R v Macdonald No. Sccrm-02-199

R v MACDONALD
[2002] SASC 388
Court of Criminal Appeal: Doyle CJ, Debelle and Williams JJ

DOYLE CJ: The appellant was convicted on the verdict of a jury on one count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).
He appeals against his conviction. Leave to appeal was granted on the following ground:
“The failure of the Trial Judge to give an adequate warning as to the need to take special care in assessing the complainant’s evidence and relating that need to the special circumstances in the case which required it; …”.
Matters in another ground of appeal, in respect of which leave to appeal was not granted, were treated as particulars of the matters upon which the appellant relies to support this ground of appeal.
Facts
The complainant E, was fourteen years of age at the time of the alleged offence, and fifteen years of age at trial.
She lived in a rural town with her parents. Her mother’s sister lived with them, as did the appellant, who was her mother’s sister’s fiancé. E said that she was “pretty close” to the appellant, and she regarded him as a member of the family. She said that she got on well with her mother’s sister.
With her parents’ approval E arranged to visit relatives in Broken Hill. The appellant was going to Broken Hill for the relevant weekend, and agreed to take her in his van. They left on a Friday evening. With breaks the journey took five or six hours. On the Monday morning the appellant collected E from her relatives’ home mid morning. They set out to drive from Broken Hill to E’s home.
E said that during the return trip the appellant asked her what she did over the weekend in Broken Hill. She told him that among other things she went to the trots with her relatives, and met some boys. Flowing from this E said that the appellant introduced a sexual aspect into the conversation. He questioned her about her activities, and called her a slut. He had never spoken to her like that before. The appellant began talking about his sexual relationship with E’s aunt. He talked about places where he had had intercourse, or where one might have intercourse. On occasions when they passed a motorcar, he talked about the possibility of having sexual intercourse in that car. He referred to the possibility of sexual intercourse at places they passed along the way. E said she was surprised by this turn in the conversation. At one stage the appellant tried to put his hand on her hand. The impression from E’s evidence is that this kind of conversation must have continued for some time.
They stopped for lunch at a petrol station at Yunta, about two hours from Broken Hill. While they were there E said the appellant hugged her from behind. She said this was not really unusual. She said that the appellant commented favourably on her figure.
They resumed the trip after ten or fifteen minutes. After driving for about another fifteen minutes they stopped at or just off the side of the road.
Both of them got out of the van. E said that she was standing near the left side of the van, with the van between her and the roadway. The appellant hugged her from behind, felt her breasts and then undid the button on her jeans. This caused the fly to unzip. She said that the complainant then pulled her jeans and pants down to her knees, and put two fingers into her vagina. She asked him to stop, but he said “No”. He undid his pants and put his penis on the outside of her vagina. The penis was erect. E said that she was asking him to stop.
While this was taking place, another car came along the road. The appellant then told E to get into the van, and he pretended to be urinating. She said that “He was pretty aggro”, and he told her “to get in the car and shut up.”
The journey resumed. The appellant continued to refer to sexual matters in the course of the conversation. According to E he continued to talk about places where sexual intercourse might take place. He tried to hold her hand several times. He was rubbing his penis. Along the way they stopped to visit the appellant’s grandfather, and again at another place for a toilet stop. On no occasion did E attempt to leave the appellant, or to make a complaint. She did not use her mobile telephone to contact her parents.
At some point closer to home, when E was able to get a signal on her mobile (she said that the signal had been coming and going) she telephoned her employer at her place of part-time employment to say she would not be at work that evening. She was due at work at about 4.30pm. She got home about 4.30pm, and her family were at home. She then went to the home of a girlfriend, and later that night the girlfriend returned to her home and stayed the night. There was no evidence of a complaint by E.
There was evidence that no medical examination of E was carried out, because the incident came to the attention of the police more than 72 hours after the alleged incident. The evidence was that the appellant was arrested on 27 May, six days after the alleged incident.
The appellant denied the conversation about sexual matters, denied making any advances to E, denied stopping at the place at which she said the incident occurred, and denied the incident.
Submissions on appeal
Mr Cuthbertson, counsel for the appellant, submits that there were unsatisfactory aspects of E’s evidence that called for a warning to the jury. The suggested warning would have emphasised the unsatisfactory aspects of E’s evidence, the need for caution because of this, the danger of convicting the appellant absent independent evidence to support E’s evidence (and there was none), and the need for great care before convicting on E’s evidence standing alone. As I understood the submission it was that a warning of the kind discussed in Longman v The Queen (1989) 168 CLR 79 was called for, the warning being linked to the unsatisfactory aspects of E’s evidence, rather than to the issue of delay as it was linked in Longman.
Mr Cuthbertson relied on various matters in combination as calling for a warning. I will summarise them quite briefly.
In cross-examination E agreed that when she went to Broken Hill she wanted to take some time off from school. Her explanation for this was not at all clear. Mr Cuthbertson submits that she prevaricated. He submitted that the prevarication might conceal a hidden motive or reason for false evidence. As to this point, I agree that E’s evidence is not clear, but find nothing on the face of the evidence to suggest prevarication. E’s mother gave evidence that on returning from Broken Hill E went to work. E’s evidence was to the contrary. In evidence E said that the appellant, when they drove past some haystacks in the course of the journey, referred to them as being too prickly a place to have intercourse. It was argued that E had said, in her original statement, that this occurred before they got to Yunta, that there were no haystacks in that part of the country because there was no cropping there (my impression is that this was not disputed), and that this evidence by E could not be right, and that her attempts in evidence to explain the problem were unsatisfactory. Having read the relevant cross-examination, I find E’s explanation, that when she made her first statement she was not asked to be particular about when in the journey particular statements were made, one that it is not difficult to accept. I appreciate, of course, that E’s demeanour was a relevant factor as well. There was evidence that the police had driven with E to the place identified by her as the place where the incident occurred. It is not easy to reconcile statements made by E about the time taken to get from Yunta to this place, and subsequent measurements of that time. This was a second trial on the Information, and E was cross-examined on this and other matters both in relation to her statements to the police, and her evidence at the first trial. Mr Cuthbertson also relied on some apparent inconsistencies between the descriptions E had given of the place where the car stopped, and its position in relation to the roadway when it had stopped. When the police took E to the place where she said the incident occurred, the police made a video recording of their observations at that place. It was argued that the appearance of the location did not accord at all well with E’s statements. The point was also made that E’s evidence about where she was in relation to the van and the roadway when a passing car caused the appellant to desist did not fit satisfactorily with what E demonstrated to the police at the alleged scene. A further point made was that having regard to the volume of traffic that the road carried, it was unlikely that no other motorcar would have passed the spot during the early stages of the alleged incident, and up until E said that another car came along. Finally, Mr Cuthbertson suggested that E had prevaricated in her evidence about her reasons for not using her mobile telephone to make a phone call after the incident, and in her evidence about her ability to use the mobile phone while travelling between Broken Hill and her home.
I accept that the matters relied upon by Mr Cuthbertson were, collectively, matters appropriately put forward for consideration by the jury. They are matters that might cause the jury to have doubted the complainant’s reliability, depending upon what the jury made of the particular criticisms of E’s evidence, and depending upon their assessment of her demeanour. I add that as to some of the matters there did not seem to me to be much substance in them. Other matters were capable of explanation on the basis that they were the result of the sort of inaccuracies that one might find in a description of events given by a fourteen year old.
The summing up
The summing up was relatively brief. This was appropriate, because the trial was also quite short.
The Judge adequately dealt with the burden of proof. He gave the jury the usual directions about how to assess the evidence of witnesses. He gave the jury what amounted to a caution. He said:
“In a case such as this, where, essentially, there are two conflicting versions or accounts of an incident to be considered – here the sworn evidence of [E] and the sworn evidence of the accused – there may be a difficulty in arriving at a conclusion of guilt beyond reasonable doubt. While there may be cases in which a complainant’s evidence is just so convincing, and an accused’s denials are just so incredible, that it is possible to find beyond reasonable doubt that guilt has been established, nevertheless, the need for caution may be indicated or appropriate.
Experience of the courts is that there are aspects of human behaviour and nature, such as sexual appetite, motives for making false allegations and proneness to certain behaviour or fantasies, which may have a particular bearing upon sexual cases and which may be important in certain factual situations. The weight to be attached to such considerations, and considerations like them, in any particular case, is a matter for you, the jury, to determine.
In your consideration of this alleged offence, I suggest that you scrutinise, consider and evaluate [E’s] evidence most carefully and cautiously, particularly in relation to any motive or reason that may exist, or which you may consider exists, for her here having given false evidence, or here having made false allegations against the accused who was in a relationship with [E’s] aunt, (for example, out of vindictiveness or revenge because she was angry with him for some reason of which we are not aware, or for some reason which is not known). Such considerations, and considerations like them, are all appropriate reasons for the caution that I have indicated; that is, scrutinise, consider and evaluate [E’s] evidence most carefully because, as you are aware, this is a serious charge from any point of view.
If upon such a careful and cautious consideration you were to conclude that you cannot rely upon, or do not accept, [E’s] evidence, then that is an end to the matter, and you should find the accused not guilty of this alleged offence.”
In one respect what the Judge said was unduly favourable to the appellant. He said, in effect, that the experience of the courts is that the possibility of false allegations is a particular risk in cases involving allegations of sexual offences. Since the enactment of s 34I(5) of the Evidence Act 1929 (SA) it is no longer necessary or appropriate to warn a jury, in proceedings in which a person is charged with a sexual offence, that it is or may be unsafe to convict on the uncorroborated evidence of the alleged victim. The result of that legislative change is that victims of sexual offences should not be treated, as a class, as persons upon whose uncorroborated evidence it is likely to be unsafe to act: Longman v The Queen (1989) 168 CLR 79, R v Pahuja (1988) 49 SASR 191. That, of course, does not prevent the trial Judge from giving an appropriate caution or warning if, in the particular circumstances of the case, the Judge thinks it appropriate to do so. However, in the present case, the observations made by the Judge appear to be observations based on the nature of the offence, rather than on the particular circumstances of the case.
Be that as it may, if the Judge erred, there is nothing in that about which the appellant can complain. The Judge’s remarks were supportive of the defence case.
Shortly after this the Judge pointed out to the jury that there was no evidence of recent complaint or of distress. The Judge also told the jury that the failure to make a prompt complaint was something which they could take into account.
In summarising the evidence for the jury, the Judge alluded to many of the matters relied upon by Mr Cuthbertson. He did not point them up as calling for particular care or caution. On the other hand, in his general directions to the jury he told the jury that they should have regard, when considering a witness, to the plausibility or implausibility of the witness’s evidence, to its intrinsic probability or improbability, and to any discrepancies or inconsistencies in the evidence.
Conclusion
The matters that Mr Cuthbertson submits called for a strong comment or warning, along the lines suggested in Longman in the case of delay, were all matters that the jury were well able to assess for themselves. There were aspects of E’s evidence that the jury might think were unsatisfactory, depending upon the jury’s assessment of E’s explanation, of the relevant evidence, and of E’s demeanour. I have already made the point that on my own reading of the evidence, in a number of instances the explanation that E offered, or an explanation that might occur to a reader on a reading of the evidence, seems adequate. The matters that Mr Cuthbertson relies on are not matters which experience has shown have aspects that a jury might not fully appreciate without guidance. The jury hardly needed to be told that if they decided that E’s evidence was unsatisfactory in certain respects, that was a reason for caution and that it might then be dangerous to convict on E’s evidence.
Moreover, the cautionary remarks that the Judge made to the jury, and which I have set out above, while linked to the matters identified by the Judge, nevertheless stood as a suggestion to the jury that caution may be appropriate before E’s evidence was accepted, and that they should scrutinise that evidence carefully, before acting on it. The message was that the jury should be cautious, and should scrutinise E’s evidence carefully. Those remarks would naturally link with any aspects of E’s evidence that the jury thought were unsatisfactory.
In my opinion this was not a case in which a warning was called for to the effect that it was dangerous to convict on E’s evidence. The matter relied on are not matters that necessarily affected the fairness of the trial. Nor was a warning called for on the basis of matters the full significance of which the jury might not appreciate without a warning. In this respect the circumstances of the case stand in contrast with those in Crampton v The Queen [2000] HCA 60; (2000) 75 ALJR 133, see in particular Gaudron, Gummow and Callinan JJ at [39]-[42], Kirby J at [125]-[126], Hayne J at [140]-[142]. The present case is one in which it was for the trial Judge to decide which aspects of the facts called for emphasis and particular comment. The matters upon which argument focused in the present case are matters of a kind routinely falling for consideration by the jury, and well able to be decided by the jury using their collective experience. There are matters in relation to which the trial Judge must be allowed considerable latitude, although in the end the summing up must provide such assistance to the jury, and such comments and warnings as might be required, to ensure that there is a fair trial.
In that connection I refer to, without repeating, what I said in R v Corrigan (1998) 74 SASR 454 at 465-466, and more recently in R v Joyce [2002] SASC 393 at [36]-[38].
In the present case the Judge might well have summarised for the jury the thrust of the defence criticisms of E’s evidence, and might well have reminded the jury that the defence relied on these matters individually and cumulatively. He might have emphasised that this was a significant aspect of the defence case. Had the Judge done so, it would have been appropriate for the Judge to mention briefly the Prosecutor’s response to these points. But it was not essential for the Judge to do so in the present case. The Judge had reminded the jury of most of the matters in respect of which E’s evidence was said to be unsatisfactory. And, in the passage set out above, he had made remarks which would have had the effect of causing the jury to think carefully about E’s evidence in any event.
In the circumstances, I am satisfied that the summing up was fair and adequate. I would dismiss the appeal.
DEBELLE J: The facts are recited in the reasons of the Chief Justice and need not be repeated.
The defence case was that the events could not have occurred because the allegations of sexual misconduct were inconsistent with a number of objective facts. It was a case, therefore, where it was important for the trial judge to remind the jury of the issues between the prosecution and defence case and of the factual issues to be examined in the course of determining whether the prosecution case had been proved.
The abolition of the general rule requiring a warning in relation to the evidence of a victim of a sexual offence leaves untouched the requirement that a judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from a particular circumstance of the case: Longman v The Queen (1989) 168 CLR 79; R v Corrigan (1998) 74 SASR 454 and the cases there cited. For the purpose of determining this appeal, it is useful to repeat what was said in Corrigan with particular regard to the passages I have taken the liberty of emphasising:
“ The effect of the decision of the High Court in Longman (supra) is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman (supra) at 90-91 Brennan J, Dawson J and Toohey J; at 100-101 Deane J; at 107-109 McHugh J; see also Bromley v The Queen (1986) 161 CLR 315 in particular at 323-325 Brennan J.
In my respectful opinion the court should avoid requiring resort to a particular formula. It is better that the warning be tailored to the circumstances of the case. The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury, and whether the overall effect of what the judge says to the jury is adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: cf Longman (supra) at 86 Brennan J, Dawson J and Toohey J. As Longman illustrates, there are cases in which a warning of the traditional kind is called for, but it would be wrong to hold that if some sort of warning or caution is called for, it must always be in the traditional terms.
It must also be borne in mind that, if a warning is to be given, however that warning may be expressed it should not be unbalanced. It is appropriate for the judge to put the warning in context. It is appropriate for the judge, when dealing with matters that give rise to the need for a warning, to deal at the same time with possible explanations or answers.”
The two emphasised passages call attention to the need to assist the jury by referring to the considerations which are material to their evaluation of the evidence. On some occasions, that may require a particular warning as indicated in Corrigan. On others, it may require the judge to put the case for the defendant in the form of some analysis or at least a summary of the grounds of the defence attack on the prosecution case: R v Checconi (1988) 34 A Crim R 160 at 173. On some occasions, the task of reminding the jury of the factors relevant to the evaluation of the evidence and the task of fairly putting the defence case may in effect merge into the one task.

The task of putting the defendant’s case is not discharged by merely restating the evidence given by or on behalf of the defendant. On many occasions, particularly in short trials such as this, where the evidence is likely to be fresh in the memory of the jurors, that exercise will have little utility. Instead, it is preferable that the judge adverts to the issues between the parties and provides some analysis or examination of them. At the very least, a summary of the issues or the attack made on the prosecution case will assist the jury more than a mere recitation of the evidence. In long cases, some recital of important facts may, of course, also be required to assist to refresh the memory of jurors.
In this case, the trial judge did give a general warning but it was not related to the particular facts of the case. Having given that warning, the directions then consisted of a recitation of the evidence of the witnesses, even mentioning some medical evidence which was of no assistance in determining whether the prosecution had proved its case. The trial judge then concluded with the direction modelled on the recommended direction in R v Calides (1983) 34 SASR 355 at 358 – 359. Although the direction was in some respects generous, it failed even to identify the key issues. In my view, they were of such importance that it was not enough for the trial judge to refer in passing to the addresses of counsel. Instead, they should have been put to the jury with the authority of the trial judge: Tomazos (unreported, Court of Criminal Appeal (NSW), 6 August 1971). Nor was it sufficient in this case simply to remind the jury, as the trial judge did, that there were two conflicting versions or accounts of the alleged incident. In this case, there were at least the following issues which should have been put to the jury:
“1.The inconsistencies in the evidence as to whether the complainant went to work on her return home from Broken Hill.
2.The lack of an immediate complaint to the girlfriend with whom she went out on the evening on which she returned home.
3.The inconsistencies in the complainant’s evidence about the location of haystacks.
4.The evidence as to the time which elapsed while the alleged sexual misconduct occurred and the likelihood of passing traffic while it occurred.”
Although the absence of recent complaint was mentioned expressly, the others were not identified in a way which assisted the jury.
For all of these reasons, I think that the trial judge did not remind the jury of the considerations relevant to the evaluation of the evidence in a way which was called for in the particular circumstances of this appeal. I think that the trial has therefore miscarried.
I would therefore allow the appeal and order a new trial.
WILLIAMS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

[2002] SASC 388

19 December 2002