R v Mel - [2008] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MEL
[2008] SASC 157
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)
16 June 2008
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES - COURSE OF EVIDENCE - RE-OPENING CASE AND RECALLING WITNESSES - BY PARTIES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appeal against conviction – appellant charged with rape – found guilty by verdict of jury – issue in dispute at trial was consent – prosecution alleged stranger rape – defence cross-examined complainant as to pre-existing relationship with appellant as well as her knowledge of, and attendance with the appellant at, the residences of three named men for the purpose of sexual intercourse – complainant denied knowledge of two of the named men and indicated she may recognise people by face and not by name – two of the named men were later brought from interstate in order to give evidence for the defence – the complainant observed the two men outside the court – she recognised one man – the two men gave evidence, the detail of which was not put to the complainant in cross-examination – prosecution sought to recall complainant to give evidence in rebuttal as to her recognition of the men and in order to address the evidence not put to her in cross-examination – trial judge allowed prosecution to re-open its case – exceptional circumstance – credibility of witnesses in respect to pre-existing relationship highly relevant – rule in Browne v Dunn contravened – prosecution unable to anticipate need for rebuttal evidence – held, trial judge did not err in allowing prosecution to re-open case and call rebuttal evidence – plausibility of complainant’s evidence as to non-existence of relationship with appellant – inconsistencies in evidence of prosecution witnesses – inconsistencies in evidence of defence witnesses – whether verdict of jury is unreasonable or cannot be supported having regard to the evidence – appellate court to make own independent assessment of the evidence, making due allowance for natural limitations of appellate court proceeding on the record – held, no objective factors beyond mere credibility of witnesses which Court could rely upon to find that verdict is unreasonable or cannot be supported having regard to the evidence – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48, s 353(1), referred to.
Darkan v The Queen (2006) 163 A Crim R 80; M v The Queen (1994) 181 CLR 487; The Queen v Chin (1985) 157 CLR 671; Weiss v The Queen (2005) 158 A Crim R 133, applied.
Reid v Kerr [1974] 9 SASR 367; The Queen v Killick [1980] 24 SASR 137, discussed.
Browne v Dunn (1893) 6 TR 67, considered.

R v MEL
[2008] SASC 157
Court of Criminal Appeal: Doyle CJ, Anderson and David JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by David J for dismissing the appeal.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by David J.
DAVID J:
Introduction
The appellant was convicted by verdict of a jury of the offence of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). He now appeals against that conviction.
The prosecution case at trial was that the complainant (whom I will refer to as “C”) was staying at her mother’s house, when on the evening of 28 November 2005 the appellant entered the house and threatened her with a knife, causing her to submit out of fear, to sexual intercourse. It was the prosecution case that though C had met the appellant on one occasion a few years prior to the date of the offence, she did not recognise, nor know him at the time of the offence.
It was the defence case that the appellant had been having an intermittent but ongoing pre-existing sexual relationship with C, spanning over a number of years prior to the alleged offence, and that sexual intercourse on the day in question was consensual and was part of that intermittent relationship.
The central issue at trial was therefore whether intercourse was consensual.
This appeal concerns the manner by which evidence from C was led in rebuttal to defence evidence supporting the alleged pre-existing relationship. It was also argued that the prosecution case was so implausible, and there were such inconsistencies in the evidence presented by the prosecution, that the verdict of the jury was unsafe and unsatisfactory and should be set aside by this Court.
Due to the nature of this appeal, both in terms of the circumstances that gave rise to the evidence being allowed in rebuttal and in terms of plausibility and consistency, it is necessary to set out the evidence at trial in some detail.
Background Facts and Evidence at Trial
C was born in the Sudan. She came to Australia in February 2002 with her aunt and cousins. She refers to her aunt as “mother” and to her cousins as her “brother” and “sisters”. For the sake of consistency I will refer to them in similar terms throughout my judgment. Although C was called “A” at birth, her name was later changed so that the family could distinguish her from her sister, who also had the same name. C has two children, a son born in 2004 and a daughter born in 2006. She gave evidence that she had a relationship with the white Australian father of her two children from 2003 until 2005.
The appellant was also born in the Sudan. He arrived in Australia with his wife and daughter in 2002. He has two brothers in Adelaide, whom I will refer to as “G” and “R”. Prior to migrating to Australia the appellant had spent ten years in Kenya.
C’s Evidence in Chief
In November 2005, C stayed at her mother’s house so that she could take care of her younger siblings (whom I will refer to as “B”, “S1”, “S2” and “S3”) while her mother was interstate. It was established that her “grandma” lived a few streets away, and the children spent most of their time, including meal times, at that house. The family also owned an eight month old puppy at the time.
C gave evidence of her movements on Monday, 28 November 2005. It is unnecessary to go into the detail of what happened earlier in the day, but she returned to her mother’s house at about 6.00 to 6.30 pm. As nobody was there when she arrived, she began walking to her grandma’s house. Along the way, she met her brother B and they returned home. Although neither of them had keys, B was able to get them inside the premises. C then fed the dog and, as she was not feeling well, went to lie down. While she was lying down her sisters S2 and S3 both arrived and disturbed her to inform her that their grandma wanted her to attend dinner. She refused and went back to sleep.
C then gave evidence that she was awoken by footsteps and a male voice saying hello. It was the appellant who had, in fact, entered her bedroom. He told her he was looking for A. C told him to turn on the light and wait in the lounge room. She joined him there and asked him his name. He queried whether she remembered him being her boyfriend back in Africa. She replied that she did not know what he was talking about. C’s sisters S2 and S3 returned from their grandma’s house with some dinner. They greeted the appellant with a handshake and soon left. C kept asking the appellant for his name as she did not know who he was. The appellant said he was R’s “big brother”. C gave evidence that she then remembered meeting him with R in 2003, but she could not recall his name.
There was then evidence of a further conversation between C and the appellant, during the course of which C told him she was pregnant and the appellant made certain offensive remarks about C’s child and personal affairs. C was upset and asked the appellant to leave. He eventually did so, and as he left she noticed he smelt of alcohol.
C then gave evidence that she returned to her bedroom, turned off the light and lay back down on the bed. She had not locked the door. She said the next thing she could remember was feeling the blanket being pulled around her knees by the appellant, who must have returned. C said she “freaked out” and “pushed [the appellant] back with [her] hands on his chest”. She said she was “screaming and … telling him to stop”. The appellant had a knife and threatened her with it, and said that if she screamed he would cut her baby out. C gave evidence that she kept telling the appellant “Please, no”, but he continued to force her to have intercourse by making threats with the knife and by pinning her back into the bed.
C gave further evidence that the appellant ejaculated, but he was then interrupted when he heard B and his friends approaching the house. She gave evidence that when the appellant heard the voices outside he got off the bed and looked out the window. C also said that the appellant told her she deserved to be raped because black people had raised her and she went and gave her “pussy to white people”. This was presumably in reference to the fact that the father of her child at the time was a white Australian. C then gave evidence that she followed the appellant to the front door and heard him telling the boys outside that she was crying because she was drunk. C told the boys to ring the police, and told one of them, whom I will refer to as “AT”, that the appellant had raped her. C gave evidence that she followed the appellant into the street and hit him with a basket.
The police were called, and C was examined at the Women’s and Children’s Hospital that evening.
C gave evidence that while she was with her sister S1 the following day, S1 received a telephone call. C said she recognised the voice on the other end of the telephone as the voice of the man who had raped her. While S1 was still speaking to the appellant, C received a telephone call from the police and she informed them that the man who had raped her was speaking on the phone to S1. The police asked her to attempt to ascertain the location of the caller.
C’s Evidence in Cross-Examination
In cross-examination, the defence case was put to C that she had consented to intercourse and that there was no question of threats or force. She denied that. She was cross-examined extensively about a previous relationship with the appellant, which she denied. It was alleged that during 2003, 2004 and 2005, C and the appellant had had an intermittent sexual relationship. C denied that. She maintained that although she knew the appellant’s brothers and had briefly met him with his brother R in 2003, she had no further knowledge of the appellant. C was further cross‑examined about knowing the appellant when she lived in Africa. It was put to her that the appellant visited her family on a regular basis in 1992. She denied that. It was put to her that her family had moved to a place called Kwangwari in Kenya in 1994, and that they had there lived in the same street as the appellant. She similarly denied this proposition. It was put to her that from 2003 to 2005, she used to meet the appellant at various functions held by the Sudanese community and that there was a sexual relationship. She denied that. Also in cross‑examination, she was asked questions about three Sudanese men, who were eventually called to give evidence for the defence. The specific names and addresses of these men were put to C, as was some other limited detail about the part they played in supporting the alleged pre‑existing relationship. For the purposes of my judgment I will refer to these men as “Mr X”, “Mr Y” and “Mr Z”.
It was put to C that she knew a Mr X from the Sudan. It was put that he had been to her mother’s house with the appellant, and that she had been to his house in Adelaide with the appellant during 2004. She said in cross‑examination that although she knew Mr X through her family, she had not spoken to him during 2004, been to his house, nor seen him with the appellant at her mother’s house.
It was put to her that she knew a Mr Y from a place called Nimule in the Sudan in 1993 and from Kenya in 1996 and had gone with the appellant to his address in Adelaide. It was also put that not only did she go to his address with the appellant for the purposes of having sex, but on at least one occasion they (ie she and the appellant) went with Mr Y to KFC on Henley Beach Road for a meal. She denied those assertions and said she had never heard of a Mr Y.
Similarly it was put that C knew a Mr Z, having met him in Adelaide in 2003 while she was attending the Adelaide Secondary School of English, and similarly, that she used to go to his place with the appellant. She denied that.
At no stage during cross‑examination did the defence present C with any visual aid to the identification of Mr Y and Mr Z, who were both interstate. C was unable to identify them from the detail put as to how she was alleged to have known them, and the part each played in supporting the alleged pre‑existing relationship. It is noteworthy that in re‑examination, C gave evidence that there were some people in the Sudanese community whom she might recognise, but whom she would not know by their name or address.
Other Prosecution Witnesses
The prosecution called C’s brother B, who gave evidence that on the evening in question he came home at about 7.00 pm. C was in their mother’s room sleeping and there was nobody else in the house. B said he was about to leave when he came across the appellant, who asked as to the whereabouts of his mother. B said he had seen the appellant at a couple of the Sudanese community parties and at his house once talking to his mother. B had then left, returning home again at about 8.00 pm. B’s friends, whom I will refer to as “AT” and “BD”, and the appellant, were outside the house when he returned. The appellant was saying words to the effect “your sister is crazy”. When B saw C inside, she appeared to be very upset. He asked C what had happened but she did not respond. B then walked to his room. He gave evidence that he did not remember seeing C chase and hit the appellant.
The prosecution also called B’s two friends, BD and AT. BD said that after the pair had knocked on the door several times, he saw C coming out the front door crying and saying, “Call the cops”. He did not see C chase the appellant.
The other friend, AT, gave evidence that C came out of the house running and screaming and said, “Call the police”. He called the police and he tried to calm her down. C told him “I’ve been raped” and “the guy h[e]ld a knife on me”. He then gave evidence that he heard the appellant say, “What’s wrong with her? She[’s] drunk.” The evidence of what C said to AT was led by way of recent complaint and appropriate directions were given. He also said C was “running around trying to fight” the appellant and followed the appellant across the road to his car. According to AT, when C complained of the rape, B was not yet there.
The prosecution called C’s sister S1. She gave evidence that she and her sisters had left for school before C had left their home on the morning in question. She said that when she returned home at about 9.00 pm on the evening in question, the police, her grandma, an aunty, S2, S3, B, AT, BD and two other boys were there. She said she received a phone call on her mobile telephone at about midnight, while in the presence of a police officer. The caller was a man, who said that he had been to her house and found her sister crying. He said that her sister was saying that he had raped her. A police officer gave evidence that he was with S1 when she received a call, which lasted for approximately 12 minutes, at about midnight on the night of the alleged offence. He said S1 mostly listened to the caller, and spoke in a language he did not understand. After the call ended, the police officer examined S1’s phone and ascertained the number of the last received call. It was an agreed fact that the appellant used his mobile telephone to call C’s sister S1 three times. The first call was on 28 November 2005 at 9.46 pm, the duration of the call being 0 seconds. The second call was on 28 November 2005 at 10.00 pm, the duration of the call being 10 seconds. The third call was on 29 November 2005 at 12.28 am, the duration of the call being 605 seconds.[1] In re‑examination, S1 said that she received another call from the same man the morning after the alleged offence, while she and C were sleeping at their grandma’s house. After listening to the man briefly, she handed her phone to C, who then listened to the caller.
[1] Transcript of Proceedings, R v Mel (DCCRM-06-775, Judge Barrett, 24 January 2008), p 287.
The Defence Case
The appellant gave evidence on oath and called three witnesses. They are the three people that C was cross-examined about concerning the alleged relationship with the appellant. The appellant said that he had known C since first meeting her in 1992 in a place called Nimule in the Sudan. She was then very small and he visited her family there. He said that since moving to Australia in 2002 he had seen C’s grandma every weekend and C’s mother and siblings every fortnight. He said that he had seen, and lived in the same street as C in Kenya, and had seen her regularly since living in Adelaide.
He said that the relationship between him and C became sexual in August 2003. They had met at a party and C agreed to accompany him to Mr Z’s house, Mr Z having given the appellant the key. He then gave evidence that he would see C every time that they were at a party, and they would make arrangements to meet. He said that from January to July 2004 they would go to the house of his friend Mr Y in order to have sex. Afterwards they would go to KFC or Hungry Jack’s and Mr Y would accompany them. He said that Mr Z and Mr Y were the only people who knew about his relationship with C. He also said in evidence that he had used Mr X’s house to have sex with C on two occasions in 2004 while Mr X was not at the house. He gave evidence that he did not see C from July 2004 to May 2005. Once in May 2005 and twice in August 2005 they met and then went to the appellant’s brother’s house to have sex.
The appellant then gave evidence in relation to the alleged offence. He said that he saw C at the Arab Shop and she said she wished to speak to him about “a topic”. He had to pick up his children from church, so they arranged to meet the next evening at C’s mother’s house. He gave evidence that when he arrived nobody was there, so he went to the hotel and bought about two cans of beer. When he returned to the house, C answered the door and her brother B and two of her sisters were also present and greeted him. C told them to go to their grandma’s place, which they did, and she then took his hand and led him into the bedroom where they had consensual sexual intercourse. He denied any question of force or use of a knife. The appellant then gave evidence that after intercourse C told him that she was pregnant and that the baby was his. She demanded that he leave his wife and children and take care of her. He refused and she became angry. He said that there was then a knock on the door and he opened it and let B and his friends inside. He denied that C followed him out of the house and hit him. He gave evidence that at approximately midnight a member of the Sudanese community rang him and informed him of the rape allegation. He then called C’s sister, S1, to confirm the allegation. He did not remember calling her at any other time. In re‑examination, the appellant clarified that although he did call S1 at 10.00 pm, he could not remember actually speaking to her then. He also clarified that he simply had no recollection of dialling S1’s number earlier at 9.46 pm.

As previously mentioned, the defence also called three witnesses. Their evidence went to the question of the alleged pre‑existing relationship.
Mr Z, a 24 year old Sudanese, gave evidence that he arrived in Australia in March 2003. He said that he met C in Adelaide in about August 2003 when C and the appellant visited him at his Anglicare accommodation. He said he saw C at a couple of local parties, met her at a bar when she was a student at the School of English and they sometimes caught a bus together. He said that the appellant and C used his accommodation on more than one occasion, and he knew that she was the appellant’s girlfriend. He said that the last time he saw her was in December 2007 at a Christmas party at the Jamaican Club in the city.
Mr Y is a 22 year old Sudanese who arrived in Australia in March 2003. He gave evidence that he knew both the appellant and C from a place called Nimule in the Sudan in 1993 and from Nairobi in Kenya. He said that he attended the same school as C in the Sudan. He said he had seen the appellant and C together at KFC and McDonald’s in Adelaide a couple of times. He accompanied them to KFC once. He said that both the appellant and C went to his house a number of times between 2003 and 2004 and asked permission to use it for privacy. When cross-examined however, he said that they only used his house once. It was also put to Mr Y that he never knew or saw C in Adelaide. He denied that and added that he had seen her two weeks prior to the trial. He said that C was then living in Lidcombe, Sydney, and had visited his house in Maryland, Sydney.
Finally the defence called Mr X, a 27 year old Sudanese man who arrived in Australia in 2002. He gave evidence that he had known C since she was born. He said that the appellant and C knew each other well. He said that during 2004 he had made arrangements for the appellant to be able to locate a key and use his residence in his absence on more than 20 occasions. However, he said that he never saw C at his residence.
The Prosecution Evidence in Rebuttal
At the end of the defence case, after hearing argument, the trial judge allowed C to be recalled in order to give short rebuttal evidence. Arrangements were made for C to see Mr X and Mr Y outside of the courtroom after they had come from Sydney and after they had given evidence. The purpose of the rebuttal evidence was that although C had been cross-examined about her knowledge of Mr Y and Mr Z, she had not placed the names of these people to any form of visual identification. In other words, although the names may have been meaningless, she may nonetheless have known these people by sight. That matter, according to the prosecution argument, was still unresolved. In addition, she was also allowed to give a short amount of evidence to address the further detail which arose from the evidence of the witnesses Mr Y and Mr Z.
In relation to Mr Y, the trial judge restricted the rebuttal evidence to:[2]
·that C had observed Mr Y outside of court and still did not recognise him;
·that C did not go to school with him;
·that C herself did not go to school at all until 1998 in Nairobi; and
·that C had not seen Mr Y in either Adelaide or Sydney.
[2] Transcript of Proceedings, R v Mel (DCCRM-06-775, Judge Barrett, 30 January 2008), p 453.
In relation to Mr Z, the trial judge restricted the rebuttal evidence to:[3]
·that C had observed Mr Z outside of court and recognised him;
·that C recognised him as someone she had seen travelling on the bus to the Adelaide Secondary School of English in 2003;
·that C also recognised him as someone she had more recently had a conversation with at the Jamaican Club;
·that C’s recollection of their interaction at the Jamaican Club differed to Mr Z’s recollection and how it differed; and
·that C had not seen Mr Z at any time between these occasions.
[3] Ibid, pp 453‑454.
The trial judge did not permit C to repeat any other responses she had given in relation to these men and their allegations during cross‑examination. He discussed with counsel how best to inform the jury and to contain the rebuttal.[4] The prosecutor strictly confined the rebuttal evidence to that which was allowed.
[4] Ibid, pp 455‑457.
Counsel for the appellant objected to the evidence being led in rebuttal, and now appeals against the conviction on the basis that the trial judge erred in allowing it.
In her rebuttal evidence, C said that upon seeing the two men outside of court she could say that:
·She recognised Mr Z as a man she had seen on the bus travelling to the Adelaide Secondary School of English a couple of times in 2003 and had seen at the Jamaican Club on 27 December 2007, where he greeted her by the name of A and asked about her kids. C asked how he knew about her and he said he had caught the bus with her. Apart from these occasions, C had never seen, nor associated with Mr Z at any other time.
·She did not recognise Mr Y from anywhere, nor had she seen or associated with him in Adelaide or Sydney. She gave further evidence that she did not go to school with him, and had not in fact started her schooling until she was about 12 or 13 in Nairobi in 1998. When cross-examined C said that though she did stay at Lidcombe at the time alleged, she did not see Mr Y.
Grounds of Appeal
Ground 1
The learned trial judge erred as a matter of law in allowing the Prosecution to recall the Complainant to give rebuttal evidence.
As I have already indicated, this ground of appeal relates to the decision of the trial judge to allow C to give evidence in rebuttal. She was allowed to give such evidence about her viewing the witnesses Mr Y and Mr Z outside the court. Having viewed these two witnesses outside the court, she gave evidence saying she had never seen Mr Y before, and that she had only seen Mr Z on limited occasions. C was also allowed to give evidence refuting the further detail which was either led from Mr Y and Mr Z, and about which she was not cross‑examined, or in the case of the detail regarding her having seen Mr Y in Sydney, detail which arose from the cross‑examination of the witness after the visual identification that took place in the precincts of the court. That further evidence was ultimately allowed because neither those details, nor any visual aid to elicit those details were put to C in cross‑examination. The detail that had been elicited through the cross‑examination of the witness Mr Y was similarly evidence which the prosecution could not have foreseen, nor earlier addressed.
The appellant argues that the trial judge erred in allowing such evidence to be called in rebuttal. He argues that there were no exceptional circumstances such as to permit evidence to be called by the prosecution after the close of the defence case. He further argues that any confusion about the identity of Mr Y and Mr Z could have been resolved had more specific questioning on the topic been put to C during re‑examination. He argues that the prosecution should have sought an adjournment prior to re‑examination, and (presumably) made arrangements for the two witnesses to be somehow visually identified or not identified, and that this could have all been done before the close of the prosecution case. The disadvantage to the appellant of the prosecution re‑opening their case could, in this way, have been avoided.
The respondent argues that whilst the names of the two witnesses were put to C in cross-examination, she had no way of visually identifying them. There was no connection between the questions asked in relation to those names and the identification of the actual witnesses. At the end of the evidence the jury had no means of determining whether or not C had actually recognised Mr Y and Mr Z, and if she did, whether she would maintain the totality of her earlier denials and refute any or all of the further evidence Mr Y and Mr Z had since themselves given. The only way this could be resolved was by C seeing the witnesses and then being asked as to her recognition of them and their further evidence.
The respondent further argues that it was not within the prosecutor’s power to remedy the circumstances that prevented C from being able to visually observe Mr Y and Mr Z for the purposes of identification prior to the close of the prosecution case. In addition, the evidence that was ultimately led in rebuttal took the matter no further than what was necessary in order to address, firstly, recognition, and secondly, the limited topics alluded to above.
The law governing the entitlement of the prosecution to call evidence in rebuttal after the close of the defence case is now well settled. It is established that the prosecution must present its case completely before an accused is called upon to give evidence, and although a trial judge has a discretion to allow the prosecution to call evidence in rebuttal, it is only in exceptional circumstances that the discretion should be exercised to allow it. Generally speaking, it should not be allowed if the occasion for calling further evidence ought reasonably to have been foreseen. In The Queen v Chin Gibbs CJ and Wilson J said:[5]
The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen; Killick v. The Queen and Lawrence v. The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait) and the need to give it could have been foreseen it will, generally speaking, be rejected. [Footnotes omitted]
[5] The Queen v Chin (1985) 157 CLR 671, 676.
Furthermore, it has been held that one of those exceptional circumstances would be in a situation where the defence have not fulfilled the requirements pursuant to the principle in Browne & Dunn,[6] namely to fully put their case to a witness. As Wells J said in The Queen v Killick:[7]
Another kind of case where rebuttal evidence is likely to be appropriate, and which is encountered far too often in practice, is to be found where one side has failed to comply with the rule of practice and common fairness usually identified by the description “the rule in Browne v. Dunn”. In such a case, it will emerge that one side has failed to put part of its case to a witness, called by the other side, who is concerned with that part, and has then led evidence from its own witness or witnesses as to the matters not put. When this occurs, the party whose witness has been thus wronged usually has the clear right to recall that witness in order to enable him to deal specifically with the matters not previously put to him. [Footnote omitted.]
In Reid v Kerr Wells J similarly explained this type of exceptional circumstance:[8]
[A] judge (or jury) is entitled to have presented to him (or them) issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night…[Footnote omitted.]
It is that principle upon which the respondent now argues that the calling of rebuttal evidence was justified.
[6] (1893) 6 TR 67.
[7] [1980] 24 SASR 137,153.
[8] Reid v Kerr [1974] 9 SASR 367 at 373-374.
In this case the question of the pre‑existing relationship between C and the appellant was a central point in the arguments concerning the credibility of both parties. The two bodies of evidence on that topic were in stark contrast. At the end of the defence case the jury were in a position whereby although the names of Mr Y and Mr Z which were put to C may have meant nothing, there was no certainty as to whether C may nonetheless have recognised them by sight. It was therefore essential for her to have the opportunity to visually identify them.
The prosecutor would only have been able to foresee that two men, whom C could not identify by name or address, may give evidence (as put to C in cross‑examination) for the defence. The need to address the particular matters that were ultimately led in rebuttal could not, without the visual identification and proper warning as to the evidence, have been foreseen by the prosecution.
As the case was presented, it was not really within the prosecutor’s power to remedy the circumstances preventing C from visually observing the witnesses before the close of the prosecution case. They were defence witnesses. In my view, to allow C to be recalled to give evidence of identification, as well as the further detail led by the defence, was appropriate. In my view, this was also fair because her evidence in rebuttal was appropriately short and restricted and did not advance or repeat the evidence she had earlier given. I am also of the view that the topics over and above visual identification which were allowed in rebuttal evidence were justified pursuant to the circumstances as set out by Wells J in The Queen v Killick.[9] The situation was created by the unusual nature of the case, whereby the defence witnesses had to be brought over from Sydney for the trial, and was certainly not the fault of defence counsel.
[9] [1980] 24 SASR 137, 153.
I would reject that ground of appeal.
Ground 2
That the verdict of the jury was unsafe and unsatisfactory.
The appellant argues that the verdict of the jury was unsafe and unsatisfactory. Pursuant to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) he argues that this Court should allow the appeal because the verdict is “unreasonable or cannot be supported having regard to the evidence”.
The test to be applied by an appellate court when considering s 353 of the Act has been set out in a number of authorities, including M v The Queen where the majority said: [10]
[10] (1994) 181 CLR 487, 493.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
In relation to the advantage enjoyed by the jury, the majority further said: [11]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
More recently in Weiss v The Queen the Court said:[12]
The task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.
Similarly in Darkan v The Queen the joint judgment of Gleeson CJ, Gummow, Heydon and Crennan JJ said: [13]
An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.
Applying those principles, the appellant argues that the verdict was unsafe and unsatisfactory because there was no reasonable basis upon which the jury could have dismissed all of the evidence of the appellant’s witnesses about the relationship that was alleged to have existed between C and the appellant. The appellant argues that there was nothing inherently implausible about the evidence of the defence witnesses, nor was there any fundamental inconsistency present in their evidence. He argues that their evidence was so at odds with that of C and fundamental to C’s credibility, that combined with certain inconsistencies in the prosecution case, this Court should find that the jury should have entertained a reasonable doubt, thereby rendering the verdict unsafe and unsatisfactory.
[11] M v The Queen (1994) 181 CLR 487, 494.
[12] (2005) 158 A Crim R 133, 146.
[13] (2006) 163 A Crim R 80, 102.
In addition to that evidence supportive of the pre‑existing relationship, the appellant points out a number of inconsistencies on the prosecution case, namely:
·C’s evidence that all of her siblings were at her mother’s house when she left on the morning of the offence, contrary to S1’s evidence that they had all left for school before C left her mother’s house that morning;
·C’s evidence that B, who was with a friend, let her into her mother’s house on the evening of the offence, contrary to B’s evidence that he was alone and could not remember climbing through the window to gain entry;
·C’s evidence that she had chased and hit the appellant after the rape, an account which was supported by AT, but not supported by B and BD;
·C’s evidence that she was screaming after the rape, contrary to the evidence of AT and BD that they did not hear anything suggesting they should stay;
·C’s evidence that she recognised the voices of eight children walking along the street and that all eight were on the porch when she opened the door, contrary to an agreed fact that there were only two boys at the door;
·C’s evidence that she had told B that he would not urge her to stop hitting the appellant, as B did, had he know what the appellant had been doing, contrary to B’s evidence that he could not remember seeing C hit the man, nor had C answered his questions in relation to what had taken place;
·C’s evidence that she told AT that the appellant had raped her, but acceptance that this was not included in her initial statement, nor told to the prosecutor when she had the opportunity in September 2007; and
·C’s evidence of having had a puppy at her mother’s house, contrary to the evidence that no one else knew, saw or heard a dog at the premises.

The appellant argues that the combination of the defence witnesses’ evidence supporting the alleged pre‑existing relationship and the inconsistencies in the prosecution evidence indicate a verdict which is unsafe and unsatisfactory.
As was noted by counsel for the respondent on appeal, there were similarly inconsistencies and discrepancies in the evidence of the defence witnesses, namely:
·the appellant’s evidence that he had sex with C on a number of occasions at Mr Y’s home, contrary to Mr Y’s evidence that they had asked permission to use his home for privacy on only one occasion;
·the appellant’s evidence that after having sex at Mr Y’s home it was common for Mr Y to accompany them to KFC or Hungry Jack’s, contrary to Mr Y’s evidence that he accompanied them only once to KFC and once to Hungry Jacks and that the KFC occasion preceded their use of his home;
·the appellant’s evidence that he was the one who had picked Mr Z up from the airport upon his arrival in Australia, contrary to Mr Z’s evidence that many Sudanese had greeted him, but social workers had picked him up;
·the appellant’s evidence that he and C would visit Mr Z at his home, contrary to Mr Z’s initial evidence that this occurred only once;
·the appellant’s lack of evidence as to Mr Z leaving a key for him, but the similarity of Mr Z’s evidence in this regard to the evidence of Mr X;
·the appellant’s evidence that he had sex with C at Mr X’s home on two occasions when Mr X was not present, contrary to Mr X’s evidence that they had attended his home in his absence on more than twenty occasions; and
·the appellant’s initial evidence that he only made one phone call to S1, then later clarification in re-examination that he could not remember making the first call, and did not speak during the second call, contrary to the agreed fact that he had called S1 at least three times after the alleged offence.
There were clearly inconsistencies in both cases, and both cases were in stark contrast to one another on the central issues.
In my view, this is a case where allowance must certainly be made for the natural limitations of an appellate court in making its own independent assessment of the evidence for the purpose of determining whether the verdict was unsafe and unsatisfactory. There was a clear conflict between the evidence of C and the appellant, both as to the events on the evening in question and also as to their alleged pre‑existing relationship. There was also clear conflict between the evidence of C and the defence witnesses in regard to the previous relationship between the parties. On the other hand, there was evidence of a recent and, indeed, almost instantaneous complaint. C’s evidence was not inherently implausible. There was no suggestion that her demeanour was unsatisfactory and there was some support for her evidence from the testimony of the boys who observed her outside after the alleged rape. Despite, and perhaps as evidenced by, the inconsistencies in both the prosecution and the defence evidence as outlined above, this is a case which does turn very much upon the credibility of the opposing witnesses. There were no objective factors over and above those matters of credibility which this Court could rely upon to find that it can overcome the natural limitations under which it operates and set aside the jury’s verdict.
I would reject that ground of appeal.
Conclusion
For the reasons given above, I would dismiss both grounds of appeal.