R v Landmeter - [2015] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LANDMETER
[2015] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Bampton)
4 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Appeal against conviction - appellant convicted by verdict of a jury for persistent sexual exploitation of a child - whether evidence of elaboration of initial complaint was admissible - whether the judge erred in failing to direct as to the use of what were described as uncharged acts being acts which were other than those particularised.
Held per Vanstone and Bampton JJ (Peek J dissenting): appeal dismissed.
Evidence Act 1929 (SA) s 34L, s 34M(4), s 34M(6), s 34N, s 34P, s 34R; Criminal Law Consolidation Act 1935 (SA) s 50; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 18, referred to.
R v Maiolo (No 3) [2014] SASCFC 89; R v A, GP (2012) 113 SASR 146; R v J, JA (2009) 105 SASR 563; R v England (2013) 116 SASR 589; R v Coutts [2013] SASCFC 143; R v Lillyman [1896] 2 QB 167; R v Usher (2014) 119 SASR 22; Breen v The Queen (1976) 180 CLR 233; R v RH [2004] VSCA 231; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97; R v Maiolo (No 2) (2013) 117 SASR 1; R v S (2002) 129 A Crim R 339, considered.

R v LANDMETER
[2015] SASCFC 3
Court of Criminal Appeal: Vanstone, Peek and Bampton JJ

VANSTONE and BAMPTON JJ: After a short trial before Judge and jury the appellant was convicted for persistent sexual exploitation of a child.
Two grounds of appeal are agitated. The first asserts that inadmissible evidence of complaint was received and the second asserts that the judge erred in failing to direct as to the use of what were described as uncharged acts.
Background
The appellant was a long-standing family friend of the complainant’s parents, principally through their close involvement with the Jehovah Witness faith. The complainant, V, gave evidence that apart from seeing the appellant and his family at regular church activities, her family would visit his family home for lunch or dinner every fortnight or so. Occasionally the appellant’s family visited her own family home.
V said that from 1992, when she was about seven or eight years of age, until she was about 13 years, the appellant engaged in inappropriate conduct towards her. She described the first time the appellant hugged her in the spare room of his home. She was aged eight. The conduct comprised “just the hug”. She said the incident came to an end because her elder brother came down the hallway. She said that from that time and on over 100 occasions during the period to 1998 the appellant hugged her in a manner atypical of the way a family friend might hug a child. She said he would place one hand behind her neck and the other around her waist and then bring their whole bodies into contact for an extended period. V said “it had a sexual nature to it”. She said that on about half of these 100 occasions, depending on how long they would be alone and if there were time, “then he would be kissing me and he would insert his tongue into my mouth”. She gave evidence of one specific episode of such kissing, which she said occurred in the pantry of her home. However, the great majority of the conduct took place in the shed of the appellant’s home, where toys and sporting equipment used by the children were stored.
V said that she came to expect that conduct of this sort would occur during every visit to the appellant’s home. She could not remember a time when it did not. When asked whether there were other incidents apart from the very first occasion at the appellant’s home, and the numerous instances of unwanted contact in the shed, V said that the only other one she recalled was in the bedroom occupied by the appellant and his wife. She said she was then aged ten years. She said she had gone into the room to get a doll and the appellant followed her in and that the same conduct occurred, “again with the hugging”. This conduct was said to have ceased when V was about 13 years of age at which time she stopped going with her parents to the appellant’s house. She first spoke with police on 19 August 2011. At the time she gave her evidence V was 29 years of age. By this time V had been “disfellowshipped” by the Jehovah’s Witness church and her relationship with her parents was strained.
The only other prosecution witness was the complainant’s brother who confirmed that the family would often visit the appellant’s home. He also confirmed that a good deal of sporting equipment used by the appellant’s children and visiting children was located in a shed at the appellant’s home.
The appellant neither gave nor called evidence.
We propose to deal with the grounds in turn.
Admissibility of complaint evidence
The first ground is framed as follows.
The evidence of the elaboration of the initial complaint made by the complainant was inadmissible at law and gave rise to a miscarriage of justice.
It is necessary to describe the evidence of complaint. It came only from V. As will be seen, V gave evidence that she had complained to her father on two occasions, separated by some years, but did not purport to give a detailed account of what she told him.
QAgain, during the time when it was happening to you, between those ages of seven or eight up until 13, did you tell anyone else or tell anyone about what the accused was doing to you.
AYes, I told my father.
QWhat did you tell him.
AI remember when I was quite young I would say probably eight or nine I told him and it was kind of brushed off like, you know ‘He’s just being affectionate because he loves you’. I don’t think he really understood to what extent it was.
QDid you say that he told you that he was just being affectionate.
AYes.
QWas any action taken by your father.
ANot that I’m aware of, no.
QWhat about after it finished, that is, after the age of 13 and when the conduct was no longer occurring, did you speak then to anyone about what had happened to you.
AYeah, I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened and his response was ‘You need to leave it in the hands of Jehovah, he’ll sort it out’.
Q‘Leave it in the hands of Jehovah’.
AYes.
Q‘He will sort it out’.
AYes.
QDid you say that you told him more about what had happened to you at that time when you were 15.
AYes.
QDid you go into more detail about what had happened to you.
AYes.
QWas anything done or any action taken as far as you know.
ANo.
This evidence was given against the background of V’s earlier evidence that members of the Jehovah’s Witness faith were not permitted to socialise with persons outside that faith. Even at school, the children were not permitted to take part in sports activities which were not strictly part of the school curriculum. Childhood friends were to be made among other Jehovah’s Witness families. All persons within the faith, but only persons within the faith were to be trusted. It was also relevant that V described her father as being the “hero” of his children and as the “ultimate” authority within the family. There was no objection to any of this evidence.
Upon the appeal, counsel now acting for the appellant, Mr M Mead, accepted that the first conversation between V and her father was an initial complaint. In our view this was a proper concession. This was a complaint about sexual exploitation by the appellant and it was a complaint of conduct occurring within the charged dates. It was capable of demonstrating consistency of conduct. That the terms of the complaint did not – as far as the evidence went – include a description of an act falling within the acts specified in the information was not to the point. To hold otherwise would be to ignore the nature of the charge faced by the appellant. However Mr Mead argued that the evidence about the later conversation could not amount to an elaboration of the initial complaint as those terms are explained in s 34M(6) of the Evidence Act 1929 (SA). That was so, he submitted, because there needed to be some sufficient connection between the initial complaint and the suggested elaboration of it. He referred to Maiolo (No 3) [2014] SASCFC 89 at [81] to [83]. Mr Mead argued that because the evidence did not extend to a description of what V told her father on each occasion, it could not be established that there was any “elaboration”. In addition, although counsel accepted that an elaboration of a complaint would often take place at a time subsequent to the initial complaint, here the period between the two occasions – amounting to about six years – told against the later complaint being classed as an elaboration of the original. That is, they were not capable of being viewed as one complaint. It is convenient to set out s 34M of the Evidence Act.
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The examples given in subsection (3) amount to a list of admissible topics related to the making of an initial complaint. As can be seen, the topics of when and to whom the complaint was made are instanced separately from the content of the complaint. We reiterate the view expressed in R v A, GP (2012) 113 SASR 146 by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim. As Duggan J observed in R v J, JA (2009) 105 SASR 563 at 583, the consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency in the allegations. In the present case, the evidence tended to explain how the allegations first came to light and why there was no prosecution of the matter until much later, as well as potentially bearing on V’s consistency of conduct.
For much the same reasons we consider that the second conversation with V’s father could be viewed as an elaboration of the original complaint, notwithstanding the long elapse of time since the earlier conversation and even though V did not describe the extra details she gave on the later occasion. Plainly, by then she was a good deal older. She said that she was able to “tell him better what happened” and that she went into more detail on that occasion. As set out above, it was on the second occasion that the statements to her father elicited the response: “You need to leave it in the hands of Jehovah. He’ll sort it out”. Counsel submitted that this particular answer had potential to excite sympathy for the complainant in the minds of the jury. We consider that the second conversation was capable of being viewed as an elaboration of the initial complaint, because, according to V, it contained greater detail of the allegation.
In her directions to the jury the trial judge pointed out that the lack of evidence of the precise terms of the two conversations meant that it was difficult for the jury to determine whether the allegations were consistent with those made in court. Nevertheless, the evidence was left for the jury’s consideration as generally bearing on her truthfulness and reliability. The appropriate warning against misuse was given. In Maiolo (No 3) Peek J, speaking for the Court of Criminal Appeal, stated that the initial complaint and the further information provided need to be “sufficiently connected together so as to be reasonably viewed as one complaint”: [82].The requirement for such a connection flows from the use of the word elaboration, which connotes the addition of detail. It may be that demonstration of that connection will be more readily achieved where the person who receives the information is the same in both instances, or where the further detail is given to a person who takes up the matter after the initial complaint. We do not consider that the long delay between the original complaint and the subsequent conversation necessarily negates the possibility of the later being an elaboration. Indeed, V’s own assertion that additional detail was given, as well as the character of the reported response from her father in each instance tend to indicate a progression of disclosure about the impugned conduct. Having said that, these are unusual circumstances and courts must be mindful to ensure that only one complaint, whether elaborated upon or not, is admitted. (See R v England (2013) 116 SASR 589 at 590 per Stanley J and Maiolo (No 3) per Peek J at [80] to [82].)
The more fundamental difficulty confronting the appellant’s argument is that the evidence of both conversations was admitted without objection. The failure to object implies either that counsel considered that the conversations were admissible under s 34M, or that he saw some forensic purpose in having the conversations before the jury. Either way, the appellant is bound by the course of the trial. This is not a case where the evidence was plainly inadmissible. As can be seen, its admissibility turned on the interpretation given to relatively recent provisions of the Evidence Act and to the evaluation of the relevance of the evidence to the complainant’s reliability.
In our view, the evidence had limited weight, if only because there was no evidence from V’s father to confirm that the complaints were made as she asserted. The use of the evidence in those circumstances was confined to aiding an appreciation of the events from V’s point of view and so bearing on her credibility and potentially explaining why the authorities were not notified about the allegations until some years after the events. The limits of the uses to which the evidence could be put were adequately explained by the trial Judge.
In summary, we are not persuaded that this evidence was inadmissible or that any aspect of its admission could have led to a miscarriage of justice.
Absence of directions on acts not particularised
The second ground was framed as follows.
The learned trial Judge failed to give any direction as to the use of the evidence of uncharged acts that arose from the evidence of the complainant.
As seen, V gave evidence of a number of occasions when the appellant would ask her to give him a hug and then hold onto her for too long, pulling her to him so that the whole length of their bodies met, but without kissing her. She said she would try to push away from him. She also described occasions when her family would be at the appellant’s home and she would be in the bathroom using the lavatory. On several occasions she described the appellant walking in, apparently accidentally, but then not leaving. She said he would “linger”, just standing there.
This conduct fell outside the particulars of the charge. The charge before the jury was framed as follows.
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Henricus Stephanus Landmeter between the 1^st day of January 1992 and the 31^st day of December 1998 at Para Hills West, committed more than one act of sexual exploitation of [V], a person under the age of 17 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation was Henricus Stephanus Landmeter indecently assaulting [V] by kissing her on the mouth and inserting his tongue into her mouth.
The appellant’s counsel argued that the trial Judge was obliged to direct the jury as to the permissible and impermissible uses of the evidence of hugging without kissing and “lingering” in the bathroom. In particular it was put that the jury needed to be warned that satisfaction of what counsel described as “uncharged acts” was not a substitute for a finding of guilt of the charge. Mr Mead also suggested that the jury members should have been warned that they were not entitled to reason from what we shall call the unparticularised conduct that the appellant had a general propensity to commit the charged offence. Mr Mead fortified his argument by putting that the conduct was discreditable conduct within the meaning of s 34P of the Evidence Act and so attracted the requirements of s 34R of that Act that the purposes to which the evidence might and might not be put needed to be explained.
The first question is whether the unparticularised conduct described by V truly fell outside the charge of persistent sexual exploitation of a child.
This offence was introduced in 2008, replacing a broadly comparable offence of persistent sexual abuse of a child. That offence was found in the former s 74 Criminal Law Consolidation Act 1935 (CLCA) and came into effect in 1994. Broadly similar provisions were introduced in other states in the 1990s, some of them describing the offence as maintaining a sexual relationship with a child. The main reason for introducing the newer version of the offence in 2008 appears to have been to require a lesser degree of particularity in relation to the conduct relied upon. (See South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1468 (The Hon M J Atkinson).)

The offence is created and then explained in s 50(1) and (2) of the CLCA:
50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
The essence of the offence is the commission of multiple sexual offences – whether able to be particularised or not – over a given period.
Sexual offence is defined in s 50(7) and includes, relevantly, indecent assault.
Section 50(4) deals with the way in which such an offence may be charged:
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
It will have been noted that if specific sexual offences are also charged in relation to the same victim during the period covered by the sexual exploitation charge, they must be charged as alternatives. Accordingly, a defendant could not be convicted for both.
Subsection (5) makes it even clearer that the sexual exploitation charge covers the field in relation to a specified period and victim for all time; being either convicted or acquitted of such a charge is a bar to future conviction:
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
Taken as a whole these provisions suggest that, in contrast to the traditional situation, all sexual offending by a person against a particular child in the relevant period falls within the single offence of persistent sexual exploitation of a child, whether particularised or not. One of the important functions of the particulars for this charge is to establish which of the acts (or types of acts) occurring within the course of conduct will be available in proof of the charge. For example, in framing the charge, the Director of Public Prosecutions might wish to confine the particulars to certain of the more serious acts alleged, so that the jury is obliged to render its verdict having regard to those allegations; even though less serious conduct might also be described by the victim, and have been available to be particularised. To repeat the point, by definition, the offence encompasses all sexual exploitation making up a course of conduct against a particular child within a given period. The function of the particulars is to define those allegations which are available as a basis for proof of the charge.
Accordingly, here, the hugging without accompanying kissing was neither uncharged (as that adjective is usually employed) nor “discreditable conduct … other than conduct constituting the offence” under s 34P Evidence Act, and so did not call for the directions contended for by Mr Mead, either at common law or under s 34R.
However, it will be necessary to make plain to the jury that proof of the unparticularised conduct is not sufficient to prove the charge; it is proof of more than one act of the particularised conduct of which the jury must be satisfied. In this case the judge twice identified the particularised conduct as the conduct on which proof of the charges depended. In addition, the jury had copies of the information.
As to the acts of “lingering” in the bathroom we would say this. They are not comprehended by the explanation of “sexual exploitation” in s 50(2) CLCA because they do not amount to a chargeable sexual offence. However, they might qualify as discreditable conduct. Even if they do, we do not consider that the judge was obliged to either rule on them in terms of s 34P Evidence Act, or direct the jury about them in terms of s 34R. We say that for these reasons. The evidence about them was general and there was room for thinking it was equivocal. That they did not disclose offending demonstrates that they were very much subsumed into and overshadowed by the other allegations. There was no scope for reasoning from these interactions to a conclusion of guilt of the charge. V’s evidence stood to be assessed as a whole.
Aside from allowing for a degree of misinterpretation through a child’s eyes, and allowing that the estimate of the total number of occasions of hugging might have been inaccurate, the jury was required to decide on the basis of all the allegations whether it was satisfied of the reliability and accuracy of V’s evidence. This was not a case where it would have been helpful, either to the jury or to the appellant, to have introduced the conception of propensity. For the reasons expressed in R v Coutts [2013] SASCFC 143 at [46] to [50] it is rarely helpful to discuss that topic in circumstances where only one complainant makes allegations. To have singled this evidence out for such directions would have wrongly elevated its importance, perhaps suggesting to the jury that there was some objective support for V’s evidence, where in fact there was not.
Moreover, s 34P Evidence Act was not aimed at evidence of this type and we do not consider that the court is here obliged to take so literal a view of the provision as to apply it.
In this case the only directions given by the judge in relation to assessing V’s evidence were general directions. The jury was instructed that it should scrutinise V’s evidence with great care.
Although the case involved historical allegations and V’s evidence was not as detailed as might have been expected had it been given some years earlier, the prosecution case stood to be accepted or rejected as a whole. Just as the evidence was relatively brief, so the judge’s summing up was brief. In a very straight-forward case, such as this was, we do not consider that it was necessary for the judge to dissect the evidence or to introduce complexities which it did not reflect. We do not consider that more by way of directions to the jury was required.
This ground is not made good.
Conclusion
Neither of the grounds of appeal has been made good.
In preparing these reasons we have necessarily read the entirety of the evidence in the trial. In our view the evidence given by V was, despite its lack of detail, powerful. By the time she gave evidence V was 29 years of age. Her evidence was not contradicted either by any evidence on oath, or by any circumstance. In our opinion V’s evidence was compelling. Even if there were any error in relation to the admission of the evidence of complaint or the directions, we would not have found that a miscarriage of justice actually resulted.
We would dismiss the appeal.
PEEK J. Appeal against conviction for sexual offending.
PART ONE: INTRODUCTION
The complainant, RM, was born on 4 December 1984. She was aged 29 at the time of the appellant’s trial in April 2014. RM’s family were practising Jehovah’s Witnesses and she was brought up in that faith.
The appellant was much older than RM and was 76 at the time of trial. He was also a Jehovah’s Witness. He and his wife and children (the L family) and Mr M’s family (the M family) lived close together and both families were members of the same Jehovah’s Witness congregation. One of that faith’s tenets is that other members are to be trusted and that outsiders are not to be trusted; social activity was to be enjoyed with members and not with outsiders. The two families used to socialise together a good deal, such as at dinners, lunches and barbeques. This occurred mainly at the home of the L family.
The prosecution case was that the appellant on many different occasions sexually offended against RM in the course of such social occasions, commencing in about 1992 when RM was about seven or eight years old and ceasing in 1998 when she was about 13 years old.
The Information
The appellant was convicted by majority verdict of the following charge:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Henricus Stephanus Landmeter between the 1^st day of January 1992 and the 31^st day of December 1998 at Para Hills West, committed more than one act of sexual exploitation of [RM], a person under the age of 17 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation was Henricus Stephanus Landmeter indecently assaulting [RM] by kissing her on the mouth and inserting his tongue into her mouth.
The nature of a charge under s 50, Criminal Law Consolidation Act 1935
Section 50, Criminal Law Consolidation Act 1935 appears as follows:
50—Persistent sexual exploitation of a child
(1)     An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)     For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)     If—
(a)at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)     Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)    the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
…
(7)     In this section—
…
“sexual offence” means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)    a substantially similar offence against a previous enactment.
…
There are several important matters to be noted here. First, conviction of the offence required proof of “more than one” act of “sexual exploitation” but this did not mean that just any two acts that the jury might think to be acts of sexual exploitation would suffice. Rather, the jury had to be satisfied that two acts were proven, each of which, first, came within the meaning of an act of “sexual exploitation” in s 50, Criminal Law Consolidation Act 1935 (CLCA), and second, came within the terms of the Information at trial.
The importance of this second requirement of the two acts being within the terms of the Information is specifically recognised by s 50(4). The Information must allege with sufficient particularity both “the period during which the acts of sexual exploitation allegedly occurred” and “the alleged conduct comprising the acts of sexual exploitation” and these matters must be proven beyond reasonable doubt. In the present case, the alleged conduct comprising the acts of sexual exploitation were particularised by the prosecution as acts of indecent assault constituted by the appellant kissing RM on the mouth and inserting his tongue in her mouth.
The course of the trial
The trial was originally scheduled to commence on 24 March 2014; it did commence on that date but terminated on 25 March 2014 as a mis-trial. The trial the subject of this appeal commenced on 14 April 2014, with the majority verdict of guilty being returned on 16 April 2014.
The case against the appellant entirely depended upon the evidence of RM. In overview, her evidence was that physical contact commenced with hugging and later progressed to hugging, accompanied by the acts charged against the appellant as indecent assaults in the Information, namely kissing her on the mouth and inserting his tongue into her mouth. RM asserted that there were at least 100 occasions of hugging; that about half (about 50) were accompanied by the acts of kissing her on the mouth and inserting his tongue into her mouth; and that about 80 percent of all of the occasions of hugging (about 80) occurred in the shed in the back yard of the L family’s home.
RM gave evidence that she could only remember three specific incidents. She said that the first specific incident that she could remember was the very first occasion of inappropriate touching and that it occurred in the spare bedroom at the L family home when she was about seven or eight years old. She described the appellant hugging her with his body in full contact with hers, using one arm across her shoulders and the other closer to her waist. RM described that process as being different from a normal hug in that it lasted longer and he “pulled my whole body right up close to him, the full length. Usually when you hug a child it is usually just the top. He pulled my full body into his.” RM further stated in examination-in-chief:
Well, I wouldn’t describe it as simply a hug, it was definitely - well, I think back to the time, it was - definitely it had a sexual nature to it, holding a child like that continually.
(Emphasis added)
RM gave evidence that the above was the usual method of hugging adopted by the appellant.
RM said that the second specific incident that she could remember occurred when RM was about 10 and was the only occasion when she entered Mr and Mrs Landmeter’s bedroom; she said that the appellant followed her into that room and hugged her.
RM said that the third specific incident that she could remember occurred in the pantry at her home on the occasion of a barbeque when she was aged 11 or 12; the appellant hugged her and then kissed her and inserted his tongue into her mouth for a short time. This third incident was the only one of the three that included kissing and tongue insertion, the first two being limited to uncharged acts of hugging.
Apart from RM, there was only one other witness for the prosecution, her older brother LM. LM was 32 years old at trial. He gave brief evidence as to the M family being brought up in the Jehovah’s Witness faith and their interaction with the L family. He confirmed that there was a small shed on the L family property. He gave evidence that when growing up he spent a lot of time with his sister RM but did not observe any untoward behaviour by the appellant to her or observe RM to be upset in any way. He gave evidence that RM had not complained to him and that he was not aware that she had complained to anyone else.
The defence case was that no such offending occurred. The appellant did not give evidence.
The grounds of appeal
At trial, two bodies of evidence were led by the prosecution without objection but are now complained of on appeal. The first was evidence by RM that when she was about eight or nine she had complained to her father about the appellant’s conduct (which was then still continuing) and that she had done so again with more detail when she was about 15 (about two years after the conduct had ceased); this evidence was led in reliance upon s 34M, Evidence Act 1929 (the Act). The second body of evidence was evidence given by RM of contemporaneous further discreditable conduct of the appellant outside the terms of the Information. The two grounds of appeal, corresponding with those bodies of evidence, are as follows:
1.The evidence of the elaboration of the initial complaint made by the complainant was inadmissible at law and gave rise to a miscarriage of justice.
2.The learned trial judge failed to give any direction as to the use of the evidence of uncharged acts that arose from the evidence of the complainant.
PART TWO: THE EVIDENCE OF COMPLAINT BY RM
Although ground 1 of appeal nominally refers only to “elaboration” of complaint, the argument on appeal inevitably involved the adequacy of the directions by the Judge in relation to complaint evidence generally.
RM’s evidence-in-chief as to complaining to her father was as follows:
QAgain, during the time when it was happening to you, between those ages of seven or eight up until 13, did you tell anyone else or tell anyone about what the accused was doing to you?
A     Yes, I told my father.
Q     What did you tell him?
AI remember when I was quite young I would say probably eight or nine I told him and it was kind of brushed off like, you know ‘He’s just being affectionate because he loves you’. I don’t think he really understood to what extent it was.
Q     Did you say that he told you that he was just being affectionate?
A     Yes.
Q     Was any action taken by your father?
A     Not that I’m aware of, no.
QWhat about after it finished, that is, after that age of 13 and when the conduct was no longer occurring, did you speak then to anyone about what had happened to you?
AYeah, I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened and his response was ‘You need to leave it in the hands of Jehovah, he’ll sort it out’.
Q     ‘Leave it in the hands of Jehovah’?
A     Yes.
Q     ‘He will sort it out’?
A     Yes.
QDid you say that you told him more about what had happened to you at that time when you were 15?
A     Yes.
Q     Did you go into more detail about what had happened to you?
A     Yes.
Q     Was anything done or any action taken as far as you know?
A     No.

The father of RM was not called to give evidence. There was no explicit explanation as to why he was not called, although RM stated in evidence that she was no longer a Jehovah’s Witness and that she and her family were estranged.
Section 34M of the Evidence Act 1929
Section 34M of the Act was enacted in 2008.[1] It deals with complaint evidence in sexual cases and provides as follows:
[1]    See Statutes Amendment (Evidence and Procedure) Act 2008, s 18; this provision inserted “Division 2 – Miscellaneous rules of evidence in sexual cases” which comprises ss 34L, 34M and s 34N into the Evidence Act 1929.
(1)    This section abolishes the common law relating to recent complaint in sexual cases.
Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)    In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)    Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•     when the complaint was made and to whom;
•     the content of the complaint;
•     how the complaint was solicited;
•     why the complaint was made to a particular person at a particular time;
•     why the alleged victim did not make the complaint at an earlier time.
(4)    If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)    It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)    In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The Judge’s directions as to the complaint evidence
The Judge gave the jury the following directions as to complaint evidence:
I must also give you a direction of the law about the circumstances in which [Ms M] says she made the initial complaint of alleged indecent assault to her father and where she says she provided further information to her father by way of elaboration of that first complaint. [Ms M] told you that the first complaint was when she was quite young. She said probably around eight or nine years of age. She said she told her father but that it was kind of brushed off, her father saying words to the effect ‘He’s just being affectionate because he loves you’.
She speculated in her evidence that her father did not really understand the extent of the behaviour she was complaining about. She told you she again complained to her father when she was 15 and she was better able to tell him what had happened. She said she went into more detail about the conduct. His response on this occasion was ‘You will need to leave it in the hands of Jehovah. He will sort it out’. She said that as far as she knows no action was taken in relation to either of those complaints.
There are reasons why that evidence has been given in the trial. First, so that you may judge whether the complaints made to [Ms M’s] father, if you accept they were made, are consistent with the conduct that is alleged to have happened. You might think that that task is not particularly easy because you do not have details of the precise terms of the complaint that [Ms M’s] says she made. You might think, for example, that [Ms M’s], as conceded, her first complaint did not fully convey the nature of the conduct she was alleging against Mr Landmeter. Her evidence was that her second complaint contained more detail but she did not give evidence as to precisely what that detail was.
Second, the evidence of complaint before you is not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now alleged. Third and finally, you must bear in mind that there are various reasons why a complainant makes a report at a particular time or to a particular person. You have heard from [Ms M] as to how and why she came to discuss this issue with her father. You are entitled to have regard to that evidence when considering her truthfulness and reliability. You will judge those matters bearing in mind the purposes for which the evidence of complaint was admitted before you.
Foreshadowed conclusions as to the complaint evidence
I foreshadow that I find that a miscarriage of justice has occurred due to a failure by the Judge adequately to direct the jury concerning the complaint evidence in two respects. First, her Honour should have directed that if RM did make a complaint to her father when she was eight or nine, it cannot be shown that such complaint occurred after the conduct of the appellant is alleged to have escalated from hugs alone to kissing and insertion of the tongue; accordingly, the requirement that the sexual offence complained of must correspond with the charge before the Court was not satisfied. Second, her Honour failed adequately to direct the jury as to the topic of “evidence of consistency of conduct of the alleged victim” in accordance with s 34M(4)(a)(ii) of the Act. My reasons follow.
The requirement that the sexual offence complained of must correspond with the charge before the Court
When seeking to interpret and apply s 34M, it is important to remember that the admission of previous statements of a witness made out of Court remains (especially in criminal cases) very much the exception rather than the rule. In R v Maiolo (No 3) I stated:[2]
[75]… the law of recent complaint existed as a small area of law encircled by two larger areas of the common law. The first larger area was the rule against reception of hearsay evidence; the second larger area was the rule against self bolstering of evidence by reliance upon previous consistent statements made by the complainant. Evidence of recent complaint in sexual cases co-existed with the rule against hearsay in circumstances where an apparent conflict (or at least tension) was recognised, but sought to be explained in different ways. However, whatever the precise rationale for the apparent conflict with the rule against hearsay, it has always been recognised that the common law doctrine of recent complaint in sexual cases is clearly inconsistent with the general common law prohibition of self bolstering of evidence through reliance upon previous consistent statements.
[76]Section 34M is the successor to the common law of recent complaint. It is not to be interpreted in a vacuum; its content remains confined to sexual cases and continues to be bordered, or encircled, by the two larger areas of the common law, the rules against reception of hearsay evidence, and prior consistent statements. It must be remembered that any unduly wide interpretation of s 34M has the necessary consequence of impinging upon one or both of these important exclusionary rules.
[77]Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant.
[2] [2014] SASCFC 89.
At common law, one key justification for admissibility of a recent complaint by a victim of a sexual offence was that the complaint alleged an incident which was then said to be “recent”; this requirement of “recency” bore directly upon the admissibility of the complaint in that an “immediate” complaint could be seen as the natural reaction of a true victim to the still operative impact of the perpetrated crime.[3] Originally, a further core requirement was that the person(s) to whom the complaint was made (the complainee(s)) gave confirmatory evidence of the time, date and content[4] of the complaint; it was seen that such objective evidence of (recent) complaint tended to buttress the complainant’s credibility.[5]
[3] The abolition by s 34M of the “recency requirement” may be seen against the background of a prior trend of amelioration of the strictness of that and other requirements in the common law decisions. See generally the discussion in R v Maiolo (No 3) [2014] SASCFC 89, [50]-[55].
[4] As to the matter of content, see R v Lillyman [1896] 2 QB 167 and the discussion of that decision by Kourakis CJ in R v Usher (2014) 119 SASR 22.
[5] It appears that it was only in relatively recent times that it has been accepted that evidence could be given by a complainant asserting the making of contemporaneous complaint without the complainee being called. However, the admissibility of that evidence is in accordance with the rationale that the very making of such complaint is “consistent” with the behaviour of a person who has been the victim of sexual assault; this aspect is further considered below. For completeness, there are clear decisions in favour of the rather different proposition that a complainee can give evidence of a complaint even though, by the time of trial, the complainant cannot recall making that complaint; the factual background to such memory loss is often the effect of intoxication or the trauma of the alleged incident itself upon the complainant. See for examples Breen v the Queen (1994) 180 CLR 233; The Queen v RH [2004] VSCA 231, [50] (Gillard J); R v England (2013) 116 SASR 569, [32].
Of course, s 34M abolished the requirement of “recency” and under s 34M(3), “any person” may give evidence of the complaint, which would appear to include the complainant alone. Importantly, under the s 34M regime, the effect of the giving of such evidence by the complainant alone is rather more stark than at common law. Section 34M(4) requires the judge formally to direct the jury inter alia that such evidence is admitted to inform the jury as to how the allegation first came to light; and as evidence of the consistency of conduct of the alleged victim; and that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person. Such directions may well tend to convey an impression that substantial importance is to be attached to the giving of evidence by the complainant alone of having made a complaint.
The correct construction of s 34M(3)
The following sets of italicised words in s 34M(3) “evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence” correspond with each other. In other words, for the complaint to be admissible, the alleged sexual offence complained of must be the sexual offence the subject of the charge before the Court. This is a matter that is implicit in all of the authorities that follow but it was explicitly emphasised in R v Usher by Kourakis CJ (with whom I concurred). His Honour there stated:[6]
[49]On a proper construction of s 34M(3) of the Evidence Act the phrase “an initial complaint of an alleged sexual offence” corresponds with the subsequent phrase in the same subsection “a charge of the sexual offence”. The complaint must therefore be of the sexual offence charged. Similarly, the “allegation” referred to in s 34M (4)(a)(i) of the Evidence Act is the allegation made by the charge and it is therefore as evidence of consistency between the complainant’s conduct and that charge that the complaint is admitted.
[6] (2014) 119 SASR 22.
A failure to establish that necessary correspondence between the complaint and the charge before the Court under consideration may occur in various ways and I will briefly refer to some illustrative authorities.
In The Queen v H, T,[7] the complainant complained to her brother and sister-in-law that she had been raped by the defendant. She also gave evidence that she subsequently spoke to the police and to her parents. Although there was a strong implication from her evidence that she spoke to the police and to her parents on that same topic of rape by the defendant, and the trial Judge certainly drew that inference, there was no direct evidence of the words that she spoke to either the police or to her parents. The Judge directed the jury: “You heard subsequently that she told her parents the same thing and later the police.” The Court of Criminal Appeal allowed the appeal on the basis that this was a misdirection because there was no evidence before the jury as to what the complainant had said to her parents or the police. Gray J stated:
[22]The jury were invited to consider and weigh three complaints by the complainant - to her brother and sister-in-law, to the police and to her parents. The Judge also invited the jury to proceed as though the evidence had established that the complainant had made the same complaint to the police and to her parents; that is, that she had been raped. Further, the Judge directed the jury that the complaints made to the police and to her parents, were to be treated by the jury as part of the initial complaint. Shortly put, the jury were invited to consider and weigh matters that were not the subject of evidence. This was a material error.
[7] (2010) 108 SASR 86.
White J stated:
[77]Like the other members of the Court, I consider that there were errors in the Judge’s directions on the topic of the complaints by the alleged victim. In particular, the evidence of the statements made by the complainant to her parents and to the police after her initial report to her brother and sister-in-law could not form part of the initial complaint. Contrary to the Judge’s directions, it could not be said that whatever the complainant said to her parents and the police was the “same thing” as she had said to the brother and sister-in-law. That is because there was no evidence of what she had actually said to her parents and the police. In that circumstance, it could not be said that whatever the complainant said to the parents and the police comprised (in the sense contemplated by the definition of “initial complaint” in s 34M(6) of the Evidence Act 1920 (SA)) the provision of information in elaboration of the initial complaint to the brother and sister‑in‑law.
Kourakis J (as he then was) stated:
[86]The direction of the Judge that the complainant had informed her parents and the police of the “same thing” of which she had complained to her brother and sister-in-law was a misdirection; there was no evidence of the substance of the complaint made to her parents and the police.
In The Queen v S, DD,[8] it was again emphasised by the Court[9] that an initial complaint of a sexual offence must objectively be seen to be referable to the charge in the Information under consideration. The defendant was there charged with count 1: indecent assault (between 10 January 1986 and 31 July 1986); count 2: unlawful sexual intercourse (between 31 July 1986 and 10 July 1991) and count 3: unlawful sexual intercourse (between 31 July 1987 and 10 July 1991). The jury convicted on counts 1 and 2 but acquitted on count 3.
[8] (2010) 109 SASR 46.
[9] (2010) 109 SASR 46, [4] (Duggan J), [56] (Anderson J, agreeing with Duggan J), [98]-[106] (Peek J).
The Court held that the prosecution evidence could not prove that the making of complaint, which culminated in a statement to a police officer on 28 June 1988, occurred after, rather than before, the incident relied upon to prove count 2. Thus, while the evidence of making of complaint could be used by the jury when considering count 1, it could not be used as complaint evidence as to count 2. The jury had not been clearly informed of that distinction between the counts. Duggan J approved the remarks of Doyle CJ in R v Szejnoga[10] and stated:[11]
[10] (1998) 199 LSJS 97.
[11] (2010) 109 SASR 46, 49-50.
[4]The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence.That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
[5]In the present case, the conduct alleged in the first and second counts was some months apart. It was alleged that a large number of similar but uncharged acts took place over the same period.
[6] The trial Judge’s directions were in broad and general terms. He said:
Now, members of the jury, this evidence about when she told people about these events is, in any other context, hearsay evidence and would not come before the jury because the law does not usually allow for hearsay evidence to be given. But in cases such as this, where sexual allegations are made, the law makes an exception to that. It says that you are entitled to hear this evidence because, if you accept it - and that is the first step in your process again, because if you do not believe that these statements were made at all then the whole discussion of this topic is pointless - but if you accept that these conversations took place it may demonstrate, firstly, how these allegations ‘came to light’, is the expression used in the legislation; that is, how they came to the notice of the police. The law says you are entitled to know that in relation to a sexual case. Further, that you may use the evidence if you consider that it demonstrates consistency of conduct. In other words, whether it demonstrates that [the complainant] acted in a way that you might expect of a person in her situation as to when she made this complaint.
Now whether or not it demonstrates that to you is again entirely a matter for your judgment. The issue of when she complained and in what circumstances is before you. Does it demonstrate consistency of conduct and therefore does it bolster the credibility and the reliability of her evidence? Or does it, as Mr Lyons put to you, demonstrate inconsistency because of what she told the police officer about ‘possibly’ with the penis? So these are matters for you to consider again.
[7]If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial Judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts.
[8]It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.
[9]Furthermore, the jury should have been told that the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency. The summing up did not include such a direction.
[10]I agree with the observations made by Peek J as to the manner in which a finding of consistent conduct by way of complaint in relation to count 2 could have affected the jury’s assessment of count 1.

In the same vein, I stated in a separate judgment:[12]
[102]…it is particularly important that the jury be carefully directed as to the uses to which the complaint evidence adduced can, and cannot, be put including the particular count(s) in relation to which it is, and is not, admissible. …
…
[128]In fact, there was no basis upon which it could be proven (to any standard of proof) that the complaint process which culminated in a complaint to ex-police officer Ms Pearson on 28 June 1988 should be taken to be subsequent to the alleged commission of count 2. The information alleges that count 2 occurred at any time between 31 July 1987 and 10 July 1991 and while the evidence given by J is that it occurred before count 3 (J stating that at the time of count 3 she was aged 15 or 16), reference to that evidence still leaves a large gap between 28 June 1988 and J’s 16th birthday on 10 July 1990 during which, on the prosecution case, count 2 may be supposed to have occurred.
[129]This being so, the jury should have been clearly directed that the complaint evidence culminating in a complaint to ex-police officer Ms Pearson on 28 June 1988 could not be used in relation to the proof of count 2 because it cannot be established that such complaint took place after rather than before the alleged commission of count 2.
[12] (2010) 109 SASR 46, 72-76.
In R v Maiolo (No 2)[13] the question again arose as to whether the asserted complaint could objectively be seen to be referable to the charge in the Information under consideration. In particular, the question was as to whether statements made to police by the complainant RX could objectively be seen to be referable to the charges in the Information concerning her. I stated (Kourakis CJ and Stanley J agreeing):
[22]Even if (for the sake of argument) one were to assume that the evidence can establish that RX made some complaint of sexual misconduct toward herself, there is no evidence to show that such a complainant related to any of the specific charges on the Information in relation to RX. The evidence given by RX was far too vague to establish that either her telephone conversation with the counsellor or her statement to police constituted an “initial complaint” within the meaning of the definition of that term in s 34M(6) in relation to any of the charges on the Information relating to RX. (Emphasis added)
[13] (2013) 117 SASR 1, 11.
After noting that the appeal in The Queen v S, DD[14] had been allowed on this same basis, I stated:[15]
[25]There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware. (Emphasis added)
[14] (2010) 109 SASR 46.
[15] (2013) 117 SASR 1, 12.
In R v Usher,[16] the defendant was charged with offences said to have been committed against the complainant while they were living together. The complainant gave evidence that he had later complained to his girlfriend that he had been sexually interfered with but, in order to save embarrassment, he did not name the defendant and suggested that such interference had occurred at a time when he was much younger. Kourakis CJ (with whom I agreed) decided that, even if the complainant was subjectively intending to refer to the defendant, an objective approach based on what the complainant actually says (or does not say) must be taken in determining whether an initial complaint within the meaning of s 34M is established. His Honour stated:[17]
[54]On this appeal, the prosecution submitted that the jury were entitled to consider and accept the explanation proffered by the complainant that he had changed some of the details he gave CS through embarrassment, and that the differences which existed between the accounts were not such to preclude admission. That submission can be accepted at a factual level but its acceptance does not make the evidence of the conversation with CS any more admissible. The difficulty with the disclosure to CS is that by the complainant’s own testimony he was not making a complaint about the commission of the charged conduct. Rather, he spoke of conduct which had not occurred because he was too embarrassed to speak of the conduct which was charged. It is not to the point that the complainant had in mind the appellant’s offending, because that is not the conduct of which his words complained. Similarly, even though it is readily understandable why the complainant felt compelled to invent an account of abuse committed when he was younger, his subjective reasons for so doing do not change the meaning of the words he used.
[16] (2014) 119 SASR 22.
[17] (2014) 119 SASR 22, 34.
In R v Maiolo (No 3),[18] the prosecution tendered as an initial complaint a complaint made by SZ to her mother about specific sexual misconduct by her father (the appellant), as to which complaint both SZ and her mother gave evidence. However, SZ also gave evidence that she remembered that, sometime prior to complaining to her mother, she had had a conversation with her school friend, Lindsay, telling her about the appellant sexually abusing SZ. SZ stated that she had no memory of the specific contents of that conversation (“the Lindsay conversation”). SZ stated that the first complaint as to which she could give specific evidence of content was that which she made to her mother. The prosecution contended that the Lindsay conversation was too vague to qualify as an initial complaint and thus the complainant’s later complaint to her mother became admissible as the initial complaint.
[18] [2014] SASCFC 89.
On appeal, the defendant contended, first, that the Lindsay conversation constituted the initial complaint and second, that the later complaint to the mother could not be an elaboration of the initial complaint because, in the absence of evidence of what was said to Lindsay, it could not be determined that the complaint to the mother elaborated upon the Lindsay complaint. The Court held that the appellant failed at the stage of his first contention. The evidence of the Lindsay conversation could not objectively constitute an initial complaint because there was no evidence to show that a complaint made to Lindsay related to any of the particular charges on the Information before the Court.
After referring to relevant passages in The Queen v S, DD,[19] R v Maiolo (No 2)[20] and R v Usher,[21] I stated (David and Stanley JJ agreeing on this aspect):[22]
[29]In the present case, the evidence of the conversation with Lindsay was highly nebulous and rose no higher than that, at an unspecified time, SZ had told her school friend, Lindsay, something about “what Mr [M] had been doing to [her]”. What that something was, was entirely unspecified. The critical matter is that there is no evidence to show that any complaint made to Lindsay related to any of the particular charges on the present Information. There was therefore no evidence that the earlier Lindsay conversation constituted a complaint concerning any of the particular charges on the Information before the Court.
[30]Accordingly, I reject the appellant’s first contention that the Lindsay conversation constituted the “initial complaint” and I accept the prosecution contention that it was permissible to receive SZ’s complaint to her mother TX as the “initial complaint”. (Emphasis added)
Application to the present case of the requirement that the sexual offence complained of must correspond with the charge before the Court
[19] (2010) 109 SASR 46.
[20] (2013) 117 SASR 1.
[21] (2014) 119 SASR 22, [22].
[22] [2014] SASCFC 89, [29]-[30].
The present case is very similar to the situation in The Queen v S, DD[23] considered above. The first complaint, said to have been made when RM was eight or nine, cannot be shown to have occurred after the conduct of the appellant is alleged to have escalated from hugs alone to kissing and insertion of the tongue; the requirement that the sexual offence complained of must correspond with the charge before the Court is therefore not satisfied. My reasons follow.
[23] (2010) 109 SASR 46.
The evidence given by RM as to the complaint asserted to have been made at age eight or nine is as follows:
QAgain, during the time when it was happening to you, between those ages of seven or eight up until 13, did you tell anyone else or tell anyone about what the accused was doing to you?
A     Yes, I told my father.
Q     What did you tell him?
AI remember when I was quite young I would say probably eight or nine I told him and it was kind of brushed off like, you know ‘He’s just being affectionate because he loves you’. I don’t think he really understood to what extent it was.
Q     Did you say that he told you that he was just being affectionate?
A     Yes.
Q     Was any action taken by your father?
A     Not that I’m aware of, no.
QWhat about after it finished, that is, after that age of 13 and when the conduct was no longer occurring, did you speak then to anyone about what had happened to you?
AYeah, I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened and his response was ‘You need to leave it in the hands of Jehovah, he’ll sort it out’.
The prosecutor at trial correctly appreciated that “Yes, I told my father” (meaning when aged eight or nine) was no sufficient answer for present purposes, for his next question was “What did you tell him?” However, RM simply did not answer that question at all, simply saying “I told him and it was kind of brushed off …”.
Indeed, in her later answer – “Yeah, I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened” – RM herself appears to recognise that there is real doubt about what it was that she had previously told her father in the first complaint at the age of eight or nine years. The fact is that RM simply did not give evidence in court as to what it was that she actually said to her father.
As appears in the Information herein, the averred assaults were “kissing her on the mouth and inserting his tongue into her mouth”. The prosecutor alleged that such action was accompanied by hugging but it was also the case that RM asserted that there were many occasions of hugging where kissing and insertion of the tongue did not take place.
The prosecutor at trial specifically (and correctly) accepted that the charge would not be proven if the jury were only satisfied that hugging occurred and not satisfied that kissing and insertion of the tongue occurred.[24]
[24] In dialogue in the absence of the jury immediately after final addresses had been concluded, the prosecutor confirmed that “The information refers specifically to the kissing of her on the mouth … And the inserting of his tongue into her mouth” and the Judge accepted that this was so. No application to amend the Information was made. The obligation of the prosecution to particularise a charge under s 50, Criminal Law Consolidation Act 1935 is considered in further detail above and below.
The prosecutor submitted in his closing address that the first physical contact involved only hugging but later things progressed to hugging accompanied by kissing and insertion of the tongue. But the problem is that there is no indication in the evidence as to how long the process of hugging simpliciter is supposed to have continued before the first occasion of kissing and inserting of the tongue occurred. The extent of RM’s evidence was that kissing and tongue insertion only occurred on about 50 of the 100 occasions of hugging and that of the three specific occasions that she remembered, only one involved tongue insertion.
The prosecutor himself submitted to the jury that a reason why a person in the position of RM might remember the details of the very first occasion of full body hugging (unaccompanied by kissing and tongue insertion) was because “It was the first occasion when something happened to her and that even at her young age, she realised that what happened to her in that spare room just didn’t seem right: it wasn’t a normal hug.” But accepting that, it must also follow that RM may have early complained to her father about such hugging alone before any escalation to kissing and insertion of the tongue occurred. It is impossible to know how long after the very first instance of physical touching it is asserted that RM made the first of the two complaints to her father. On RM’s own version, that complaint may have come before any escalation to kissing and insertion of the tongue and hence the complaint may not have corresponded with the charge before the court.
Thus, I conclude that the evidence of RM, taken at its highest, simply cannot establish that the first claimed complaint (when RM was eight or nine) occurred after, rather than before, the conduct of the appellant escalated from hugging alone to hugging accompanied by kissing and tongue insertion.
This problem, namely, that a complaint before that escalation would not have related to the charge on the Information but only to “uncharged acts” of hugging is, of course, exactly the same problem that arose in The Queen v S, DD and it was the sole basis upon which Duggan J and Anderson J allowed the appeal.[25] In that case, as here, the Judge failed to instruct the jury on this same matter (neither Judge having been asked to do so by prosecution or defence counsel).
[25] (2010) 109 SASR 46, 49-50. Anderson J agreed with Duggan J.
For completeness, I note that essentially the same problem arose in R v Usher. Kourakis CJ (with whom I concurred) there referred to an oft cited passage from the judgment of Hawkins J in R v Lillyman[26] and stated: [27]
[45]I draw attention to two important statements of principle in that passage. First, the complaint must be of the conduct which is charged against the defendant. Secondly, it is for the tribunal of fact to judge the consistency between the complaint and the conduct charged by reference to both the demeanour and the words of the complainant. The complainant’s assertion of consistency is not conclusive.
[46]It remains an aspect of the common law rule that complaints about other incidents not the subject of a charge are inadmissible.As I have observed, the use of complaint evidence is limited to enhancing the credibility of the complainant by showing a consistency between the conduct of the alleged victim in making the complaint of the offence, and her testimony of its commission.That consistency can only lie in the disclosure of the offence charged, and not in a reference to a different offence.
[47]In R v S,the Queensland Court of Appeal held that evidence of a complaint made about an uncharged act in a trial of a number of particularised offences selected from many committed in the course of an unlawful sexual relationship was inadmissible hearsay. (Emphasis added)
[26] R v Lillyman [1896] 2 QB 167, 177 (Hawkins J): “The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness box negativing her consent, and affirming the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. … [Emphasis added]
[27] (2014) 119 SASR 22.
In the decision of the Queensland Court of Appeal in The Queen v S (referred to with approval in Usher), the accused was charged with four counts of rape of the complainant and other charges of indecent dealing. The complainant stated to one O’Mera that the accused had, on an additional and uncharged occasion, committed a further rape on her. McPherson JA (with whom Byrne and Philippides JJ concurred) stated:[28]
[19]The second point to be made about O’Mera’s evidence was that one of the two specific incidents that he said was recounted to him by the complainant was the Christmas party incident. It was not the subject of any of the counts in the indictment, but simply an uncharged act amounting to a similar offence. As such, there ought to have been a specific direction to the jury about the limited use that might be made of it. No such direction was sought or given; but, in any event, not being an act charged against the appellant, it was not something about which recent complaint evidence from O’Mera would have been admissible. This aspect of the matter apparently escaped everyone’s attention at the trial. Counsel for the defence did not object to the evidence about it given by O’Mera.
[28] (2002) 129 Aust Crim R 339, 345.
I will return below to the consequences of the failure of the Judge to direct appropriately on this matter. I turn now to the second aspect of inadequate directions in relation to the complaint evidence.
The Judge failed adequately to direct as to the topic of “evidence of consistency of conduct of the alleged victim” in accordance with s 34M(4)(a)(ii) of the Act.
Section 34M(4)(a) required the Judge to give a number of directions to the jury concerning complaint evidence. Section 34M subss (4)(a)(i), (4)(b) and (4)(c) are not presently of importance.[29] However, s 34M(4)(a)(ii) required the Judge to direct the jury that the complaint was admitted “as evidence of the consistency of conduct of the alleged victim”. It is this provision that is of present importance and it is necessary to consider carefully the meaning of the words consistency of conduct of the alleged victim.
[29] Section 34M(4)(a)(i) required the Judge to direct the jury that the complaint was admitted “to inform the jury as to how the allegation first came to light”. However, both the prosecutor and the Judge correctly recognised that if RM did make complaints to her father when about eight or nine and again when 15, such complaints could not inform the jury as to how the allegation first came to light. The answer to the question of how any allegation first came to light in this case is that RM made a series of statements to police from August 2011 to April 2014. Further, both the prosecutor and the Judge correctly recognised that such statements were not admissible under s 34M because first, the police statements could not be characterised as initial complaint under s 34M(3) (since on RM’s version the initial complaint was made to her father) and, second, the police statements could not possibly be regarded as information provided by way of elaboration of a complaint to RM’s father because the police statements were separate and distinct from any complaint to RM’s father. (See: R v England (2013) 116 SASR 589 and R v Maiolo (No 3) [2014] SASCFC 89).
The course taken by the Judge in this case was to admit the evidence and ignore the requirement under s 34M(4) that if initial complaint evidence is admitted a direction must be given under s 34M(4)(a). It cannot be said that the understandable refusal by the Judge to direct the jury in the terms of 34M(4)(a)(i), when such was simply not the truth, in itself caused the appellant any prejudice. While this somewhat strange situation might promote some interesting questions, I consider that the appeal must be allowed on a more narrow basis relating to the required direction under 34M(4)(a)(ii) and I will not here pursue those matters further.

As discussed in R v Maiolo (No 3),[30] the primary focus is on “consistency” as between the circumstances of the making of the initial complaint (on the one hand) and having been subjected to the alleged behaviour of the accused person as related in that initial complaint (on the other hand). However, it has been recognised since at least the time of the decision in R v Lillyman[31] that the “conduct” of the alleged victim is not to be limited to the act of making a complaint as distinct from its content; regard can be had to the contents of the communication by the alleged victim, so as to know whether it was indeed a complaint of the sexual offence the subject of the charge before the Court. As Duggan J observed about s 34M in The Queen v JJA:[32]
[95][t]he expression “consistency of conduct” includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.
[30] [2014] SASCFC 89, [72]-[74].
[31] [1896] 2 QB 167. Prior to R v Lillyman, the evidence of the witnesses to whom the alleged victim complained (complainees) was limited to a bare interpretation of whether a complaint of sexual was made. However, in Lillyman, Hawkins J held that the complainant’s actual words could be adduced so that the Court could satisfy itself that a complaint had been made. His Honour posed the rhetorical question: “... are the jury bound to accept the witnesses’ interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even though they may feel it essential to enable them to form a reliable opinion?” See also R v Usher (2014) 119 SASR 22 (Kourakis CJ).
[32] (2009) 105 SASR 563, 583. Doyle CJ (Prior and Lander JJ agreeing) had made much the same observations in the earlier decision of R v Szejnoga (1998) 199 LSLS 97, decided in the common law context.
Adopting those words of Duggan J, in the present case it is necessary to address, first, “consistency in making the complaint when it would be expected to be made” and second, “consistency between the wording of the complaint and the conduct alleged”.
Consistency in making the complaint when it would be expected to be made
As I observed in R v Maiolo (No 3),[33] some differences of view have been expressed in this Court as to the appropriate approach to s 34M(4)(a)(ii) in cases when a mature alleged victim first complains of a sexual offence long after its occurrence. However, I do not think that such matters now require discussion. Here, RM asserted that she made contemporaneous complaint at age eight or nine, and complained again when she had further matured at age 15. Having regard to all of the circumstances, I consider that the complaints at such times can be seen to display “consistency in making the complaint when it would be expected to be made”.
[33] [2014] SASCFC 89, [64].
However, as explained above, a claim of making “a complaint” at a particular time is not the end of the matter. For such a complaint to be used as supportive of the credibility of the alleged victim in relation to a particular charge on the Information, the complaint must be seen to relate to that charge. It is for this latter reason that I concluded above that the Judge erred in failing to direct the jury that the evidence of RM, taken at its highest, could not establish that such a complaint occurred after, rather than before, the conduct of the appellant escalated from hugging alone to hugging accompanied by kissing and tongue insertion and that a complaint before that escalation would not have related to the charge on the Information but only to “uncharged acts” of hugging,
Consistency between the wording of the complaint and the conduct alleged
As to this second type of consistency, “consistency between the wording of the complaint and the conduct alleged”,[34] I consider that the Judge failed adequately to direct the jury in relation to the complaint asserted to have been made by RM at age 15. The salient evidence by RM as to that complaint was as follows:
[34] As referred to by Duggan J in The Queen v JJA (2009) 105 SASR 563, 583 [95].
QWhat about after it finished, that is, after that age of 13 and when the conduct was no longer occurring, did you speak then to anyone about what had happened to you?
AYeah, I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened and his response was ‘You need to leave it in the hands of Jehovah, he’ll sort it out’.
Q     ‘Leave it in the hands of Jehovah’?
A     Yes.
Q     ‘He will sort it out’?
A     Yes.
QDid you say that you told him more about what had happened to you at that time when you were 15?
A     Yes.
Q     Did you go into more detail about what had happened to you?
A     Yes.
Q     Was anything done or any action taken as far as you know?
A     No.
On the hearing of the appeal, the Solicitor-General, Mr Hinton QC, appeared to contend that the complainant’s answer “I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened” should be interpreted as reliable evidence that when 15 years old, RM had related to her father all that she had stated in her evidence in court in April 2014; this was apparently said to include that the appellant touched her inappropriately on approximately 100 occasions (with 80 percent of those occasions occurring in the shed) and her descriptions of the three specific occasions in some detail in that evidence. With respect, I simply cannot accept that submission.
As referred to above, the exceptional doctrine of recent complaint was originally justified by the substantial nature of the evidence afforded by the twin pillars of first, the requirement of recency of complaint (and hence immediacy of reaction by the complainant) and, second, the requirement of clear objective proof of when, and in what circumstances and terms the complaint was made (such evidence usually being given by the complainee). As stated above, if one starts with solid objective evidence of the making of a particular complaint and then, on comparing that complaint with the alleged victim’s evidence in court, finds that the two are consistent, one can appreciate how the evidence in court is thereby buttressed. However, the set of facts in the present case are several steps removed from the above situation. The following matters are of importance.
The first matter is that only the complainant (whose credibility and reliability is in issue) gave any evidence of the making of complaint. The only other witness called, her elder brother with whom RM apparently always had a good relationship, himself received no complaint and knew of none being made to anyone else.
The second matter is that RM simply did not give evidence in court as to what it was that she actually said to her father. RM simply stated “I spoke to my dad about it again when I was 15 and at that age I was able to probably tell him better what happened”. RM gave no evidence as to what her recollection was as to how the conversation came about, when or where it took place, how long it lasted or what she actually said. She certainly did not claim to remember telling her father about such things as the occasions in the shed or that such occasions comprised some 80 percent of a total of some 100 occasions or of the three specific occasions that she described in her evidence in court. Indeed, there is a very good reason why RM did not claim in court that she had told her father of any of those things and that reason constitutes the third of the three matters.
The third matter is that there is every reason to think that RM could not, in about 1999 (when she was 15 years old), have said to her father what she said in court in April 2014 for the reason that cross-examination in court disclosed, namely, that major parts of her present story only emerged as late as two days before the original trial date on 24 March 2014 (when she was 29 years old) following a process of making statements to police from 19 August 2011 (when she was 26 years old). I will refer to three important aspects of the cross-examination of RM to illustrate this point.
Cross-examination of RM as to acts occurring in the shed
The cross-examination of RM established that in her first statement to police on 19 August 2011, RM had only referred to offending in a room inside the L family’s house on Codd Street with no reference at all to any inappropriate behaviour in the shed. RM made no alteration to that statement when she again attended on 12 October 2011 to give a further statement to police and it was not until the 2 May 2012 statement to police that the shed was mentioned at all, and at this time without any express statement that any misconduct occurred there. RM agreed that the first time she described incidents occurring in the shed, and asserted that 80 percent of the occasions occurred in the shed, was in her statement of 22 March 2014, which was only two days before the original scheduled trial date.
Cross-examination of RM as to her memory process
The cross-examination of RM also established that there are serious concerns with the memory process of RM. The following passages are emblematic:
QPerhaps I’ll come at this a different way. On the first occasion that you said anything to the police about most of the alleged incidents occurring in the shed was some two days before this matter was listed for trial in this court last month, wasn’t it?
A     Yes.
QIs that because you had no memory of that being the position up until 22 March this year?
AI don’t like the term ‘memory’ because I don’t think that memory can be an accurate description of what you recall. You can have memories that are repressed.
Q     Some are.
AYou can have memories that are repressed that you push to the back of your mind, you don’t think about them and you wouldn’t be able to recall that. They start appearing over a period of time. Like I said, they fall back into place, they stop being cloudy and you have a clear recollection of certain aspects of what previously you had not wanted to bring to the forefront of your mind but as I said, I’m not a psychologist, like I can tell that was my experience.
…
QIs it your evidence that some of your memories in relation to the matter now before the court were, to use your expression, repressed?
A     I would say yes.
QWhen you use the expression ‘repressed’, does that mean that there was a period of time when you didn’t have those memories at the front of your mind?
A     Yes.
Q     Were there any techniques that you employed to recover those memories?
ANo, besides thinking about this and between this last statement I gave and this most recent one it was quite some time, it was quite some time to think about this.
(Emphasis added)
As to this matter of “repressed memory”, the further passage of cross-examination later occurs:
Q     Before the morning break I was asking some questions about repressed memory.
A     Yes.
QWas it the case on your account that you repressed some of your memories in relation to what you now say occurred to you at the hands of Mr Landmeter?
A     Yes.
QWhen you say you repressed those memories, is it the case that some of your memories with respect to what you have said in this court, you lost those memories for a period of time?
A     They were repressed, they became cloudy.
Q     They became cloudy?
A     Yes.
QWas there anything that you did to stop those memories being cloudy as you described it?
AWell, they had been constantly on my mind and part of this has now been a part of my life again since the first statement, so as time progresses and the more you think about it, obviously the cloud starts to lift and specific details would be remembered and I wasn’t prepared to put anything in the statement that I wasn’t 100% certain of.
QI see, so is it the case that prior to 22 March 2014, you weren’t certain or sure with respect to the incidents that you’ve described occurring in the garden shed?
AI couldn’t have put a specific amount of like percentage of times that that happened in the shed on those previous statements because it was cloudy. As I said, I could have said at the time but I wouldn’t have been 100%, so I wouldn’t be signing in good faith.
QSo please correct me if I’m wrong, you weren’t specifically confident of your memory prior to 22 March this year with respect to the percentage of incidents that had occurred in the garden shed?
AAs I wasn’t 100% certain on the number of times or how much of the percentage it was as of the statements from the two or almost two years before that one, no.
QWas it the case that you weren’t confident - putting to one side the issue of percentage - was it the case that you weren’t confident that most of the incidents that occurred, occurred in the garden shed?
AI wouldn’t have been confident. I knew that it was a lot of the times in there, but I wouldn’t be confident to state that it was the majority.
The cross-examination of RM further established that there was no mention of any of the three specific incidents in any of RM’s police statements prior to the last statement of 22 March 2014, only two days before the original scheduled trial date. That cross-examination included the following passages.
Cross-examination of RM as to “the first ever incident”
QIs it the case that the first time you told the police in a statement anything about the first incident between yourself and Mr Landmeter, on your account, occurring in the spare room was in your statement of 22 March 2014, some two days before the trial of this matter in this court last month?
A     Yes.
QIs that because you had no memory of that incident occurring in the spare room prior to that date?
A     It’s because I didn’t have a clear memory, as I’ve said on a number of occasions.
Q     So your memory got better?
A     It became unclouded.
Cross-examination of RM as to “the occasion in the master bedroom”
QYou’ve also described in this court an occasion when you say my client touched you inappropriately in the master bedroom of the Landmeter home?
A     Yes.
QIsn’t it the case that the first time that you mentioned that to police in a statement was 22 March 2014?
A     Yes.
Q     Is that a memory that you had repressed prior to that date?
AIt’s a memory I was not clear on and I couldn’t give specific details and sign an oath on.
Cross-examination of RM as to “the incident at RM’s home at Northcote Drive during a barbecue”
QYou’ve also described in this court an incident that you say occurred between yourself and Mr Landmeter at your family home at Northcote Drive during a barbecue, yes?
A     Yes.
QIs it the case that the first occasion that you told the police in a statement about that occurring at any time was 22 March 2014, some two days prior to the trial of this matter in this court?
A     Yes, this is correct.
Q     Is it the case that you had repressed that memory prior to two days before trial?
AIt’s probably not just prior to two days, you’re implying that I called them two days before and started to tell them all this information. This was discussed in a meeting that was already called in regards to coming to court and, as I said, it had been some two years nearly since the last statement I had given, so there was a lot of time for me to dwell on this and be able to recall specifics about incidents that I had not been able to recall previously and at this point I had the confidence to put it as a specific statement and sign it.
Cross-examination of RM generally as to “the three specific incidents”
QPlease correct me if I’m wrong, but prior to 21 March 2014, you weren’t sufficiently confident of your memory with respect to the incident that you described on 21 March and subsequently put in a statement on 22 March before the Monday start to the trial in this court?
AAs of my statement that was given before this one which was the 19th, sorry 24 May 2013, at 24 May 2013 no, I wasn’t prepared to put it specifically.
QJust so that I’m clear on this, as of 24 May 2013 you weren’t sufficiently confident in your own memory to be able to recount those incidents to the police in any way, shape or form?
ANo, wasn’t confident with it being a specific factual statement, so I wouldn’t have put it in there and signed it as such.
QAs of 24 May 2013, did you have any memory whatsoever with respect to those three incidents that you’ve now described?
AI had memory of where things occurred, as I’ve said before, but I couldn’t say specifics of what happened and in what room and what time.
QBecause, of course, you understood that if you had had a memory that you were sufficiently confident of, you knew you were obliged to tell the police about that, didn’t you?
A     Yes.
QIs it something that you went through the process of considering, that you weren’t sufficiently confident, for example, that something had occurred during a barbecue at your home, as of 24 May 2013?
A     No, that’s correct.
Q     Or had you completely forgotten about it?
ALike I said, I don’t like the term ‘forgotten’. Forgotten implies that you don’t have it there anymore, it was still there. As I said, I’m not prepared to give any statement under oath that I’m not confident of.
QThroughout the period of time that you have first spoken to police on 19 August 2011 until today, you have had a point of contact with the South Australian Police, haven’t you?
A     Yes.
QYou’ve had a point of contact with the investigating officer in relation to this matter, correct?
A     Yes.
Q     You’ve had a telephone number that you can ring?
A     Yes.
QYou’ve had communication between yourself and the investigating officer throughout that period of time?
A     Yes.
QSimilarly, have you had the assistance of an individual employed by the Director of Public Prosecutions to assist you in the matter now before the court?
A     Yes.
QWas there ever any occasion, for example, that you thought to tell someone in the position of authority, prior to 21 March 2014, for example, that you had some memory of an incident occurring at your family home during a barbecue?
AI neglected to called her. I can’t say specifically the date, but as I mentioned in this conversation between myself and my younger brother about that specific barbecue that triggered the memory of what happened that day.
QSo it was a conversation between yourself and your younger brother Elijah that triggered a memory?
A     Yes.
Q     In respect of the family barbecue, is that the position?
A     Yes.
QWhat triggered your memory with respect to an incident on your account occurring in the master bedroom of the Landmeter home?
AAs I’ve previously covered for about three times now, the continual thought on this matter has brought certain aspects that I was not clear on previously, has brought them to the forefront and they’ve become unclouded. I can confidently now give specific details, whereas before with a clouded memory I wasn’t prepared to do that.
QSo is it the position with respect to those three detailed incidents that you’ve described, that prior to 21 March 2014, you were not sufficiently confident with respect to your own memory to tell anyone in authority about those incidents?
AI was - yeah, yes, I’m not confident. I was confident enough in my memory that it happened, but I wasn’t confident enough to sign a legal document with specific details without being 100% sure.
The Judge’s directions pursuant to s 34M(4)(a)(ii): evidence of the consistency of conduct of the alleged victim

The Judge’s directions as to complaint evidence appear in full above at [60]. The directions pertinent to the complaint said to have been made by RM at age 15 are as follows:
She told you she again complained to her father when she was 15 and she was better able to tell him what had happened. She said she went into more detail about the conduct. His response on this occasion was ‘You will need to leave it in the hands of Jehovah. He will sort it out’. She said that as far as she knows no action was taken in relation to either of those complaints.
There are reasons why that evidence has been given in the trial. First, so that you may judge whether the complaints made to [Ms M’s] father, if you accept they were made, are consistent with the conduct that is alleged to have happened. You might think that that task is not particularly easy because you do not have details of the precise terms of the complaint that Ms [M] says she made. You might think, for example, that Ms [M], as conceded, her first complaint did not fully convey the nature of the conduct she was alleging against Mr Landmeter. Her evidence was that her second complaint contained more detail but she did not give evidence as to precisely what that detail was.
Second, the evidence of complaint before you is not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now alleged.
The Judge’s direction that “the evidence of complaint before you is not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now alleged” was correct as far as it went, but in the peculiar circumstances here, the jury needed assistance as to how they might assess this matter of “consistency”.
In light of the cross-examination above, I consider that the statement that “her second complaint contained more detail but she did not give evidence as to precisely what that detail was” was a very serious understatement of the position. The Judge should have directed the jury along the lines:
·that RM had given no evidence as to what her recollection (if any) was as to how the conversation (when she was 15 years old) came about, when or where it took place, how long it lasted or what she actually said;
·that RM did not claim to remember telling her father such important things as the occasions of hugging in the shed; or kissing and tongue insertion in the shed; or that such occasions comprised some 80 percent of a total of some 100 occasions of hugging; or of any of the three specific occasions that she described in her evidence in court; and
·that there is good reason for thinking that RM could not, in about 1999 (when she was 15 years old), have said to her father what she said in court in April 2014 for the reason that cross-examination in court disclosed that major parts of her present story only emerged as late as two days before the original trial date in March 2014 (when she was 29 years old) following a process of making statements to police from 19 August 2011 (when she was 26 years old).
As foreshadowed, I find that her Honour failed adequately to direct the jury as to the topic of “evidence of consistency of conduct of the alleged victim” in accordance with s 34M(4)(a)(ii). Again, I will return below to the consequences of this failure.
PART THREE: DISCREDITABLE CONDUCT EVIDENCE
In order to consider the appellant’s complaints as to the lack of directions concerning discreditable conduct, it is necessary to again refer to the nature of a charge under s 50, CLCA which is reproduced above at [44]. As there noted, the jury had to be satisfied that two acts were proven, each of which, first, came within the meaning of an act of “sexual exploitation” in s 50, CLCA and second, came within the terms of the Information at trial. Section 50(4) requires that the Information allege with sufficient particularity both “the period during which the acts of sexual exploitation allegedly occurred” and “the alleged conduct comprising the acts of sexual exploitation”. These matters must be proven beyond reasonable doubt.
Here, the alleged conduct comprising the acts of sexual exploitation were particularised by the prosecution as acts of indecent assault constituted by the appellant kissing RM on the mouth and inserting his tongue in her mouth. However, RM gave evidence that the acts of kissing and tongue insertion only commenced after some period of hugging alone and that there were many occasions of hugging without kissing or tongue insertion; she stated that kissing and tongue insertion only occurred on about half of the occasions of hugging. RM’s evidence describing the process of hugging is reproduced above and it is to be noted that she emphasised the sexual nature of the hugging – “definitely it had a sexual nature to it, holding a child like that continually”. RM also gave evidence that on a couple of occasions when the appellant accidentally walked into the bathroom while she was using the toilet, he “lingered” in the room rather than leaving straight away.
These two classes of alleged conduct, acts of hugging and acts of “lingering”, were clearly discreditable conduct that did not constitute the offence charged. This evidence was deliberately led by the prosecutor as incidents evincing a sexual interest by the appellant in RM and there is no doubt that, if they were to be admitted at all, they were to be admitted pursuant to s 34P of the Act.
There is also no doubt that the Judge was required by s 34R of the Act to give directions concerning those two classes of discreditable conduct but failed to do so. I observe in passing that no notice was served by the prosecution as required by s 34P(4) of the Act; this was unfortunate because such service may well have focussed attention on the need to give such directions.
The giving of appropriate directions was important here, particularly having regard to the following circumstances:
·the subject conduct was alleged to have occurred between 1992 and 1998, ceasing at least 16 years prior to trial in 2014;
·there was no corroboration of the evidence of RM;
·the evidence of complaint by RM to her father was insubstantial and vague;
·the statements made to police between 2011 and 2014 revealed a disturbing development and expansion of RM’s allegations;
·all of the three specific incidents that RM claimed at trial to remember had been communicated to police for the first time only two days before the original scheduled trial date in March 2014;
·in the first police statement made by RM in August 2011, only offences committed in a room inside a house were alleged with no mention of offences being committed in a shed; an assertion that 80 percent of all hugging episodes occurred in a shed was not made by RM until 22 March 2014; and
·the cross-examination at trial raised substantial concern as to the reliability of the memory of RM.
Having regard to the above matters, the jury may not have been satisfied with RM’s bald assertion of 100 occasions of hugging, with 80 such occasions occurring in the shed. The jury may well have focussed on the three specific occasions of hugging that RM claimed that she could actually remember, together with the couple of lingering occasions that RM also described.
The problem here is that only one of the three specific occasions of hugging contained the critical allegation of kissing and tongue insertion (and, of course, the couple of lingering occasions also lacked that essential ingredient).
The Judge directed the jury thus:
You will see that there are four elements to the charged offence in this case. …
It is the second element that is likely to require careful consideration by you. That element requires the prosecution to prove to your satisfaction that Mr Landmeter committed at least two acts of sexual exploitation. The acts of sexual exploitation alleged by the prosecution in this matter are acts of indecent assault. In other words, you must be satisfied that Mr Landmeter indecently assaulted Ms [M] on at least two occasions. That is why I set out the elements of an indecent assault.
You will see there are five elements to that offence. An indecent assault is an assault accompanied by circumstances of indecency. An assault is an unlawful and intentional application of force by one person to another without that person’s consent. So there must be an application of force by Mr Landmeter to Ms [M] but a mere touching is enough. The application of force must be proven to be intentional. In a sense it is knowing it is an intended act. So, for example, accidental touching such as might happen on a crowded bus would not be assault because it is accidental but the circumstances alleged here you would think, you might think, are likely to be intentional and knowing.
Third, the application of force or the touching must be unlawful, that is, without lawful justification or excuse. A lawful excuse can be something like self-defence or rendering aid in a situation of emergency. I direct you that children such as Ms [M] was at the time of the alleged offending cannot in-law consent to the touching that is alleged here. So those are the elements of assault which, of course, is in itself an offence.
To constitute indecent assault there must be accompanying the assault circumstances of the indecency. Obviously there is conduct that some might call indecent which could be the subject of some debate. Some behaviour is a matter of taste but there is other conduct by any contemporary standards described as indecent. This conduct alleged by the prosecution, Mr Landmeter kissing Ms [M] and inserting his tongue into her mouth in the manner she described, whilst it is a matter for you, I suspect you would likely find that this conduct, if proven to your satisfaction, amounts to assault accompanied by the circumstances of indecency.
The third element of the charged offence that must be proven is that Mr Landmeter committed two or more acts of sexual exploitation over a period of at least three days. That simply means that the time between the first and the last acts which must be proved must be three or more days and, of course, in this case it is alleged that the acts took place over a number of years.
…
It is not necessary for the prosecution to prove the precise date when each of the acts is alleged to have occurred but, of course, whether the acts occurred at all is a matter for you on the whole of the evidence.
The Judge later directed that there were three classes of conduct alleged against the appellant:
In summary, as Mr Powell reminded you yesterday, there are three types of behaviour that Ms [M] told you about. There were the hugs. Mr Powell read you portions of the transcript concerning this. Ms [M] said they were not a normal hug that you would give a child. She said Mr Landmeter would place one hand behind her neck and the other around her waist. She said that these hugs were different because of the length of the hug and the fact that Mr Landmeter’s whole body was in contact with hers.
There were the bathroom occasions where she described Mr Landmeter coming into the bathroom while she was using the toilet and rather than exiting immediately he, to use her words ‘lingered’. Finally there is the evidence she gave concerning the allegations that are the subject of the charge. The incidents where Ms [M] says Mr Landmeter hugged her then kissed her and inserted his tongue into her mouth.
Unfortunately, the Judge never directed the jury in clear terms that in order to convict the appellant on this Information, the jury had to be satisfied that the appellant, over a period of not less than 3 days, committed more than 1 act of kissing and insertion of the tongue.
A trained lawyer might possibly have discerned that this was so from a combination of the disparate directions, but one cannot be at all confident that the jurors necessarily would have. This is particularly so having regard to the fact that the jurors had no written record of the Judge’s summing up but did have two documents that they would have treated with importance. The first document was an aide memoire drafted by the Judge which stated as follows:
AIDE MEMOIRE
ELEMENTS OF THE OFFENCE OF PERSISTENT SEXUAL EXPLOITATION OF A CHILD
Section 50(1) Criminal Law Consolidation Act, 1935 (SA)
The prosecution must prove the following 4 elements beyond reasonable doubt.
1.     At the time of the alleged offending the accused was an adult.
2.The accused committed at least two acts of sexual exploitation against the complainant. An act of sexual exploitation is a sexual offence. In this case the offence alleged is indecent assault. Consent of the complainant is irrelevant.
3.The accused committed the two or more acts of sexual exploitation over a period of at least three days.
4.The prosecution must prove that at the time the accused committed the acts of sexual exploitation the complainant was under 17.
ELEMENTS OF THE OFFENCE OF INDECENT ASSAULT
Section 56 Criminal Law Consolidation Act, 1935 (SA)
The Prosecution must prove the following elements beyond reasonable doubt:
1.     An application of force to the person of another;
2.     The application of force must be deliberate or intentional;
3.The application of force must be unlawful; that is, without lawful justification or excuse; and
4.That the person did not consent to the application of force. Note: a child cannot consent to an indecent assault.
5.     Accompanied by circumstances of indecency.
The terms of the aide memoire did indicate that two or more acts of sexual exploitation were required and that an “act of sexual exploitation” was equated with an indecent assault. Critically however, the term “indecent assault” was not stated to be limited to “kissing on the mouth and insertion of the tongue”; rather, a finding of two acts of hugging only (particularly having regard to the sexual emphasis placed on the hugging alone in the evidence of RM) would have been quite consistent with the terms of the aide memoire.
The second document was the Information, reproduced above at [43]. The Information refers to “more than one act of sexual exploitation” and while it does proceed to state that “It is alleged that the conduct comprising the ongoing acts of sexual exploitation was Henricus Stephanus Landmeter indecently assaulting [RM] by kissing her on the mouth and inserting his tongue into her mouth”, it does not state that acts of “sexual exploitation” were necessarily to be so confined.
The result is that, having regard to all of the circumstances discussed above, one cannot be at all confident that jurors would not have interpreted these two documents as permitting a conviction to be based on satisfaction of the commission by the appellant of at least two of the three specific occasions (and possibly including the additional couple of “lingering occasions”).
I conclude that the Judge should have directed the jury along the lines referred to in R v Maiolo (No 2).[35]In particular, her Honour should have directed that satisfaction that the appellant committed various acts of discreditable conduct that might be considered “acts of sexual exploitation”, or satisfaction that such acts gave rise to an inference that the appellant was sexually attracted to RM, was not enough to found a conviction; rather, the jury could only convict if satisfied beyond reasonable doubt that the appellant, over a period of not less than 3 days, committed more than 1 act of kissing and insertion of the tongue.
[35] (2013) 117 SASR 1, [89]-[99].
No such direction was given and I find that ground 2 of appeal is made out.
PART FOUR: APPLICATION OF THE PROVISO?
In The Queen v S, DD,[36] both Duggan J (with whom Anderson J concurred) and I emphasised the importance that must be attached to the effect that evidence of complaint, unaccompanied by appropriate directions, may have on the jury’s assessment of the credibility of the complainant. In that case, the failure to direct had direct relevance only to count 2, it being recognised that the complaint could have been legitimately used by the jury in their consideration of count 1. Nevertheless, the convictions on counts 1 and 2 were both set aside because it was arguable that, without evidence of complaint on count 2, the jury may have acquitted on count 2, and that such acquittal of itself may have altered the jury’s view of count 1.[37]
[36] (2010) 109 SASR 46.
[37] (2010) 109 SASR 46, [131]-[135] (Peek J), [10]-[11] (Duggan J).
In each of the cases of The Queen v H,T,[38] R v Maiolo (No 2)[39] and R v Usher,[40] (referred to above), the matter of correct directions in relation to complaint evidence was treated as a matter of high importance to the jury’s assessment of credit and the proviso was not applied.
[38] (2010) 108 SASR 86.
[39] (2013) 117 SASR 1.
[40] (2014) 119 SASR 22.
The present case involves not only the absence of appropriate directions in relation to complaint evidence but also the failure to give any directions in relation to discreditable conduct as specifically required by s 34R of the Act. Having regard to the combined effect of those two grounds of appeal, the proviso cannot be applied in the present circumstances.
I would allow the appeal and order a re-trial on the Information