R v Latifi - [2014] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LATIFI
[2014] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
17 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - EVIDENCE - CREDIBILITY - REPUTATION FOR UNTRUTH
Appeal against convictions. The appellant was convicted following a trial by Judge alone of three counts of rape and one count of indecent assault. The victim, SM, was a door-to-door saleswoman who attended at the address of the appellant.
Whether the trial Judge failed to correctly apply the burden of proof. Whether the Judge erred in concluding that the complainant’s evidence was truthful and reliable in light of a number of claimed inconsistencies, improbabilities and omissions. Whether the Judge erred in concluding that the appellant constructed certain aspects of his evidence in the witness box. Whether the Judge failed to consider good character evidence and oath belief evidence called at trial in support of the appellant. Whether the verdicts were unreasonable and against the weight of the evidence.
Held per Kelly J; Kourakis CJ and Vanstone J concurring (allowing the appeal):
1. The outcome of this case depended largely on the trial Judge’s assessment of the credit of the complainant and the appellant. The adverse finding as to the credit of the appellant must have had an important impact on the verdict reached by the trial Judge.
2. Appeal allowed on the sole ground that the trial Judge erred in concluding that the appellant constructed his evidence in the witness box.
3. Appeal allowed, convictions set aside and retrial ordered.
R v Trimboli (1979) 21 SASR 577; R v Keyte (2000) 78 SASR 68; R v Winner (1995) 79 A Crim R 528; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; M v The Queen (1994) 181 CLR 487, applied.
R v Latifi [2014] SADC 27; R v J, SM (2013) 117 SASR 535, discussed.

R v LATIFI
[2014] SASCFC 74
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: I would allow the appeal, set aside the convictions and direct that there be a retrial. I agree with the reasons of Kelly J.
VANSTONE J: I agree with the orders proposed by Kelly J and with the reasons she has written.
KELLY J.
This is an appeal against the verdicts of a trial Judge sitting alone. On 21 February 2014 the appellant Abdul Mateen Latifi was found guilty in the District Court of three counts of rape and one count of indecent assault. The victim was an adult woman who I shall refer to as SM.
A Judge of this Court granted permission to appeal in respect of five grounds of appeal.
The complaints made by the appellant are that the trial Judge failed to correctly apply the burden of proof, erred in concluding that the complainant’s evidence was truthful and reliable in light of a number of claimed inconsistencies, improbabilities and omissions, erred in concluding that the appellant reconstructed certain aspects of his evidence in the witness box and failed to consider good character evidence and “oath belief” evidence called at trial in support of the appellant. Finally, by reason of the matters complained of the appellant contended that the verdicts were unreasonable and against the weight of the evidence.
Background
The events which gave rise to all charges occurred at the appellant’s home in a suburb of Adelaide on 30 October 2012.
At this time the complainant, SM was a 32 year old woman who was employed by Australian Sales and Promotions to attend door to door to sell electricity contracts on behalf of Alinta Energy. She had been working for Alinta Energy for approximately 10 weeks. On the afternoon of 30 October 2012 SM was tasked with doorknocking within a specific geographical area allocated to her by her supervisors. Other members of the same sales team were working in adjacent areas, however SM was door knocking alone within her allocated zone. Senior team member Matthew Lyons drove the van which deposited each staff member in their allocated zone. He dropped off SM in the relevant area at about 12.40 pm and then engaged in door to door selling in the same general area.
The appellant’s home was the second address that SM attended as part of her door to door sales that day. On the prosecution case she approached the appellant’s house shortly after taking a telephone call from Telstra on her mobile telephone. The time of that call which, on the prosecution case was at 1.27 pm, was significant as it established the outer limits of the time frame within which the events which occurred inside the house were said to have taken place.
SM approached the house and spoke to the appellant who at the time was outside the front of the home washing his car. She told the appellant about the purpose of her visit and he then went inside the house to obtain an electricity bill. During the initial conversation the appellant told SM that his mother was not at home and he did not know when she would be back.
The appellant returned to the front of the house with a gas bill rather than an electricity bill and then went inside for a second time to retrieve an electricity bill. While at the front of the premises SM said she used an envelope produced by the appellant to write down a mobile telephone number for him to pass on to his mother.
SM said she called out for a glass of water while the appellant was still inside the house and he returned with a glass of water which he handed to her. As she took the glass the appellant grabbed her breasts over her shirt. He pulled her breasts so that she was forced to step forwards into the house and as he did so she dropped the glass of water and it broke. The act of grabbing the complainant’s breasts was charged as one separate count of indecent assault.
Once inside the house the appellant grabbed SM in a “bear hug” from underneath her shoulders and according to SM walked her down the hallway towards a bedroom. SM said as she was moved towards the bedroom she was touching the ground with her “tippy toes”. Once in the bedroom the appellant pushed SM onto the bed and then stood directly in front of her. He pinned her body down with his arm and kissed her face and nipple. He put one hand up her skirt and ripped a hole in her pair of stockings as he did so, then moved her underpants to one side and penetrated her vagina with his fingers. The damaged stockings were tendered as evidence at the trial. This conduct was the subject of one count of rape.
The appellant then attempted to have SM perform an act of fellatio. SM described the appellant as becoming “frustrated” at this stage. He then performed an act of cunnilingus upon SM and squeezed her nipple. The act of cunnilingus was charged as one count of rape.
After this conduct, the appellant then attempted to penetrate SM's vagina with his penis. He penetrated only a short distance because SM resisted him by using her legs to create leverage between her body and his. The act of penile/vaginal penetration was charged as a separate count of rape.
The appellant then returned to perform further cunnilingus on SM. At about this time SM, realising that she still had her mobile telephone in her hand, sent two text messages to her senior co-worker Matthew Lyons. There was evidence tendered at the trial which supported the inference that those text messages were received by Mr Lyons at 1.42 pm.
After he received those messages Mr Lyons telephoned SM. Her telephone rang audibly and the appellant told her not to answer it. Nevertheless SM did discretely answer the phone but did not speak. Mr Lyons said that the telephone call made by him was answered and he heard muffled sounds for a period of no more than three seconds. He then terminated that call. Mr Lyons’ mobile telephone record supports the conclusion that this call to SM was made at 1.44 pm and lasted three seconds.
SM said that after she answered the phone the appellant asked her what she was doing on the phone. SM said she assumed the appellant had seen that the phone was still in her hand and knew by then that she had answered the call. The appellant got up, pulled his trousers up and left the bedroom.
SM left the house a short time later. As she walked out of the front door Mr Lyons arrived at the front of the appellant's address. SM made an immediate complaint to Mr Lyons saying “this guy just tried to rape me”.
Mr Lyons observed that SM’s clothing was messier than when he had dropped her off, she was flustered, rushing her words and began to sob. He gave evidence that the state of her clothing when she came out of the house of the appellant was different to when she was dropped off. He told the court he would not have allowed a sales agent to leave the van with clothing in the state as shown in the photographs tendered at trial. Those photographs were taken later that day. Mr Lyons immediately took SM to the Sturt Police Station.
A short time after SM got into the van she made a telephone call to her colleague Tiffany Wild. She told Ms Wild that a customer had pulled her into his house, ripped her shirt and stockings and had forced himself on her. Ms Wild gave evidence that SM sounded distraught, was emotional and hyperventilating at times.
Ms Wild was asked by defence counsel at trial whether she would believe the complainant on her oath and responded that she would have reservations about believing SM on her oath. She was not asked whether this was an opinion personally held, or whether it relied on a general reputation of SM, and no further questions were asked by the prosecutor in re-examination as to the nature of the reservations she expressed.
Dr Karen Sandercock conducted a forensic examination of SM on 30 October starting at 6.55 pm. Dr Sandercock observed petechial bruising on the surface of SM's left breast as well as some redness at the edge of the areola. Those observations were consistent with squeezing of the nipple. Dr Sandercock also observed petechial bruising on the high vaginal wall. That was consistent with digital penetration of the vagina. Dr Sandercock took a number of samples for DNA analysis.
DNA analysis was conducted on a selection of those samples. DNA consistent with having originated with the appellant was detected on (at least) a labial swab, a swab from the left breast, and a swab from the left cheek. Amylase, a chemical located at high levels in saliva, was detected on swabs from the left breast, right cheek and low vaginal area.
The appellant, who was 19 years old at the time of the alleged offending, gave evidence at trial. He told the court that when he first observed SM he thought that she was acting strangely and using abnormal words. He told the court that she used offensive language when she first approached him and that he spoke to her about using offensive language in front of his four year old brother who was nearby. The appellant told the court that SM then asked for a glass of water. He went inside, collected a glass of water and gave it to SM who was standing outside by the front door.
The appellant gave evidence about what he did with the glass later. He said he had rinsed the inside surface of the glass only. He emphasised that he had not wiped the glass after he rinsed it but had shaken it and placed it back into the cupboard. The appellant told the court that when police attended they searched the bins and located no glass. This evidence was contradicted by Detective Buck, the investigating officer, who denied having checked the bins.
The appellant said that after drinking some water, SM then asked for an electricity bill and he asked her if she wanted to come inside while he searched for one. He said that while he was looking for a bill, SM sat down on the couch without being invited to do so, and began to ask him personal questions about his experience with women. While sitting on the couch with SM, she touched him on the leg. SM then asked to use the toilet. The appellant gave detailed evidence about the complainant’s use of certain soap and a particular tap. He told the court he found SM dirty because she washed her hands in the kitchen sink while dirty dishes remained in it.
On the appellant’s account SM asked to see his bedroom. On him showing her his bedroom she complained that his room was messy and asked if there was another bedroom. Inside his mother's bedroom the appellant said that SM undid her own buttons and asked him to touch her vagina. She asked him to touch her sexually as she lay back and appeared to be using her telephone. He told the court that at her request he spat on his fingers while he was touching her vagina.
The appellant denied grabbing SM's breasts and dragging her inside the house, attempting to have SM perform fellatio, or performing an act of cunnilingus. He admitted penetrating SM's vagina with his penis and fingers. He claimed each of those acts were done with the consent and encouragement of SM.
The appellant told the court that he was offended by the language used by SM and did not find her attractive.
On the defence case the sexual contact between the appellant and SM stopped as soon as SM asked him to stop. The appellant said that prior to SM leaving he told her “just remember that I haven't done anything after you said stop”. In cross-examination he said he made this statement in case anything were to happen in the future and she came back later claiming that he had not stopped when she told him to stop. On the appellant’s version SM had done and said nothing to lead him to fear that she was preparing to make a false allegation.
Complaints made on appeal
It is convenient to start with the complaints made in respect of the third ground of appeal before turning to deal with the remaining four grounds.
Recent invention
The third ground of appeal is a complaint that the trial Judge erred in concluding that aspects of the appellant’s evidence had been constructed while in the witness box. Two complaints in particular were advanced in support of this ground.
The first aspect of the complaint relates to the appellant’s evidence about the phone call received by the complainant in the lounge room.
In examination in chief the appellant was asked:
Q.So you had brought her the wrong bill, you were sitting on the couch with her, was there any more conversation then.
A.She - there was some other conversation but then she received a phone call and she stood up, she was talking on the phone and she was having a very rude conversation saying bad things on the phone while she was having a conversation on the phone.
Q.What sort of bad things.
A.While she was having the conversation at the space where in front of the couch she was talking, walking as well along there, up and down. She was saying 'This job is fucking bullshit, I hate this job' and things like that and it seemed to me that she hated her job.
Q.Did she remain standing or did she ever return to the couch.
A.After she finished the conversation she did come back and sat on the couch but she did not sit where she was previously sitting and she came and sat in the middle (INDICATES).
Later during cross-examination the prosecutor questioned the appellant about the phone call:
A.I was sitting on the couch where the black bag is (INDICATES) and then she stood from where she was sitting. When she stood I didn't hear her phone ringing but she did answer her phone and she was walking across from one end of the room to the other end and she was talking on the phone.
Q.What was she saying.
A.I can't remember everything that she said a hundred per cent and I just - when she was talking on the phone she was saying things like - things that I can remember are that 'I fucking hate this job. This job is boring' things like that. And sorry for saying rude words in the court.
After some further cross-examination about what happened in the lounge room after that conversation the prosecutor then asked:
Q.So you had a conversation about her job as well, did you, after she got off the phone.
A.After hearing that she - her saying that 'I fucking hate this job' I just asked her 'Why did you speak on the phone like that?'
Q.Where did this conversation take place.
A.After she finished her conversations she came and sat on the middle cushion (INDICATES) and I was sitting on the - where I was before (INDICATES). On that, where the black bag is.
Q.Did she tell you why she had no choice but to do her job.
A.No, I didn't ask her about any further details.
Q.Is this another conversation that you've just made up in the witness box.
A.No, I haven't made this up and I said this in my statement to the police as well.
Despite the appellant’s answer to the prosecutor’s question, there was no attempt by counsel then acting for the appellant to re-examine him about his conversation with the police on that topic.
By consent on appeal the Court received a transcript of the conversation the appellant had with the police at about 3 o’clock in the afternoon of 30 October 2012. In the course of questioning about what had occurred prior to the alleged offending the appellant was asked:
Q.So what, what conversation started this coming to the bedroom?
A.Well just talking about like you know she said, “how old are you?”. I said, “I’m just, you know I’m just like born this year and this is my age” so she said the same so yeah she asked me, “where you from” and I asked her “where you from” you know all those sort of things so introducing each other so after like you know ah I was just you know I said a few things to her like told to her and then she said, she, she hasn’t said anything you know like ah once I started like you know just touching her hand or like she, she take my hand back and all those sort of all so like which is it wasn’t like she wasn’t ignoring me to, no don’t give it you know it’s bullshit, it’s not good so she hasn’t said anything which is she was like I was just touching her hand and she take my hand back and then after that I think we were sitting there ah the call came for her, you know a phone call from company and she was talking on her, she was swearing on phone you know so I don’t care with what she was saying but once her conversation finished on the phone she said, “bad” and you know like she, she had me and I had her so that’s what happened, yeah so that’s what so we ……
It is apparent from this excerpt of the interview with the police that the appellant’s answer tended to rebut the prosecutor’s suggestion the appellant constructed in the witness box his account that the complainant received a phone call in the lounge room.
During the prosecutor’s address there was further reference to that topic:
There were, I suggest, other examples of the accused constructing his story in the witness box. For example, there was the evidence of the accused's brother coming into the room and seeing the complainant and the accused touch and the conversation that then followed. There was the evidence of the complainant asking the accused to lick her vagina and the evidence of the complainant on the telephone swearing about her job and then telling the accused that she had no choice but to keep working at the job she disliked, and that's at p.331.
…
Finally, on the accused's evidence, there are, I suggest, two pieces of evidence that should greatly trouble your Honour when assessing the reliability and credibility of the accused. First, there is the evidence of the accused about the phone call the complainant received while in the lounge room, that is the conversation where the accused says the complainant was complaining and swearing about her job and your Honour may recall that the accused's evidence was that he did not see the complainant speak on the phone at any other time.

Both counsel who conducted the trial were aware of the answers given in the interview by the appellant. While it is evident that a decision had been made by the prosecution not to lead the evidence of what the appellant said to the police, it would have been open to either counsel to cross-examine or re-examine the appellant further after he volunteered in the witness box that he had told the police about the phone call. In the event that the prosecutor chose not to cross-examine, as was the case here, it would have been quite proper for the appellant’s counsel to have re-examined the appellant about what he said to the police on that topic. However that did not occur and at the conclusion of the appellant’s evidence it was open to conclude that there was no available evidence by which the appellant could have rebutted the suggestion made by the prosecutor that his evidence was constructed.
The second matter said to have caused the trial Judge to erroneously conclude that aspects of the appellant’s evidence had been constructed relates to his evidence about his young brother coming into the lounge room and seeing the appellant and the complainant touching.
It is true, as the prosecutor put to the trial Judge, that this suggestion was not put to the complainant either. However, in his evidence the appellant asserted that he had told the police about that as well. In cross-examination the following was put to the appellant:
Q.You didn't tell the court about this yesterday, did you.
A.About what sorry?
Q.About your brother seeing you and you talking to him and then you talking to the woman about your brother.
A.Because here I wasn't explaining my full story but if your Honour wants to know the full story I'm happy to explain all that happened but I only yesterday only answered the questions that I was asked by my lawyer.
Q.You're just making this story up as you go along, aren't you.
A.If I was making this up as I go along how would I remember it and how would I have told the police on the day of the interview.
In his interview, the appellant said:
So I was washing car over there first of all. Yeah so my brother was inside so yeah I mean she was sitting here and then once my, you know one time my little brother which is, which is like she was sitting here and you know it was like just ah talking to her or you know hugging her but my little brother he just came out from the car, he just went straight there and I went out …….so I didn’t, I didn’t continued cause I know it’s bad for the kids.
The appellant’s reference to his brother in the interview with police was less clear than it had been in relation to the telephone call, however the appellant’s assertion that he told the police about that seems to be borne out by that answer.
It is evident from the trial Judge’s analysis of the defence case that some importance was placed on her acceptance that the appellant had indeed reconstructed several aspects of his evidence while in the witness box. Her Honour placed some emphasis on the telephone call which the appellant claimed the complainant made in the lounge room and specifically referred to evidence relating to the appellant’s young brother seeing them touching as having been constructed by the appellant in the witness box.
Her Honour then went on to conclude that the appellant made up the call which occurred in the lounge room because he realised that without that call the timeline of events which he recounted did not fit with his evidence. On the basis of her rejection of the appellant’s evidence on this topic, the trial Judge concluded that a period of only 14 minutes elapsed from the time the complainant approached the appellant in the driveway to the time that she sent a text in the bedroom. On that basis her Honour concluded that the appellant’s version of what happened in the house was unlikely.
It could not be said that these two findings were insignificant to the ultimate conclusion reached by her Honour that she could not accept the appellant’s evidence. At the hearing of this appeal, counsel for the respondent did not suggest that those particular credit findings by the trial Judge did not have an important effect on the verdicts.
This was a case where the outcome depended largely on the trial Judge’s assessment of the credit of the complainant and the appellant. An adverse finding about the credit of the appellant must have had an important impact on the verdict reached by the trial Judge.
In light of that conclusion I would allow the appeal on this ground alone.
Burden of proof
The first ground of appeal is a complaint that the trial Judge failed to correctly apply the burden of proof. It is contended that this failure is manifested in the way which the trial Judge summarised the prosecution and defence cases in her reasons for judgment.
After completing her assessment of the complainant’s evidence and the prosecution case the trial Judge said:[1]
[1] R v Latifi [2014] SADC 27 at [180]-[181].
[180]The complainant’s evidence was cogent notwithstanding the matters referred to by defence as improbable. Taken individually or in combination I did not find the improbabilities highlighted to affect my view of the complainant’s evidence as a compelling narrative of events. I have reminded myself that any prior inconsistent statement should make me cautious about accepting her evidence and that failure to mention matters is also a factor to take into account. The proven inconsistency and the matters that may not have been mentioned to police are in my view minor matters taken in context. The complainant has maintained her central allegations in a consistent manner throughout. Overall I consider her evidence truthful and reliable. Acting upon that I would convict the accused of all four counts on the information.
Defence Case
[181]I need now to consider the defence case and whether it causes me a reasonable doubt about the accused’s guilt. …
Counsel for the appellant submitted that by this approach the trial Judge effectively cast the burden on the appellant to establish a reasonable doubt about his guilt, thereby reversing the onus of proof. This error was said to have been compounded by the trial Judge’s conclusion about the appellant’s credibility which was at least partly based on the incorrect assumptions that the appellant reconstructed certain aspects of his evidence while in the witness box. As a consequence of these errors the Judge ultimately concluded that the defence case did not cause her to entertain any reasonable doubt about the appellant’s guilt.
The question which arises is whether, as the appellant’s counsel contended, the trial Judge did conclude guilt beyond reasonable doubt on the basis only of satisfaction as to the truthfulness and reliability of the complainant and not on the basis of all the evidence in the trial.
It is perhaps trite to observe that an accused person is presumed to be innocent unless and until the trier of fact is satisfied beyond reasonable doubt of their guilt, having considered the whole of the evidence presented at trial.
The way in which the trial Judge structured the judgment, together with the conclusion expressed at the end of her assessment of the complainant’s evidence and the prosecution case, did perhaps leave the unfortunate impression that the Judge had already made up her mind about the appellant’s guilt before turning her mind to consider the defence evidence. Taken literally that is a logical inference to draw from her comments at [180] to [181].
However the impugned findings of the trial Judge in those two paragraphs need to be evaluated in the light of the whole of her Honour’s reasons. Some consideration also needs to be given to the fact that in a case of a trial Judge sitting alone the Judge has usually made up his or her mind before preparing written reasons. I consider that here that is the most likely explanation.
It is evident from the whole of her reasons that the trial Judge gave careful and detailed attention to all of the evidence, including the evidence given by the appellant and the witnesses called on his behalf. Leaving aside for the moment the incorrect factual assumptions made as a consequence of the errors previously referred to in the context of the complaint made under the third ground of appeal, the trial Judge nevertheless analysed the evidence carefully and gave considered and, with respect, cogent reasons for rejecting the appellant’s evidence.
I am not prepared to infer solely from the manner in which the trial Judge formatted her reasons that she did in fact approach her task in the sequential manner complained of. Put simply, I do not accept that the way in which the trial Judge chose to express herself in [180] to [181] of the judgment demonstrates that her Honour has made the most basic of errors, by finding the appellant’s guilt established beyond reasonable doubt on the basis of only part of the evidence.
I do not consider that this ground of appeal has been made out.
Evidence of good character
I turn now to consider ground 5 of the appeal, which is a complaint that the trial Judge did not accord any or sufficient weight to the evidence of good character led by the appellant.
The trial Judge was obliged to take the evidence of good character into account when deciding whether the prosecution had proved its case beyond reasonable doubt. That evidence came from two witnesses, Ms Johnston and Mr Fitz-Gerald. After accurately summarising their evidence the trial Judge said:[2]
The key witness for the defence was the accused. In considering his evidence I have borne in mind his good character and the evidence of Ms [Johnston] and Mr [Fitz-Gerald].
[2] R v Latifi [2014] SADC 27 at [181].
The specific complaint made on appeal is that the trial Judge at no stage specifically adverted to the use of the character evidence as relevant to both the appellant’s credit as a witness and as to likelihood of the appellant committing the offence. This failure, the appellant submitted, resulted in it remaining unclear as to whether the trial Judge did accord sufficient or any weight to the evidence of good character.
It is true that the trial Judge did not recite anywhere in the reasons the relevant principle applicable to the use of good character evidence. Good character evidence is relevant to the credit of an accused. It is also relevant as a factor affecting the likelihood of an accused committing the crime charged, although it cannot prevail against evidence of guilt which the trier of fact finds to be convincing notwithstanding the accused’s previous character.[3]
[3] R v Trimboli (1979) 21 SASR 577 at 578 per King CJ.
However that principle is neither controversial nor complex.
It is well established that in a trial by Judge alone, a Judge giving reasons is not required to replicate every direction which would be required to be given to a jury. In R v Keyte[4] Doyle CJ (Williams and Wicks JJ agreeing) cited with approval[5] the remarks of Kirby P in R v Winner:[6]
It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. ...
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office: cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal.
[4] (2000) 78 SASR 68.
[5] R v Keyte (2000) 78 SASR 68 at [54].
[6] (1995) 79 A Crim R 528 at 530-531.
In R v R, R & R, LJ[7] Sulan J (Gray and White JJ agreeing) said:[8]
In this case, the trial Judge used the forumla [sic] of warning herself and directing herself as if she was the jury. It is open to a trial Judge to adopt that formula. However, there is no requirement to do so. If the reasons are sufficient so as to explain why evidence was admitted, what use was made of the evidence, the inferences drawn from the evidence and the approach of the judge to the evidence so that an appellate court can ascertain the judge’s reasoning, that is sufficient. There is no rule as to the test of the adequacy of a judge’s reasons. Each case will depend upon its circumstances.
[7] [2008] SASC 35.
[8] R v R, R & R, LJ [2008] SASC 35 at [43].
More recently in R v T, WA[9] Kourakis CJ (Vanstone and Anderson JJ agreeing) citing Keyte, affirmed that a Judge sitting alone is not required to replicate the Judge’s charge to a jury.[10]
[9] (2014) 118 SASR 382.
[10] R v T, WA (2014) 118 SASR 382 at [22].
As I have observed, there is nothing complex about the principles applicable to the use of good character evidence given on behalf of an accused person. I do not accept the submission made in this case that the failure of the trial Judge to explain the applicable principle, as would have been necessary in a jury trial, indicates that her Honour has failed to apply the correct principles.
Her Honour accurately summarised the evidence of good character given by both Ms Johnston and Mr Fitz-Gerald before explicitly stating that she had taken that evidence into account when assessing the evidence of the appellant. That having been articulated, I cannot accept that her Honour then failed to use that evidence appropriately.
For these reasons I would dismiss this ground of appeal.
Verdict unreasonable and against the weight of the evidence
It is convenient to deal with the complaints made in the second and sixth ground of appeal together. The appellant complains that the verdicts are unreasonable and against the weight of the evidence in part by reason of the Judge’s error in concluding that the complainant’s evidence was truthful and reliable despite the improbabilities, inconsistencies and omissions in her evidence.
Counsel for the appellant pointed to the evidence of the complainant that she had dropped a glass before entering the appellant’s home. This was said to be an aspect of the complainant’s evidence recently constructed and which she failed to mention to the police until shortly before the trial.
Counsel also pointed to the fact that the complainant failed to tell a doctor who examined her after the assault that the appellant had dragged her into the house by the breasts.
Another complaint in support of the second ground of appeal was the fact that a co-worker of the complainant gave evidence that she would have reservations about believing the complainant on her oath.
The remaining matters particularised by the appellant in support of this ground relate to what the appellant claims was the implausibility of the complainant’s evidence about being dragged through the house, using her mobile phone during the sexual assault, her description of the appellant’s behaviour throughout and the lack of any damage to the complainant’s shirt consistent with her allegations about the appellant’s manhandling of her.
It is evident from the reasons that the trial Judge was alive to all of these complaints. Her Honour analysed each criticism made of the complainant’s evidence carefully and in detail.
The particular complaint which related to the complainant’s failure to tell the doctor in the same detail as she told the police about the manner in which she was pushed into the house arose out of a passage in cross-examination of Dr Sandercock. The doctor agreed that she had recorded in her notes being told by the complainant “she was pushed by the breasts”. I have read the whole of the complainant’s evidence and Dr Sandercock’s evidence on that topic. In my view the complaint made by the appellant misrepresents the effect of Dr Sandercock’s evidence on that topic. It is evident from the evidence of the complainant and the doctor, that the doctor did not consider it to be her role, nor was it, in her examination and interview with the complainant, to purport to record the complainant’s entire account of the event. In any event, I do not consider that the note recorded in the doctor’s notes is necessarily inconsistent with the complainant’s account. It might be said to be incomplete, however it is not inconsistent.
The “oath belief rule”
Since evidence given by the complainant’s co-worker, Ms Wild, in response to questions asked pursuant to what is known as the oath belief rule was relied upon in part as support for the submission that the verdict is unsafe, I shall say something about the rule itself. In my view the contentions advanced by the appellant in support of this ground of appeal illustrate the dangers of relying on such an anachronistic rule of evidence in the context of a modern criminal trial.
In R v J, SM[11] Blue J (Kourakis CJ and White J agreeing) held that the refusal of a trial Judge to allow the appellant’s counsel to ask the brother A of the complainant whether in his opinion the complainant should be believed on her oath was wrong in law.
[11] (2013) 117 SASR 535.
The majority (Kourakis CJ dissenting) went on to conclude that if the question had been asked and answered in the negative by the brother, the court could not be satisfied that the jury would have inevitably convicted the appellant. Accordingly, it was not appropriate to apply the proviso and the appeal was allowed.
The decision in J, SM appears to have given fresh impetus to the application of this antiquated rule of evidence. Not only did the appellant’s counsel at trial elicit from the co-worker Ms Wild that she would have reservations about believing SM on her oath, but he went further and elicited from the appellant’s own character witnesses Ms Johnston and Mr Fitz-Gerald that they would believe the appellant on his oath.
The questioning of a party’s own witness is not permitted by the application of the oath belief rule and accordingly the questions asked of Ms Johnston and Mr Fitz-Gerald on that topic were objectionable. Senior Counsel at the hearing of the appeal properly conceded that the question should not have been asked.
However one of the complaints in support of the submission that the verdicts are unsafe is the alleged failure of the trial Judge to accord sufficient weight to the answer given by Ms Wild that she would have reservations about believing SM on her oath.
Counsel submitted that the trial Judge’s comment about the absence of any explanation for Ms Wild’s reservations was unfair, particularly in light of the fact that no explanation could have been elicited by defence. It was also said to be indicative of an incorrect approach by the trial Judge in not according sufficient weight to Ms Wild’s evidence.
I do not accept that the impugned comment of the trial Judge about Ms Wild’s opinion evidence is indicative of any error. Her Honour was entitled to accord that evidence little weight. Ms Wild worked with SM for three to five weeks, although she agreed in cross-examination that it might have been up to 10 weeks. She had little contact with SM socially and had met SM’s husband on one occasion only. In the circumstances, the trial Judge was entitled to attach little significance to the bare and untested opinion evidence of a witness who had known SM for such a brief time.

To my mind, the submissions made on appeal about Ms Wild’s opinion evidence only serve to reinforce the practical dangers and injustice of the continued application of such an anachronistic rule of evidence in the context of a modern criminal trial. If the untested opinion evidence of the type elicited here is thought to be decisive, as was held to be the case in J, SM (Kourakis CJ in dissent), then the case for legislative abolition of the oath belief rule seems to me to be cogent, if not compelling.
The test to be applied in considering whether a verdict is unsafe and unsatisfactory on the ground that it is unreasonable and cannot be supported having regard to the evidence is the test formulated in M v The Queen.[12] This Court in making its own independent assessment must determine whether, on the whole of the evidence, it was open to the trier of fact to be satisfied beyond reasonable doubt of the appellant’s guilt. In making this assessment I have had regard to the fact that the trial Judge had the benefit of seeing and hearing the witnesses. I have read the whole of the evidence, including the complainant’s account. While in some respects the circumstances in which this offence occurred are somewhat unusual, I do not accept the submission that the complainant’s evidence was implausible. I would dismiss this ground of appeal.
[12] (1994) 181 CLR 487.
Conclusion
As I have set out, I would allow this appeal on the basis of the errors agitated under ground three. The errors may have caused a miscarriage of justice. For these reasons I would allow the appeal, set aside the convictions and direct a retrial.