by the appellant at the earlier trial was read to the jury with the agreement of both the prosecution and defence. The defence sought to rely on portions of that evidence which were favourable to the defence case.
Counsel for the appellant submitted that when commenting on the evidence of the appellant from the earlier trial, the prosecutor told the jury that they were at a disadvantage as they had not seen the appellant give evidence. Attention was drawn to the prosecutor’s suggestion that the evidence given by the appellant in the earlier trial had been unconvincing and that the appellant had been quite evasive. Particular criticism was made of the statement:
at his last trial [the appellant] crumbled in cross-examination and by the end of his cross-examination, his credibility was naught.
The nature and purpose of the protection offered by section 18(1)II has been the subject of judicial observation. In Bataillard v The King[4] Isaacs J observed:
If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, ‘refrained from giving,’ evidence on oath, there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.
In Cormak v R[5] Street CJ applied Bataillard and noted:
The essential feature of an impermissible comment is that it draws attention to the election of the accused person not to submit himself to cross-examination.
[4] (1907) 4 CLR 1282 at 1291
[5] (1979) 1 A Crim R 471 at 473

It is accepted that the Crown may tender the evidence of an accused from an earlier trial, on a retrial[6]. In Van de Wiel v The Queen[7] Duggan J considered a comment made by the trial judge where evidence from the first trial had been tendered by the prosecution at the second trial and was said to disclose inconsistencies:
The learned trial judge made it clear elsewhere in his summing-up that the onus was on the prosecution to establish guilt beyond reasonable doubt. In the passage quoted above he warned the jury not to draw any inference adverse to the appellant by reason of his decision not to give evidence. The comment that the jury had been deprived of seeing the appellant give evidence at the re-trial was in the context of the tender of his evidence given at the previous trial. What his Honour said was merely a qualification on the fact that the jury had the appellant’s answers from the first trial: it was appropriate to add that they were not answers which they had heard him give. The trial judge did not go further and give a direction of the type discussed in Weissensteiner v The Queen (1993) 178 CLR 217 concerning inferences which might be more readily drawn from the facts proved by the prosecution case by reason of the failure to give evidence of relevant facts within his knowledge. Instead, he simply pointed out that the prosecution evidence was left without comment by the appellant at the re-trial.
However the evidence of the appellant at the first trial, having been tendered by the prosecution on the re-trial, could be used both for and against the appellant (M v The Queen (1994) 62 SASR 364) and the main thrust of the appellant’s argument on this ground was that the trial judge should have given a specific direction to the jury to that effect.
[6] Stewart v R (1921) 29 CLR 234, R v Lang [1965] NSWR 1313, R v Mills [1986] VR 617
[7] unreported, 3 August 1995, S5202
In R v Machin(No 2)[8] the court considered comments made by the judge in circumstances where evidence given by the accused at the first trial was read to the court in the second trial:
Doyle CJ observed:
In my opinion the judge was entitled to comment, as he did, upon the fact that this was not material put before the jury in a manner which enabled them to make the sort of assessment that one can make for a witness who gives evidence. In my opinion the comments made by the judge were permissible.
Millhouse J said:
Duggan J in Van de Wiel v The Queen (unreported, Court of Criminal Appeal, SA, No S5202, 3 August 1995) considered what should be said when the accused had not given evidence but, as here, his evidence from a previous trial was read to the jury. He thought it appropriate for the trial judge to point out to the jury that the evidence of an accused from a former trial should be assessed in view of the fact that he had not given evidence in the instant trial; had not been subject to cross-examination or to an assessment of his demeanour in the witness box. The usual warning about not drawing any inference adverse to the accused from his failure to give evidence must be administered.
I agree with Duggan J. It is what the learned judge has done. What he said did not ‘impinge upon the presumption of innocence’ or ‘reverse the onus of proof’.
[8] (1997) 69 SASR 403 at 411 per Millhouse J, Doyle CJ agreeing at 405
As earlier observed the appellant did not give evidence at this trial but by consent the evidence given by him at his previous trial was read to the jury as part of the prosecution case. Immediately prior to the opening of the defence case counsel for the defence said:
You’ve heard the accused’s evidence and his cross-examination, and he had been cross-examined at the previous trial, and it was not necessary for the accused to, therefore, call additional evidence.
During the course of her final address counsel for the defence observed:
Members of the jury, you have heard Mr Kostaras’ evidence on oath. You have heard him being cross-examined on it and, as I have said to you, he has reduced to denying it. The Crown haven’t sought to call any evidence to refute what he says. He said [the complainant] was ringing him up and hovering around him.
Counsel for the Crown in his final address commented on the evidence of the appellant from the earlier trial. He pointed out that the jury did not see or hear the appellant give that evidence. The fact was that the jury had only heard the transcript of that evidence read by a third party. Counsel for the Crown’s address included the following:
I will discuss what you have from Kostaras himself later because it is a little different insofar as it is not evidence that you saw him give; it is evidence from a prior trial, and you were at a slight disadvantage in assessing his evidence because you didn’t see him give it at the last trial. So you only got the words, you didn’t get the other parts you can consider in forming a view about whether you believe someone or not. I will come back to that, but I suggest, even with that disadvantage – that is not having seen him give evidence – that Mr Kostaras’s evidence from the last trial is plainly unconvincing and unsatisfactory. To put it mildly, at his last trial, Mr Kostaras crumbled in cross-examination and by the end of his cross-examination, his credibility was naught.
…
I want to turn to the accused’s evidence from the last trial because you might be wondering why it was tendered as part of the prosecution case in this trial. The reason is I suggest some of what was said in evidence last time was true, some of it was partly true and some of it was a complete lie. As a legal matter, if we want to use parts of his evidence from the last trial as part of our case, we are obliged to put it all before you so you can hear both for and against him.
As his Honour will probably tell you, the evidence, whilst it was part of the prosecution case, Mr Kostaras’s evidence from last time can be used both for and against him in the trial. So you’ll have to think about whether it helps you think he is innocent or not been proved guilty, as well as think whether it helps you to be satisfied he is guilty.
…
When you look at the accused’s evidence in the last trial, there are a number of problems with it, and there is no gentle way of saying it, but I suggest he told lie after lie. His evidence was unconvincing and he was quite evasive. Unfortunately, it might not come out so well when it is just read out the once. You don’t get to see him, see him thinking, you don’t get to hear if there are pauses between questions and answers, you don’t get to hear the tone of voice he uses but even just looking at the bare words we have, I suggest in his evidence he came across quite evasively and not credibly.
In each of the above extracts the prosecutor identified that the evidence being discussed was the evidence from the earlier trial. The prosecutor’s comments were about the quality of that evidence. The prosecutor subjected the earlier evidence to close scrutiny. In doing so he drew attention to passages that were said to impact upon the appellant’s credibility.
These comments did not infringe the prohibition contained in section 18(1)II. The prosecutor did not comment on the appellant’s failure to give evidence on the retrial. His remarks were directed to the quality of the evidence given on the earlier trial. The jury were well aware that the appellant had given evidence at the earlier trial and had not given evidence on the retrial. The reading of the earlier evidence into evidence on the retrial made this clear.
An acceptance of the submission of counsel for the appellant would greatly limit if not preclude any comment by a prosecutor on the evidence of an accused from an earlier trial on a retrial. A prosecutor would be unable to inform the jury of the purpose of the evidence or its relevance to the Crown case. It would be difficult for the prosecutor to subject the evidence to scrutiny, let alone close scrutiny.
In the present case the earlier evidence of the appellant became an item of evidence in the retrial. It was legitimate for the prosecutor to comment on the quality of the evidence given by the appellant in the earlier trial. He was entitled to scrutinise the evidence carefully. He did not do more than that. The prosecutor did not comment on the failure of the appellant to give evidence on the retrial.
The trial judge made it clear to the jury that they were not to draw any adverse inference against the appellant as a result of his failure to give evidence at the retrial. The judge referred to the evidence given by the appellant at the previous trial and told the jury that they should weigh that evidence and give such weight to it either for or against the appellant as they saw fit, bearing in mind the manner in which it was given. The judge went on to refer to the criticisms made by the prosecutor of this evidence and explained that those matters went to an assessment of the appellant’s credibility but did not lead them adversely to a conclusion of guilt. The directions of the judge included:
I want to speak to you now of the fact that the accused did not give evidence in this trial. That is his legal right, and he is entitled to exercise it. Because he is innocent until you are satisfied of his guilt, no adverse inference about his guilt is to be drawn because he exercised that right, which we all have, of not giving evidence.
You have not heard evidence from the accused in this trial in the same way as you have heard evidence from the other witnesses, as he has not given evidence, he has not here been subject to cross-examination, or to an assessment of his demeanour in the witness box by you. Through the evidence which was read to you, you have heard what the accused had to say about the allegations made against him. It is for you to weigh up his previous statement, and to give such weight to it, either for or against him as you see fit, bearing in mind the manner in which it came before you.
The criticisms of his evidence made by Mr Henchliffe are to be considered by you in assessing what credibility you are prepared to attach to the evidence which you have heard read to you. Criticisms of that evidence go to that assessment, and not to evidence of his guilt. It is suggested to you that the accused’s evidence which was read to you was wrong and that he was telling lies. If you find that was so, in whole or in part, that is relevant to your assessment of his credit, but does not lead you directly to a conclusion of guilt.
Having regard to the observations in Van de Wiel and Machin (No 2) there were sufficient directions in the context of this case.
A Motive to Lie
In Palmer v The Queen[9] the Court considered the effect of cross-examining an accused to demonstrate an inability to identify a motive to lie on the part of the complainant. The Court said:
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F:
‘the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.’
The appellant submitted that the prosecutor had infringed these principles.
[9] (1998) 193 CLR 1 at 7-10
The form of the prosecutor’s address in the present case was in similar terms to that used in the earlier trial. When addressing the appeal against conviction in the earlier trial, the Court of Criminal Appeal rejected the ground of appeal which related to those matters. The court observed:
In her address, the prosecutor was entitled to challenge the suggested motive for these witnesses to lie. She was entitled to invite the jury to consider the likelihood that these witnesses would lie for the reasons suggested or implied. But, in doing so, she was not entitled to take the further step and suggest that the absence of a persuasive motive to lie in fact enhanced the credibility of these witnesses, or strengthened the prosecution case: Palmer at [10]; R v Hewitt [1998] 4 VR 862 at 868 – 869.
I have read the relevant parts of the prosecutor’s address to the jury several times. I am satisfied that it did not offend these principles. The prosecutor began by reminding the jury that the defence did not have to provide a motive for prosecution witnesses to lie. She then turned to the suggestion of a ‘big conspiracy’ between the complainant, his brother and friends and, subsequently, to the suggested motive for Ms T to lie. The prosecutor spent some time on this topic, and dealt with it fairly vigorously. But, in my opinion, she did no more than argue that the suggestion of a motive to lie was not sustainable. She did not suggest to the jury that, if that is so, the absence of a motive to lie of itself enhanced the prosecution case. In one sense, one can acknowledge that that suggestion must be implicit in any attack on a suggested motive to lie. But that cannot be a reason for holding that the prosecutor cannot attack the defence case in this respect.[10]
[10] R v Kostaras (2002) 222 LSJS 373 at 387-8
The conduct of the defence in the present case, as in the earlier trial, clearly suggested that the complainant had a motive to lie. Counsel for the appellant put to the complainant in cross-examination that his motive for making the complaint was to obtain money. The question of motive was raised by the defence. This made it permissible for the prosecutor to address in the way that he did.
The Need for a Lies Direction
The topic of motive to lie was, in any event, the subject of careful directions by the trial judge. He said:
But remember, it is wrong to ask yourselves, in the context of the accused, why should [the complainant] lie? That’s not a question which the accused can answer. It is a question which requires a speculative answer, and the conclusion in this case is not to be reached by speculation.
It is impossible for the accused to account to you for what he says is a false story told by [the complainant]. He is unable to see into the mind of [the complainant], and so the question is unfair.
You will see now that to question yourselves in this way is actually reversing the onus of proof, and you know that must not occur. The onus stays with the Crown, and the accused is innocent until you are satisfied beyond reasonable doubt as to his guilt.
If you conclude that [the complainant] has such a motive that, in itself, would not necessarily mean that he was not telling the truth, but it will be relevant to your assessment of his credibility and the weight which you are prepared to give his evidence in the Crown case.
If you understand that you have been asked by the Crown to consider that there is a suggestion by the defence that the many persons whose names were mentioned to you, who were Crown witnesses, are involved in a conspiracy with the accused as its target, then I want you to carefully understand what I know say to you.
Firstly, [counsel for the accused] has made it clear to you that the defence is not suggesting that there is a conspiracy by the prosecution witnesses. The accused’s defence is that he did not do it, he did not have sexual relations with [the complainant] at all in 1987 or at any time. Secondly, to the extent that there is a question posed for the accused to answer, ‘why would the Crown witnesses conspire?’, I repeat what I have said to you a moment ago about the question ‘why would [the complainant] lie?’ It is not a question which can concern you, because to do so means that there is some expectation on the accused to answer it. As you know, there can be no such expectation, because to have it would require speculation on your part, and would reverse the onus of proof. You know that is wrong. There is no onus on the accused. The onus is always with the Crown to prove each count beyond reasonable doubt, and that cannot be achieved by asking that the accused supply answers and explanations where there is no obligation upon him to do so.
As I have direct you, the law is that such a question cannot be asked, even rhetorically, and you should put it out of your minds and concentrate on whether the evidence that you accept beyond reasonable doubt is sufficient to discharge the onus of proof borne by the Crown in relation to each separate count and not go off into areas requiring speculation.
Ask yourself whether the evidence which you accept supports [the complainant] so that you can be satisfied that his evidence is reliable.
These directions drew the jury’s attention to all relevant considerations on the topic. No risk of a miscarriage arose.
In Dhanhoa[11] the High Court recently considered the issue of lies and a consciousness of guilt. The prosecutor in that case had pointed out differences between what the accused had said to the police and his evidence at trial. The prosecutor did not suggest that what the accused had said to the police amounted to lies which indicated a consciousness of guilt and no such possibility was put to the jury by the trial judge. Gleeson CJ and Hayne J observed:
The facts of the case are quite different from those in Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt.
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
[11] [2003] HCA 40 at [33]-[34]; [59]-[61]; [96]

In the present case the judge’s direction was in the following terms:
The criticisms of his evidence made by Mr Henchliffe are to be considered by you in assessing what credibility you are prepared to attach to the evidence which you have heard read to you. Criticisms of that evidence go to that assessment, and not to evidence of his guilt. It is suggested to you that the accused’s evidence which was read to you was wrong and that he was telling lies. If you find that was so, in whole or in part, that is relevant to your assessment of his credit, but does not lead you directly to a conclusion of guilt.
The appellant submitted that the comments made by the prosecutor gave rise to an inappropriate line of reasoning which might lead the jury to conclude that the appellant had lied in his previous evidence out of a realisation that the truth would convict him. Attention was drawn to the decision of the High Court in Edwards[12].
[12] (1993) 178 CLR 193
The prosecutor had put to the jury that the appellant lied in evidence given at the earlier trial and in particular had lied in suggesting that there had been a grand conspiracy. However the prosecutor did not suggest the lies were told out of a consciousness of guilt. The thrust of his address to the jury was that these matters went to credibility. This was not a case in which the prosecutor identified lies which might have given rise to a need for a direction in accordance with Edwards[13]. The trial judge’s directions referred to earlier in these reasons were adequate.
Delay
[13] (1993) 178 CLR 193
The trial Judge was required to give an appropriate warning to the jury in view of the delay, the nature of the allegations and, to some extent, the failure to make a complaint at an earlier time.
In Longman v R Brennan, Dawson and Toohey JJ observed:
But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] A.C., at p141. That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial. After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1988) 12 NSWLR 558) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.[14]
Deane J acknowledged that delay required a warning to be given to the jury and said:
The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences.[15]
McHugh J accepted that the delay and lack of specification of dates required a warning because of its impact upon the reliability and accuracy of the evidence of the complainant and the forensic disadvantage to the accused. He said that strong warning was required which, relevantly to the present case, should include that due to the extent of the delay, experience shows that recollection of events occurring in childhood is frequently erroneous and liable to distortion, the likelihood of error increases with delay and due to lack of specificity, the defence was unable to examine the circumstances of the alleged offences. He went on to say:
Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant’s testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.[16]
[14] (1989) 168 CLR 79 at 91
[15] at 100
[16] at 108-109
In Crampton v The Queen the High Court again considered directions given to the jury in a sexual case involving substantial delay. Gaudron, Gummow and Callinan JJ, having considered the directions given by the trial judge and the observations in Longman held that what the direction under consideration fell short of the Longman requirements:
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury.[17]
Kirby J also considered that there should be a warning and not merely comment given to the jury in cases of this nature involving substantial delay. He said:
The warning required by Longman must be, in the words of the joint reasons in this case, ‘unmistakable and firm’. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant’s defence could never rise much above a mere denial and protest of innocence.[18]
The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this court in and since Longman. The jury need the assistance of the trial judge to warn, from the law’s long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.[19]
[17] (2000) 206 CLR 161 at 181
[18] at 209
[19] at 209
Delay was clearly a significant issue in the present case. The complainant did not make any complaint for almost 13 years. He only spoke to police after he had spoken to solicitors. As earlier observed it was suggested to the complainant in cross-examination that his motive in making a complaint related to an attempt to obtain money.
The trial judge referred to the fact that no complaint had been made for 13 years but told the jury that that did not mean that these allegations were false. He explained that there may be many valid reasons why a victim of a sexual assault did not complain and referred to the evidence of the complainant that he was ashamed to tell his parents and that he was very confused. The trial judge told the jury that the delay was relevant to their assessment of the complainant’s credibility and that they should consider whether it adversely reflected upon his credit. He also referred to other matters with respect to delay and the suggestion put to the complainant that his motive was to obtain the opportunity to obtain money from the conviction of the appellant.
The trial judge explained to the jury that if the complainant had such a motive, that in itself would not necessarily mean that he was not telling the truth, but it would be relevant to their assessment of his credibility and the weight they were prepared to give to the evidence in the Crown case.
The trial judge returned to the issue of delay later in his directions. He explained that the passage of time affected recollection and reliability and pointed out the forensic disadvantages to the appellant. This included an inability to obtain evidence from other children in his class or other teachers who may have observed the complainant’s behaviour as described by the appellant in 1987. It also included the lack of opportunity to investigate the obtaining of written consent for the visit to Kent Town and thus test the evidence of the complainant’s mother on that topic. There was also the inability to find pay cheques to confirm dates and amounts and the inferences which might flow there from, or to examine bank records as to signatories. The trial judge mentioned the lack of opportunity to enquire of a deputy principal as to obtaining permission to take the complainant to Kent Town in anticipation of work experience. There was no opportunity to see the premises at Kent Town or Rosewater to help explain evidence about those places. There was no opportunity to test the memory of the appellant’s mother about the visit of the complainant to her home or his receipt of the coat as she was now very old. The uncle who was said to own the house at Rosewater in April 1987 was now deceased. The trial judge explained that if the appellant’s uncle had been in occupation from April 1987 there was a real likelihood of uncertainty about the evidence of the complainant on this count as the complainant said that the incident in Count 3 had occurred in May 1987 at the earliest.
The trial judge also referred to the fact that there was no opportunity for the appellant to identify from his diary or other records when it was that he drove the complainant home from Pirie Street or any other matters relating to the complainant’s work at the Oaks Tavern. He also mentioned that there was no opportunity to produce the answering machine from West Lakes or prove that it was purchased after such a long time. The memory of the complainant’s mother was almost non-existent as to conversations with the appellant as well as other relevant matters. The trial judge also referred to the awards dinner night and the conflict in the evidence given by Mrs T and another witness as to whether J and other members of her family had attended. He pointed out that this was an indicator that after a long time there can be quite different recollections of the same event and that also created a difficulty for the appellant in preparing a detailed defence.
The trial judge also explained that had the complainant made a complaint to the police contemporaneously with the events or within a short time thereafter, many of these matters would have been able to have been fully investigated by the police.
The trial judge concluded his remarks on this topic by warning the jury that because of the long delay and the serious forensic disadvantage sustained by the appellant in preparing his defence, the appellant’s case could never really rise above a mere denial and protest of innocence. He told the jury that it would therefore be dangerous to convict the appellant on the complainant’s evidence alone, without the closest scrutiny of that evidence.
These detailed remarks of the trial judge accorded with the principles set out in Longman and Crampton. The warning provided by the judge was adequate. There is no substance to this complaint.
Uncharged Acts
Counsel for the appellant submitted that the direction of the trial judge with respect to the evidence of uncharged acts were inadequate. The problems associated with the evidence of uncharged acts and the approach to be taken to such evidence were discussed R v Nieterink[20] where Doyle CJ observed:
First of all, the evidence [of uncharged criminal acts] may be relevant because without it the jury could hardly understand the context in which the alleged offences occurred. As in this case, evidence of uncharged acts will often include evidence of acts that preceded the commission of the first offence charged. This evidence may disclose a course of events leading up to the first charged incident, which enables the jury to understand that the incident did not, as it were, “come out of the blue”. The evidence will also sometimes explain how the victim might have come to submit to the acts the subject of the first charge. Without the evidence, it would probably seem incredible to the jury that the victim would have submitted to what would seem an isolated act, and likewise it might seem incredible to the jury that the accused would suddenly have committed the first crime charged. The evidence of uncharged acts may also disclose a series of incidents that make it believable or understandable that the victim might not have complained about the incidents charged until much later in the piece, if at all. They may show a pattern of behaviour under which the accused has achieved the submission of the victim. The evidence may establish a pattern of guilt on the part of the child, that could also explain the submission and silence of the child. The evidence was also relevant because it could establish a sexual attraction on the part of the accused towards R. But it was no more than that - evidence of a sexual attraction.
[20] (1999) 76 SASR 56 at [43-45] [49]
The uncharged acts were led by the prosecution to put in context the conduct occurring between the complainant and the appellant. The manner in which this evidence was given was similar to that at the earlier trial. The admission of that evidence and the adequacy of the judge’s directions with respect to them were, however, the subject of the appeal following the earlier trial. The court held that the evidence of the uncharged acts was admissible. Doyle CJ went on to say:
If the evidence of uncharged acts is accepted, it would provide very powerful evidence of a sexual attraction on the part of the appellant towards the complainant, and of a practice of engaging in particular sexual acts at particular locations when they were alone. If used to support an argument based on propensity reasoning, the conclusion of guilt would be almost irresistible. There is one qualification to be made. The general evidence given by the complainant of uncharged acts is not of much assistance in deciding whether the four particular incidents the subject of the charges before the court were adequately identified and proved. But that will normally be so in a case, like the present, in which there is evidence of a pattern of behaviour of which the charges are instances, usually differentiated from the general pattern only by their link with some other incident which enables them to be singled out in one way or another[21].
[21] R v Kostaras (2002) 222 LSJS 373 at 381
The appeal was, however, allowed as the court considered that the judge had failed to direct the jury as to the appropriate use of the evidence of the uncharged acts.
In the present trial the judge instructed the jury:
The evidence about them is led in order that you have some understanding of how it was, it is said, that the relationship between [the complainant] and the accused developed in 1987, after the first alleged sexual incident at West Lakes which [the complainant] put from about May to mid year.
This evidence helps explain to you why it is that these offences are alleged to be part of ongoing sexual conduct between them. Were it not before you – that is, the evidence – it is perhaps likely that there would be no link or continuity in activity and you’d have a false background against which to consider the Crown case. In addition, it goes to explain why [the complainant] may be unclear about the precise date of the offences charged. It also helps to explain acquiescence. It may suggest that the accused had developed an influence over [the complainant], and so explain his confidence in repeatedly committing acts of a sexual nature with [the complainant] during 1987. Further, this evidence, if you are satisfied about it, may provide strong evidence that the accused was sexually attracted to [the complainant].
You must consider this evidence in the setting of the nonsexual relationship which began and developed from the commencement of the school year. Did the accused pay attention to [the complainant] and did he, [the complainant] respond? If so, you may ask yourselves whether it is likely that [the complainant] considered that he stood in a special relationship with the accused.
When, in the whole context of the evidence, you come to consider what weight you will give to the evidence of the uncharged acts of sexual activity, I direct you that you must not act upon the evidence of that activity, or any of it, unless and until you are satisfied of its truth. If you are satisfied of its truth, or the truth of any part of it, then you may use that evidence of which you are so satisfied when you consider each count on the information, and whether you are satisfied that any of those counts occurred.
I direct you, however, that there is one use which you may not make of evidence of this type. You must not reason that because you may be satisfied that some or all of the uncharged acts are proven, then that, in itself, indicates that the accused is the type of person who is likely to have committed these offences. To so reason would be wrong, and you must not do it.
As I said, this evidence sets out how it is that [the complainant] says these offences came about, and describes the atmosphere in which he says they occurred.
The judge adequately explained to the jury the use they could make of the evidence of the uncharged acts and also cautioned them appropriately with respect to propensity reasoning. This complaint should be rejected.
Inconsistencies
In the course of the appeal the court was provided with detailed particulars of inconsistencies arising from the evidence of the prosecution witnesses. This included evidence about the driving of the appellant’s car by the complainant and the consumption of alcohol at the premises which are also addressed later in these reasons. The judge referred to the inconsistencies in the evidence on a number of topics, including the evidence about the complainant driving the appellant’s car and alcohol. The judge reminded the jury that inconsistencies arising on the evidence were relevant to this assessment of the complainant’s credit. The judge did not refer to every inconsistency raised by defence counsel but he was not obliged to do so. The directions given were adequate.
Other Directions

Counsel for the appellant submitted that the directions of the judge concerning the evidence of the driving of the appellant’s car by the complainant and the consumption of alcohol at the appellant’s premises were inadequate.
As far as the question of alcohol was concerned, the complainant gave evidence that it was only involved in Count 1 and that the appellant did not keep alcohol in his house. The evidence of the complainant’s friends, however, was that they had seen alcohol there on another occasion. This was therefore in conflict with the evidence of the complainant. Further, although the complainant maintained that he was very drunk with respect to the incident which was the subject of Count 1, the complainant’s mother gave evidence that there was a strict regime in place in which the complainant and his brother were required to speak to their parents before retiring. She had, however, never noticed the complainant to be affected by, or smelling of, alcohol when returning home.
Counsel for the appellant also referred to the evidence of the complainant which related to the driving of the appellant’s motor car and the inherent unlikelihood of the sexual acts described by the complainant having taken place while driving the car which the complainant had in the earlier trial described as an automatic but was proven to be a manual motor car.
After referring to the evidence of the appellant that the complainant was not permitted to drive his vehicle, that he did not give him alcohol and that he did not have any form of sexual relations with the complainant, the judge went on to refer to the evidence of the complainant’s mother about how the complainant behaved and there being no signs of alcohol. He also referred to the evidence of the complainant’s brother and the other boys about the complainant driving. He mentioned the evidence of two other witnesses about their attendance at the appellant’s house and the production of a bottle of tequila, identified by having a worm or a root in it. The judge told the jury to consider this evidence in the context of the friendship between the appellant and the complainant in 1987 and what the complainant said about alcohol regarding Count 1, and going home from the appellant’s apartment affected by alcohol.
The judge then went on to tell the jury that before they could make use of any of this evidence, it was essential that they decide which portions of it they accepted, if they accepted any of it, and that in so doing they had to have regard to the criticism of those witnesses by defence counsel to determine whether that evidence was acceptable to them.
The judge also told the jury that the evidence of driving and as to the production of alcohol was relevant to their assessment of the credit of the complainant and of the appellant. He told them that they could use any parts of that evidence which they accepted in their assessment of the credit of those persons and their evidence. The judge also said that if they accepted any of that evidence they could use it as support for the evidence of the complainant on those topics but that alone would not be sufficient for them to decide that the appellant was guilty of these offences, or any one of them. He then made it clear that the evidence and what of it they accepted must always have regard to the fact that the appellant carried no onus of proof and that they could not return verdicts of guilty until they were satisfied that the Crown case was proved beyond reasonable doubt. The judge went on to say:
If you accept the evidence of these witnesses as to [the complainant] driving the accused’s car, and as to the production of alcohol in the bottle at West Lakes, at the West Lakes apartment, in preference to the evidence of the accused which was read to you on these topics, and having regard to what is said to be the inconsistencies in their evidence, which Mrs Shaw drew to your attention, and I remind you that the accused’s evidence was that [the complainant] never drove the accused’s car, and he did not keep alcohol in his apartment, then you may use that evidence to conclude that the accused was ingratiating himself with [the complainant] and so behaving in an inappropriate way for a teacher.
These various matters are relevant to your determination of the credit of [the complainant] when you are assessing his evidence and when you are considering the evidence of the accused which was read to you. In themselves, they do not support a direct conclusion of guilt in relation to any count. As I have said earlier, in considering whether the onus of proof has been discharged you must have regard to all of the matters which you accept in relation to each count.
The judge’s summing up and directions on these topics were adequate and appropriate. The jury were properly assisted. There is no substance to these complaints.
Unsafe and Unsatisfactory
The appellant relies upon the cumulative effect of the various matters canvassed under the earlier complaint to submit that the verdicts of guilty should be set aside. In substance the submission was that the verdicts were unsafe and unsatisfactory.
There was, however, a strong circumstantial case against the appellant which suggested that the relationship between the appellant and the complainant rapidly developed beyond that of teacher and student to something improper. There was no dispute that the appellant involved the complainant in a variety of activities such as taking him to the gym where he provided him with clothing, collecting him from the Oaks Tavern after work, taking him to his business premises at Kent Town, hiring a suit for the complainant to attend the awards night with him, taking him to visit his mother and allowing the complainant into his home. If the complainant’s evidence was accepted there was also the evidence of driving the appellant’s car and the consumption of alcohol.
The inconsistencies arising out of the evidence and such matters as the suggested implausibility of the sexual acts occurring in the appellant’s car in the way the complainant described were all extensively canvassed before the jury and were the subject of adequate directions by the trial judge. The judge carefully warned the jury about the problems attendant upon the issue of delay and put the defence case quite forcefully. He gave the jury clear instructions as to the need to be satisfied beyond reasonable doubt of the complainant’s reliability before acting upon his evidence to record a conviction. The jury had the benefit of assessing the credibility of each of the witnesses who gave evidence before them. They were told that they had to subject the complainant’s evidence to the closest scrutiny and the judge drew the jury’s attention to those matters which affected his reliability as a witness. The return of a majority verdict is not of any significance.
There was ample evidence upon which the jury could be satisfied that the guilt of the appellant had been proved beyond reasonable doubt.
Conclusion
This appeal should be dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 Count 1 Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence
Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at West Lakes, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an act of fellatio upon him.

Count 2 Statement of Offence

Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at Kent Town, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an act of fellatio upon him.

Count 3 Statement of Offence

Unlawful Sexual Intercourse. (Ibid).

Particulars of Offence

Nickolas Kostaras between the 1^st day of January 1987 and the 31^stday of December 1987 at Port Adelaide or another place, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an act of fellatio upon him.

Count 4 Statement of Offence

Unlawful Sexual Intercourse. (Ibid).
Particulars Of Offence
Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at West Lakes, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an Act of fellatio upon him.

2 R vKostaras (2002) 222 LSJS 373, 133 A Crim R 399
3 (2000) 105 FCR 182 at [131-132]
4 (1907) 4 CLR 1282 at 1291
5 (1979) 1 A Crim R 471 at 473
6 Stewart v R (1921) 29 CLR 234, R v Lang [1965] NSWR 1313, R v Mills [1986] VR 617

7      unreported, 3 August 1995, S5202
8 (1997) 69 SASR 403 at 411 per Millhouse J, Doyle CJ agreeing at 405
9 (1998) 193 CLR 1 at 7-10
10 (2002) 222 LSJS 373 at 387-8
11 [2003] HCA 40 at [33]-[34]; [59]-[61]; [96]
12 (1993) 178 CLR 193
13 (1993) 178 CLR 193
14 (1989) 168 CLR 79 at 91
15    at 100
16 at 108-109
17 (2000) 206 CLR 161 at 181
18 at 209
19 at 209
20 (1999) 76 SASR 56 at [43-45] [49]
21     R vKostaras (2002) 222 LSJS 373 at 381

Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at West Lakes, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an

act of fellatio upon him.

Count 2 Statement of Offence

Unlawful Sexual Intercourse. (Ibid)

Particulars of Offence

Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at Kent Town, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an

act of fellatio upon him.

Count 3 Statement of Offence

Unlawful Sexual Intercourse. (Ibid).

Particulars of Offence

Nickolas Kostaras between the 1^st day of January 1987 and the 31^stday of December 1987 at Port Adelaide or another place, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an act of fellatio upon him.

Count 4 Statement of Offence

Unlawful Sexual Intercourse. (Ibid).

Particulars Of Offence

Nikolas Kostaras between the 1^st day of January 1987 and the 31^st day of December 1987 at West Lakes, had sexual intercourse with [PAB], a person under the age of 17 years, by performing an

Act of fellatio upon him.

[2003] SASC 323

8 October 2003