R v M, RS

[2018] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, RS

[2018] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hinton)

11 May 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF CROWN CASE

Appeal against conviction.

The appellant was convicted by a judge sitting alone of one count of persistent sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his step daughter, JLM. The abuse occurred between September 1981 and December 1991 commencing when JLM was around eight years of age. The defence case denied that the sexual acts constituting the abuse alleged occurred. Accordingly the success of the prosecution case depended upon the creditability and reliability of JLM.

In advance of the appellant’s trial counsel for the appellant was advised that the prosecution did not intend to call PMM, JLM’s mother and the appellant’s partner, as a witness for the prosecution. PMM had provided the police with two statements which if accepted, were inconsistent with those provided by JLM and undermined her credibility. In particular PMM denied that JLM had twice complained to her about being sexually abused by the appellant. 

Prior to the commencement of the trial the appellant made a formal application that the trial Judge invite the prosecutor to reconsider the decision not to call PMM. The prosecutor explained to the trial Judge that he had met with both JLM and PMM in addition to LID, JLM’s younger sister. The prosecutor said he had no reason to think that JLM was not a witness of truth. He considered that he could not present PMM as a witness of truth explaining that PMM was adamant that her husband had not committed the offence and that JLM had either imagined or made up the allegations. The prosecutor said PMM was available for the defence to call as a witness.

The application was refused and reasons provided for the refusal: R v M, RS [2016] SADC 166. The trial commenced and at the close of the prosecution case the application was renewed. Again the trial Judge refused the application, providing his ruling before the defence case was opened, and his reasons for that ruling some months later, the same day on which the appellant was found guilty: R v M, RS (No 2) [2017] SADC 23.

On appeal the appellant argued that a miscarriage of justice had occurred because of the prosecution’s decision not to call PMM to give evidence. By his second ground of appeal the appellant argued that the reasons of the trial Judge for refusing the renewed application exhibited bias or apprehended bias in the form of prejudgment.

Held per Hinton J (Peek and Nicholson JJ agreeing) allowing the appeal:

1.      The centrality of PMM to JLM’s narrative meant that she could give evidence that was material to the resolution of issues in dispute.  Consequently she was required to be called by the prosecution save and unless good reason existed not to do so. The fact that PMM could be expected not to support JLM’s evidence did not provide, without more, good reason for the prosecutor not to call PMM. The prosecutor could not point to identifiable circumstances of unreliability that justified his decision not to call the witness. The failure to call PMM has had the consequence that the appellant has lost the chance of an acquittal and occasioned a miscarriage of justice.

2.      As at the time of the ruling on the renewed application, the trial Judge having undertaken an evaluation of only the prosecution case and found JLM credible and reliable with respect to a number of matters to which PMM could give evidence, the ordinary lay observer might apprehend that he had arrived at a concluded view regarding JLM being a truthful, reliable and credible witness from which he might not move upon hearing the defence case.

Criminal Law Consolidation Act 1935 (SA) s 50(1); District Court Criminal Rules 2014 (SA) r 49, referred to.
Antoun v The Queen (2006) 80 ALJR 497; Barton v The Queen (1980) 147 CLR 75; Dietrich v The Queen (1992) 177 CLR 292; Ebner v Official Trustee (2000) 205 CLR 337; R v Chimirri [2010] VSCA 57; R v Armstrong [1998] 4 VR 533; R v Lawson [1960] VR 37; R v Nguyen (2009) 262 LSJS 279; R v O’Brien (1996) 66 SASR 396; Jago v District Court of New South Wales (1989) 168 CLR 23; Johnson v Johnson (2000) 201 CLR 488; Michael Wilson and Partners v Nicholls (2011) 244 CLR 427; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; The Queen v Jensen (2009) 23 VR 591; R v Kneebone (1999) 47 NSWLR 450; The Queen v Manning [2017] QCA 23; Ratten v The Queen (1974) 131 CLR 510; Richardson v The Queen (1974) 131 CLR 116; The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 1523 CLR 657, applied.
Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34, distinguished.
R v M, RS [2016] SADC 166; R v M, RS (No 2) [2017] SADC 23; R v M, RS (No 3) [2017] SADC 24, not followed.

R v M, RS
[2018] SASCFC 37

Court of Criminal Appeal:  Peek, Nicholson and Hinton JJ

1. PEEK J.   I agree with the reasons of Hinton J.

2. NICHOLSON J.   I agree with the reasons of Hinton J.

   HINTON J.

   Introduction

3. The appellant was convicted by a judge sitting alone of one count of persistent sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his step daughter, JLM. The abuse occurred throughout a period commencing sometime after September 1981 when JLM was around eight years of age, and continuing until December 1991 when she left home. The defence case denied that the sexual acts constituting the abuse alleged occurred.

4. In advance of the appellant’s trial counsel for the appellant was advised that the prosecution did not intend to call PMM, JLM’s mother and the appellant’s partner, as a witness for the prosecution. PMM had provided the police with two statements the content of which, if accepted, undermined the credibility of JLM. Prior to the commencement of the trial the appellant made a formal application that the trial Judge invite the prosecutor to reconsider the decision not to call PMM. That application was refused. At the close of the prosecution case the application was renewed. Again the trial Judge refused to take any action.

5. The trial Judge produced considered reasons for declining on each occasion to invite the prosecutor to reconsider the decision not to call PMM. The second set of reasons was delivered on the same day as those dealing with the guilt of the appellant.

6. At his trial the appellant did not give nor call any evidence. He was convicted and now appeals. He contends that the prosecution decision not to call PMM to give evidence has resulted in a miscarriage of justice. He also contends that in the trial Judge’s reasons for refusing the renewed application, reasons which, whilst delivered three months after the application was refused, purport to record views held at the time of the refusal of the application, it is evident that the Judge had arrived at a concluded view as to the credibility and reliability of the complainant before there was any indication as to whether there was to be a defence case and before addresses, thus prejudging guilt or, alternately, giving rise to a reasonable apprehension that he had prejudged guilt.

7. On 9 March 2018 this Court allowed the appeal and ordered that the appellant’s conviction be quashed and the matter be remitted to the District Court for re-trial. My reasons for joining in those orders follow.

   Background

8. In a statement given to police dated 21 July 2013, JLM tells how, after being regularly sexually interfered with by the appellant over a period of six to 12 months commencing when she was about eight years of age, she complained to her mother, PMM, who, along with JLM, then confronted the appellant. JLM states that PMM then took the appellant into a bedroom. When they emerged PMM announced to JLM that the appellant was sorry for what he had done and that if he touched her in a way she did not like she should tell him or say ‘no’. The appellant, who was present, reiterated this. In her statement JLM states that the sexual interference then stopped for about a month before recommencing. JLM further states that some six to 12 months later she complained to her mother about the appellant’s conduct a second time. PMM took the appellant into a room somewhere away from her. They then came back and spoke to JLM. JLM states that she cannot remember her mother’s response save that it was unsatisfactory and left her feeling rejected, isolated and unsafe.

9. In her statement JLM also tells of a number of specific incidents of sexual interference at the hands of the appellant. One incident occurred when JLM was in bed with her mother and the appellant. PMM got up inviting JLM to cuddle the appellant who then took the opportunity to sexually assault JLM once PMM left the room. A second incident occurred one night when JLM had complained to PMM of a stomach upset. PMM asked the appellant to take JLM back to bed, to rub her tummy, and settle her. It was whilst rubbing her tummy that the appellant took the opportunity to sexually abuse JLM. A third incident occurred in a shed used by PMM as a darkroom. JLM also tells of incidents during a year-long around Australia caravanning trip that her family took. Whilst the narrative does not suggest that her mother witnessed any of the incidents, or would necessarily know that they occurred, memory permitting, her mother would be able to give evidence confirming such things as timing, location and opportunity, in addition to confirming that the two complaints JLM says she made to PMM were in fact made.

10. In bringing her statement to a conclusion, JLM tells of moving out of home around her eighteenth birthday. She says that subsequently she met her mother for coffee and to get PMM’s help in obtaining government financial assistance. This involved PMM agreeing to provide a statutory declaration declaring that JLM was unsafe at home. JLM says that PMM agreed to do so, but disagreed that JLM had been exposed to sexual abuse as opposed to sexual harassment.

11. Subsequently, in a further statement, JLM advised that she wrote a letter to her mother of five to six pages in length in which she made it clear that the appellant had abused her as she had told her mother twice before. JLM wanted her mother to acknowledge what had occurred. JLM also tells how sometime later her mother proposed that they attend counselling together as PMM considered JLM to have “unresolved issues” regarding the appellant. The same statement tells how JLM has managed her relationship with her mother since leaving home, marrying and having her own family without involving the appellant.

12. The police took two statements from PMM. In her first statement PMM states that she had read JLM’s first statement. She denied that JLM ever came into bed with her for a cuddle, refuting, in effect, the circumstances in which one of the incidents of abuse specified by JLM occurred. PMM also stated that if JLM was ever upset in the night or sick only PMM and never the appellant would tend to her, refuting another of the specific incidents of abuse that JLM said occurred. PMM denied that the two conversations in which JLM is said to have complained to her about the appellant’s conduct ever occurred. PMM also told of a family dynamic and practices that, if accepted, suggested JLM was not credible or reliable in her statements. PMM denied receiving a letter from JLM in which JLM alleged that the appellant sexually abused her. She states that she did ask her daughter to attend counselling with her, but that was because of perceived difficulties in their communication and had nothing to do with the appellant. Whilst she did write a letter to assist JLM in obtaining government financial assistance, she said nothing in it about sexual abuse, sexual harassment or anything of that nature. Lastly, PMM stated that had there been any inappropriate sexual behaviour toward her children she would have ended her marriage to the appellant.

13. As mentioned, before the commencement of the trial the appellant’s counsel was advised that the prosecution did not intend to call PMM as a witness and, in a formal application under rule 49 of the District Court Criminal Rules 2014, the appellant requested that the trial Judge invite the prosecution to reconsider that decision. In support of the application counsel for the appellant referred the trial Judge to the centrality of PMM to the narrative as contained in JLM’s statements and the absence of support for that narrative in PMM’s statements. It was contended that PMM was a witness who could give material evidence and as such the prosecutor was duty bound to call her as part of the prosecution case, despite her evidence being adverse to that case. In this latter regard the Judge was also alerted to PMM’s denial of JLM having ever complained to her.

14. The prosecutor advised the trial Judge as follows:

    PROSECUTOR:   Your Honour, my position in relation to the complainant is that it’s not a question of whether I believe her.

    HIS HONOUR:    Complainant?

    PROSECUTOR:   Yes. The view that I’ve taken of the complainant is there is no reason to believe she is not a witness of truth. So that’s the position I take in relation to the complainant. I have conferred with the mother, she is adamant her husband has not committed the offence, bearing in mind what’s been said about that factor. Further, the mother was adamant that the daughter has either made up the allegations or has imagined them. Further, there are matters that the mother and the complainant are at odds on in circumstances where they can’t be explained for a lack of recollection, or mistakes as to facts, something not seen, and there is a head-to-head clash between the mother and daughter.

    The complainant’s mother is available for the defence to call her…

    The prosecutor then made submissions as to whether his decision risked a miscarriage of justice before returning to his reasons for deciding not to call PMM. He repeated that he had met with both JLM and PMM in addition to LID, JLM’s younger step-sister. The prosecutor said he had no reason to think that JLM was not telling the truth. He was somewhat fortified in that conclusion by the fact that there was “not a significant clash but a clash nonetheless of accounts given” between PMM and LID about family habits. “All these facts”, the prosecutor said, he had to “put in the scales in making a decision as to whether I have a duty to call the mother”. The prosecutor repeated:

    The account given by the complainant, who I have no reason to believe is not a witness of truth, is at odds in significant respects with the account given by the mother and the other factors that I talk about; because of that, I can’t present the complainant’s mother as a witness of truth. But it is a factor to be taken into account when coming to assess [whether] the decision that’s been made by the prosecutor conforms with the prosecutor’s duty. Take into account the complainant’s mother is available for cross-examination. There might be circumstances where notwithstanding that, there is still a substantial miscarriage of justice, but this is not one of those cases. Because there is nothing about the complainant’s mother that would open up a damaging line of cross-examination.

    …

    There is nothing about the complainant’s mother (sic), history that would open up a damaging line of cross-examination on credit.

15. The Judge published reasons for dismissing the application and declining to invite the prosecutor to reconsider his decision.[1]  I deal with the Judge’s reasons below.

    [1]    The published reasons R v M, RS [2016] SADC 166 are an edited and expanded version of the ex tempore reasons taken down by court reporters on 13 December 2016.

16. The prosecution case proceeded. Two witnesses were called, JLM and LID. JLM gave evidence consistent with the content of her statements including evidence of the two occasions on which she complained to her mother about the appellant having sexually interfered with her. JLM was cross-examined to suggest that those complaints were untrue and that her evidence was fabricated. As part of that cross-examination counsel for the appellant referred to and tendered JLM’s diary for the period November 1986 to August 1987 (a period incorporating the time during which the family was on its caravanning trip; Exhibit D3) which made no reference to any sexual abuse at the hands of the appellant. JLM was also cross-examined about a handwritten note she had made in a book she purchased entitled, ‘Growing Through Pain, The Incest Survivor’s Companion’ and the underlining of certain passages in that book that could be construed as suggesting that she did not in fact complain to her mother of having been abused (Exhibit P6). She denied this.

17. LID gave brief evidence to the effect that as a child if she was sick or upset in the night either of her parents might comfort her, but more so her mother, that she and JLM did on occasion go into their parents’ bed, for example, on Mother’s or Father’s Day, and confirming the sleeping arrangements during the caravanning trip. She concluded her evidence stating that she grew up thinking she lived in a very ordinary family.

18. The completion of LID’s evidence marked the closure of the prosecution case. Defence counsel then renewed the application that the trial Judge invite the prosecution to reconsider its decision not to call PMM. It was submitted that in the light of the evidence adduced it could not so easily be said that PMM was not a witness of truth. In particular defence counsel pointed to the absence of any reference in JLM’s diary to sexual conduct or sexual abuse on the part of the appellant as lending support to PMM’s credibility and to the endorsement on exhibit D6 as suggesting that JLM did not in fact complain to her mother as PMM had said. He added that LID’s evidence was not necessarily inconsistent with PMM’s as to the children coming into the parental bed and who would settle the children at night. Importantly, LID considered that she grew up in an ordinary family and, it may be inferred, detected nothing untoward as occurring. The prosecutor indicated that his decision remained the same.

19. The trial Judge refused the application.

20. As mentioned the appellant was convicted. Subsequently a Judge of this Court granted the appellant permission to appeal against his conviction on the ground that in his reasons for rejecting the renewed application the trial Judge exhibited a degree of pre-judgment such as to amount to bias or an apprehension of bias. The same Judge refused the appellant permission to appeal on the ground that the prosecutor’s refusal to call PMM resulted in a miscarriage of justice. Pursuant to s 48(4) of the Supreme Court Act 1935 (SA) the appellant now asks that the question of permission in relation to the latter ground be determined by the Full Court.

    The trial Judge’s reasons

21. The appellant’s rule 49 application sought the following relief:

    1.That the learned trial Judge invite prosecuting counsel to call, as part of the prosecution case, the witness PMM in order to ensure that the applicant receives a fair trial and is not the subject of a miscarriage of justice;

    2.Such further or consequential orders, including a stay of proceedings, as may be required to ensure that the trial does not constitute a miscarriage of justice.

1. Defence counsel only pressed for the trial Judge to invite the prosecutor to reconsider his decision not to call PMM.

2. In his reasons for rejecting the application the trial Judge set about assessing the risk of a miscarriage of justice if PMM were not called. In the course of doing so he had regard to the fact that PMM was not an eye-witness to the offending conduct. Her evidence, he considered, “could not be assessed as being that which might crucially affect a jury’s decision on any … disputed event because she was not present”.[2]  The Judge also had regard to the fact that the prosecutor had formed his view after proofing PMM, that on the current state of the evidence the Judge could form no view as to PMM having any “clear allegiance” to the appellant, and that any unfairness arising from the defence calling PMM was diminished by the fact that the prosecution had indicated that it would not mount any collateral challenge to PMM’s credibility. The Judge then determined that he would leave to one side the fact that no collateral challenge to PMM’s credibility would be mounted by the prosecution because he was “unsure of the provenance of this consideration” in the authorities.[3]  The Judge then said:[4]

   As a secondary matter, the defence also submitted that the prosecution could call the mother to give evidence, lead no evidence from her and then leave her to be cross-examined. However, in my view, some good reason would have to be shown why that should be the case. The answer from the accused’s side was that if the mother was called by the accused, she would be attacked about her credit by the prosecution in cross examination. No reason was given and no basis was suggested for making that submission. As I have said earlier, the factual circumstance (sic) in the case at bar are different from Kneebone and O’Brien.

   The prosecution submitted that having assessed the complainant, no reason had been ascertained to assess her as being anything other than a witness of complete truth. The prosecutor informed me that, having conferred with the mother, it has been ascertained that she is adamant that her husband is not guilty of the offence charged. It is not clear how or on what basis the mother has formed that view. Moreover, the mother has told the prosecutor that her daughter, the complainant, has made her story up or she has imagined it. I consider there to be a clear conflict of versions arising out of that description. I also consider, as in O’Brien, that there is a very good reason on that basis why the mother would not be called to give evidence and, she being available to be called by the defence, it becomes more difficult to conclude that the accused had been denied a fundamental right to a fair trial as a result. I am also informed (without challenge) that there is a clash of versions between what the mother says about children being in her bed with the accused and the version to be given by the daughter of the accused and the mother. I am told that in respect of some matters which the mother said did not occur, the complainant’s younger sister will give evidence that that was the case. Thus there is a real challenge to the credibility of the mother’s evidence at a number of different and important levels. I consider that these are significant matters.

   The Judge then analysed a number of authorities.[5]  In the light of his analysis the Judge considered that the question of whether the prosecution case would be presented conformably with the dictates of fairness in the absence of a particular witness being called turned on the nature and content of the evidence that the witness could give. He then concluded:[6]

   … There is no independent evidence corroborating anything said by the complainant to her mother because the mother contends that her daughter is making up a story or she has imagined a story and is now trying to give evidence of it. That is not a basis to doubt the credibility of the versions to be given by the mother but it is a matter to be taken into account as occurred in Chimirri and as occurred in Nguyen. For the reasons that I have earlier expressed about the whole of the evidence to be called by the prosecutor and the mother’s publicly stated view of the daughter’s evidence, there appears to be at least some basis to and identifiable circumstances to cast doubt on the mother’s evidence.

   I reiterate that it is a decision for the prosecutor to decide who to call in evidence in the prosecution case. In making that decision, the prosecution must always take into account the possibility of a miscarriage of justice when a decision is made, for example, not to call a particular witness. The decision of a prosecutor not to call a particular person to give evidence will constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. That is a question of fact in each case. That is a matter ultimately for the prosecutor. It is not a matter for me. In my view, different from the submissions that have been put to me, the case at bar may be distinguished on its facts from Kneebone and it is not correct to say that Kneebone establishes some inviolable rule. Properly understood, Kneebone is an example of the application of the decisions of the High Court on the topic.

   On the question of evidence, I am satisfied from the submissions that I have heard today and the documents that I have been taken to in the application, that there are other inconsistencies in the evidence which would need to be explored. I have also earlier referred to the fact that the mother is available to be called as a witness for either party and that in those circumstances, and the submissions of the prosecutor that there would be no collateral attack upon the credit of the mother. I refer to the discussion of Doyle CJ in O’Brien on that topic. Notwithstanding the authoritative status of that decision upon me I have put that consideration to one side. Based upon the particular and peculiar facts of this matter, I would not exercise my discretion in favour of the application. I refuse the application.

   The “basis … and identifiable circumstances” casting doubt on PMM’s evidence are as set out in paragraph 52 of the Judge’s reasons quoted above.[7]

   [2]    R v M, RS [2016] SADC 166 at [32].

   [3]    R v M, RS [2016] SADC 166 at [50].

   [4]    R v M, RS [2016] SADC 166 at [51]-[52].

   [5]    Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34; R v Chimirri [2010] VSCA 57; R v Nguyen (2009) 262 LSJS 279; The Queen v Jensen (2009) 23 VR 591.

   [6]    R v M, RS [2016] SADC 166 at [83]-[85].

   [7]    At [23] above.

3. It is apparent from the trial Judge’s treatment of the application that he considered that the question of whether he should invite the prosecutor to re-consider the decision not to call PMM turned on the Judge’s assessment of the reliability of PMM. On the renewed application the Judge expressly stated that this was the task he had undertaken and repeated:[8]

   In my first judgment I said that the prosecution had decided not to call the mother of the complainant in evidence as part of its case. The attitude of the prosecution was that it is entirely within its discretion about who it calls in evidence as part of the prosecution case. The prosecution maintains that apart from any evidence given by the mother about complaints made to her by the complainant, and their sequelae, where her evidence is at odds with the evidence of the complainant there is no collateral challenge by the prosecution to the credit of the mother. The challenge would be to the version of events given by her only in that limited sense.

   At the outset, it was not completely clear to me what the prosecution meant by this submission. It appears that the prosecution may be saying that except where the mother disagrees with the evidence of the complainant, then the prosecution make no attack upon her credit. In the application of general principle, I consider that if this was the prosecution’s approach it would not be an appropriate ground for the prosecution to fail to call the mother. The reason is self-evident: it will rarely be the case that two witnesses could (or should) give the same version of facts and there will be differences often significant in the evidence they give. This is to be expected and this difference will often involve evidence about the same event. The issue is whether there is a sufficient basis for the prosecution to challenge the credit-worthiness of the mother’s evidence.

   Because of the vagueness of this submission of the prosecution, I put it to one side and assessed the application according to settled authority. I will take the same approach in this application. That approach sits in the background that the proper question for my consideration is always whether the version of events given by the mother is so lacking in credit-worthiness that the prosecution ought not be invited to call the mother in evidence. I have discussed the applicable authorities in my first judgment.

   [emphasis added]

   [8]    R v M, RS (No 2) [2017] SADC 23 at [14]-[16].

4. In opening his judgment on the renewed application the trial Judge announced that the result of the application would necessarily be influenced by the impression he had formed of the evidence of the prosecution witnesses.[9]  He added that “insofar as I express any views on the evidence that I have heard and seen in court, I do so without being aware of whether the accused intends to give evidence or to lead any evidence”.[10] The Judge stated that he had “very clear impressions” from the evidence given by JLM, informed in no small part by PMM’s denials being put to JLM in cross-examination.[11] The Judge then recorded the submissions made by counsel for the appellant; in effect, that after cross‑examination the credibility and reliability of JLM could not be so strongly presumed such that it may be concluded that PMM was necessarily untruthful and unreliable. In this regard counsel relied, in particular, upon the fact that no mention was made by JLM of any sexual act or abuse in her diary kept during the caravanning trip and that the handwritten notes on the story of the incest survivor (exhibit D6) suggest no complaint was made. The Judge said:[12]

   …The evidence of the complainant has satisfied me that having made two complaints when she was a child, she found that as time passed, she could not inform her mother of what had happened to her because of all of the circumstances of her mother’s relationship with her step-father, the family dynamic and the perception of the complainant of her own mother. Exhibit D6 and the evidence surrounding it referred to by the accused does not support any suggestion that no complaints were made to the mother by the complainant as alleged.

   I consider that this ground cannot be sustained. I formed a very clear impression of the truthfulness and reliability of the evidence of the complainant. She was not shaken at all in cross examination. She is a highly intelligent, articulate and educated woman. In the end the accused described her evidence “resorting to jargon”. A better description is that she was untroubled by cross examination. I formed the clear impression that the evidence of the complainant on the entries in her daily diary of a family caravan trip around Australia (Exhibit D3) was reliable. She cogently explained why she did not record in Exhibit D3 the events of which she now complains.

   I also consider that it makes logical sense for a person such as the complainant to read and then reflect on other people’s experiences as they are recorded in a book, a portion of which is copied in Exhibit D6. Such a process has little to do with any retrospective challenge to the credit of the reader and it has everything to do with the reader reflecting in the moment as thoughts occur to the reader. I consider that the argument of the accused elevating that process of reading, thought and reflection to some higher historical narrative is not open nor is it maintainable as a matter of ordinary common sense.

   The Judge then referred to PMM’s assessment of JLM as delusional and as having made up or imagined her story. He considered these “strikingly strident criticisms” for a mother to make of her daughter. The Judge described the criticism made by PMM as amounting to an assertion of JLM as being delusional and unable to separate fact from fiction. This was a “troubling assertion” for a mother to make against her adult daughter suggesting “that the mother has placed herself firmly in the camp of the accused and would reject everything said by the complainant about the accused as a product of her imagination or a dream”.[13]  The Judge observed that nothing in PMM’s statements provided a basis for her criticism.

   [9]    R v M, RS (No 2) [2017] SADC 23 at [3].

   [10]   R v M, RS (No 2) [2017] SADC 23 at [3].

   [11]   R v M, RS (No 2) [2017] SADC 23 at [4].

   [12]   R v M, RS (No 2) [2017] SADC 23 at [10]-[11].

   [13]   R v M, RS (No 2) [2017] SADC 23 at [18].

5. Next the trial Judge assessed PMM’s declaration in her statement that JLM never climbed into bed with her and the appellant for a cuddle. He concluded:[14]

   I consider that it is at least intuitively implausible to suggest that a young female child of 8 years of age would never come into her mother’s bedroom and spend time in bed with her. Life’s experiences make plain that children of that age entering parents’ bedroom space, especially in the morning, occurs so often that it may be described as regular. On first impression, I considered that the mother’s statement on this topic is intuitively implausible. It would be unusual, perhaps abnormal, for an only child of that age not to seek out a parent or parents in their bedroom and be in that bed with her parents particularly on weekends or on holidays. It may be that parents set rules about such conduct but to say that it never occurs is so obviously intuitively implausible that it is, without more, very difficult to accept. I was not prepared to accept the credit-worthiness of this version of fact given by the mother. That assessment and view is now even more pronounced having seen and heard the complainant and her half-sister give evidence and be cross examined. I consider that they both gave their evidence in a frank, forthright and honest way. They both impressed me as witnesses of truth who were reliable and credible.

   [14]   R v M, RS (No 2) [2017] SADC 23 at [23].

6. The Judge also assessed PMM’s assertion that on no occasion had the appellant ever returned JLM to bed and settled her after JLM had come into the marital bedroom complaining of a stomach upset or having had a nightmare. The Judge considered this “intuitively implausible” and added that having heard the complainant’s evidence and that of her half-sister he considered his “assessment of the lack of credit-worthiness of the mother’s version … even more pronounced”.

7. The Judge then turned to consider the ramifications of LID’s evidence, JLM’s step-sister. LID gave evidence of occasions when both she and her sister were in bed with the appellant and PMM and occasions when the appellant cared for her when she was unwell. The Judge considered LID’s evidence to conform to common sense and to be “intuitively and actually accurate”. He stated that for a parent to reject a child’s memory was fraught. He then determined:[15]

   I consider that all of these matters have a compounding effect that I may take into account in making my assessments in this matter. In undertaking that exercise, I have come to some clear conclusions about the efficacy and reliability of the content of the statement given by the mother. It is replete with absolutes (denials) and I consider that such absolute position taking is generally implausible and has less to do with the truth and more to do with the mother putting herself in the camp of the accused. I will discuss later what I consider to be the consequences.

   In making a decision whether some good reason exists for the prosecution not to call the mother in evidence, it is necessary to point to some identifiable factors justifying the decision not to call the mother. That said, it is not necessary for the prosecution to form the view that the mother is being positively dishonest. In light of the materials available, I cannot see how such a view could be formed.

   [15]   R v M, RS (No 2) [2017] SADC 23 at [27]-[28].

8. The Judge proceeded to articulate what he considered to be identifiable circumstances casting doubt on the reliability of PMM – the implausibility and improbability of JLM never having got into bed with PMM and the appellant, the implausibility and improbability of the appellant never having cared for JLM when she had a nightmare or stomach upset. These matters the Judge considered permeated PMM’s evidence compounding her lack of reliability. He concluded that “the version of events given by … PMM is so lacking in credit-worthiness that the prosecution ought not to be invited to call the mother in evidence”.[16]

   [16]   R v M, RS (No 2) [2017] SADC 23 at [31].

9. As to JLM’s diary (Exhibit D3) suggesting that PMM was not lacking in reliability when she said that nothing untoward happened on the caravanning trip, the Judge considered JLM’s explanation (that she did not record any sexual act or abuse at the appellant’s hands for fear that her diary would be read, the abuse discovered, and the family unit consequently destroyed) “truthful, reliable, cogent and compelling; her evidence on this topic was not shaken in cross examination”.[17]  The trial Judge also considered JLM’s evidence of the complaints she had made to her mother and why she made no further complaints to her mother “truthful, reliable and compelling”.

   [17]   R v M, RS (No 2) [2017] SADC 23 at [32].

10. Lastly the trial Judge referred to LID’s evidence which he considered directly and indirectly supportive of JLM’s evidence. LID was, the Judge considered, “truthful, reliable and compelling”.[18]  The Judge concluded:[19]

    As a result none of these further grounds raised by the accused in this fresh R 49 application in any way cause me to change the views formed by me and announced in my decision on the first R 49 application. I consider that the evidence that I have heard in the prosecution case further weakens the diminished credit-worthiness of the denials and assertions of PMM. None of that evidence or the accused’s further submissions leads me to change the views that I formed and expressed about the first R 49 application. My views are confirmed and strengthened by the evidence that I have heard.

    As mentioned, the Judge dismissed the renewed application.

    Has a miscarriage of justice occurred because the prosecution did not call PMM to give evidence?

    [18]   R v M, RS (No 2) [2017] SADC 23 at [36].

    [19]   R v M, RS (No 2) [2017] SADC 23 at [37].

    a.     The submissions made in this Court

11. In this Court the appellant’s submissions in support of this ground largely repeated those made before the trial Judge on the renewed application. The basis for the prosecutor’s conclusion that PMM was not truthful was primarily the extent of PMM’s denial of the circumstances in which specific incidents of abuse were said by JLM to have occurred, her denial of JLM having complained to her, and her belief that JLM had fabricated her story, viewed in the light of an acceptance of JLM as truthful. It was not open to the prosecutor to maintain that view, it was contended, bearing in mind that JLM’s handwritten endorsement on exhibit D6 (the excerpt from the book entitled “Growing Through Pain, The Incest Survivor’s Companion”) tended to support PMM’s statements that JLM did not complain to her, that the absence of any reference in JLM’s diary (exhibit D3) to sexual abuse or sexual conduct during the caravanning trip supported PMM’s statement that nothing out of the ordinary occurred on the trip, that LID’s evidence suggested that it was PMM who usually cared for her daughters when unsettled at night, and that LID considered that she grew up in an ordinary family and assumed everything was typical. 

1. The result was that the appellant was put in the position where he had to consider calling PMM with the consequence that he would lose, and the prosecution would gain, the opportunity to cross-examine PMM. Counsel put the disadvantage caused to the appellant by the prosecutor’s decision as follows:

   … the real problem is the ability of the prosecution to cross-examine and the difficulty that arises there is inevitably the prosecutor will cross-examine the witness and put to them that what they say about the complaint or a point is not true. They are lying about that.

   They will then more than likely go the next step and speculate or contemplate why they are lying about that. ‘You’ll do anything to keep your husband. You’re prepared to abandon your daughter in order to keep your husband. You’re coming here to say whatever’. That is the course that is adopted.

2. With respect to this latter submission counsel sought to draw parallels with the circumstances in R v Kneebone (Kneebone).[20]  In Kneebone the complainant, who was under the age of sixteen, gave evidence that her mother opened the bedroom door as she was being raped by her mother’s partner and said, “that’s enough”, before walking away leaving the door to the room open. The intercourse finished soon after. The complainant, who had been assaulted by the appellant both before and after being raped, then washed and commenced packing her things. As she was packing her mother came to her and asked what had happened. “Like you don’t know,” was her reply. She then left the house and sought refuge with a Mr and Mrs Saillard where her injuries including blood staining were photographed and tended to before she was taken to the police station. The appellant admitted assaulting the complainant, but denied raping her.

   [20] (1999) 47 NSWLR 450.

3. Enough has been said about the facts in Kneebone to make clear that the complainant’s mother was, on the complainant’s evidence, a witness to the rape. However the mother gave a statement to police in which she stated that she did not see her daughter assaulted or raped and did not have a conversation with her before she left the house on the relevant day. The mother attended court during the appellant’s trial but was not called. The prosecutor advised the defence that he did not intend to call the mother as her evidence would be unreliable. The prosecutor did not specify the basis upon which he had arrived at that view.

4. In his judgment Smart AJ characterised the position in which the appellant found himself regarding calling the mother as part of the defence case as follows:[21]

   The appellant was also in considerable difficulty calling his de facto wife. Even allowing for the complainant being difficult to handle, the mother had let her daughter leave the home in the condition she was subsequently found by Mrs Saillard. If the mother said that the daughter was not in that condition when she left home, that would not be easy to accept. There is the further question as to how the complainant got into the condition. The mother's credit would not be assisted by her subsequent conduct including leaving for South Australia with her de facto husband without her daughter and Community Services having to intervene. In effect, the mother surrendered her daughter into the care of the Saillard family. Put briefly, the probable serious inroads into the mother's credit, standing and care of her daughter in cross-examination could have done irreparable harm to the appellant's case. In practical terms, the appellant could not run the risk of calling her even though she would have supported his version. There was the real risk that she would have been seen as supporting him and abandoning her daughter. Yet, she was the only eye witness apart from her daughter and her de facto husband.

   [21] (1999) 47 NSWLR 450 at [91].

5. The appellant in the present case contends that he was in a similar position and that such position highlights the unfairness resulting from the prosecutor’s decision.

6. Counsel for the appellant conceded that the decision not to call PMM was a forensic decision, but it was one, he contended, the appellant should never have had to make. He added that to call PMM would have been to acquiesce in an erroneous decision by the prosecutor and to undermine the importance of the prosecutor’s duty to call all witnesses who can give evidence having some bearing on an issue in dispute. Counsel referred this Court to The Queen v Manning (Manning).[22]  In that case the appellant was convicted of 20 counts of child sex offences. His wife and another witness were called as part of the defence case. Their evidence concerned the opportunity that the appellant had to offend. I do not stay to set out the prosecutor’s reasons for not calling either Mrs Manning or the other witness. Suffice it to say the Queensland Court of Appeal considered those reasons inadequate. As to whether the prosecutor’s error was the product of a miscarriage of justice, the Court said:

   In our view the failure of the Crown to call Mrs Manning resulted in a material miscarriage of justice because, as we will explain, it deprived the appellant of a chance of an acquittal. Before explaining that conclusion, it is necessary to say something of a submission for the respondent that there was no miscarriage of justice because it was open to the appellant to call the evidence in this trial, as he had done in his previous trials. It was submitted that there was no practical disadvantage to the appellant by having this evidence led in his case, rather than in the prosecution case. The right to cross-examine these witnesses was said to be an “illusory” advantage, because the experience of the earlier trials was that the evidence, if relevant, would be beneficial to the appellant’s case. And it was said that any forensic advantage by having the final address to the jury (by the appellant not giving or calling evidence) would have been “significantly ameliorated given the settled nature of the evidence and previous addresses.”

   Those arguments cannot be accepted. Once it is seen that the evidence was material and not unreliable, the prosecution was obliged to lead the evidence because “a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act ‘with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one’.” This is part of prosecutor’s function ultimately to assist in the attainment of justice between the Crown and the accused. A prosecutor is not relieved of that responsibility by the fact that the accused could elect to call that evidence. Rather, fairness requires the prosecution to produce all of the material evidence which is available to it before putting the defendant to his election as to whether to give or call evidence. Therefore, the fact that the defence was able to call the witness as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown’s refusal to call a material witness.

   [footnotes omitted]

   [22] [2017] QCA 23, [27].

7. In the present case the appellant embraced this view. He added that, in any event, a miscarriage of justice occurred as the trial Judge should have had the opportunity to assess both JLM and PMM.

8. The respondent submitted that the prosecutor’s decision was made after interviewing both JLM, LID and PMM. It amounted to more than a mere suspicion that PMM was unreliable. The prosecutor’s decision was an informed one made after an assessment of JLM and upon assessing the degree of divergence between JLM and LID, on the one hand, and PMM on the other, about matters in relation to which there was no room for misunderstanding. It was not insignificant, counsel added, that PMM could only give evidence of the circumstances in which the alleged offending was said by JLM to have occurred, but could not give direct evidence of the offending. PMM was not then open to the same sort of damaging cross-examination as was the complainant’s mother in Kneebone. In the circumstances it was open to the appellant to call PMM and no reason arose for thinking that had he done so the desired evidence could not have been adduced. In this regard counsel considered this case not unlike that of R v Nguyen (Nguyen).[23]

   [23] (2009) 262 LSJS 279.

9. Nguyen was a case where the appellant contended on appeal that the trial Judge should have given a Jones v Dunkel direction to the jury regarding the prosecutor’s failure to call a witness who it may be expected could give evidence of the circumstances immediately preceding the shooting with which the appellant was charged.[24]  The prosecutor had declined to call the witness. She advised the court that she had formed the view that he was not a witness of truth having regard to the content of his statement and the extent to which it was inconsistent with the victim, with other witnesses and with CCTV footage. She also indicated that she had formed this view after proofing the witness who said nothing during proofing inconsistent with his statement.

   [24]   See Jones v Dunkel (1959) 101 CLR 298; Dyers v The Queen (2002) 210 CLR 285; Police v Kyriacou (2009) 103 SASR 243.

10. In Nguyen the Court of Criminal Appeal in this State determined that whether or not a Jones v Dunkel direction should be given turned in the circumstances of that case on whether the duty upon the prosecution to call all witnesses who could give material evidence had been discharged. David J, with whom Doyle CJ and Sulan J agreed, held that the duty had been properly discharged. The prosecution was not obliged to call a witness whom the prosecutor considered to be unreliable and the prosecutor had determined that question appropriately. Relevantly, David J said:[25]

    As the respondent argues, the prosecution fulfilled its obligations as required by the decision of R v Apostilides, and gave a clear explanation as to why the witness Hong was not called, namely that his evidence was inconsistent with the victim, other witnesses and the CCTV footage in such a way as to suggest he was positively dishonest. The decision not to call him was based on more than the prosecutor’s mere suspicion that he was unreliable. The witness was made available to the defence at trial and the evidence that the witness would have given went to issues of credit, not to the core matter of the identity of the gunman.

    [footnotes omitted]

    Counsel for the respondent contended that the same may be said in the present case.

    [25] (2009) 262 LSJS 279 at 291.

    b.     The prosecutor’s duty and the trial Judge’s task

11. It is a fundamental prescript of the criminal justice system in this country that an accused has a right to receive a fair trial according to law.[26]  That right is more accurately stated as “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial”.[27]  In R v Macfarlane; Ex parte O’Flanagan and O’Kelly, Isaacs J considered the right to a fair and impartial trial a variant of the right to personal freedom possessed by all, such right only being amenable to interference by the due administration of the law.[28]  In Dietrich v The Queen, Deane J spoke of the requirement of fairness as transcending “the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law”.[29]  Accepting this as bedrock, in Whitehorn v The Queen (Whitehorn) Deane J referred to the unique role of the prosecutor as counsel.[30]  His Honour observed:[31]

    ... Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.

    [26]   Barton v The Queen (1980) 147 CLR 75 at 96 (Gibbs ACJ and Mason J), 103 (Stephen J), 107 (Murphy J), 109 (Aickin J), 109 (Wilson J); Jago v District Court of New South Wales (1989) 168 CLR 23 at 29 (Mason CJ), 56 (Deane J), 72 (Toohey J), 75 (Gaudron J); Dietrich v The Queen (1992) 177 CLR 292 at 299-300 (Mason CJ and McHugh J), 326, 327, 328-329 (Deane J) 350 (Dawson J), 362-363 (Gaudron J).

    [27]   Jago v District Court of NSW (1989) 168 CLR 23, 56-57 (Deane J); Dietrich v The Queen (1992) 177 CLR 292 at 299 (Mason CJ and McHugh J).

    [28] (1923) 32 CLR 518 at 541-542.

    [29]   Dietrich v The Queen (1992) 177 CLR 292 at 326.

    [30] (1983) 152 CLR 657.

    [31] (1983) 152 CLR 657 at 682; see also Dyers v The Queen (2002) 210 CLR 285 at 293 [11] (Gaudron and Hayne JJ); Diehm v DPP (Nauru) (2013) 88 ALJR 34 at [63] (French CJ, Kiefel and Bell JJ).

12. In pursuit of the “whole truth” a prosecutor is necessarily concerned to place before the trier of fact all evidence available to the State that, in accordance with “the procedures and standards which the law requires to be observed” and “of helping to ensure that the accused's trial is a fair one”, may reasonably be considered to have a bearing on the ultimate decision. This necessarily translates to the calling by the prosecutor of all available witnesses who can give evidence capable of having some bearing on the resolution of the issues in dispute unless there is good reason not to do so.[32]  So doing the prosecutor ensures that the prosecution case is “properly presented”.[33]  It follows that a prosecutor is called upon to determine whether a witness can give evidence capable of having some bearing on the resolution of the issues in dispute and, if so, or, in any event, whether good reason exists not to call the witness. In this regard in Richardson v The Queen (Richardson) Barwick CJ, McTiernan and Mason JJ said:[34]

    Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

    What is important is that it is for the prosecutor to decide in the particular case what the relevant factors are and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word “discretion” signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

    [32]   See, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 294 (Fullagar J); Dyers v The Queen (2002) 210 CLR 285 at [11] (Gaudron and Hayne JJ); R v Soma (2003) 212 CLR 299 at [29]-[31] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Diehm v DPP(Nauru) (2013) 88 ALJR 34 at [63]-[65].

    [33]   Richardson v The Queen (1974) 131 CLR 116 at 119 (Barwick CJ, McTiernan and Mason JJ).

    [34] (1974) 131 CLR 116 at 119. Quoted with approval in The Queen vApostilides (1984) 154 CLR 563 at 573-574 (The Court).

13. In Whitehorn Dawson J, with whom Gibbs CJ and Brennan J agreed, said in general prosecutors could be expected to call all eye-witnesses whose evidence goes to the proof of the elements of the offence charged, notwithstanding that the account a witness might give is inconsistent with the prosecution case.[35]  Consistent with Richardson, Dawson J also said that a prosecutor was not expected to call a witness “whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief” or witnesses whose evidence is unnecessarily repetitive.[36]  In that same case Deane J referred to it being improper for a prosecutor to refrain from calling a witness for tactical reasons.[37]

    [35] (1983) 152 CLR 657 at 674.

    [36]   Whitehorn v The Queen (1983) 152 CLR 657 at 664 (Deane J); see also Dyers v The Queen (2002) 210 CLR 285 at [12] (Gaudron and Hayne JJ).

    [37]   Whitehorn v The Queen (1983) 152 CLR 657 at 664; see also Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 294 (Fullagar J).

14. Barely six months later a unanimous High Court in The Queen v Apostilides (Apostilides) considered that a prosecutor’s decision not to call a witness who could give evidence capable of having some bearing on the resolution of the issues in dispute must be justified “by reference to the overriding interests of justice”.[38] Importantly, any assessment of unreliability will not suffice to justify not calling a witness unless “there are identifiable circumstances which clearly establish it”.[39]  A suspicion of a witness’ unreliability is insufficient.[40]

    [38] (1984) 154 CLR 563 at 576.

    [39]   The Queen v Apostilides (1984) 154 CLR 563 at 576. Hence in R v Soma (2003) 212 CLR 299 at [31] the joint reasons speak of there having to be some “positive reason” for the prosecutor not putting in evidence the record of interview containing both inculpatory and exculpatory statements.

    [40]   The Queen v Apostilides (1984) 154 CLR 563 at 576.

15. A court has no power to direct a prosecutor to call a particular witness.[41]  The responsibility as to what witnesses are called as part of the prosecution case lies with the prosecutor and the prosecutor alone.[42] The responsibility is a “lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system”.[43] Three things follow from this. First, it is a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who can give evidence capable of having some bearing on the resolution of the issues in dispute.[44]  The prosecutor only owes the accused a duty in the sense that an erroneous decision not to call a particular witness may result in a conviction being set aside if a miscarriage of justice consequently occurs.[45] For this reason in Whitehorn v The Queen Deane J said:[46]

    The fact that criminal proceedings in this country are adversary in character means that what is required by the standards of fairness and detachment which should be observed by the Crown in the calling of witnesses may be modified by the informed consent of the accused. The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a trial judge, particularly in summing up to the jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of an appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial.

    [41]   Whitehorn v The Queen (1983) 152 CLR 657 at 675 (Dawson J, with whom Gibbs CJ and Brennan J agreed), and also at 665 (Deane J); The Queen v Apostilides (1984) 154 CLR 563 at 570 (The Court).

    [42]   The Queen v Apostilides (1984) 154 CLR 563 at 570 (The Court).

    [43]   The Queen v Apostilides (1984) 154 CLR 563 at 570 (The Court).

    [44]   Richardson v The Queen (1974) 131 CLR 116 at 120 (Barwick CJ, McTiernan and Mason JJ).

    [45]   Whitehorn v The Queen (1983) 152 CLR 657 at 674 (Dawson J, with whom Gibbs CJ and Brennan J agreed); Diehm v DPP (Nauru) (2013) 88 ALJR 34 at [65] (French CJ, Kiefel and Bell JJ).

    [46] (1983) 152 CLR 657 at 665; see also R v Soma (2003) 212 CLR 299 at [29] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Diehm v DPP (Nauru) (2013) 88 ALJR 34 at [65] (French CJ, Kiefel and Bell JJ).

1. Second, it is no part of a trial judge’s role to review a prosecutor’s decision not to call a witness. This reflects the adversarial nature of the trial and the judicial function. In this regard in Ratten v The Queen (Ratten) Barwick CJ said:[47]

   … a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. …

   And in Whitehorn v The Queen Dawson J said:[48]

   A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side …

   [footnotes omitted]

   [47]   Ratten v The Queen (1974) 131 CLR 510 at 517.

   [48] (1983) 152 CLR 657 at 682-683.

2. Dawson J’s characterisation of the nature of the common law trial is, respectfully, correct. The trier of fact is not asked to determine where the truth lies, but whether on the evidence as adduced, which most often is not all of the evidence that could possibly have been obtained, the prosecution has proven the charge beyond reasonable doubt. That the adversarial trial does not involve the pursuit of the truth does not mean, however, that a prosecutor is not concerned to establish the truth. For the prosecutor, proving the offence beyond reasonable doubt and establishing the whole truth in accordance with “the procedures and standards which the law requires to be observed” and “of helping to ensure that the accused's trial is a fair one” are dual objectives that do not compete with each other.

3. I do not overlook the exceptional power possessed by a trial judge to call a witness him or herself. The characterisation of that power as exceptional reflects the judicial function. The existence of the exceptional power does not detract from what fell from Barwick CJ in Ratten as quoted above. In Apostilides the High Court considered the circumstances justifying the exercise of the power would be rare and would involve more than the refusal of the prosecutor to call a witness for reasons which a trial judge considered to be insufficient.[49]

   [49] (1984) 154 CLR 563 at 576.

4. Third, the failure on the part of a prosecutor to comply with the duty is not an error of law within the meaning of the common form appeal provision. As Barwick CJ, McTiernan and Mason JJ further explained in Richardson:[50]

   … Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice. …

   [50] (1974) 131 CLR 116 at 121. See also The Queen v Apostilides (1984) 154 CLR 563 at 575, 577-578 (The Court); ASIC v Hellicar (2012) 247 CLR 345 at [153] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

5. In Apostilides the High Court reduced the applicable principles in this area of discourse to the following six propositions:[51]

   [51] (1984) 154 CLR 563 at 575. See also Diehm v DPP (Nauru) (2013) 88 ALJR 34 at [64] (French CJ, Kiefel and Bell JJ).

   1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

   2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

   3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

   4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

   5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

   6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

   The Court was also concerned to point out that:[52]

   In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.

   [footnotes omitted]

   [52]   The Queen v Apostilides (1984) 154 CLR 563 at 577.

   c.      Consideration

6. The starting point is to consider whether the prosecutor erred in his decision not to call PMM.

7. In this matter the forensic contest was fought on the issue of JLM’s credibility and reliability. Even without knowing whether there would be a defence case, it was obvious that the success of the prosecution case always depended upon the credibility and reliability of JLM. There was no evidence corroborating JLM’s evidence of the sexual acts subject of the charge. Thus any evidence that tended to buttress JLM’s credibility and reliability or, alternately, detract from it, could be expected to assume importance in the determination of guilt by the trier of fact. PMM’s evidence fell into this category. More particularly PMM was able to give evidence of the family dynamic in which the offending was alleged to have occurred and evidence of the timing, location and occurrence of events and the people involved relevant to the context in which the offending occurred. It is also to be recalled that JLM said in her statement and in evidence that twice she complained to PMM. Evidence of initial complaint may buttress a complainant’s credibility by demonstrating consistency of conduct in that the complainant behaves in a manner consistent with how a victim of sexual abuse might be expected to behave and consistency in account in that the evidence given in court as to what occurred is consistent with the content of a complaint made out of court. The evidence is particularly powerful where it is deployed for the latter purpose and the person to whom the complaint was made is called confirming the fact of the making of the complaint and the content of the complaint. As evidence providing an independent check on truthfulness and reliability, it can be expected that a trier of fact will pay significant regard to evidence of initial complaint in assessing the credibility and reliability of a complainant.

8. In the present case despite his decision not to call PMM, the prosecutor led evidence from JLM of the complaints she made to her mother. That evidence was ultimately deployed for the first of the two purposes identified above. In the absence of evidence from PMM confirming the fact of the complaints and their content, it could hardly be used for the second purpose. However, JLM’s evidence of the fact of her complaining to her mother and the content of her complaints also contributed to the coherence of her evidence overall and to an understanding of the circumstances in which she came to leave home and the nature of her relationship with her mother and the appellant. Its value in this regard in terms of the impression it leaves on the trier of fact should not be underestimated. Evidence of initial complaint in a trial turning on the credibility and reliability of the complainant, where there is no evidence corroborative of the complainant, can be expected to assume importance in the trier of fact’s assessment of the credibility and reliability of the complainant. For these reasons, in my view, PMM was a witness who could give material evidence relevant to the resolution of an issue in dispute. Accordingly, I consider that PMM should have been called to give evidence as part of the prosecution case in the discharge of the prosecutor’s duty unless good reason existed for not doing so. In this regard I agree with the appellant’s submission that the centrality of PMM to JLM’s narrative required that she be called by the prosecution save and unless, as I have indicated, good reason existed for not doing so. The fact that PMM could be expected not to support JLM as to the making of any complaint did not provide, without more, good reason for the prosecutor not to call PMM.[53]

   [53]   R v P,S [2016] SASCFC 97 at [76] (Nicholson and Lovell JJ, Parker J agreeing).

9. The prosecutor considered that he could not present PMM as a witness of truth. As an evaluative judgment formed upon considering all relevant circumstances it is one in relation to which reasonable minds may differ. Here one cannot fault the prosecutor’s method (he proofed or interviewed JLM, PMM and LID). The question is whether the outcome is plainly wrong.

10. In Apostilides the High Court spoke of it being necessary for a prosecutor to be able to point to “identifiable circumstances” that “clearly establish” that a witness is unreliable before the prosecutor is justified in not calling that witness.[54] It is only then that the “overriding interests of justice” warrant that the prosecution not call the witness who can give evidence capable of having some bearing on an issue in dispute.

    [54] (1984) 154 CLR 563 at 576.

11. As mentioned above, in Kneebone the prosecutor did not call the mother of the complainant who, on the complainant’s evidence, had witnessed the sexual abuse subject of one of the charged acts, because he considered without speaking to her that she was unreliable. Greg James J commented:[55]

    Since both experience and logic confirm that merely because a witness' evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: see R v Apostilides (at 576); Director of Public Prosecutions Guidelines, at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion.

    In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. R v Apostilides deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: R v Anderson (Hilton Bombing case) (1991) 53 A Crim R 421.

    The advisability, if not necessity for a conference is reinforced by the decisions in Tran v Magistrates' Court of Victoria [1998] 4 VR 294; R v Armstrong [1998] 4 VR 533, where the prosecutor refused to interview the witness R v Armstrong [1998] 4 VR 533, where the prosecutor refused to interview the witness or to consider notes proffered by counsel for the defence indicating the substance of the evidence it was anticipated the witness would give; and R v O'Brien (1996) 66 SASR 396 particularly in the judgment of Doyle CJ (at 398- 399). There the prosecutor had sensibly spoken to and proofed the witness before concluding that there was a clear allegiance on the part of the witness to the accused.

    [55] (1999) 47 NSWLR 450 at 460.

12. In the same case Smart AJ distilled nine propositions from Whitehorn and Apostilides including:[56]

    (f) The prosecutor's judgment must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. It is for the jury to resolve these: R v Apostilides (at 576).

    …

    (h) Frequently, eye witnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the Crown. It is where it is apparent that the eye witness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the Crown not calling that witness will arise.

    [56] (1999) 47 NSWLR 450 at 470-471 [102].

13. It is instructive to consider the other authorities to which Greg James J referred in his judgment.

14. In Tran v Magistrates’ Court of Victoria the prosecutor refused to call an eye-witness after speaking to that witness outside court.[57]  The witness would not say what evidence he would give only that he was going to “fix you guys” and “I don’t care what I say as long as Tien will get off”. Buchanan JA, with whom Batt and Kenny JJA agreed, referred to Apostilides and held that this was a case where the prosecutor “did not merely suspect the witness was unreliable: he knew it.”[58]

    [57] [1998] 4 VR 294.

    [58] [1998] 4 VR 294 at 297.

15. In R v Armstrong the prosecutor refused to call a second eye-witness to the assault subject of the charges.[59] Initially the prosecution was unaware of the witness. Some months before the trial the prosecution was advised that there was a second eye-witness but his name was not revealed. Subsequently, with a change of counsel, the prosecution was advised of the witness’ name. The informant then contacted the witness who refused to be interviewed. A week before the trial the prosecution was advised that the witness had changed his mind and was now prepared to be interviewed. The prosecution declined to do so. The witness was then called to give evidence in the defence case. The prosecutor cross-examined the witness challenging his reliability on a number of bases including his initial refusal to assist, his relationship with the accused and his criminal history which included dishonesty offences. The Victorian Court of Appeal considered that the prosecutor was likely deeply suspicious of the reliability of the witness, but “such suspicion would not, of itself, constitute an adequate basis for a refusal to call an eye witness” still “less could it provide a foundation for a point blank refusal of a prosecutor even to have the witness interviewed in the first place” or to consider notes provided by the defence indicative of the evidence which the witness could give. The Court added that the witness’ criminal history did not justify the prosecutor’s approach. The Court considered the position different to that prevailing in R v J (No 2) where the prosecutor refused to call the mother of the complainant in the trial of the accused who was charged with several counts of incest and indecent assault.[60]  The prosecution case was that the complainant’s mother had connived at the sexual abuse. The prosecution lead evidence from the complainant of recent complaints made to her mother. In the circumstances the defence considered that it was incumbent upon the prosecution to call the mother as part of the prosecution case. As indicated the prosecutor declined to do so. He explained to the Court that the prosecution would not call the mother as she had not provided a statement and had indicated that she did not wish to assist the Crown. The prosecutor also declined to call the mother on the voir dire. The Victorian Court of Appeal did not consider that the prosecutor’s decision was open to criticism; bearing in mind that the prosecution case suggested connivance on the mother’s part with the accused, it was unrealistic to expect that the proper course was to conduct a voir dire where she would likely not answer for fear of incriminating herself. Further, and in any event, the prosecution was in possession of information that suggested the mother had made statements adverse to the accused. Had the mother been called and those statements found their way into evidence, there being a risk that the mother could be declared a hostile witness, the defence case would have been at serious risk. Consequently it was held that the prosecutor’s decision did not give rise to a miscarriage of justice.

    [59] [1998] 4 VR 533.

    [60] [1998] 3 VR 602.

16. In R v O’Brien (O’Brien) the appellant was convicted of rape.[61]  The offence occurred when the appellant and the complainant entered the appellant’s house during a party where, until that time, the house had been locked so as to keep the guests outside. In a statement given to police a Mr Giancaspro had said he saw the appellant and the complainant go into the house together, arm in arm. He said she was quite drunk. At trial the prosecutor refused to call Mr Giancaspro. Mr Giancaspro was then called by the appellant. The prosecutor decided that the proper presentation of the prosecution case necessitated that if Mr Giancaspro was to give evidence he be subject to cross-examination by the prosecutor. That decision was made after the prosecutor proofed Mr Giancaspro and formed the opinion that he held a clear allegiance to the appellant and that when he described the complainant’s level of intoxication he embellished on the statement he gave to police and was at variance with other witnesses leading the prosecutor to consider him to be unreliable on that issue.[62]  This Court was not prepared to hold that the prosecutor had erred in his determination not to call Mr Giancaspro. After referring to Apostilides and Whitehorn Doyle CJ said:[63]

    … it is quite clear that there will be cases in which, because the prosecutor considers the evidence unreliable and untrustworthy, it will be appropriate for the prosecutor neither to call a material witness as part of the prosecution case nor to call the witness so that the witness may be cross-examined by the defence. This is how Sholl J put the matter in R v Lawson [1960] VR 37 at 40:

    “In my opinion, the true rule is that, ordinarily, the prosecutor should call a witness whose name is on the presentment and especially so if the witness is a witness to any important aspect of the case, especially the vital facts in issue, unless for strong and satisfactory reasons he is of the opinion that the witness's testimony is so unreliable as to be likely to lead to a miscarriage of justice, contrary to the public interest, if it is led for the Crown, and without the opportunity of cross-examination by counsel for the Crown. Certainly, I think, where evidence is reasonably thought to be dishonest or absurd or grossly unreliable or quite untruthful, a prosecutor may properly form that opinion.”

    Doyle CJ added that he considered the sort of situation identified by Sholl J in Lawson to be what Deane J and Dawson J had in mind in Whitehorn. Doyle CJ considered it was open to the prosecutor on the material available to him to form the opinion that Mr Giancaspro was “willing to colour his evidence in favour of the defence”.[64]  Williams J was of a like mind.[65]

    [61] (1996) 66 SASR 396.

    [62] (1996) 66 SASR 396 at 396.

    [63] (1996) 66 SASR 396 at 397.

    [64] (1996) 66 SASR 396 at 400.

    [65] (1996) 66 SASR 396 at 404-405.

1. In arriving at this conclusion I have had regard to the fact that the trial Judge purported to put to one side the evidence of the two complaints made to PMM which he found were made beyond reasonable doubt “because it is necessary for me to more closely scrutinise the evidence of the complainant in this matter, it being unsupported by other independent evidence.”[79] However, despite this intention the Judge did have regard to the fact of the making of the first complaint in rejecting a submission made by the appellant to the effect that the first complaint contained no specific allegation of sexual interference such as was said to have first occurred in the parental bed. The Judge said:[80]

   In relation to the first event set out as particular (a) [of the Information] the accused said that no evidence was led that he might have said to her, as might usually be the case, “don’t tell anybody, this will be our secret”. That may well be the case but the absence of such a statement does not, without more, undermine the version of events given by the complainant nor does it suggest that such version is not accurate, reliable, compelling and/or truthful. The accused then criticised the version of the complainant when she made her first complaint to her mother that there was no allegation about touching or cuddling or masturbation in the bedroom. The version of events given by the complainant was that she told her mother that she had been touched by the accused and that she had pointed to her groin area. This was consistent with the evidence that she gave that she was being abused by being touched by the accused. However, accepting that factual scenario does not undermine the compellability, accuracy, reliability or truthfulness of the complainant. That is because the complainant was making her complaint allegedly after a period of abuse by the accused. The complainant told her mother about the abuse that she was then suffering. The criticism of the complainant is quite misplaced and the complainant said that the groping conduct was the most consistent form of abuse.

   [79]   R v M, RS (No 3) [2017] SADC 24 at [99].

   [80]   R v M, RS (No 3) [2017] SADC 24 at [125].

2. The submission appears to have been that the complainant should not be believed as to the first specific act of sexual abuse because the detail of that abusive act was not repeated when six the complainant first complained to her mother. In rejecting the submission the Judge concludes that the complaint was not inconsistent with the specific allegation and was made after and in relation to a period of abuse. The rejection of the submission thus involves an acceptance of the making of the first complaint and its content.

3. Further, in dealing with a submission that the complainant was not believable because she did not continue to complain the Judge said:[81]

   The accused then criticised the complainant’s version because she said nothing after the event which is described in the particular paragraph (b) in the information. However, this was after a previous occasion that occurred in the bed of the accused and the complainant’s mother and after complaints had been made by the complainant to her mother and after ongoing abuse. The complainant said that she had the impression that she had been abandoned because of what was going on in the life of a 9 or 10 year old child. Common sense and experience would dictate that children of that age in such circumstances would not necessarily say anything at all. I consider that it is not inconsistent with the credibility, reliability, accuracy and compellability of the complainant’s version that she did not say anything to the accused.

   [81]   R v M, RS (No 3) [2017] SADC 24 at [129].

4. Again the rejection of the submission turns in part upon an acceptance of the two complaints having been made and JLM’s explanation of her conduct in light of PMM’s reaction to those complaints. In many respects this is an example of the coherence to the complainant’s evidence given by the making of the complaints to PMM and PMM’s reaction.

5. Lastly, the Judge addressed an argument that the endorsement and marking up in exhibit D6 suggested that JLM was untruthful in her claim to have complained twice to PMM about being sexually abused which tended to undermine her credibility generally. His Honour said:[82]

   The first criticism of the accused is that what has occurred is that rather than saying nothing, the complainant chose to respond by writing what she did on the top of the page, Exhibit D6. The accused suggested that the significant matter is that what is said in the article provokes the response by reference to not wanting to tell her mother about the incest because she could not handle it. The criticism was that the evidence of the complainant was that she had told her mother twice about the abuse. The evidence of the complainant was that this was the complainant’s reflection on a very long period of abuse allegedly suffered at the hands of the accused and it was therefore a personal reflection on what she was thinking throughout that whole period of time. The accused then submitted that the expression “I always wanted to tell her...” properly analysed leads only to one conclusion that no allegation of sexual impropriety was ever made by the complainant to her mother. It can also lead only to the conclusion that there was no meeting between the complainant and her mother which was followed by a meeting between the mother and the accused with respect to the allegations of sexual impropriety.

   Alternatively, the accused submitted that at the very least there is a possibility that Exhibit D6 objectively tells the reader that no such thing occurred and on a forensic view, if any such allegations were made to her mother, Exhibit D6 would tell us that that was so. This means that the evidence given by the complainant about those matters is not accurate, reliable or truthful. Her evidence about that is just wrong. This would flow on to each and every allegation of actual sexual impropriety that the complainant made against the accused. Thus, she could not be relied upon beyond reasonable doubt with respect to the allegations of sexual assault.

   I am unable to accept this submission of the accused. I do not think that it withstands logical analysis. The evidence of the complainant was that she was reading the book in the context of trying to deal with what had occurred to her in her life. Although it is not completely clear, it appears that the purchase of the book was associated with the counselling that she had received. The content of the page is written by a person who, as a child, has been the subject of incest and is unable to tell her own mother of that incest. This is because she felt her mother could not handle it because of the protective way in which the incest sufferer felt about her mother. This involves information of sexual abuse by a father (or a step-father). A young girl being unable to tell her mother even though she wanted to because she knew the information would break her mother’s heart is, as a matter of common sense and experience to be accepted. Also, the complainant explained that when she used the expression “always” in that handwritten note, she meant “constantly”. It is understandable that her inability to tell her mother of what had happened and what was happening worsened the situation over time so that it became even more difficult as time went on to tell her mother anything because of the likely effect upon her mother. It had a compounding effect. I consider that the explanation given by the complainant about that entry and the circumstance leading to the writing of that note are accurate, reliable, compelling and truthful. I am not able to accept the accused’s submission that she could not be relied upon beyond a reasonable doubt.

   [82]   R v M, RS (No 3) [2017] SADC 24 at [145]-[147].

6. The acceptance of the complainant as meaning “constantly” where she had written “always” was important in rejecting the submission that JLM had never complained because she had never been abused. It was important because it did not foreclose the possibility of any prior complaint having been made. The rejection of the submission carries with it the rejection of the contention that she did not complain.

7. I do not think it can be said, as it was in Diehm, that no substantial miscarriage of justice has occurred because PMM’s evidence would not have assisted the appellant or that it would have assisted the prosecution. Had PMM given evidence that evidence would have had to be considered in assessing the credibility and reliability of JLM and would have been material to such assessment. In my view the trial Judge’s treatment of the arguments raised by counsel as referred to above confirms my conclusions as to the potential importance of PMM’s evidence and that the absence of that evidence has resulted in the appellant losing the chance of acquittal.

   d.     Conclusion

8. I would grant permission to appeal on the first ground, and uphold that ground.

   Did the reasons of the trial Judge for refusing the renewed application exhibit bias in the form of prejudgment?

   a.     The submissions made in this Court

9. This ground of appeal concerns findings made by the trial Judge in the course of his reasons for refusing the appellant’s renewed application that the Judge invite the prosecutor to reconsider calling PMM.

10. The starting point for the appellant’s argument in support of this ground of appeal was the fact that whilst the prosecution had purported to close its case, no indication had yet been given as to whether there would be a defence case at all or including PMM, and addresses had not occurred. The next step in the argument was the observation that the reasons, although handed down on 17 March 2017 (being the same date as the reasons for finding the appellant guilty were published), are drafted on the basis that they contain the decided view held as at the time of the ruling. The appellant then made the observation that the success of the prosecution case depended upon the credibility and reliability of JLM. Against this background the appellant pointed to the statements of conclusion contained in the judgment concerning the credibility and reliability of JLM and, to a lesser extent, LID. None of those statements are framed in terms suggesting that the findings were provisional. To state then that JLM and LID gave their evidence in a “frank, forthright and honest way”, that they impressed as “witnesses of truth who were reliable and credible”, that JLM’s evidence as to why her diary contains no mention of sexual conduct was truthful, reliable, cogent, compelling and that she was not shaken in cross-examination, and that JLM’s evidence as to the appellant on occasion putting her back to bed as a child was likewise reliable and credible before knowing if there was to be a defence case and before addresses, was to prejudge the case.

11. In the course of determining whether PMM was credible and reliable in her statements and rejecting her as such, the Judge brought to bear his view as to the credibility and reliability of JLM and LID, again suggesting a concluded view as to the credibility and reliability of JLM and LID.

12. The appellant contends that if the Judge has not pre-judged the issue then, in the alternative, there arises a reasonable apprehension that he might not bring an impartial mind to doing so.

13. The respondent submitted that the trial Judge’s reasons did not reveal bias nor give rise to any apprehension of bias. The respondent’s submission was predicated on the assumption that the trial Judge made findings necessary to the renewed application. In such circumstances, it was said, the findings are no different to those which can arise on a voir dire in a trial by Judge alone where the Judge is then required to put the same out of his or her mind in determining guilt. It was added that the reasons betray no prejudgment of the question of guilt or innocence but are confined to the application made. In any event the Judge noted at the outset that the views he expressed were arrived at “without being aware of whether the accused intends to give evidence or to lead any evidence” indicating in effect that such views were provisional.

    b.     Bias

14. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J, with whom Hayne J agreed, said:[83] 

    …The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

    [83] (2001) 205 CLR 507 at [72].

15. An inquiry about actual bias in the form of prejudgment requires assessing the state of mind of the judge in question, having regard to what the judge has said and done.[84]  This is a high threshold test, one that is not fulfilled simply by pointing to a possibility or suspicion that the judge was biased in making findings unfavourable to the appellant. An allegation of actual bias is a grave matter.[85]  It requires a serious adverse finding of a personal or subjective nature to be made.

    [84]   Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33].

    [85]   Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127.

16. That said, to succeed on the appeal the appellant need not establish actual bias. It is enough if he satisfies this Court that the proceedings were infected by apprehended bias.

17. The test for apprehended bias is settled. In Michael Wilson and Partners v Nicholls, Gummow ACJ, Hayne, Crennan and Bell JJ said:[86]

    It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

    As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.

    [footnotes omitted]

    [86] (2011) 244 CLR 427 at [31]-[32].

18. In Ebner v Official Trustee (Ebner), Gleeson CJ, McHugh, Gummow and Hayne JJ commented:[87]

    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

    [emphasis in original]

    [87] (2000) 205 CLR 337 at [7]-[8].

19. In assessing the logical connection between a matter complained of and any possible deviation from deciding the case on the merits it must be borne in mind that:[88]

    … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

    [emphasis in original]

    [88]   Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).

20. In determining whether the fictional lay observer might reasonably apprehend that a judge might, bearing in mind the logical connection between the matter complained of and any possible deviation from deciding the case on the merits, deviate from deciding the case on the merits, it is not assumed that the observer has a detailed knowledge of the law, or of the character or ability of a particular judge. Further, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice:[89] 

    … The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

    [footnotes omitted]

    [89]   Johnson v Johnson (2000) 201 CLR 488 at [13] [Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

21. And, lastly, an expression of tentative views by a judge does not manifest partiality.[90] In Johnson v Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ commented:[91]

    … In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

    [90]   Concrete Pty Ltd v Parramatta Designand Developments Pty Ltd (2006) 229 CLR 577 at [112] (Kirby and Crennan JJ), [177]-[178] (Callinan J).

    [91] (2000) 201 CLR 488 at [13].

    c. Consideration

1. The genesis of this ground of appeal lies in the trial Judge determining that he was required to consider whether the evidence it was anticipated PMM would give was “so lacking in credit-worthiness that the prosecution ought not be invited to call the mother in evidence”.[92]  Doing so the Judge, in effect, determined that an invitation to reconsider was not to be extended to the prosecution unless, having undertaken the same task as the prosecutor, albeit without the benefit of being able to interview PMM, the Judge arrived at the same conclusion as to her credit-worthiness. With respect, that was not the task to be undertaken.

   [92]   R v M, RS (No 2) [2017] SADC 23 at [16].

2. Where a trial judge is asked by defence counsel to consider seeking an explanation from the prosecutor for the prosecution’s decision not to call a particular witness, and, having obtained that explanation, consider inviting the prosecutor to reconsider the decision, the judge is asked to engage in “prophylactic judicial intervention” in order to reduce the risk of a miscarriage of justice.[93]  It must be remembered, however, that it is no part of the judge’s task to adjudicate upon the reasons given by the prosecutor nor to consider whether a conviction obtained in the absence of the relevant witness would amount to a miscarriage of justice. Responsibility for the consequence of a decision to conduct a prosecution in a particular way lies with the prosecutor. Hence the prosecutor’s task is described as a “lonely one which cannot be shared with the judge”.[94] Consequently, the issue of an invitation to reconsider may be considered as, in effect, a warning or reminder of the possible consequence of error on the prosecutor’s part intended to prompt reconsideration. Such invitation is issued without a judge arriving at any concluded view of the gravity of the risk of a miscarriage of justice eventuating, although doubtless a judge may harbour a view that will inform any emphasis in an invitation extended. To do as the trial Judge did in this case is fraught with risk for the obvious reason that it involved the trier of fact in an evaluation of the credibility and reliability of the evidence of certain witnesses and potential witnesses in advance of all the evidence and addresses having been heard. It would have been enough in this case for the trial Judge to consider the role of PMM in the unfolding of the narrative as provided by JLM. Doing so revealed that, on the papers, PMM could be expected to give evidence having a bearing on the resolution of the issues in dispute. Arriving at that conclusion it was then open to the Judge to ask the prosecutor why he did not intend to call PMM and, considering the approach taken by the prosecutor to his task, remind the prosecutor of what fell from the High Court in Apostilides and what has been considered in the authorities as amounting to identifiable circumstances clearly establishing unreliability, before inviting the prosecutor to reconsider his decision. The rule 49 application did not call for anything more.

   [93]   R v Jensen (2009) 23 VR 591 at [62] (The Court).

   [94]   The Queen v Apostilides (1984) 154 CLR 563 at 575 (The Court).

3. It is important to observe before going any further in the analysis that the test for apprehended bias is to be applied as at the point in time when the ruling on the renewed application was delivered.

4. With respect to the two stages articulated in Ebner, the contention is that the trial Judge’s conclusions as to JLM’s credibility and reliability arrived at in determining whether PMM was so lacking in credit-worthiness that the judge ought not invite the prosecutor to reconsider calling PMM might lead the Judge to decide the question of the appellant’s guilt other than on its merits. The connection between the finding on the renewed application that the Judge invite the prosecutor to reconsider his decision not to call PMM and the determination of guilt lies in the fact that an assessment of JLM’s credibility and reliability is central to both. The ultimate contention is that the fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question of guilt, turning as it does on the credibility and reliability of JLM, because he had already assessed JLM as credible and reliable on those factual issues in relation to which she was joined with PMM.

5. Before JLM’s evidence of complaint could be used to bolster her credit in the sense referred to above, the Judge would have had to be satisfied that she did complain. In this regard he had to consider the implications arising from the notation in exhibit D6. If the Judge found that the first complaint did occur he could also consider that the appellant had not denied the allegations when confronted at the time of the first complaint. In this regard the evidence of the first complaint could be said to be more than evidence of an initial complaint in that it included an implied statement against interest. In evaluating whether the offending conduct took place, the Judge would need to consider whether the absence of any mention of such conduct in the complainant’s diary caused him to doubt that it occurred, whether JLM did go into the marital bed as she asserts, and whether the appellant did tend to JLM at night. Each of these things would need be done in determining whether the appellant was guilty, and, in fact, were done.[95] Each of these things the Judge did prior to there being any indication that there would be a defence case and without hearing addresses.

   [95]   R v M, RS (No 3) [2017] SADC 24 at [96]-[99], 122]-[123], [126]-[129], [136], [139]-[147].

6. To my mind, the Judge having undertaken an evaluation of only the prosecution case and found JLM credible and reliable with respect to the likelihood that she spent time in the marital bed with her parents, to the likelihood that there was an occasion when the appellant tended to her at night, and with respect to the making of two complaints to her mother, and, in relation to her explanations for the exhibits D3 and D6, the ordinary lay observer might apprehend that he had arrived at a concluded view regarding JLM’s credibility and reliability from which he might not move upon hearing the defence case. I consider the possibility real and not remote. I am particularly influenced by the Judge’s conclusion regarding the complaints made to PMM.

7. The Judge stated that he was dealing with the renewed application on the basis of impressions formed of the evidence of the prosecution witnesses. He accepted JLM’s explanation for the notations in exhibit D6 and accepted that having made two complaints “she could not inform her mother of what had happened to her because of all the circumstances of her mother’s relationship with her step-father …”.[96] Thus the Judge accepted that JLM twice complained to her mother of being sexually interfered with by the appellant. Exhibit D6 did not suggest to the contrary, he found. He formed a “very clear impression of the truthfulness and reliability of the evidence of the complainant”.

   [96]   R v M, RS [2017] SADC 23 at [10].

8. As I have said, the evidence given of the circumstances in which JLM first complained to her mother is more than evidence of initial complaint. Those circumstances include the appellant being made aware of the complaint and his response. That response (“If I touch you in a way you don’t like, just say ‘no’”) could be used as a statement against interest having a use transcending the limited use to which a complaint may be put. Thus the trial Judge made a finding regarding the appellant’s involvement in the circumstances of the first complaint, which the trial Judge found did occur in his reasons for rejecting the renewed application, in which the appellant did not refute the allegation that he had been inappropriately touching JLM.

9. The Judge did not use language indicating that any conclusion he arrived at as to the credibility and reliability of JLM was provisional. I do not think that his reference to the fact that he did not know if the appellant intended to give evidence justifies any different conclusion. JLM’s evidence did not allow for any innocent explanation of the appellant’s conduct. It did not allow for the possibility of the offender being someone other than the appellant. Any defence case could only be one of denial of the allegations.

10. The Judge also accepted JLM’s explanation for the absence of any reference to abuse in her diary (exhibit D3). The complainant was, he said, reliable and her explanation cogent. She was not shaken in cross-examination.

11. His finding in concluding paragraph 23 of his reasons that JLM and LIB impressed him as witnesses of truth is not limited to any particular issue or fact.[97] It is a general finding stated in conclusive and categorical terms.

    [97] Reproduced above at [26].

12. In Antoun v The Queen Hayne J said:[98]

    A trial judge, sitting without a jury, will inevitably form impressions of the strength of a party's case as the hearing proceeds. Preliminary assessments are made of the evidence. Always the judge will be trying to relate what is happening in the courtroom during the trial not only to the final decision that will have to be made, disposing of the case, but also to questions that the judge may be called on to decide in the course of running. Precepts of efficiency and economy will require the trial judge to be astute to keep the focus of the trial upon relevant issues. If a party makes an application during the trial, the trial judge should deal with it as swiftly and decisively as the application permits. But there is a line to be drawn between deciding cases efficiently and economically and appearing to prejudge what has to be decided.

    [98] (2006) 80 ALJR 497 at [53].

13. Hayne J then proceeded to discuss the pitfalls associated with a judge in a case of trial by judge alone entertaining what in this State in the criminal jurisdiction is known as a Prasad[99] submission.[100] The position in which such judge would find themselves is not materially different from that in which the trial Judge in the present case found himself. The judge considering a Prasad submission would have to evaluate the evidence without knowing whether the accused will go into evidence. Hayne J commented that that “may suggest, it may even require, the conclusion that in a criminal trial by judge alone, the judge, as tribunal of fact, should not be asked to express a preliminary, if tentative view of the evidence.” That comment was made in the context of the risk of apprehended bias. In my view, for the reasons given the trial Judge has conducted himself in a manner such that the ordinary fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question of the appellant’s guilt.

    [99]   The Queen v Prasad (1979) 23 SASR 161.

    [100] Antoun v The Queen (2006) 80 ALJR 497 at [54]-[55].

14. It may well have been the case that the Judge wrote his reasons for refusing the renewed application at or about the same time as, or in conjunction with, his final reasons as to verdict, by which time his Honour had reached a concluded view based on all of the evidence adduced together with the parties’ final submissions. It may be that the Judge’s views and the strength of the language as expressed in the reasons for refusing the renewed application were informed, consciously or subconsciously, by having engaged in this dual process. However, this Court can only operate on the basis that the reasons for ruling, whilst published some months after the ruling, represent the views held at the time the ruling was made, that is, at the time of the close of the prosecution case.

    Conclusion

15. For these reasons I joined in the orders quashing the appellant’s conviction and ordering that the matter be remitted for re-trial.