R v MAS - [2013] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAS
[2013] SASCFC 122
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
14 November 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - PROCEDURE
CRIMINAL LAW - PROCEDURE - SUMMING UP
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
The appellant was charged with three counts of indecent assault against his younger daughter, D. It was alleged that the appellant committed many other very similar indecent assaults against D between the ages of five and fifteen. The prosecution case depended entirely upon the evidence of D, whose evidence was uncorroborated. The appellant's case was one of simple denial. He gave no evidence.
D's evidence at trial differed significantly from the prosecution opening and two statements she had made to the police. D gave no evidence on count 3 at all, stating that count 2 was the final indecent assault she endured.
The jury returned a directed verdict of not guilty on count 3. The jury was unable to reach a verdict on count 1 but returned a verdict of guilty on count 2. The appellant appeals on the grounds that:
(1) the Judge erred in refusing to direct the jury that it would be unsafe to convict the appellant on the uncorroborated evidence of D;
(2) the verdict was unreasonable; and
(3) the effect of the Judge's directions was to suggest that the jury was restricted in the extent to which the jury could take into account a doubt as to D's credibility or reliability arising in the context of counts 1 or 3 when considering their verdict on count 2.
Held (The Court, allowing the appeal):
(1) Although ground 1 of appeal was not made out in relation to the giving of a warning that it would be unsafe to convict the appellant on the uncorroborated evidence of D, the Judge's directions failed to put adequately the defence case to the jury. The inconsistencies in D's evidence were an important part of the defence case, the prosecution case depending entirely on the uncorroborated evidence of D. The Judge's very brief treatment of the topic of inconsistencies was inadequate in the particular circumstances. [71]-[72]
(2) The Judge's directions might have given the jury the impression that the jury could not take into account a reasonable doubt concerning the credibility or reliability of D's evidence arising in the immediate context of one count when assessing the credibility or reliability of her evidence on a different count. The jury was not adequately directed that, notwithstanding the jury's entitlement to accept D's evidence in part, and to bring in different verdicts, the jury was also entitled to reject D's evidence in relation to count 2 by reference to doubts as to her credibility or reliability engendered in the context of their consideration of counts 1 and 3. [86]-[94]
(3) The verdict of the jury on count 2 was not unreasonable and ground 2 of appeal is not made out. [112]-[113]
Driscoll v The Queen (1977) 137 CLR 517; Davis and Hyland v The Queen (1995) 183 LSJS 186; R v Rendell (Unreported, Supreme Court of South Australia, Prior, Duggan and Debelle JJ, 29 May 1996); R v Baltensperger (2004) 90 SASR 129; R v Schmahl [1965] VR 745; R v Wilkes and Briant [1965] VR 475; R v Salih (2005) 160 A Crim R 310; R v B and D (1993) 66 A Crim R 192; G v The Queen [1995] SASC 5019; R v Markuleski (2000) 52 NSWLR 82; R v Robinson (2000) 111 A Crim R 388; The Queen v ARD [2000] NSWCCA 443; The Queen v KWG [2000] SASC 398; R v Liddy (2002) 81 SASR 22; The Queen v B, P [2006] SASC 229; R v Gbojueh (2009) 103 SASR 545; The Queen v LR [2006] 1 Qd R 435; M v The Queen (1994) 181 SASR 22, discussed.
Walker v Kraft (Unreported, Supreme Court of South Australia, O'Loughlin J, 19 March 1987); R v Carter (Unreported, Supreme Court of South Australia, Lander J, 18 April 1997); Wheeler v The Queen (Unreported, Court of Criminal Appeal of Western Australia, 20 April 1998); Huynh v The Queen [1999] WASCA 45; Jsensch v The Queen [2000] WASCA 212; The Queen v ND [2003] QCA 505; Rowney v The Queen [2007] NSWCCA 49; DPJB v Western Australia [2010] WASCA 12; R v Hare [2007] SASC 427, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"prior inconsistent statements", "reliability"

R v MAS
[2013] SASCFC 122
Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ

THE COURT. Appeal against a conviction of indecent assault.
Introduction
The appellant was born in 1921 and is now 92 years old. He was convicted after trial by jury of one offence of indecent assault charged as occurring in 1970 when the complainant was about 14 years of age. The appellant has no prior criminal record.
In addition to the charge on which he was convicted (count 2), the appellant was tried on two other counts of indecent assault. The Judge ruled that there was no case to answer on count 3 and the jury was unable to reach a verdict on count 1. It is necessary to refer to the evidence on both of those counts, and of other uncharged conduct, because the appellant relies on inconsistencies in the complainant’s testimony about that offending to impeach the jury’s verdict on the count on which he was convicted.
The complainant, D, is the younger daughter of the appellant. She was born in August 1955 in Victoria and has four siblings (an older sister and three brothers). She lived with her parents until she was about 17 years old. She is now 58 years old.
The conviction depended entirely on the word of D with no other witness being called and no corroboration of any sort.
Throughout D’s childhood, the family lived at various locations, initially in Victoria and then in South Australia. From about 1961 to 1966, they lived at Sturt Street, Glenelg (the Glenelg house). From about 1966 to 1969, they lived at a large two storey historic house called “St Helens” on Prospect Road, Prospect (the Prospect house). From about 1969, they lived again at the Glenelg house. D left that home in about 1973.
D alleged that the appellant indecently assaulted her many times during the period from when she was about five years old to sometime around her fifteenth birthday. D’s evidence as to the precise frequency of the offending varied but it appears that she alleged that literally hundreds of occasions were involved. All were said to have been of a very similar nature,[1] comprising digital or oral contact with the area of the vagina.
[1] The only variation was said to be that count 2 also involved the appellant placing D’s hand on his penis.
The appellant’s case at trial was one of simple denial that any of the charged or uncharged acts ever occurred and he gave no evidence.
The Information
The counts charged in the Information were as follows:
First Count
Statement of Offence
Indecent assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] on or about the 14th day of February 1968 at Prospect, indecently assaulted [D].
Second Count
Statement of Offence
Indecent assault. Ibid.
Particulars of Offence
[The appellant] on or about the 6th day of June 1970 at Glenelg, indecently assaulted [D].
Third Count
Statement of Offence
Indecent assault. Ibid.
Particulars of Offence
[The appellant] on or about the 7th day of June 1970 at Glenelg, indecently assaulted [D].
The grounds of appeal
There were originally two grounds of appeal but a third was added at the hearing of the appeal. The three grounds were as follows:
GROUND 1
The Learned Trial Judge erred in refusing to direct the jury that, in the particular circumstances of the case against the appellant, it would be unsafe to convict the Appellant on the uncorroborated evidence of the Complainant. [Summing up 12-14].
Particulars …
GROUND 2
The verdict of the jury of guilty in relation to Count 2, for the reasons identified in the foregoing Particulars, is unreasonable and/or cannot be supported having regard to the evidence, and constitutes a miscarriage of Justice.
GROUND 3
The learned trial judge:
·Misdirected the jury when his Honour told the jury to put aside and totally ignore the charge on which the jury acquitted the appellant (AB 41.5); and
·Misdirected the jury when his Honour told the jury to give “separate consideration to each charge by reference only to the evidence directly relevant to that charge”, and, that his Honour would “isolate and identify for you the evidence which directly relates to each charge” (AB 42.6); and
·Failed to direct the jury generally, that if they thought that a witness may be untruthful or unreliable they may determine not to act on any of the witness’ evidence; and
·Failed to direct the jury that if they had a doubt about the truth or reliability of the complainant with respect to one count, or a matter of substance, then that is a matter that they could use in their consideration of whether any other count is proved beyond reasonable doubt;
with the effect that the learned trial judge failed to adequately instruct the jury on the significance of the totality of matters on which the credibility and reliability of the complainant was impugned.
The prosecution opening
In opening, the prosecutor identified count 1 as an offence which occurred when the family was living at the Prospect house. The offence was further identified as one which occurred on a Valentine’s Day on which D, together with some of her school friends, truanted from her primary school to hear a band called The Valentines play in the John Martin’s department store on Rundle Street. The prosecutor alleged that on that same night the appellant indecently assaulted D, in her bedroom, by performing cunnilingus.
The prosecutor opened on the second count as an occasion which occurred when D’s mother was visiting the United States to attend the wedding of her daughter, D’s sister. The appellant remained in Adelaide with D and her three brothers in their home, which was then in the Glenelg house. It was alleged that D was at that time sleeping in her parents’ bedroom because of renovations to other parts of the house. The prosecution claimed that the particular offence charged in count 2 was identified by D as the only occasion on which the appellant placed her hand on his penis, and spoke to her, during the course of an indecent assault. It was the combination of those circumstances which, on the prosecution case, distinguished the offence charged in count 2 from other (uncharged) offending which the appellant was regularly committing whilst living at the Glenelg house.
The prosecution opening particularised the third count as an offence which occurred after the offence comprising the second count, probably on the very next night, and when D’s mother was still in the United States. The prosecutor told the jury that in the evening, before that offence was committed, D had cut the appellant’s hand with a kitchen knife whilst preparing a meal with him. The indecent assault charged by the third count was said to comprise cunnilingus.
The prosecution case as opened was that uncharged offences of indecency of the same kind continued even after the return of D’s mother from the United States. The prosecution case was that the offending came to an end in school year 9.
In the course of the opening, the prosecutor anticipated the importance of D’s testimony to his case by telling the jury:[2]
… Make no mistake about it, [D] is the crucial witness for the prosecution. Unless you are prepared to accept her beyond reasonable doubt when she tells you of the incidents which are charged, then there is no prosecution case. So of course you will watch and listen to her with great care and caution. In the end you have to make an assessment of her; is she telling the truth, is she a reliable witness to the events that make up the charges?
[2] T13-14.
The appellant’s counsel also opened for the defence telling the jury:[3]
… I think I can say to you with some certainty, there really is one and only one central issue in this case and it’s the same central issue with respect to each of three charges and, indeed, the same central issue with respect to what you have just been told are uncharged acts, and it is did these things happen? That’s the issue that you will have to determine at the end of the trial; did they truly, really, actually happen? And in the determination of that central issue, as the prosecutor has said, subsidiary issue, although a very important one, will be your assessment as to the reliability, the accuracy of the crucial witness in this case, [D]. …
[3] T15.
Particular portions of the prosecution opening are referred to in more detail below in conjunction with an examination of the individual counts.
The evidence-in-chief of D
D gave evidence that she was born in Victoria, the youngest of five children. Her only sister was the eldest child. Her early recollections were of living in a beachside town in Victoria and later in Caulfield and Ballarat in that State. She gave evidence that she remembered going on a holiday in a caravan park whilst the family was living in Ballarat. She testified that, on that holiday, her father touched her indecently between her legs whilst giving her piggy-back rides and when dressing her. The sexual offending continued after the family returned home after the holiday.
D gave evidence that the family moved from Ballarat to the Glenelg house where they resided for about two to three years. She testified that she attended St Leonards Primary School at Glenelg for the first three years of her schooling. She explained that she commenced school in South Australia later than other children because she had come from interstate.
According to D, the sexual offending continued after the family moved to South Australia. It seemed to D that it occurred on most nights. D gave this description of the way in which the offending was frequently committed:[4]
… I would lie there like a dead body, he would come into my room, he would remove the covers from the bottom so that I still had a bit on me, I would lie there like a dead body because I was stupid enough to think he would think I was asleep. He would run his hands over my body. When he used to touch me near my sides my skin would crawl and I would almost spasm with a tickle type horrible feeling of someone touching my body. …
[4] T26.
D continued by describing the way in which her father would then orally and digitally interfere with her.
D testified that the family moved from Glenelg to live in the Prospect house, which was a boarding house and was managed by her mother from those premises. Her father worked as a salesman. D’s family occupied a part of the residence on the ground floor. At the Prospect house, D shared a room with her sister.
After the move to Prospect, D attended Prospect Demonstration School starting at that school in grade 4. She testified that the family was still living in Prospect when she, at age 13, commenced her secondary education at Adelaide Girls High School. She gave evidence that she spent three years in high school, but repeated second year. She testified that the sexual abuse continued in much the same way at Prospect as it had at Glenelg.
Whilst she was still attending Adelaide Girls High School, D’s family left the Prospect house and moved back to the Glenelg house. D testified that she initially shared a room with her sister but that in 1970, when she was 15, her sister travelled to the United States where she married.
Inconsistently with the prosecutor’s opening, D gave evidence that she went to John Martin’s department store to hear The Valentines play in either 1969 or 1970 when she was 14. She testified that she was attending Adelaide Girls High School at that time but that the family had returned to live in Glenelg. According to D, she snuck out of Adelaide Girls High School at lunch time and returned to school in the afternoon. D gave evidence that that night, at the family home in Glenelg, her father digitally and orally sexually assaulted her.
D gave evidence, consistently with the prosecutor’s opening, about the only occasion on which the appellant had caused her to touch his penis and during which the appellant spoke. D was asked whether she could recall what he said, and replied:[5]
ANo, I was just horrified that he worked out I’d been awake all these years, the reality.
QThat realisation how did it make you feel?
ADirty. Just so dirty, disgusting, sad.
[5] T33.
D then gave the evidence, which had been foreshadowed in the prosecutor’s opening, of an occasion when her father’s hand was cut whilst preparing dinner while her mother was still in the United States. D’s evidence was that her mother was in the United States for about ten days or two weeks. She testified that she had cut the appellant’s hand with a self-sharpening knife when they were preparing a meal. However, inconsistently with the prosecutor’s opening, D denied that anything happened later that night.
The Judge’s directions concerning the evidence of D
In his charge to the jury, the Judge emphasised the “critical importance” of D’s testimony to the prosecution case. The Judge directed the jury to examine her evidence with the greatest care and subject it to the “closest of scrutiny” as follows:[6]
This brings me to [D]. For obvious reasons the prosecution case on each remaining charge rises or falls with [D] and for equally obvious reasons you cannot convict on either charge unless you are satisfied that [D] is both truthful and reliable in the essential aspects of her evidence in relation to that charge. You will thus have to consider and examine her evidence with the greatest of care and subject it to the closest of scrutiny. As Mr Nitschke so aptly put it, you will have to apply the blowtorch of common sense and human experience to her and her evidence.
[6] Summing up AB44.
At the conclusion of the summing up, the Judge emphasised the difficulty in identifying, with any certainty, from D’s testimony the specific incidents charged in the Information:[7]
Ladies and gentlemen, although it is a matter which is entirely for you, even if you were to be satisfied that [D] was entirely truthful, you might well nonetheless consider that it would be very difficult for you to ever be satisfied that she is reliable when she says she can separate out and identify two specific incidents of abuse from what, on her evidence, must have been countless occasions of sexual impropriety on the part of the accused.
[7] Summing up AB50.
However, all that his Honour said as to the matter of inconsistencies in the evidence of D was as follows:[8]
… Mr Algie submits that the inconsistencies are of great significance and he explains why in some detail and he submits that the way [D’s] accounts seemed to expand should cause you concerns.
He points to [D’s] evidence about the diary and the school books and he submits that it does not stack up. …
[8] Summing up AB48.
Consideration of ground 1 of appeal
The primary focus of ground of appeal 1 is that the Judge erred in refusing to direct the jury that, in the particular circumstances, it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant.

Section 34L(5) of the Evidence Act 1929 provides that a Judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict on the uncorroborated evidence of an alleged victim of a sexual offence. The abrogation of the rule of practice means that, generally speaking, something more than the mere absence of corroboration is required to render a Judge’s refusal to warn the jury in a trial of a sexual offence that it is unsafe to convict on the complainant’s uncorroborated evidence an appellable error. It is important to understand that the evidence of child sexual abuse will often be uncorroborated. Trials of those offences are of great consequence to the complainants, the accused and the community, and the jury is the tribunal best placed to determine those factual controversies. A judicial warning that it is unsafe to convict to a large extent arrogates to the Judge the responsibility which the criminal trial assigns to the jury. In this case, the Judge made it very clear to the jury that the prosecution case was dependent on an acceptance of the complainant’s evidence and that for that reason it was important to evaluate closely her evidence.
The appellant referred to a number of other matters in support of his submission that the Judge should have warned the jury that it was unsafe to convict on the complainant’s uncorroborated evidence. The appellant did not establish that the Judge erred in refusing to give this particular warning that it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant. However, it does not follow from this conclusion that the directions which were given on the specific matters which were relied upon as particulars of ground 1 of appeal were adequate in the circumstances.
Inadequate directions as to inconsistencies
By far the most important of the matters upon which the appellant relied as particulars of his claim that the Judge should have warned the jury that it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant was a series of inconsistencies in the evidence of D.
As the argument developed, the appellant contended, and the respondent accepted, that ground 1 should not be restricted to an assertion that the Judge should simply have directed the jury baldly that “it would be unsafe to convict the appellant on the uncorroborated evidence of D”. Rather, the ground was to be interpreted as also contending that substantive directions should have been given which specifically called attention to the particular inconsistencies. It was to this alternative contention that most of the argument on the appeal was directed.
Even though the high claim in ground 1 of appeal that a warning should have been given in the form that “it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant” should be rejected, the appeal might nevertheless be allowed if the directions on inconsistencies were inadequate and failed adequately to put the defence case to the jury. Accordingly, we turn to examine the inconsistencies relied upon by the appellant.
In the cross-examination of D, counsel for the appellant identified a significant number of inconsistencies as between her evidence and previous statements recorded in her police statements given on 19 March 2008 (the first police statement) and 3 August 2008 (the second police statement).
These inconsistencies were of two broad classes. First, the making of positive statements of fact at trial which materially differed from a previous statement made on the same topic. Second, the making of positive statements of detailed fact at trial which were not made on a previous occasion when D made a statement to police on the same topic. While there may be some conceptual differences between the two classes, both classes are referred to here simply as “inconsistencies”.
The evidence of uncharged acts
D gave specific and detailed evidence that the first sexual assault by the appellant occurred during a summer holiday at Phillip Island in about 1960 when she was aged five.[9] She testified that she travelled there with the appellant and two of her brothers and they stayed in a tent in a caravan park. D gave the following evidence-in-chief:[10]
[9]    T21 (in chief); 51 (cross-examination).
[10] T21-23.
AWell my father used to help me at times - I would get piggybacked but for some reason I feel like I never had shoes or thongs if you like. I was put in a position where the ground was always hot and he would piggyback me. I would always be wearing dresses and as he would piggyback me his fingers would be in me and if I went higher I was being supported by his hand, I had nowhere to go. But I know the ground was always hot and they were my first memories of being touched and to this day I cannot go anywhere - I wear shoes everywhere, I will never go without shoes.
Q     When you say ‘his fingers were in me’ what did you mean by that?
AHis hand behind my back, so his hands would be under me supporting my bottom (INDICATES) but I would also have fingers inside of my panties and I couldn’t escape that, he was - that was how he supported me.
Q     You’ve shown us that your father’s hands, in effect arms, were behind his back?
A     Yes.
Q     And your bottom was supported by his hands?
A     Yes.
…
Q     What part of your body did he touch?
A     My vagina.
Q     Were you wearing underpants?
AYes, I would have had bathers on when we were camping, but I always had a sun dress on because I was fair and got sunburnt always, so his hands were covered.
QDid that happen on one occasion or more than one occasion whilst you were on that camping trip?
A     More than one occasion.
QHow long in time, what period of time were you being piggybacked by your father?
A     As in time?
Q     Yes.
AThe camp site was a little way from the beach, so sometimes it would go for 15 minutes.
D also gave evidence-in-chief that on that same camping trip the appellant touched her on her vagina when cleaning or drying her:[11]
[11] T24.
QApart from touching you whilst piggybacking you, on that camping trip did your father touch you in any other way?
A     Yeah, when helping me get dressed.
Q     What happened on those occasions?
AIt’s hard for me to remember those things because they seemed so normal at the time. When he would dry me or clean me, I guess I felt I was just a very dirty person because there was a lot of cleaning involved.
Q     When you say ‘cleaning’, what parts of your body were being touched?
A     My vagina.
Q     How did he touch you on those occasions?
A     He would wet his fingers and he would rub me.
Q     Where would he rub you?
AHe would slide his hands in my underpants if I had them on already, or if he was cleaning me, it would start off I guess with a beach towel but in the end he would wet his fingers and he would be masturbating me.
Q     What part of your body was he touching when he wet his fingers?
A     My vagina.
When considering whether this evidence given by D in 2012, then 57 years old, proceeded from a reliable memory of when she was only five years old, it is to be noted that D agreed in cross-examination that in her first police statement she had made no mention at all of either the piggybacking or cleaning incidents[12] which were to form such an important part of her evidence in Court about initial abuse.
[12] T51-52.
The evidence as to count 1 (the Valentine’s Day incident)
There were several significant inconsistencies arising from D’s evidence as to count 1.
D gave evidence that at lunchtime on the day of count 1, she and some friends had, without permission, left Adelaide Girls High School and gone to the John Martin’s department store to see a performance by a band, The Valentines; after the performance she had returned to school with autographs of the band members up and down her arms and in her school diary. She had later gone home in the normal way.[13]
[13] T29-30.
D gave evidence that on the occasion of count 1 she was (about) 14 years old and that count 1 occurred either in 1969 or 1970 and not 1968 as charged in the Information.[14] D gave evidence that count 1 took place that same night at the Glenelg house – and not the Prospect house as charged in the Information and opened on by the prosecutor. We return to this aspect of the matter below.
[14] D’s 14th birthday was in August 1969. On February 14, 1969 and 1970 she would have been respectively about 13 and a half and 14 and a half years old.
In cross-examination, D conceded that she had not said anything in her first statement to police on 19 March 2008 about the detailed context in which count 1 was presented at trial. She had then said nothing about an offence occurring on Valentine’s Day; her going to John Martin’s to see the band The Valentines; autographs put on her arms or in her school diary; or anything about her diary.[15]
[15] T42-43.
It was only in her second statement to police, on 3 August 2008, that D recounted to police a number of details which she said she could then recall and added them to her initial statement of 19 March 2008.
In cross-examination, D agreed that in this second statement of 3 August 2008 she stated: [16]
The day was Wednesday, 14 February 1968 when I was 12 years old. I now remember this date from going through an old school diary of mine”. (Emphasis added)
[16] T45.
It was put in cross-examination that the date of 1968 which she had given in her second police statement was contrary to her specific evidence-in-chief that the date was 1969 or 1970. Her position then developed as follows.
She initially said that her second police statement had been incorrect as to the date. She asserted that she could not have been as young as 12:[17]
It wasn’t when I was 12 because I now realise that school started the end of January, it was two weeks later, I didn’t have friends in first year at high school, I went to a school where I didn’t know anyone, I didn’t go out - I have obviously made a mistake on the age, but it was Valentine’s Day …
[17] T44.
When D was pressed as to the fact that in her second police statement she had purported to fix the date (Wednesday, 14 February 1968) by reference to “an old school diary”, she said that she had done so but “didn’t look at the day”:[18]
QAre you saying there that you had had access to this diary before making that second statement?
AI saw the diary. I seen the diary but I didn’t look at the day. The only thing that sticks out in my head, I’m at high school, it’s Valentine’s Day - I only went to second year – it’s Valentine’s Day, the Valentines are playing in the shoe department, there’s no mistaking that, because that’s when they were playing, it was Valentine’s Day.
[18] T45.
When counsel pressed as to precisely when it was that D went through the old school diary, she said that she had not seen the diary at all since moving house in September 2001, long before either of the police statements.[19]
[19] T40-41.
Upon being confronted with this further inconsistency, D suggested for the first time that her recollection of the date of 14 February 1968 was in fact based upon her looking at school year book(s) and not a diary, and that in referring to a diary she had merely “worded it wrong”:[20]
AI have other things too. I have my old school book and it’s got the date on it. So I could bring all them but I don’t have signatures in them, that show the years I was at the school. So it was the years - I may have worded it wrong, nervous to death, crying my heart out at the time giving that statement, reliving these things, and I have my school yearbooks and I related to the school year books and probably said ‘diary’ and I agree with you a hundred per cent that I probably got that word wrong and I referred to my school yearbooks, to make sure they were years I was at the school. My picture is not in those yearbooks because back then they didn’t put everyone’s pictures, they only put sporting teams, so they weren’t anything I thought were of any consequence.
QSo when you remembered the date as February 1968, when you were 12 years old, you were remembering that, not from an old diary, but a year book?
A     Yes.
Q     So it’s not correct what’s in your statement that you referred -
A     Not one hundred per cent, no.   (Emphasis added)
[20] T46.
D’s explanation that she had meant “yearbook” when she said “diary” in her second police statement is difficult to understand. D never suggested that she had made some note of the Valentine’s Day event in a yearbook (rather than a diary) and such a claim would have been unlikely given that her firm evidence was that the autographs of the members of The Valentines were in the missing diary. Reference to the yearbook could have told her nothing about the Valentine’s Day event; at most it could only have assisted her as to which years she had attended Adelaide Girls High School.
In the context of the year of the event, the reference to the yearbook is difficult to understand because D said at trial that her second statement was in any event wrong with respect to both her age and the year of 1968 (which is the date charged in the Information),[21] the year of an event being the one thing that one might expect to get right by looking at a yearbook.
[21] T44-45.
When further asked in cross-examination why she had told the police in the second police statement that the Valentine’s Day in question was in February 1968 when she was aged 12, D offered a further explanation, apparently inconsistent with both the previous versions of a diary and a yearbook and apparently superseding them. D referred to a “time line” of her school years which she had constructed after giving the second police statement:[22]
Q But the yearbooks provided the date 1968 when you were 12?
ANo, they provided the date for the years I was at high school, so it related to my age, so I was able to work out how old I was.
QCan you explain why you told the police in that second statement that this occasion of the Valentines was in February 1968 when you were 12?
ABecause it wasn’t until I went home and I did a time line of how old I was, like 5 years old 1960, 6 years old 1961. By the time I went through and then worked out I didn’t start school at 5 years of age in grade 1 and worked out my years and then got my school - when I searched for the diary I found my school yearbooks, I knew that that information might have been out. That is the only way that I can explain that to you … (Emphasis added)
[22] T46-47.
In the last emboldened section in the passage immediately above (“when I searched for the diary I found my school yearbooks”), D said that it was at this time of making the timeline (which was after giving the second police statement) that she found the yearbooks. However, D earlier had testified that she had relied upon the yearbook, rather than the diary, to give the second police statement.
In summary, in her third account in cross-examination (the time line account), D said that it was at the time of making the time line after giving the second police statement that she found the yearbooks. This evidence appears to be inconsistent with her previous accounts that she referred to a diary or yearbook to give the second police statement. That in turn is to be contrasted with her first police statement on 19 March 2008 when she said nothing at all about Valentine’s Day, or going to John Martin’s to see the band, The Valentines, or anything to do with her school diary or yearbook.
The location and surrounding circumstances of count 1
D gave evidence at trial that count 1 occurred at the Glenelg house (and not the Prospect house as charged in the Information and opened on by the prosecutor). In cross-examination, D was asked why she said in her second police statement that it had occurred at the Prospect house:[23]
QCan you explain why, in that statement, you say that the incident occurred at Prospect Road, Prospect?
APossibly because it used to happen just about every night or every other night, it would have been confusing, and Valentine’s Day was very hard for me to put down because I was a different age to everyone and I had to put that time line. It wasn’t until I went home and did that time line and worked out how old I was at school, in second year, 15 years old, falling asleep in class every day, being awake at night.
QIn your evidence here this morning you said this Valentines incident happened when you were living at Glenelg. Is that right or not, or are you not sure?
AI shifted to Glenelg when I was in second year, but I went to second year twice, so it makes it very hard in my head to remember which second year it was and also when I was that age I started realising what was happening and that it wasn’t normal.
[23] T48-49.
In opening on count 1, the prosecutor had made some detailed remarks about the Prospect house (St Helens) and stated:[24]
… The family then moved to live at a big two-storey house on Prospect Road at Prospect. This was in fact a large, landmark house at Prospect called St Helens House. The house itself has been demolished now for quite a number of years but the park in which it is located is still there, indeed it’s called St Helens Park on Prospect Road at Prospect. That house was run as a boarding house and you will hear that [D]’s mother worked long hours in the carrying on of that boarding house. [D] changed schools when the family moved from Glenelg to Prospect and for a time she went to a school called the Prospect Demonstration Primary School. They called primary schools demonstration schools in that day if they accommodated student teachers. In any event, she went to that school for a time. You will hear that her sister who had come to join the family obviously after she’d finished her schooling somewhat and you will hear she shared a room with her sister in that house. But her sister is somewhat older than her, indeed by that time was in her late teens and would often be out at nights, as people in their late teens do, socialising with others. You will hear that her father would come into her room at nights at the St Helens House and touch her sexually. She will tell you of a specific incident which makes this occasion stand out from the dull monotony of the sexual abuse, and she recalls that on a particular day, at around lunchtime, on a school day, she and a group of her girlfriends left school and went into town to the John Martin’s department store. … She went to John Martin’s department store and indeed to the shoe department of that store, and that was because a band that was a musical band that was very popular in those days called The Valentines were playing there. That’s because it was Valentine’s Day. She remembers that she got autographs from the band members and they were in her school diary. One of the band members was a fellow called Bon Scott and Bon Scott moved from that particular band, The Valentines, into I think it’s AC/DC, so it had some significance at that time, indeed for some time thereafter. But that sticks in her mind, that incident. She will tell you that that night her father came into her room, he touched her and rubbed her on the vagina, he licked her on the vagina. She recalls that whilst her father was in the room doing these things she heard her sister driving along the gravel driveway which passed by the wall of the house that she and her sister shared and proceeded to the car park that was out the back of the house. She will tell you that as she heard this her father stopped what he was then doing and left the room. It is the act of licking her on the vagina, that is performing cunnilingus on her, that is the act charged in count 1. It’s the touching of the tongue against her skin in that area that is represented in count 1. She will tell you that this same sort of activity continued thereafter on a regular basis. Primary school over she went to a school called Adelaide Girls High. The family again moved and in June of 1970 they were back living in Sturt Street at Glenelg. Her sister had left home already and had gone to live in the United States of America. … (Emphasis added)
[24] T10-11.

The prosecutor was most specific that count 1 occurred at the Prospect house and it was the physical attributes of that house he described when he referred to the commission of the offence being interrupted by the arrival home of D’s sister ─ the gravel driveway which passed close by the wall of the house and the car park that was out the back of the house.
The prosecutor opened count 1 on the basis of a previous statement by D in which D had stated that the offence occurred at the Prospect house and that it was interrupted by the arrival home of the sister heralded by the sound of her “driving along the gravel driveway which passed by the wall of the house that she and her sister shared and proceeded to the car park that was out the back of the house” (descriptions and circumstances that were inextricably linked to the Prospect house).
This is confirmed by the fact that the sister left the Prospect house to go overseas and remained there until (at least) her wedding in 1970 in the United States of America and thus could not have come home during the course of an act of sexual interference at the Glenelg house after the family had moved back there from the Prospect house.[25] It is further confirmed by the prosecutor’s attempts to rescue the situation at trial after D had said in evidence that count 1 had occurred at Glenelg and not at the Prospect house:[26]
[25] D gave evidence that the family initially moved into the Glenelg house in 1961 and moved from there to the Prospect house in 1966; that at the Prospect house she shared a bedroom with her sister for a while until her sister left from there and went overseas where she remained until at least June 1970 when she was married in the USA (T19-21); and that the family moved from the Prospect house back into the Glenelg house in 1969.
[26] T30.
Q     After you had seen the band play what did you do?
ASnuck back to the school and showed all the girls at school all the signatures up our arms, excited.
Q     After school where did you go?
AI went home and had the signatures up my arm of the rock band, which did not go down very well.
Q     To which home did you go; where were you living at that time?
A     Glenelg.
Q     Did anything happen on that night?
A     Yes.   (Emphasis added)
D then proceeded to recount the occurrence of count 1. The prosecutor then turned to the matter of locality and put the following questions:[27]
[27] T31-32.
Q     At St Helens was there a car park attached to the house?
A     Yes.
QWhere was that car park in relation to the room that you slept in or shared with your sister …?
ASt Helens Park I think is about 8 or 10 acres, it’s a huge block. It had a big, huge driveway going around the mansion at the back. There is a drive at the side and my room, the window, you can hear cars run up the side and the car park would hold 20, 30 cars. My sister had an old Morris with the tickers that used to come up. It was a rattly old car and I could hear her come home, so I’m sure everyone else in the house could hear my sister come home in her old car.
Q     In order to get to the car park did the cars have to pass anywhere near your room?
AYes, as close as from me to you. The window was actually on the drive. The house was on the drive.
QYou’ve told us something about a Morris, was that a car that your family had at that time?
AIt was my sister’s car. It wasn’t a Morris, it was an Austin. It was an old car, they had the flips.
QI think you are indicating those antique things that some of us might remember to indicate - forerunners of indicators, in effect?
A     Yes.
This questioning did not revive any memory in D of the offence charged as count 1 at the Prospect house. At no time in her evidence did D refer to any occasion when an act of sexual interference was interrupted by the arrival home of her sister. The last passage of evidence (and particularly the description of the physical layout and the description of the rattly old car) confirms that the prosecutor in opening had been referring to a previous statement by D which did assert that count 1 had occurred at the Prospect house in the circumstances of the arrival home of D’s sister at that location.
D’s evidence that she was attending Adelaide Girls High School at the time of count 1 was also inconsistent with the opening by the prosecutor (referred to above) that she was then attending Prospect Demonstration School (and indeed this may well have been the position if the incident had occurred on 14 February 1968 as previously stated by her and charged in the Information).
The cross-examination concerning count 2
An important aspect of D’s evidence-in-chief was that count 2 occurred when her mother was in America for the wedding of D’s sister which was celebrated in June 1970. It was by reference to that date that the dates in both counts 2 and 3 were fixed, it being alleged that count 3 occurred on the day after the occurrence of count 2.[28] At trial, D gave the following evidence-in-chief:[29]
My mother went to America to my sister’s wedding and it was June. I was 15 and we were having renovations at the house, so in the dining area there was no floorboards, just – you’d have to balance on the wood to get to the bathroom and that. I stayed home from school for a bit helping - keeping the house running and he - for some reason I was in his room. I don’t know why, I think it was because of the renovations, because my room was being turned into a bathroom, so I had a bed in the corner of my parents’ bedroom and my mother was gone. On this one occasion I was on his bed. It was the only time he ever spoke to me and it was the only time where I touched him because he picked up my hand, he did all the other things as normal, the covers up, the sliding of my bottom to the end of the bed, performing oral sex, he obviously worked out I was awake and he put my hand on his penis and I still pretended I was asleep and let it fall. He said something to me, and I didn’t answer and to my memory that was the last time he ever touched me.
[28] By June 1970 the family had moved from the Prospect house back into the Glenelg house. T20-21.
[29] T32.
However, in cross-examination, D agreed that her first police statement did not refer to her mother travelling to America at a time contemporaneous with count 2.[30] D conceded that in her first police statement she had said that count 2 occurred when her family was living at the Glenelg house for the first time (1961 to 1966) and before they moved to the Prospect house.[31] This would have meant that any incident being described as occurring before the move to the Prospect house took place at least four years before D’s mother travelled to the USA for the wedding.
[30] T50-51.
[31] T49-50.
The evidence concerning count 3 (the cut hand incident)
Count 3 was particularised in the prosecution opening as an incident which occurred the day after the commission of count 2 and which followed shortly after the appellant had been accidentally cut with a kitchen knife. In opening, the prosecutor stated:[32]
[D] will tell you of another incident that she can distinguish from this chain of events. It was again during the time that her mother was away in the United States and she believes that it was the night after the accused had put her hand onto his penis and then had touched her indecently. On that day the accused had received a cut to his hand. It was not a minor nick but it was not a major cut either and from her memory he did not receive any medical attention for that - it was just a cut. She will tell you that that evening her father again came to the room and masturbated her, that is rubbed her vagina with his fingers and performed, in her words, oral sex on her by licking her at the vagina. It is the act of licking her on the vagina that is the act charged in this matter, in this third count. So it’s the cunnilingus that is the subject of the third count and the Crown says, because all the evidence is there, you would look at the surrounding circumstances to decide whether the touching was performed in circumstances of indecency. … (Emphasis added)
[32] T13.
Following D’s evidence on count 2, counsel for the prosecution sought to lead D’s evidence on count 3 thus:[33]
[33] T34-35.
QYou told us of the occasion when you were on your parents’ bed. Was the incident where your father received a cut before or after that incident?
A     It was the next day.
Q     Did he receive any medical attention for that cut?
A     I don’t know, I just know it was a Stay Sharp knife, the one that is in a slide.
HIS HONOUR
Q     Did you see it happen?
A     Pardon?
Q     Did you see it happen?
A     I was holding the knife.
EXAMINATION
Q     It was an incident where you were chopping some food up I think?
A     Yep.
Q     And there was a cut?
A     Yes.
Q     On that night did anything happen?
A     No.
QAfter your mother returned from the United States she came to live with the family?
HIS HONOUR:    Can you give an audible answer for the reporter?
A     Sorry, what was the question?
EXAMINATION
QWhen your mother came back from the United States she came back to live with the family in Sturt Street?
A     Yes.
Q     After your mother returned did anything further happen with your father?
AI know that at school, because school was difficult and I used to fall asleep in class all the time. I failed second year twice, I know I was still having sleeping problems so I’m not sure if - I still now have sleeping problems. I don’t know. I don’t think I was abused after I cut him, but I can’t be sure of that. But I know it finished that year, in my 15th year of life.   (Emphasis added)
At that point, D had already said in her evidence (reproduced above) as to count 2, which was alleged to have been on the preceding night: “to my memory that was the last time he ever touched me”.[34]
[34] T32.
D was not cross-examined on this portion of her evidence and a submission of no case to answer on count 3 was made. The jury was directed at the end of the prosecution case to return a verdict of not guilty on count 3 (and did so).[35]
[35] T77-80.
The importance of the inconsistencies in the present case
The inconsistencies in D’s evidence raised important questions about D’s overall reliability and credibility. However, as noted above, the trial Judge made only the following very brief passing reference to the inconsistencies in D’s evidence in his summing up:[36]
… Mr Algie submits that the inconsistencies are of great significance and he explains why in some detail and he submits that the way [D]’s accounts seemed to expand should cause you concerns.
He points to [D]’s evidence about the diary and the school books and he submits that it does not stack up. …
[36] Summing up AB45.
This was an inadequate treatment of the topic of inconsistencies in a case in which they constituted an important part of the defence case and the prosecution case depended entirely on the uncorroborated evidence of the complainant.
In Driscoll v The Queen, Gibbs J (with whom Barwick CJ, Mason, Jacobs and Murphy JJ concurred) stated:[37]
… the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness.
[37] (1977) 137 CLR 517, 536.
His Honour went on to note that “it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable”.[38]
[38] Driscoll v The Queen (1977) 137 CLR 517, 537.
Depending on the circumstances of the particular case, juries may need assistance from the Judge concerning their approach to the matter of prior inconsistent statements. The decision of this Court in Davis and Hyland v The Queen[39] proceeded on that basis. The appellants were convicted of a number of sexual offences in circumstances where there were a number of inconsistent statements by the complainant. Prior J (with whom Doyle CJ concurred) stated:[40]
It was necessary to have the jury consider what reliance they were prepared to place upon her evidence given in the witness box against such inconsistencies as they found made out against previous statements: Driscoll v R (1977) 137 CLR 517 at 536 and 537. More so was this the case here when the intoxication of the woman at the time was a factor going not only to the question of consent but also recollection. More so too because of the variation between the evidence, the opening of the prosecution and the two verdicts of not guilty by direction of the trial judge.
This was a case where it was not enough to reiterate submissions of counsel. A direction from the judge was required in conjunction with references to evidence; not just of possible inconsistencies between what the woman was then saying and what she had said in April, but also as to any inconsistencies between her evidence and the case as opened to the jury. … [T]he jury had to have more help than it was given. …
[39] (1995) 183 LSJS 186.
[40] Davis and Hyland v The Queen (1995) 183 LSJS 186, 191-192.
Similarly, in R v Rendell, Duggan J (with whom Debelle J concurred) stated:[41]
The question as to what direction should be given in relation to inconsistent statements made by a prosecution witness depends very much on the circumstances of the particular case. In some cases it may not be necessary to remind the jury of the particular statements; it may be sufficient to refer to the matter in general terms, pointing out to the jury that the witness may have made inconsistent statements and that this was an issue relevant to credibility. In most cases it is important to remind the jury, as the trial judge did in this case, of the limited use to which the actual prior inconsistent statement can be made. In other cases it will be essential to refer to the statements, give the jury careful directions on the matter of credibility and, in some cases, warn them about accepting the evidence of the witness who has made prior inconsistent statements.
In my view the alleged inconsistent statements in the present case were capable of having an important bearing on the credibility of the complainant and, as a consequence, the result of the case. It was unnecessary for the trial judge to add a warning against accepting her evidence, but it was appropriate to identify the statements, refer to the circumstances in which they were alleged to have been made and explain to the jury that they would have to consider the effect of significant discrepancies about the actual circumstances in which the alleged offences took place. …
The learned trial judge reminded the jury that defence counsel had addressed them on these matters, but this was a situation which called for directions which carried the weight of the trial judge’s authority. …
[41] (Unreported, Supreme Court of South Australia, Prior, Duggan and Debelle JJ, 29 May 1996) 6.
And in R v Baltensperger, Gray J (with whom Doyle CJ and Bleby J concurred) stated:[42]
84. When a witness is cross-examined in relation to inconsistencies between evidence given in court and out-of-court statements on matters material and relevant to the issues at trial, a Judge should direct the jury to consider such inconsistencies as relevant to witness credibility and relevant to deciding whether to accept the witness’ evidence in court. Similarly, if a witness denies or equivocates about statements to persons out of court which are proved to have been made, the jury should be directed that this may be a relevant factor in assessing the witness’ overall truthfulness. [Footnotes omitted]
[42] [2004] SASC 392; (2004) 90 SASR 129, 149.
The Victorian decisions of R v Wilkes and Briant[43] and R v Schmahl[44] provide good examples of the need in the present circumstances for the Judge to direct specifically as to the role of the prior inconsistent statements. In the case of Wilkes and Briant (where the charge was rape and the defence was consent), Winneke CJ stated: [45]
The learned Solicitor-General submitted that the vital issue in this case was essentially a simple question of fact, that the Judge’s charge was not to be read in the abstract but in the light of the conduct of the trial including the addresses of counsel, and that in the course of those addresses counsel for the accused had forcibly drawn the jury’s attention to all the salient points arising from the evidence upon which the defence was based. The Solicitor-General submitted that it was not for this court to determine the questions of fact involved for itself and thereby usurp the function of the jury.
It is, however, the function of this Court to determine whether the conditions essential to a satisfactory trial have been observed, and for that purpose to scrutinize the evidence closely in a case such as the present in order to determine the significance thereof in relation to the essential elements of the crime charged. …
… The defence of the applicants was based entirely on inferences to be drawn from evidence led by the prosecution. Such evidence left such inferences well open to be drawn by the jury, but the strength of the cumulative effect thereof could readily be missed by persons inexperienced in the sifting and weighing of evidence. In the course of his charge the learned judge, in addition to narrating the effect of the evidence given, related such evidence to the salient points tending to negative consent, but refrained from following a like course with respect to the salient points tending to indicate the presence of consent.
[43] [1965] VR 475.
[44] [1965] VR 745.
[45] [1965] VR 475, 478.
In R v Salih, Harper AJA (with whom Chernov and Nettle JJA concurred on this point) stated:[46]
43. … I accept that the credibility of the complainant was an important, although not the key, issue in the trial. In those circumstances it was in my opinion incumbent upon his Honour to identify for the jury each prior inconsistent statement upon which the applicant relied as indicating that the complainant might be an unreliable witness. It was then necessary for the judge to tell the jury in clear and readily comprehensible language that no previous statement, whether sworn (as in the committal) or unsworn (as in the complainant’s statement to the police), constituted evidence unless the complainant, while giving evidence at the trial, adopted it; but they were entitled — although, because it was a matter for them, not bound — to conclude that the inconsistency, if they found it to be so, reflected adversely upon the complainant’s credit. At the same time, the judge would be entitled to point out to the jury that, for a dishonest witness, the devil is often in the detail, where inconsistencies can catch them out; while the capacity of the most honest witness to recall matters of detail (such as where their hands were at various times during sexual intercourse, whether rape or not) can be adversely affected without that bearing at all on their credit on issues of central importance. Whether this complainant fell into one category or the other was a matter for the jury alone.
[46] (2005) 160 A Crim R 310, 321.
In cases where the credibility and reliability of a complainant is directly in issue (and particularly where there is no corroboration as in the present case), it is very important that the Judge adequately puts the defence case to the jury. In R v B and D, King CJ (with whom Duggan J concurred) stated:[47]
I think moreover that the defence was not adequately put. The essence of the defence, apart from the denials on oath of the appellants, was that Susan had fabricated the story in order to achieve her desire to return to Tasmania. This point, and Susan’s evidence in relation to it, was central to the defence and ought to have been expressly put to the jury by the Judge. In recounting Susan’s evidence, his Honour did refer to her answers in relation to these matters but it was never put to the jury as being the appellants’ defence to the charge. No doubt these points were mentioned by counsel for the defence in the course of the address but they were so essential to the defence as to require express mention in the course of the judge’s summing up of the issues of fact to be decided by the jury.
[47] (1993) 66 A Crim R 192, 196.

Before finally determining the ultimate effect of the above matters on the fate of the appeal, it is necessary to consider ground 3 of appeal.
Consideration of ground 3 of appeal
During the course of the hearing of the appeal, the Court raised the question whether the jury may have gathered from the summing up that their consideration of any one count was restricted to evidence that was directly referable to that particular count, and this led to the addition of ground 3 of appeal reproduced above. Having regard to the actual outcomes on the respective counts here, the relevant question may be put thus: may the jury have gathered from the summing up that consideration of count 2 was restricted to evidence that was directly referable to count 2?
The Judge’s summing up
During the course of the summing up, his Honour stated:[48]
[48] Summing up AB41-43. The paragraphs have been numbered to facilitate reference.
1.It is your obligation to determine the charges strictly according to the evidence. For these purposes “the evidence” consists of what has been said from the witness box along with the various exhibits which have been tendered. What counsel said in their respective addresses does not amount to evidence and what I say about the facts does not amount to evidence either, and in particular what Mr Nitschke said in his opening about the charge on which you have now acquitted the accused does not in any way amount to evidence and must be put aside and totally ignored by you.
2.What counsel said in their questions does not amount to evidence unless the witness adopts the proposition contained in the particular question, and it thus follows that it is always the answers which are the evidence and not the questions.
3.It hardly needs to be said that you must determine the outcome of the charges by a cold, dispassionate, clinical and utterly impartial assessment of the evidence, ignoring entirely any notions of sympathy for, or prejudice against, anybody involved, no matter who and for no matter what reason.
4.If [D] is telling you the truth then she has been the victim of serious crimes and, on the other hand, it is never a pleasant thing to see a man of advanced years with no criminal record on trial for crimes such as these. But be these things as they may, it is essential that you do not allow your determination of the charges to be clouded or influenced by any feelings of sympathy for or prejudice against anybody involved, no matter who.
5.Quite obviously your assessment of [D] will be of critical importance to you and it is probably easier if I explain how you go about assessing her as a witness in general terms unrelated to the case.
6.You are to understand that the evidence of any witness does not necessarily rise or fall in its entirety and it is thus open to you to accept everything that a witness tells you, to reject everything that the witness tells you or to accept part of what the witness tells you as being truthful and reliable and thus worth acting upon, while at the same time rejecting other parts of the same witness’s evidence as being either untruthful, unreliable, or both.
7.Assessing witnesses is really nothing more than a matter of common sense and, without being exhaustive, matters you can take into account include your impressions of the witness while he or she was giving evidence; did the witness strike you as being truthful and reliable? Did the account the witness gave seem plausible, thus having the ring of truth about it? How did the witness stand up to cross-examination? How did the witness’s evidence fit in with the other evidence in the case? How long has it been since the events in question? How old was the witness at the relevant time?
8.What it all boils down to is that what you are concerned with is credibility and reliability in the sense of; is the witness trying to tell you the truth and, if so, does the witness have an accurate recollection of relevant events? So it follows that what you are concerned with in this case is [D]’s credibility and reliability in the sense of; is she trying to tell you the truth and, if so, does she have an accurate recollection of relevant events?
9.As you know, the accused now faces two separate and distinct charges which it is your responsibility to determine. The charges do not necessarily rise or fall together and it follows that your verdict on one charge cannot predetermine your verdict on the other, and it also follows that you must give separate consideration to each charge by reference only to the evidence which is directly relevant to that charge, and you must ask yourselves separately in relation to each charge; ‘Am I satisfied that the evidence presented in relation to this charge proves the charge beyond reasonable doubt or not?’ It follows that it is open to you, if you see fit to do so, to bring in the same verdicts on both charges, or verdicts of guilty of one but not the other.
10.When I come to consider the evidence I will isolate and identify for you the evidence which directly relates to each charge and, indeed, I have already done so earlier this morning.
11.Additionally, and arising out of the need for you to give separate consideration to each individual charge, if you were to be satisfied that the accused was guilty of one of the charges then you would nonetheless be strictly forbidden to reason that just because he had committed that particular offence he is therefore the sort of person who is likely to be guilty of the other charge as well, and I want to make it as plain as I can to you that it would be illogical and wrong for you to engage in any such line of reasoning.
12. Against that background I will now turn to the charges themselves.
(Emphasis added)
After discussing the legal elements of the charges, the Judge returned to the subject of D’s evidence and stated:[49]
13.This brings me to [D]. For obvious reasons the prosecution case on each remaining charge rises or falls with [D] and for equally obvious reasons you cannot convict on either charge unless you are satisfied that [D] is both truthful and reliable in the essential aspects of her evidence in relation to that charge. You will thus have to consider and examine her evidence with the greatest of care and subject it to the closest of scrutiny. As Mr Nitschke so aptly put it, you will have to apply the blowtorch of common sense and human experience to her and her evidence.
(Emphasis added)
[49] Summing up AB44.
The risk in the Judge’s directions
Although unintended by the Judge, the jury may well have understood from the above directions that the correct approach to a consideration of count 2 was as follows:
First, the jury must consider the counts quite separately from each other and must “determine the charges strictly according to the evidence” (paragraph 1). Second, the evidence for these purposes is restricted and isolated to only that evidence which is directly relevant to a particular count under consideration (see paragraphs 9 and 10). Third, the jurors must give separate consideration to count 2 by reference only to the evidence which is directly relevant to, and isolated to, count 2.
The Judge considered that a particularly stringent separate consideration direction was required and accordingly used strong language in directing the jury that they must give separate consideration to count 2 by reference only to the evidence which is directly relevant to, and isolated to, count 2. It followed that when his Honour directed the jury (at paragraph 9 above) that “you must ask yourselves separately in relation to each charge”, the jury may have understood that the evidence they were to consider when deciding whether count 2 was proven beyond reasonable doubt was only “the evidence presented in relation to this charge”. Such a conclusion is strengthened by the words used by his Honour immediately before: “by reference only to the evidence which is directly relevant to that charge” as well as the term “isolate” used in that same context.
The inconsistencies relating to count 1, the count upon which there was a disagreement, have been examined above and need not be repeated. They were clearly capable of adversely affecting both the credibility and reliability of D generally and not just in relation to a consideration of count 1. If jurors had doubt as to the credibility or reliability of D in relation to evidential matters concerning count 1, they may have wrongly thought that they were precluded from taking into account such doubt as to credibility and reliability when considering count 2.
Specific considerations relating to the inconsistencies concerning count 3
When one has regard to count 3, a requirement that the evidence and circumstances surrounding count 3 were not to be taken into account in any way when considering count 2 may well have appeared to the jury to be specifically confirmed by a further passage in the summing up (paragraph 1 reproduced above):[50]
… what Mr Nitschke said in his opening about the charge on which you have now acquitted the accused does not in any way amount to evidence and must be put aside and totally ignored by you. (Emphasis added)
[50] Summing up AB41.
That direction was calculated to protect the appellant from possible prejudice – namely, that engendered by the prosecutor’s opening to the jury on count 3, which included reference to allegations by D which were not in fact made by her in the witness box. However, it was more important that there was here stark evidence that D had failed to give any evidence of a serious and specific allegation which she had previously made and which had been prosecuted as one of the three formal charges laid against the appellant. In the normal course it would have been open to the jury to have drawn the inference from the combination of the evidence given by D in relation to the “cut hand incident” (when she stated in effect that no sexual assault followed that incident) and the opening of the prosecutor (when he stated that a sexual assault had followed that incident) that D had made a statement to the authorities inconsistent with the evidence that she gave on this topic in Court.
The use of a demonstrated inconsistency between the prosecutor’s opening and a witness’ testimony to test the credit of that witness is a traditional and well known process. The extract from Davis and Hyland v The Queen discussed above referred to inconsistencies established on this basis:[51]
… A direction from the judge was required in conjunction with references to evidence; not just of possible inconsistencies between what the woman was then saying and what she had said in April, but also as to any inconsistencies between her evidence and the case as opened to the jury. … (Emphasis added)
[51] (1995) 183 LSJS 186, 192.
There are many authorities in which a similar process has been referred to on appeal.[52] The results of appeals have varied (often in line with the importance or otherwise of the inconsistency in question). What is constant is that this process of drawing an inference that the witness has previously made an inconsistent statement is open to the jury.
[52] Thus, in this Court in G v The Queen [1995] SASC 5019, an appeal against convictions following a trial by Judge alone, Mullighan J (with whom Cox and Olsson JJ agreed) commenced analysis thus: “Having considered all of the evidence, there are, in my view, a number of matters which cause concern. The first is the obvious inconsistency between the prosecution opening and the evidence of the grandson. It is obvious that the allegations made by him out of court which formed the basis of the opening were very different from the extent of the disclosure made in his evidence”.
Other examples include: Walker v Kraft (Unreported, Supreme Court of South Australia, O’Loughlin J, 19 March 1987); R v Carter (Unreported, Supreme Court of South Australia, Lander J, 18 April 1997); Wheeler v The Queen (Unreported, Court of Appeal of Western Australia, Franklyn, Walsh and Ipp JJ, 20 April 1998); Huynh v The Queen [1999] WASCA 45; Jaensch v The Queen [2000] WASCA 212; R v M [2001] QCA 458; Dyers v The Queen (2002) 210 CLR 285, 310 (Kirby J); R v ND [2003] QCA 505 (Holmes JA); Rowney v The Queen [2007] NSWCCA 49 (McClellan CJ at CL); DPJB v Western Australia [2010] WASCA 12.
In some circumstances there will be a positive obligation upon a Judge to direct the jury as to its availability as was the case in Davis and Hyland v The Queen.[53] In the present case, however, the combination of the directions referred to above was likely to give the positive impression to the jury that such a process was unavailable to them.
[53] (1995) 183 LSJS 186, 191-192.
The Judge directed the jury that the prosecutor’s opening “must be put aside and totally ignored by you”. Those words are plain and intractable. They had the unfortunate effect of reinforcing a message that already flowed from the other passages referred to above: namely, that the evidence and circumstances surrounding count 3 could not be taken into account when considering count 2 – and hence that a doubt as to reliability or credibility engendered by that evidence could not be taken into account when considering count 2.
The Markuleski direction
A final matter that may be referred to only briefly is the “Markuleski direction”, which takes its name from R v Markuleski,[54] a decision of the Full Bench of the New South Wales Court of Criminal Appeal. Put shortly, it is a direction to jurors that, if they hold a doubt as to the credibility or reliability of a complainant arising from the circumstances surrounding one count, they ought to consider whether that doubt does (or does not) militate against their acceptance of the complainant’s evidence against the accused on a different count on the Information.[55]
[54] (2001) 52 NSWLR 82. A Full Bench of the New South Wales Court of Criminal Appeal was convened to consider the considerable body of authority that had built up (particularly in New South Wales) concerning two important and related matters. First, the correct approach to a complaint (particularly in the context of sexual cases) that a guilty verdict based upon the evidence of a complainant was unreasonable because of a failure of the jury to convict on another count(s) based upon the evidence of the same complainant. Second, the extent to which a Judge should direct the jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that doubt must/should be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.
[55] Proponents of the Markuleski direction argue that it is generally advisable to give such a direction to guard against the possibility that a jury might not appreciate that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally. Further, it is said that if different verdicts are in fact returned and there is an appeal on the ground of inconsistent verdicts, an appellate court can at least have the benefit of knowing that a jury who has been given a Markuleski direction has had its attention drawn to the matter but has nevertheless determined to give different verdicts. Thus, in The Queen v ARD [2000] NSWCCA 443 [14], Spigelman CJ stated: “If a judge has made an express direction of this kind, an appellate Court will be more confident that the jury has taken into account their own reluctance, for whatever reason, to accept a complainant’s evidence on one charge, with respect to his or her general credit, and applied that assessment to each other charge”. See also per Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82, 145 [258].
However, as appears above, the real concern in the present case is not the absence of such a direction but rather that the jury was given directions which might have been understood as positively suggesting that they could not take into account a reasonable doubt concerning the truthfulness or reliability of D’s evidence in the immediate context of one count when assessing the truthfulness or reliability of the complainant’s evidence in relation to a different count. The present appellant is in a significantly stronger position than if he were seeking to rely on the lack of a Markuleski direction in circumstances where the risk of an incorrect approach was purely hypothetical.
To consider the early development of the Markuleski direction, reference may be made to the decisions of the New South Wales Court of Criminal Appeal in R v Robinson[56] and The Queen v ARD.[57] In the later decision of this Court in The Queen v KWG[58] (decided before R v Markuleski),[59] the Court considered that the direction that later came to be referred to as the Markuleski direction had particular relevance to cases involving uncorroborated evidence. Thus, Lander J stated:[60]
7. Where the complainant’s evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant’s evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant.
8. Indeed, in some cases, it might be appropriate to warn the jury that “there is nothing to distinguish the evidence of a complainant on one charge from her evidence on another charge.” R v ARD [2000] NSWCCA 443 paragraph 9 per Spigelman CJ.
[56] (2000) 111 A Crim R 388, 390.
[57] [2000] NSWCCA 443.
[58] The Queen v KWG [2000] SASC 398.
[59] (2001) 52 NSWLR 82.
[60] The Queen v KWG [2000] SASC 398.
In similar vein, Martin J (with whom Wicks J concurred) also referred to the case of The Queen v ARD[61] and stated:[62]
72. Spigelman CJ said that the Court in RAT was not laying down a general rule that it is not open to a jury to acquit on one charge and convict on another whenever the only direct evidence of the commission of the offence is that of the complainant. His Honour said:
7.    The Court was indicating that where the evidence of a witness in one respect is not accepted on a beyond reasonable doubt standard, there must be a question whether the other evidence by that witness should be accepted on the same standard. This is and remains a jury question and nothing the High Court said in Jones suggests otherwise.
8.    As with many aspects of the process of weighing evidence, a judge may be able to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. The proposition that a reasonable doubt about one aspect of a person’s evidence may, or in some cases should, affect the assessment of the reliability of that person’s other evidence, is in this category.
9.    In some cases it will be appropriate for a trial judge to indicate to a jury that there is nothing to distinguish the evidence of a complainant on one charge from his or her evidence on another charge.
73. I agree with his Honour’s remarks. …
[61] [2000] NSWCCA 443.
[62] The Queen v KWG [2000] SASC 398.
In R v Liddy,[63] (decided subsequent to R v Markuleski),[64] both Mullighan J and Williams J placed importance on this matter of whether the evidence was uncorroborated and considered that the remarks made by Lander J and Martin J in The Queen v KWG[65] could be distinguished on the basis that they were directed to a case of uncorroborated evidence whereas in R v Liddy the evidence was corroborated. Thus, Mullighan J stated:[66]
187. In order to resolve the issues in the present case, it is not necessary to express an opinion about the observations of Lander J and Martin J as to whether directions contemplated by them should, or must, be given in appropriate cases. As the evidence of W, C and D was corroborated and the verdicts were not inconsistent, the question does not arise in the present case.
[63] (2002) 81 SASR 22.
[64] (2001) 52 NSWLR 82.
[65] [2000] SASC 398.
[66] R v Liddy (2002) 81 SASR 22, 69.

Williams J took a similar approach.[67]
[67] R v Liddy (2002) 81 SASR 22, 142-143.
In the still later decision in The Queen v B, P, Doyle CJ stated:[68]
6. The Judge had told the jury, in the usual terms, to consider the evidence on each count separately. He told the jury that they could accept part of what a witness said, and reject another part. I would expect the jury to realise that a doubt about the reliability of the complainant’s evidence on a particular count could be taken into account when considering other counts. In the circumstances of the case, the Judge was not required to direct the jury to that effect, let alone direct the jury that a doubt about reliability on one count must give rise to a doubt about reliability on another count. The present case was not one of those cases that required the trial Judge, in order to give appropriate directions to assist the jury, to give such a direction. On that point it suffices to refer again to what Mullighan J said in Liddy in particular at [190]-[193]. There is good reason not to direct the jury unnecessarily along these lines, because there is a danger of suggesting to the jury that a finding of not guilty on one count should or must lead to the same result on other counts.
7. I do not consider that there is any difference in principle between the views expressed in R v KWG [2000] SASC 398 and in R v Liddy. If there is, it is not necessary to deal with it in this case. This case can be decided by applying well established principles relating to a complaint of inconsistency as between verdicts.
[68] [2006] SASC 229. Vanstone J was generally averse to the Markuleski direction in TheQueen v B, P [2006] SASC 229 and R v Hare [2007] SASC 427.
And in R v Gbojueh, Kourakis J (as he then was) stated:[69]
58. In some cases it may nonetheless be appropriate to direct a jury that they should bear a doubt that they have about the complainant’s evidence in mind when considering the remaining counts. However, whether it is appropriate to do so must depend on whether or not there is a perceptible risk of miscarriage.
[69] (2009) 103 SASR 545, 563.
Further discussion is rendered moot by the particular positive directions in the present case. The decision of the Queensland Court of Criminal Appeal in The Queen v LR[70] has strong parallels with the present case in that directions there also indicated in a positive way that each count must be looked at afresh in relation to the credibility of the complainant. The Judge there directed:[71]
Now you must not adopt the approach here, members of the jury, that you can allow your verdict in one count to affect your determination of another. There are effectively six separate trials going on here. So you would not, for example, consider Count 1 and say, “Well, all right, having considered the matter we’re satisfied that the accused is guilty of that offence” – this is only as an example – “Therefore that has a bearing on what attitude we should take for Counts 2, 3, 4, 5 or 6.” Conversely, if you were not satisfied about Count 1, you would then still nonetheless consider separately the evidence that is forthcoming against the accused in relation to each of the counts ... (Emphasis added)
[70] [2006] 1 Qd R 435.
[71] Quoted in the judgment of Keane JA: The Queen v LR [2006] 1 Qd R 435, 454 [62].
The Court ordered that there be a retrial. Keane JA (as he then was, and with whom McPherson JA and Douglas J concurred) stated:[72]
68. … The jury convicted the appellant on the two counts of oral sex that were expressly argued by the defence to have been consensual. The jury acquitted on those charges that were founded entirely on the evidence of the complainant. One possible explanation for this difference, which cannot be discounted, is that the jury determined that the complainant was telling the truth in relation to some counts but not others. There was no reason for them to make such a distinction unless they were proceeding under the impression that credibility was to be determined anew with respect to each count. That impression, if it was the basis on which the jury acted, was mistaken. That impression could have been encouraged by the direction which the learned trial judge gave. In what was a case where the two versions of events, at least so far as consent were concerned, were diametrically opposed and where the disputed events took place within a short period of time, it was necessary for the learned trial judge to take steps to prevent any such misunderstanding arising from the direction which the learned trial judge gave the jury. (Emphasis added)
[72] The Queen v LR [2006] 1 Qd R 435, 456-457.
As noted above, it is not the bringing in of a not guilty verdict which is significant for present purposes. Rather, it is the effect of the inconsistencies or other defects in the witness’s testimony which led to that verdict, which should be considered in assessing the evidence on the remaining count.
As Keane JA emphasised in The Queen v LR, it is necessary to be sure that the credibility (or lack thereof) of a complainant be assessed in a global way:[73]
66. … The importance of the direction lies in requiring the jury to consider, in a global sense, whether or not they find a complainant to be a witness whose evidence is reliable. What needs to be made clear is that the credibility of the complainant, whether good or bad, is a separate question from that of whether or not an accused should be convicted on each separate count. Finding that the complainant is a credible witness generally should only lead to conviction if the evidence given by that complainant is sufficient to allow the jury to find beyond reasonable doubt that each offence was committed. It may be, that while a witness is regarded as generally credible, there are features of the totality of the evidence on a particular count which could rationally lead to a rejection of the witness’ evidence on that count. It may also be that, while a witness is to be regarded as generally not credible, there are features of the evidence on a particular count which prove sufficient support for the jury to accept the witness’ evidence on that count only. It may also be possible, for example, for a jury to find that a complainant was a credible witness but also come to the view that the account given of a particular incident, while honest, did not amount to reliable evidence that the offence charged had actually been committed.
[73] [2006] 1 Qd R 435, 455, 456.
Conclusion as to grounds 1 and 3 of appeal
It is the duty of a trial Judge to bring to the jury’s attention the significant evidential issues which they must decide. In this case, the Judge told the jury that they could accept a witness’s testimony in whole or in part, and that they might bring in different verdicts on different counts, but he made just a brief observation about a single inconsistency in D’s testimony about count 1. This was a case in which the inconsistencies in both quantity and quality raised as a real question the reliability of D’s testimony as a whole. A direction was required to the effect that, notwithstanding the entitlement of the jury to accept D’s evidence in part, and to bring in different verdicts, the jury was also entitled to take the view that her evidence should be rejected or that it was not a sufficiently reliable foundation on which to return a verdict of guilty on any of the counts.
This appeal is being considered some 50 years after the date of the alleged events and does, unlike R v Liddy,[74] involve evidence of a complainant that is entirely uncorroborated. Despite the effluxion of so many years, the jury was left with a doubt on count 1 and is likely to have been in doubt about the evidence relating to count 3. The Judge’s directions denied the appellant a real chance of acquittal on count 2 by quarantining the effect of the doubts attending D’s evidence with respect to the other counts.
[74] (2002) 81 SASR 22. The cross-admissibility of the evidence of the victims afforded very substantial corroboration in Liddy.
The combination of matters referred to in the context of grounds 1 and 3 above had the cumulative effect of depriving the appellant of a fair trial according to law and a substantial miscarriage of justice has ensued.
In all of the circumstances the proviso cannot be applied.
Consideration of ground 2 of appeal
Counsel for the appellant submitted that the matters to be considered under ground 2 of appeal were limited to the same matters relied upon in relation to ground 1 of appeal.
We have considered the whole of the evidence and performed the required independent assessment of it by applying the requirements referred to in M v The Queen.[75] Notwithstanding the inconsistencies to which we have referred, the assessment of the credibility of D was a matter for a properly directed jury.
[75] (1994) 181 CLR 487, 492-494 (Mason CJ, Deane, Dawson and Toohey JJ).
We find that the appellant has not made out this ground of appeal.
Conclusion
If we had upheld ground 2 of appeal, we would have ordered that a judgment of acquittal be entered. However, we have rejected that ground. The usual order that would be made under grounds such as 1 and 3 is for a retrial. No reason having been advanced to the contrary, an order for a retrial on count 2 will be made.
It is ordered that:
1the appeal is allowed and the conviction on count 2 is set aside;
2a retrial be held on count 2.