R v P, BR - [2004] SASC 323

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, BR
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
13 October 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against convictions - appellant initially charged on the same Information with 10 counts of sexual offences against 3 girls under the age of 12 years - three separate trials were ordered - at the second trial the appellant was convicted by a jury in the District Court of five counts of unlawful sexual intercourse with a person under the age of 12 years and appeals against these convictions.
Whether proceedings in relation to two counts should have been permanently stayed as an abuse of process as the allegations forming the basis of those counts had been led against the appellant at the first trial.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Whether the learned Trial Judge erred in failing to intervene and disallow the prosecutor's cross-examination of the appellant which the appellant alleges was calculated to demonstrate his guilt of a charge that he had been acquitted of at the first trial.

CRIMINAL LAW - EVIDENCE - SIMILAR FACTS
Whether the learned Trial Judge failed to direct the jury with adequate particularity as to the relevance of the appellant's acquittal of a similar charge at the first trial.

CRIMINAL LAW - EVIDENCE - COMPLAINTS
Whether the learned Trial Judge erred in his directions regarding the evidence of the mother of one complainant as to what that complainant had told her regarding the appellant interfering with her.
Whether the learned Trial Judge erred in failing to direct the jury that they should consider whether the complainant's delay in making a complaint reflected adversely upon her credit.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Whether the learned Trial Judge erred in directing the jury that they should have regard to any evidence they found acceptable of actual collaboration and concoction by the complainants.
Whether the learned Trial Judge failed to direct the jury adequately as to the inconsistencies in the evidence of the complainants.
Whether the learned Trial Judge failed to direct the jury adequately as to the significance of the appellant's mother's evidence as to its capacity to cast doubt on the accuracy and truthfulness of the evidence of the complainants.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
Whether the learned Trial Judge erred in his directions by failing to give a Longman direction.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT
Whether the verdicts are unreasonable or cannot be supported having regard to the evidence.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - COMPETENCE AND COMPELLABILITY - COMPETENCE TO TAKE OATH
Whether the learned Trial Judge erred in permitting the complainants to give sworn evidence at the trial.
Appeal dismissed.

EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Whether the learned Trial Judge erred in permitting sworn evidence from young children - whether the inquiry conducted by the learned Trial Judge under s 9(1) Evidence Act 1929 was defective and inadequate.
Evidence Act 1929 (SA) ss 4, 6(3), 6(5), 9, 12, 34I(6a); Evidence (Miscellaneous) Amendment Act 1999 (SA) ss 5, 12; Criminal Law Consolidation Act 1935 s 353(1), referred to.
The Queen v Storey (1978) 140 CLR 364; Garrett v The Queen (1977) 139 CLR 437; R v Dolan (1992) 58 SASR 501; R v Liddy (2002) 81 SASR 22; Longman v The Queen (1989) 168 CLR 79; R v K (1997) 68 SASR 405; Crofts v The Queen (1996) 186 CLR 427; Jones v The Queen (1997) 191 CLR 439; MacKenzie v The Queen (1996) 190 CLR 348; R v James [1999] NSW CCA 191; R v Kirkman (1987) 44 SASR 591; Osland v The Queen (1998) 197 CLR 316, applied.
R v Carroll (2002) 213 CLR 635, distinguished.
Kilby v The Queen (1973) 129 CLR 460; R v Markuleski (2001) 52 NSWLR 82; MFA v The Queen (2002) 213 CLR 606; Schlaefer v R (1992) 57 SASR 423; R v T (1998) 71 SASR 265; R v Simmons (1997) 68 SASR 81; R v Climas (1999) 74 SASR 411; R v Starrett (2002) 82 SASR 115, discussed.
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458; M v R (1994) 181 CLR 487; R v Whittingham (1988) 49 SASR 67, considered.

R v P, BR
[2004] SASC 323
Court of Criminal Appeal: Mullighan, Nyland and Anderson JJ

MULLIGHAN J: The appellant was found guilty by verdicts of the jury in the District Court of five counts of unlawful sexual intercourse with a person under the age of 12 years. He appeals against the convictions.
Initially, the appellant was charged on the same Information with 10 counts of sexual offences against three young girls aged about nine years. I shall refer to them as K, D and A. It was alleged that these offences occurred between 1 January 1996 and 22 December 2001. In fact, the last offence was alleged to have occurred in the early hours of the morning of 21 December 2001.
At all material times, the appellant was in a de facto marriage relationship with K’s mother from late 1994, when K was aged nearly three years, until about 21 December 2001. They had a son who was born in 1997. It was alleged that whilst they were living together at a house in the northern suburbs, the appellant commenced sexually abusing K. His mother lived at another house in the northern suburbs.
K and D are cousins as their mothers are sisters. D often visited K and stayed overnight at her house. It was alleged that the appellant sexually abused K and D in the presence of each other at the appellant’s home, the home of his mother, R, and at other places. A and K were friends and of about the same age, D is a little younger. A stayed overnight with K at the appellant’s house on occasions and alleged that she saw the appellant commit sexual acts upon K and that on occasions he sexually abused her.
The 10 counts of sexual misconduct may be summarised as follows:
Count 1:The alleged victim is K and it was alleged that between 1 January 1996 and 31 December 1999 the appellant attempted to have unlawful sexual intercourse with her by inserting his penis in her vagina at his mother’s house. No other person was present.
Count 2:The alleged victim is D and it was alleged that between 1 January 1999 and 31 December 2001 K and D were together in K’s bedroom at his mother’s house when the appellant entered the room and put his finger into her vagina.
Count 3:It is alleged that on the same occasion as is alleged in Count 2, the appellant caused K to perform fellatio upon him.
Count 4:The alleged victim is D and it was alleged that the appellant and the family were living at his mother’s house. It is unnecessary to identify the suburb. On an occasion between 1 January 1999 and 22 December 2001, K and D were in a back room and it is alleged that the appellant inserted his finger in D’s vagina in the presence of K.
Count 5:It was alleged that on the same occasion as is alleged in Count 4, the appellant made K perform fellatio upon him in the presence of D.
Count 6:The alleged victim is D. It is alleged that between 1 January 1999 and 22 December 2001, the appellant, D and K were at his mother’s house and whilst he gave them shoulder rides he licked D’s vagina.
Count 7:The alleged victim is D. It is alleged that on the appellant’s son’s birthday on 17 July 2001, D was in the backyard of the house of the appellant’s mother and the appellant inserted his finger into her vagina.
Count 8:This charge involves A. It is alleged that between 1 January 1999 and 22 December 2001 A and K were sharing K’s bedroom at the house. The appellant entered the room, woke them and penetrated A’s vagina with his finger.
Count 9:It is alleged that between the same dates A and K were sleeping in K’s bedroom at the same house. The appellant entered the room and made A perform fellatio upon him and ejaculated into her mouth.
Count 10:The alleged victim is K. It is alleged that in the early hours of the morning of 21 December 2001, the appellant and K were sitting on a couch at other premises in the northern suburbs and the appellant made K perform fellatio upon him. K’s mother was in bed and entered the lounge room and saw what she regarded as possible sexual conduct other than fellatio.
The appellant was presented for trial on this Information before a District Court Judge on 3 March 2003. Before the jury was empanelled, the appellant made an application for separate trials of various of the counts. The Judge ordered separate trials of Counts 1 and 10, which involved only K, Counts 2 to 7 inclusive, which involved K and D, and Counts 8 and 9, which involved only A. The appropriateness of this order is not the subject of this appeal.
It may be seen that Counts 2, 3, 4, 5 and 6 involved either K or D as alleged victims of sexual misconduct and the presence of both of them when such conduct was perpetrated on either of them.
Because of issues raised on this appeal, it is necessary to say something in some detail about the history of the proceedings so far.
Counts 1 and 10 came to trial first before that Judge and jury. The prosecution was permitted to lead evidence of uncharged acts of alleged sexual misconduct by the appellant involving K. The prosecution particularised Count 1 as the first occasion of sexual misconduct by the appellant involving K and Count 10 as the last occasion of such conduct. The jury was informed that there was a long course of conduct by the appellant against K which culminated in the early morning of 21 December 2001. The prosecution opened by saying that this conduct over the years involved different types of sexual behaviour, including touching the outside of the vagina on many occasions, performing oral sex on K, causing her to perform oral sex on him, and vaginal sexual intercourse. The jury was informed that the evidence of the uncharged acts was being led to help the jury understand the true relationship that developed between the appellant and K and to place the conduct alleged in Counts 1 and 10 into context. Evidence was led to establish the history of the sexual behaviour which had been canvassed in the opening. In a general way, this evidence included the conduct embraced by Counts 3 and 5, at least that type of conduct which is fellatio.
The trial before this Judge was aborted on 11 April 2003 because K did not come up to proof on uncharged acts of fellatio and vaginal sexual intercourse, being conduct upon which the prosecutor had opened.
The second trial came before another District Court Judge and a jury commencing on 22 September 2003. This trial was also of the charges set out in Counts 1 and 10. The appellant pleaded not guilty. He was found not guilty of both charges.
The prosecution opened that the trial was about K alleging sexual abuse over a period of years when the appellant was in a de facto relationship with her mother. He said that the appellant had begun sexual abuse of K soon after he began his relationship with K’s mother and that uncharged acts involved the appellant touching and licking her vaginal area, and having her licking and sucking his penis. The jury was informed by the prosecution that the evidence of the uncharged acts was to be led so that the jury could judge the charged acts in the proper background of the circumstances of the relationship between K and the appellant.
Evidence along these lines was given by K and there was no attempt to confine acts of fellatio to acts other than those forming the basis of Counts 3 and 5.
It is necessary to say something about the evidence led at this trial specifically to prove the allegations in Counts 1 and 10. K, who by this time was aged about 11 years, gave evidence. As to Count 1 she said that she was lying on a couch watching television and the appellant lay down behind her. She was wearing a skirt. He pulled her underpants to one side and tried to put his penis in her vagina. She closed her legs and he left the couch and walked away. As to Count 10 she said that after dinner her mother and half-brother went to bed and she and the appellant stayed up watching television. She was sitting on a couch and he sat next to her. She laid down because she was tired and the appellant laid down next to her. The appellant got up and went to the kitchen for a drink and returned. He laid down on the couch behind her. K said that the appellant pulled down his pants and underpants and exposed his penis. She turned around. He put his hand on the back of her head and pushed her face towards his penis and made her commit “fellatio”. She could not say if his penis entered her mouth, but then said that some part of his “willy” was in her mouth. The incident ended when K’s mother came down the hallway and told K to go to her room.
In her evidence the mother said that she saw K and the appellant laying on the couch in the lounge room. The lights were on. She said she saw K pull her hand away from the appellant’s crotch and the appellant lifted his shorts over the top of his penis. She said she did not actually see his penis. She asked what was going on and the appellant did not reply but K said “nothing mum”. K’s mother took K to her bedroom and questioned her and then returned to the lounge room. She said that she asked the appellant what was going on and he said that at least he was not “licking her cunt”. She continued to question him for about 15 to 20 minutes but he said it was best if he did not say anything. However, according to her, at one stage he said, “She aroused me. She wanted it. So I gave it to her.” I need not mention all that happened between them thereafter. It is sufficient to say that K’s mother was very angry and was threatening injury to the appellant with a knife. She required him to ring the police and he did so. The police came and apprehended her because of her threatening behaviour to the appellant.
K said that fellatio occurred not only on 21 December 2001 but whenever he wanted her to do so and she was not sure if there were other people in the house when it happened. She also described multiple acts of cunnilingus. The conduct of fellatio, which was the basis of Counts 3 and 5, was not excluded from this general description. D and A were not called as prosecution witnesses. There does not appear to have been any reason why they should not have given evidence as their evidence could have corroborated the evidence of K, at least as to uncharged acts.
The appellant gave evidence at the trial. He denied all of the allegations of sexual conduct, including fellatio and cunnilingus. As to the alleged incident on 21 December 2001, he said that whilst watching television with K, she told him that she had been sexually abused by two other men who were relatives. He told her that he would have to tell her mother in the morning. He said that later K touched him by placing her hand inside his shorts. He was stunned by her behaviour and almost immediately thereafter K’s mother came to the door.
The jury acquitted the appellant of both counts.
On 10 November 2003 the appellant was presented for trial on Counts 2 to 7 inclusive before another District Court Judge and a jury. As has been seen, these counts related to allegations made by both K and D. For the purposes of the trial, the counts were re-numbered but I shall continue to refer to them by the original numbering. There was no application to sever any of these counts or for a stay of the proceedings.
The prosecutor opened the case on the basis that Counts 3 and 5 alleging fellatio involving K had occurred when D was present.
The appellant was found guilty of Counts 2 to 6 inclusive and not guilty of Count 7. It is the convictions at the second trial which are the subject of this appeal. It may be seen that the appellant had been found not guilty of Counts 1 and 10 at the first trial being allegations of fellatio involving K and of Count 7 which also involved D at this trial.
During the course of the prosecutor’s opening, the jury were informed that over a period of many years the appellant had sexually interfered with K by acts such as touching her on the vagina, cunnilingus and fellatio “on many, many occasions, too many for K to recall in any detail and every incident”. Also, the prosecutor said that a third child A who, as has been mentioned, was the subject of Counts 8 and 9, would testify that she saw the appellant commit numerous sexual acts on K by touching her on the vagina, cunnilingus and fellatio, none of which conduct was the subject of charges as she was not present when the conduct alleged in Counts 2 and 3 occurred.
K gave evidence at this trial of sexual misconduct by the appellant to her which included vaginal sexual intercourse, cunnilingus and fellatio throughout nearly the whole of the period of the relationship between K and the appellant, except for the conduct which was the subject of Count 1 and Count 10 which, as has been mentioned, was alleged to be the first and last occasion respectively. I accept that it is not possible to identify K’s evidence in relation to Counts 2 and 4 involving D. The prosecution relied upon the evidence of D specific to these counts and general evidence of K confirming that type of behaviour which was repetitious of the uncharged acts of fellatio made by K which was the subject of evidence at the earlier trial.
Before the opening of the prosecution, counsel for the appellant indicated the possibility that he might wish to introduce, for limited purposes, the incident of 21 December 2001 and allegations in relation to which had been the subject of Count 10 of which the appellant had been acquitted at the earlier trial. At the trial the prosecutor did not lead any evidence about this incident, however there was extensive cross-examination about it during the course of which K said that sexual conduct occurred. She said that the appellant pushed her head down on to his penis and she did not know whether his penis was in her mouth when her mother entered the lounge room.
Understandably the prosecutor re-examined K as to this incident. There was no objection taken on behalf of the appellant. During the course of re‑examination K said that she had sucked the appellant’s penis but she was not sure if she was doing so when her mother entered the lounge room.
The prosecution called K’s mother and led evidence from her about this incident without objection from the defence. The appellant’s counsel cross-examined her about it in detail and her evidence was similar to her previous evidence. She said she saw K’s hand in the vicinity of the appellant’s groin and him lifting his shorts over what she apparently thought was his penis but she acknowledged that she did not see his penis.
At this trial, it was an agreed fact that the appellant had been acquitted at a previous trial in September 2003 of this charge relating to this incident and also of the charge in Count 1. As has been mentioned, both of these charges related to incidents when K and the appellant were alleged to be alone. It was also agreed that D and A were not called as witnesses. It was submitted on behalf of the appellant at this appeal that the jury could have been left with the impression that these acquittals could be explained by the absence of D and A as the admitted fact did not relate that neither of them were present when the alleged incidents, which were the subject of Counts 1 and 10, occurred.

The appellant gave evidence at this second trial which consisted mainly of general denials of sexual conduct with K and D. He did not give evidence specifically regarding the incidents which are the subject of the charges before the jury, Counts 2 to 7 inclusive, or as to the incident on 21 December 2001. However, he was cross-examined extensively by the prosecutor about the incident on that night. He told the jury that this incident was the beginning of a “web of lies”. He said that K told him about being sexually abused by the other relatives and for no reason put her hand inside his shorts and touched his penis on the outside of his underpants. It was then that K’s mother entered the room.
Grounds 12 and 13
The first grounds of appeal which were argued are Grounds 12 and 13 which complain that the proceedings in relation to Counts 3 and 5 involving K should have been permanently stayed as an abuse of the process of the Court because the allegations of sexual conduct which formed the factual basis of those counts had, in general terms, been led against the appellant at the earlier trial of Counts 1 and 10. The appellant had denied those generalised allegations at the earlier trial and he had been acquitted.
No contention was made to the learned Trial Judge that the prosecution of these counts at the second trial amounted to an abuse of process, but nevertheless, it is submitted, an order staying the trial of those Counts should have been ordered. The learned Trial Judge should have been satisfied that those charges were founded on facts and were the subject of evidence at the first trial in support of Counts 1 and 2.
It was submitted on behalf of the appellant that it was oppressive for the appellant to be tried again for substantially the same conduct, namely the sexual abuse of K, when he had been acquitted of conduct of that nature at the first trial. The prosecution had presented its case at the first trial on the basis that Count 1 and Count 10 were the first and last acts of a wider sexual conduct by the appellant to K. The appellant submits that the prosecution failed in the presentation of that case. At the second trial the prosecution also led evidence of uncharged acts upon K over a long period. The detail lacking in the first trial of the behaviour led in a general sense as uncharged behaviour was supplied by the evidence of D and A to some extent.
The appellant contended that it is immaterial that the conduct alleged at the first trial was not identical with that alleged at the second trial because at both trials the alleged conduct was of the same nature over the same period of time. The jury at each trial had to focus on the same issue.
In R v Carroll (2002) 213 CLR 635 the High Court had to consider whether a charge of perjury against an accused following an acquittal of a charge of murder where the alleged perjury was said to have occurred during his evidence at the murder trial should be stayed as offending the “double jeopardy” rule. It was held that a stay was appropriate because the factual enquiries at the two trials came to focus on the same issue, namely did the accused kill the deceased: Gleeson CJ and Hayne J at 644-645. It is submitted that the same approach should be taken in the present case because the common issue at the trials was whether the appellant had conducted a sexual relationship with K.
I reject this contention. At the first trial, the reason for the verdicts of acquittal is not known. It is possible that the appellant was acquitted of Count 1 because the evidence in support of the allegation lacked precision. This count was the only allegation of penile penetration. All other counts alleged other types of sexual intercourse. In cross-examination K said she could not remember very much about that type of incident. She then said that she could not remember it. She then described one incident and said that the appellant’s penis did not penetrate her vagina very far, only “the top”. She said she could not remember any other occasion but he did so “lots of times” but she could not remember any other specific occasion. It is very likely that the accused was acquitted of Count 10 because the evidence of K and her mother was not capable of proving the fellatio which was the type of sexual intercourse particularised in the charge. It may be that if the jury accepted the evidence of K as to Count 1, they may not have been satisfied beyond reasonable doubt that the conduct of the accused went far enough to amount to an attempt. It may be that the jury simply did not accept the evidence of K to the required standard or that they rejected her evidence. The same must be said about her evidence of the uncharged acts. The jury may not have accepted her evidence because there was no other evidence which corroborated or otherwise confirmed it. There may be other reasons.
At the second trial the evidence of K as to sexual conduct of the appellant to her was corroborated by D as to Counts 3 and 5. Also, the evidence of K as to many uncharged acts was corroborated by D. It is possible that the jury did have a doubt about the evidence of K as to the uncharged acts for the reasons I have mentioned. It is also possible that the jury did not feel it was necessary to reach a conclusion about the uncharged acts because of the view it took about the factual basis of Count 1 and Count 10. I also reject the contention that if the jury was satisfied beyond reasonable doubt, the acquittals on Counts 1 and 10 would have been perverse. There are explanations for the two acquittals which I have mentioned. In The Queen v Storey (1978) 140 CLR 364 Barwick CJ made the following observation about a verdict of acquittal at 372:
“The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal.”
Also it was submitted by the appellant that it was oppressive to present the appellant for a trial which was essentially a repeat of the first trial, the only essential difference being that D and A were not called to confirm K’s evidence of the uncharged acts. I also reject this submission. The prosecution presented its case at each trial because of severance and separate trials of counts upon the application of the appellant. Common sense required that the evidence of the uncharged acts be placed before the jury at the first trial so that the evidence directly relating to Counts 1 and 10 could be placed in the context of the nature of the relationship between K and the appellant. Further it was submitted that it was oppressive to present the accused for trial after the appellant had been acquitted on the first trial and the earlier trial was aborted. None of these matters establish oppression in the relevant sense.
Also, the appellant contended that in the interests of finality, the first unsuccessful prosecution should have been the end of the matter so far as allegations involving K are concerned and the verdicts in the two trials give rise to conflicting judicial decisions tending to bring the administration of justice into disrepute. In Carroll it was acknowledged “that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal”: see McHugh J at 670. His Honour went on to say at 672:
“Policy considerations that go to the heart of the administration of justice and the retention of public confidence in the justice system reinforce this rationale. Judicial determinations need to be final, binding and conclusive if the determinations of courts are to retain public confidence.” (citations omitted)
The ultimate issue in the first trial was whether the prosecution had proved beyond reasonable doubt all of the elements of the offences charged in Counts 1 and 10. The ultimate issue in the second trial was whether the prosecution had proved beyond reasonable doubt the elements of the offences charged in Counts 2 to 7 inclusive, which included Counts 3 and 5. The ultimate issues at the two trials were different. At the first trial the alleged misconduct involved K alone on occasions specified as the first and last occasions of sexual misconduct towards her and at the second trial it involved different incidents when both K and D were present. There is no inconsistency between the verdicts at the two trials and the finality obtained by each of them does not undermine public confidence in the justice system.
In my view, there was no basis to stay the prosecution of Counts 3 and 5 which involved K. As there was no basis to stay any of the charges at the second trial, it is unnecessary to consider whether the learned Trial Judge should have given consideration to the matter in the absence of any application for a stay by the applicant. Also, I reject the contention of the appellant that any evidence of sexual misconduct towards K should have been excluded at the second trial. That evidence was relevant and probative regarding the allegations involving D as well as Counts 3 and 5, involving K.
In my view, these grounds of appeal should be rejected.
Ground 3
The next ground of appeal argued was Ground 3, which complains that the learned Trial Judge at the second trial erred by failing to intervene and disallow cross-examination of the appellant by the prosecutor which, it is said, was calculated to demonstrate his guilt of the charge in Count 10 of which he had been acquitted at the first trial. I have mentioned that evidence of the events of 21 December 2001, which were the subject of Count 10, were introduced in cross-examination of K by the appellant’s counsel and were the subject of re‑examination by the prosecutor and were the subject of cross-examination of the appellant by the prosecutor.
The relevant principle is expressed by Barwick CJ in Garrett v The Queen (1977) 139 CLR 437 at 445:
“The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible.”
In Storey, Mason J referred to Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 and Garrett and said at 396-397:
“Both these decisions establish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognized fully and without qualification for all purposes in criminal proceedings. It is therefore not to the point that in the instant case evidence was adduced on a charge of rape, not on a charge of abduction, a matter on which the Crown relied heavily, proceeding as it did upon the erroneous footing that res judicata applies only when the accused is charged with an offence of which he has been acquitted or with an offence which is substantially similar to the offence of which he has been acquitted. The argument advanced by the Crown, though it accurately reflects the limitations attaching to res judicata in civil proceedings, does not concede to it the special operation which it has been given in criminal proceedings in the cases to which I have referred.”
Gleeson CJ and Hayne J made the following observation in Carroll at 650:
“The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial. (Hence the decisions about what standard of proof is to be applied in civil cases in which a crime is alleged.)” (citation omitted)
McHugh J acknowledged admissibility of such evidence in some circumstances. He said at 675-676:
“In some cases, evidence concerning a charge on which the accused has been acquitted may be admissible because it may be impossible to separate it from the evidence relevant to a charge in a subsequent case. But even though the evidence concerning the acquittal is admissible, the jury must be directed that the previous acquittal cannot be challenged and that the evidence must not be taken as proving guilt on the earlier charge.” (citations omitted)
It seems clear that at the second trial defence counsel introduced this topic of evidence to discredit K. His cross-examination of her established her allegation that the appellant had caused her to perform fellatio on a specified and identifiable occasion. The appellant’s version of these events given at the first trial was put to her, namely that she spontaneously put her hand down his shorts and it was put to her that the allegation of fellatio was fabricated by her when she spoke to the police because she was told that her mother had been taken away by the police. I have mentioned the agreed fact that the appellant was acquitted on this charge.
Having considered the transcript of the evidence of the cross-examination of the appellant, it is plain that the prosecutor was not attempting to contradict the verdict of acquittal but to challenge the appellant’s version of the incident which his counsel had put to K. The prosecutor did not suggest to the appellant that he had committed this offence.
In my view, the cross-examination of the appellant was appropriate in the unusual circumstances of the topic of the alleged incident on 21 December 2001, having been introduced into the trial by the appellant, including the appellant’s version of the incident. If the prosecutor had not challenged that version, the jury would have been entitled to assume that K had been discredited and that the appellant’s version of the incident was very likely true because of the acquittal. As the evidence adduced in the cross-examination had this limited purpose, the cross-examination was not calculated to demonstrate the guilt of the appellant of the charge which was the subject of the acquittal.
The prosecutor, in her closing address, reminded the jury about the acquittal and told them that they were not permitted to consider that the offence charged in Count 10 had been committed.
I would reject this ground.
Ground 4
Ground 4 complains that the learned Trial Judge failed to direct the jury with adequate particularity as to the relevance of the acquittal of the appellant of Count 10 at the first trial. The learned Trial Judge reminded the jury of the verdicts of acquittal at that trial. He said that the allegations, which were the subject of the charge, could not be used by the jury as any evidence of misconduct whatsoever against the accused. He went on to say that they were the subject of a verdict of acquittal “and it is not permissible for you to regard the accused as anything else but innocent of those allegations”. The complaint is that the jury was not given any assistance as to the permissible use of the evidence of K and her mother on this topic.
In my view, the jury was specifically directed that the appellant must be regarded as entirely innocent of the two charges and was to be given the full benefit of the acquittals: Storey per Barwick CJ at 370 and 375, Gibbs J at 390, Mason J at 398, Aitken J at 425.
The direction as to the significance of the acquittals was adequate but the question remains whether the learned Trial Judge should have given directions about the permissible use of the evidence adduced in cross-examination of the appellant. After careful consideration I have concluded that whilst some specific direction about this matter could have assisted the jury, the failure to do so did not amount to a misdirection or cause a miscarriage of justice because the jury was directed as to the significance of the acquittals as I have mentioned and also that the evidence of uncharged acts could not be used by the jury unless they found that it had occurred. Also, there was an appropriate propensity direction. These directions made it clear that the jury could not reason that because of any conduct on the part of the appellant on 21 December 2001, he could be guilty of any of the counts which were the subject of the second trial.
This ground should be rejected.
Ground 5
The fifth ground of appeal relates to directions given by the learned Trial Judge regarding evidence of what D told her mother. As has been mentioned, D’s mother and K’s mother are sisters. On 21 December 2001 D’s mother had gone to the police station, spoke to a police officer and then had taken her sister home. She was aware of the allegations concerning the appellant and K. She was concerned about D because she had stayed at the home of the appellant and her sister on many occasions. On the way home, she and D were alone in the car. She told the jury that she spoke to D about her fears that the appellant may have interfered with her. She asked her if the appellant had interfered with her and D said “No”. Her mother then said that she would not be angry with her if she told the truth, but she would be angry if D lied to her. D then said, “Yes, a million times he’s touched” and then sobbed in her mother’s arms.
This evidence was led from D’s mother in evidence-in-chief. No such evidence was led by D. She gave evidence before her mother and what was said by D to her mother was first raised when she was cross-examined. She said that she told her mother about the appellant touching her before she went to the police station. A little later she said that she had spoken to her mother about it once. She said she could not remember but she may have spoken to her mother about it on three occasions and she had spoken to her aunt, K’s mother, about it but could not remember how many times.
I accept the submission on behalf of the respondent that the evidence from D’s mother was not led as evidence of a recent complaint but because of the evidence adduced in cross-examination of D. The purpose was to explain how her allegations came to the attention of the police. The circumstances in which she made the response to her mother were relevant to her credibility given the matters having been introduced in cross-examination. It tended to rebut the suggestion that her report to the police was something of her own doing as part of a scheme arranged with K. In my view, the evidence of D’s mother was admissible for those purposes.

The learned Trial Judge directed the jury in terms of this evidence being evidence of “complaint”. He went on to say:
“In sexual cases evidence can be led of a complaint on the basis that it would be expected that someone who had been subjected to some sexual trauma would complain and complain promptly about it. Of course here [D] has told her mother much later and after her mother’s insistent inquiry, but it still is a complaint.
I need to tell you that the fact of the complaint cannot be used by you as evidence of what actually occurred. A complaint itself does not prove the truth of the event complained of. Rather, it is [D’s] evidence in this case which is the primary focus of your attention. The evidence of what she said to her mother can be used by you to indicate her consistency. That is what she has told her mother is consistent with what she has told you here in court. That is, you can use it to reinforce the credibility or believability of what she’s now told you.”
This direction, although brief, is a typical direction about the purpose of evidence admitted as evidence of recent complaint. However, it was not evidence of recent complaint. It was elicited by D’s mother in the context of K having made a complaint. It was not correct to tell the jury that it was evidence of complaint which could be used to indicate consistency. It could only be used for the purpose which I have mentioned.
However, as has been seen, the learned Trial Judge did direct the jury that the evidence could not be used as evidence of what actually occurred. It could not prove the truth of what happened.
Whilst I think the direction about consistency and credibility was not appropriate, I do not think the jury could have been deflected from their task. The evidence being admissible to show the circumstances in which D spoke to the police and to negate concoction with K, it was relevant as to consistency and credibility in that sense.
I do not think there is any possibility of a miscarriage of justice because of this direction and I would reject this ground of appeal.
Ground 6
The complaint in the sixth ground of appeal is that the learned Trial Judge failed to direct the jury as to what use could be made of offences described by each of K and D in respect of offences described by the other.
The learned Trial Judge gave directions as to the use which could be made of evidence relating to uncharged acts. He begun his directions on this matter by explaining that, generally speaking, other unlawful conduct is not admissible in proof of an alleged offence. A person is not to be convicted upon evidence of mere disposition and propensity to commit a crime based upon other unlawful conduct. He said:
“The rationale is simple. If there is other offending then that should be charged. So generally speaking, a person should be tried on evidence relating to the offences charged against him and not on evidence relating to past or other conduct.”
He went on to say that there are exceptions and gave the following direction:
“You can use this evidence of other criminal conduct in deciding guilt of the accused in respect of the six charges in the following ways if you accept that what has been said about this conduct is true:
hfirst, it is evidence that the six offences were not isolated but were part of a continuous pattern of sexual abuse, such that it would make it believable or understandable that the children would not complain because it had become a common place occurrence;
hsecondly, it is evidence that the accused was sexually attracted by the children; [D] and [K];
hthirdly, the pattern or course of such conduct is evidence which may explain the ongoing submission or silence of the children as part of perhaps feelings of guilt. It is notable that [K] said that she would not tell because her mum would have been angry;
hfourthly, such an established course of misconduct is evidence which would explain the confidence the accused must have felt in sexually handling the girls in close proximity to family members and other people because there was already in place an established code of silent submission and he could count on that continuing.
So, members of the jury, that is a list of purposes to which you can put to what I have called the uncharged conduct.
It is impermissible to use it, however, in these ways, or as to its impermissible use I tell you the following three things:
hfirstly, you should not use this other conduct in the way I have suggested unless you are satisfied that it has been proven to have occurred, albeit that there is no precision about the detail of time, for instance;
hsecondly, you should not reason that as the accused has perpetrated this other conduct, if you find he has, that he is therefore likely to have committed the offences charged. I am there telling you, ladies and gentlemen of the jury, that just mere propensity is not enough. The uses which I have described are the only uses which you can put the uncharged conduct to;
hthirdly, you need to remind yourself the accused cannot be convicted of the offences charged here or any of them unless in the end you are satisfied of his guilt of those offences or any of them beyond reasonable doubt.”
The learned Trial Judge went on to say that the appellant could not be convicted of the offences charged unless the jury was satisfied beyond reasonable doubt of his guilt of those offences or any of them.
The complaint is that the learned Trial Judge did not give a direction as to the permissible and impermissible use of the evidence of offences relating to the other complainant. Also, the appellant complains that the learned Trial Judge did not give any directions about the interaction of the alleged sexual behaviour described in relation to one complainant in respect of such behaviour in relation to the other complainant.
Undoubtedly, the learned Trial Judge was required to give such directions in the circumstances of the case as to the permissible and impermissible use of the evidence: R v Dolan (1992) 58 SASR 501 per King CJ at 503 and R v Liddy (2002) 81 SASR 22 at 84. Counts 2 and 3 were alleged to have occurred on the same day when both girls were present as were Counts 5 and 6. The evidence of each girl was direct evidence as to the commission of each of those offences in relation not only to her but to the other girl. I think the directions given by the learned Trial Judge would have been more complete if he had told the jury that the evidence of each of the girls was probative to each of those charges. I do not think the omission to do so was a misdirection in the circumstances. A little earlier in the summing up, the learned Trial Judge made it plain to the jury that there were six charges to consider. Each of them alleged a separate offence and each charge had to be considered separately and independently. He went on to say that it did not follow that simply because the jury may reach a conclusion about one count, the same conclusion had to be reached about the others. He directed the jury that the charges did not stand or fall together.
The combined effect of all of these directions made it plain to the jury that they could not use evidence of sexual misconduct unless being satisfied that it occurred beyond reasonable doubt that each charge had to be considered separately and that propensity reasoning was impermissible. Clearly, the jury would have regarded the charges involving one girl as in the nature of uncharged acts when considering the charges involving the other girl. The verdict of acquittal on Count 7, which involved only D, suggests these directions were applied.
It was also submitted that the jury should have been directed that if they did not accept the evidence of one girl as to a particular incident beyond reasonable doubt, they should ignore it when considering another incident. I think that direction was implicit in the directions which were given.
I would reject this ground.
Ground 8
The eighth ground of appeal is that the learned Trial Judge should have directed the jury that they should consider whether delay in the making of complaints by either K or D reflected adversely upon their credit. As has been mentioned, the conduct involving K allegedly occurred on occasions between 1 January 1996 and 21 December 2001 and the conduct involving D allegedly occurred between 1 January 1999 and before 21 December 2001. The particulars in some of the charges alleged conduct as late as 31 December 2001, but there was no alleged misconduct after the incident on 21 December 2001 charged in Count 10. However, the incidents, which are the subject of Counts 1 and 2, were alleged to have occurred at his mother’s house and it was an admitted fact that the accused and his family went to live there on 18 September 1999.
As has been mentioned, K and D disclosed to others the conduct relating to them after the incident on 21 December 2001. When these disclosures were made, the oldest of the incidents occurred about two years previously. A did not disclose any sexual misconduct by the appellant to her until 18 January 2002 when interviewed by a police officer.
The learned Trial Judge reminded the jury of the periods of time particularised in each count as to when the charged acts were alleged to have occurred. He then said:
“Delayed complaints, members of the jury, such as these, have the potential of depriving an accused person of the opportunity adequately to test the allegations. In particular an accused is deprived of the opportunity, for instance, to locate and canvass potential witnesses and himself precisely to recollect what he may or may not have been doing on the occasions of the alleged offending. The accused, in this case, has lost that opportunity.
What may have transpired if the complaints had been made promptly and he had that opportunity cannot be known. Certainly he has not raised anything about this in his defence. But it may be, by reason of the delay, he has not even been able to identify what opportunities existed for him to contest the allegations, let alone complain that those opportunities have been lost to him. Accordingly, he has merely denied the charges.
The delay, and the problems which attend upon it, such as I have just outlined, are made worse in this case by the fact that the occasions of the alleged offending, save for count 6, are, whilst identified, are identified within a broad time frame.”
He then directed the jury that the prosecution case was substantially, although not wholly dependent upon the evidence of D who could have been as young as five years at the time of the first incident and was seven years old at the time of the last incident. He said that care was required in weighing up of the evidence of such a young child. The learned Trial Judge then gave the following direction:
“So, given those factors, and in particular that the evidence of [D] could not be adequately tested due to the passage of time, I tell you that it would be dangerous to convict the accused unless, after scrutinising the evidence with great care and paying heed to this warning, you were, nonetheless, satisfied of its truth and accuracy.”
The learned Trial Judge then directed the jury that in undertaking careful scrutiny of D’s evidence, they must take into account the support which D’s evidence received from K and from A who also gave evidence of sexual incidents which were not charged, the evidence of each of the three girls that the delay in complaining was due to threats by the accused and, with respect to K, that when she made earlier complaints against the appellant back in 1997, she was disbelieved by her mother. Also, the learned Trial Judge directed the jury that in the exercise of careful scrutiny, they would have regard to evidence which they found acceptable of actual collaboration and concoction by the girls, any material inconsistencies in their evidence and the evidence of the accused and his mother.
I mention s 34I(6a) of the Evidence Act 1929:
“(6a) If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must -
(a) warn the jury that the alleged victim's failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b) inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.”
This provision was introduced as from 27 June 1999 by s 12 of the Evidence (Miscellaneous) Amendment Act 1999. No directions were given to the jury pursuant to this provision but the failure to do so was not detrimental to the interests of the appellant.
The principal complaint of the appellant is that the learned Trial Judge did not give what is known as a Kilby direction. In Kilby v The Queen (1973) 129 CLR 460 the High Court considered the significance of absence of complaint and held that it was relevant to the credibility of the complainant depending upon the particular circumstances: per Barwick CJ at 472.
At any criminal trial the trial Judge must give appropriate directions to assist the jury in the performance of their position as judges of fact: Longman v The Queen (1989) 168 CLR 79 per Deane J at 95. His Honour went on to say that this “responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury”: at 95-96.
In the context of delay the position is concisely discussed by Doyle CJ in R v K . He said at 409:
“It is established that delay by the victim in complaining of sexual misconduct, in a case involving a charge of sexual misconduct may, although it does not necessarily, cast doubt upon the reliability of the evidence given by the complainant. Everything depends upon the circumstances and the explanation for the failure to complain sooner: see Crofts v The Queen (1996) 186 CLR 427 at 433-434 per Dawson J, and at 447-448 per Toohey, Gaudron, Gummow and Kirby JJ.
Delay in making a complaint goes only to the credibility of the complainant. It does not go to disprove the facts of which the complainant gives evidence.”
As was pointed out by Dawson J in Crofts at 434:
“Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or the delay.”
See also Toohey, Gaudron, Gummow and Kirby JJ at 448.
In R v Markuleski (2001) 52 NSWLR 82, Spiegelman CJ accepted that in cases involving delay (in that case the delay was 20 years), some form of direction assisting the jury in this respect should be given but went on to say at 121-122:
“Its absence is not necessarily fatal (as it was not in R v Davies itself [(1985) 3 NSWLR 276 at 278]. Furthermore, as the joint judgment in Crofts affirmed the ‘general rule’ does not apply ‘where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore the balance of fairness’” (at 451).
See also Wood CJ at CL at 132-133 and Simpson J at 146-147.
The delay in the present case from the first incident of sexual misconduct until the disclosure was made was less than two years and was almost immediate upon the incident on 21 December 2001 when K’s mother believed she had seen sexual impropriety. All three girls were very young. The appellant was a step-parent to K and, in effect, a person in authority to the other girls when they were in his presence. He threatened each of them. K had complained to the mother about sexual misconduct by the appellant to her in 1997 but she was not believed. In all of these circumstances the failure to complain at an earlier time was understandable and did not necessarily reflect adversely on the credibility of the girls or any of them.
I think it would have been preferable for the learned Trial Judge to have said something about the failure of the girls to have complained about the conduct of the appellant at an earlier time, but in doing so he would have had to have given a balanced direction and complied with s 34I(6a) and, in the circumstances, an adverse view about the credibility of the girls. I do not think the failure to give further directions is a matter of consequence.
This ground should be rejected.
Ground 9
The appellant complains that the learned Trial Judge failed to give an adequate direction in view of the delay as required by the decision in Longman. I have mentioned the extent of the delay which, in my view, did not require any directions other than that which was given.
The earlier part of the directions, which I have mentioned, was expressed in general terms and applied to the delay between each of the three girls disclosing the appellant’s conduct to them and the trial. It is true that the learned Trial Judge did direct the jury that the prosecution case was substantially reliant upon the evidence of D and he gave specific warning about her and her evidence. However, the importance of that direction, when considered in total, could not have been lost on the jury when considering K and A and their evidence. As has been seen, he mentioned the evidence of the three girls in the context of delay. Also, he mentioned the evidence that K’s earlier complaint had been rejected by her mother. Lastly, in this context, he mentioned the evidence of all of the girls in the context of collaboration, concoction and inconsistencies.
I have doubts that there was a need for a Longman direction based upon delay in view of the relatively short period of delay, but such a direction was given and it was adequate in the circumstances even though a specific warning was not given regarding K and A.
This ground is rejected.
Ground 10
It is submitted by the appellant that the learned Trial Judge erred in directing the jury that they should have regard to any evidence they found acceptable of actual collaboration and concoction by the girls. I have earlier referred to this passage in the summing up. The complaint is that the learned Trial Judge reversed the onus of proof.
This direction, if considered in isolation, was inappropriate because if the jury concluded that collaboration or concoction was a reasonable possibility, then such an explanation of their evidence favourable to the appellant, and potentially consistent with his innocence, would not have been disproved by the prosecution. The jury did not have to go as far as finding the evidence to be acceptable. However, the direction had to be considered in the context of the summing up as a whole.
First, it has to be considered in the particular context in which it was given. As has been seen, it was given in the context of the exercise of careful scrutiny of D’s evidence and, as I have said, would have been accepted by the jury as scrutiny of the evidence of all of the girls. Secondly, it was given in the context of the direction that, if after heeding the warning, the jury was satisfied nonetheless of the truth and accuracy of D’s evidence, they could act upon it. Thirdly, the direction was given in the context of other directions which related to the onus of proof. At the beginning of the summing up, the learned Trial Judge directed the jury that the burden of proof was on the prosecution and the appellant did not have to prove anything. Towards the end of the summing up, the learned Trial Judge reminded the jury of the submission of defence counsel which included “that children can lie”, that the jury had been invited “to consider “that lying, collaboration and concoction had occurred or at least it was a reasonable possibility and therefore the charges will not have been proven beyond reasonable doubt” (emphasis added). The learned Trial Judge then again correctly directed the jury as to the burden of proof.

When all of these directions are considered together, I do not accept that the learned Trial Judge reversed the onus of proof. There could be no doubt that the jury had been adequately and correctly directed about that matter, including in the context of the question of collaboration and concoction of the girls.
This ground must be rejected.
Ground 11
The appellant contends that the learned Trial Judge failed to direct the jury adequately as to the inconsistencies in the evidence of K and D.
The learned Trial Judge reminded the jury of the defence case that all three girls had lied and had necessarily collaborated and concocted the allegations against the appellant. He said that the reliability and credibility of a witness can be attacked by establishing that their evidence in court is inconsistent with what they have previously done and said.
The complaint is that the learned Trial Judge should have reminded the jury of the particular inconsistencies.
In the summing up, the learned Trial Judge did not do so, but only reminded the jury that the defence sought to establish that because of the inconsistencies the girls were unreliable and lacked credibility. Also, he reminded them of the prosecutor’s submission that any inconsistencies were a healthy sign that the girls had not colluded. However, the learned Trial Judge did not go through the evidence and remind the jury of the evidence of inconsistencies.
The trial occupied eight days. The addresses of counsel occurred on the seventh day and the summing up and the verdicts occurred on the last day. I do not think that in the circumstances there was an obligation on the part of the learned Trial Judge to point out any inconsistencies in the evidence. He was under an obligation to give directions of the significance of any inconsistencies and he did so.
I would reject this ground of appeal.
Ground 1
The appellant complains that the verdicts of the jury are unsafe and unsatisfactory and against the weight of the evidence which would be more accurately expressed as unreasonable or cannot be supported having regard to the evidence: s353(1) of the Criminal Law Consolidation Act 1935 and MFA v The Queen (2002) 213 CLR 606 at 612-613, 616. In that case the High Court accepted the test as expressed in the earlier case of M v R (1994) 181 CLR 487 at 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 or 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 is the body entrusted with the primary responsibility of determining guilt or innocence, or 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.” (citations omitted)
It is submitted by the appellant for various reasons that it was not open to the jury to find him guilty of Counts 2 to 6 inclusive.
The first is that the appellant contends that the verdict of acquittal of Count 7 was inconsistent with the verdicts of guilty of the other counts. In the notice of appeal it is claimed that the verdict on Count 7 was inconsistent with the verdicts of guilty on Counts 2, 4 and 6 but on the hearing of the appeal the contention was extended to include all of the counts in respect of which guilty verdicts were returned.
In order to appreciate the submission, it is necessary to say more about the evidence which was led in relation to Count 7. The prosecution case was that on the occasion of the fourth birthday of K’s brother B, the appellant had taken D from her home to his mother’s home. She was in the back room of the house. D said to the jury that she said that the appellant were sitting on a lounge and he showed her pornographic magazines which included women performing acts of fellatio on men. B was playing a game called Nintendo. He did not leave the room at any time. D said that the accused pulled down clothes she was wearing and put his finger in her vagina.
This was the early occasion when the appellant sexually abused D which is the subject of a charge when K was not present.
The appellant’s mother and her male partner gave evidence. She said that the appellant did not take D to her house and that her parents had done so. They arrived only about 15 minutes after the appellant went to the house. She also told the jury that the back room of her house was visible from the kitchen. The effect of this evidence, if accepted as a reasonable possibility, was to limit, if not negate, the opportunity for the appellant to have sexually interfered with D as alleged by her.
It was submitted by the appellant that there is little to explain this verdict of acquittal other than the reference to the evidence of the appellant’s mother and the jury must have entertained a reasonable doubt about the truthfulness of D’s evidence about the alleged incident on the occasion of B’s birthday. D’s evidence was central to all counts and the verdict of acquittal necessarily means that there was a rejection of D’s evidence relating to Count 7 and consequently her credibility was damaged in relation to all counts: see Jones v The Queen (1997) 191 CLR 439 at 455.
In R v Liddy (2002) 81 SASR 22, at 54-56, I had occasion to review decisions relating to inconsistent verdicts, including MacKenzie v The Queen (1996) 190 CLR 348, R v James [1999] NSW CCA 191, R v Kirkman (1987) 44 SASR 591 and Osland v The Queen (1998) 197 CLR 316 and there is no need to repeat what I said in that case. I apply the principles set out in those cases and in Jones.
In my view all of the verdicts are not an affront to logic and reasonableness. The verdicts of guilty and the verdict of acquittal may be reconciled, particularly in view of the manner in which the learned Trial Judge directed the jury. I have mentioned the warning which he gave to the jury about D and her evidence and the reasons for it. There was no corroboration of D’s evidence about the incident which is the subject of Count 7. It is possible that the jury formed a favourable view about D and her evidence but heeded the warning and declined to convict the appellant of Count 7 because of lack of corroboration. It is possible that the jury accepted that the appellant sexually abused D by digital penetration at the home of the appellant’s mother but not on the occasion of B’s fourth birthday which was, in effect, particularised on the occasion at the trial. There may be other reasons.
The different verdicts suggest that the jury also followed the direction of the learned Trial Judge to consider each count separately. There is no reason to conclude that they had a doubt about D’s credibility and reliability. This is not a case where different verdicts necessarily give rise to a verdict of guilty being contrary to the evidence.
There were many reasons why the jury could exclude concoction and collaboration of K’s disclosure to her mother which had occurred after her mother had unexpectedly entered the lounge room on 21 December 2001. D’s disclosure was made later in the day in the circumstances which I have mentioned. There was no occasion for collaboration or concoction. Both girls denied having done so. A was interviewed on 24 January 2002. According to her mother, she and A moved house in September 2001, she did not keep in contact with K’s mother and there was no contact between A and K during the Christmas school holidays. Both K and D said that they never spoke to A about what happened to them.
I would reject this ground.
Ground 7
This ground relates to directions given by the learned Trial Judge about the appellant’s mother and her evidence. I have mentioned her evidence in relation to Count 7. The complaint is that the learned Trial Judge failed to direct the jury adequately as to the significance of the evidence of this witness, particularly as to its capacity to cast doubt on the accuracy and truthfulness of the evidence of D on Count 7 and generally as to the accuracy and truthfulness of the evidence of K to the effect that the appellant had confessed to interference with D on the occasion of B’s birthday.
The learned Trial Judge reminded the jury of the evidence of the appellant’s mother in the form of a summary. He then said that directions were required, and he then gave directions as to the inconsistencies in the evidence of the three girls, which have been mentioned, and as to the evidence of good character of the appellant, which are not the subject of complaint. Later, when summarising the defence case, the learned Trial Judge reminded the jury of the submissions of defence counsel about this evidence which included that it was highly implausible that the appellant would sexually interfere with D at his mother’s house only a few feet away from her.
In the circumstances I do not think that the learned Trial Judge was obliged to give directions along the lines as contended by the appellant. He reminded them of her evidence and its significance on the defence case. As has been mentioned, the learned Trial Judge directed the jury that the prosecution case was substantially, but not wholly, reliant on the evidence of D. A little later he said that the Crown case relied on the truth and accuracy of D. He gave that direction in the context of all of the charges and proceeded to give the warning which I have mentioned. It will be remembered that in giving the warning he told the jury that they must consider evidence which has a bearing on the truth and accuracy of D’s evidence. Among the matters which he mentioned was the evidence of the appellant and his mother.
In my view having regard to the summing up as a whole, the directions were adequate and I would also reject this ground of appeal.
The proposed new grounds of appeal
After judgment was reserved, the appellant sought to raise further grounds of appeal. The proposed further grounds allege that the learned Trial Judge erred in permitting K, D and A to give sworn evidence at the trial because the inquiry conducted by him with respect to each of them as to whether the presumption that each of them was capable of giving sworn evidence was rebutted was defective and inadequate. There is a separate proposed ground of appeal in relation to each of the girls. The particulars of the grounds are the same and are that the inquiry failed to establish whether the witness sufficiently understood the importance of telling the truth, by reference to the possible sanctions against her and the possible consequences to the appellant if she failed to tell the truth having taken the oath, and that the inquiry failed to establish whether the witness sufficiently understood the obligation to be truthful entailed in giving sworn evidence.
The appellant sought leave to amend the notice of appeal to include these grounds and to do so out of time. He also sought leave to appeal on those proposed grounds. The applications were opposed and we decided to hear full argument so that we could determine if there is merit in the proposed grounds.
At the trial K and D gave evidence on affirmation and A gave evidence on oath. Pursuant to s 6(3) of the Evidence Act 1929 a person may give evidence on oath or on affirmation at his or her choice and every affirmation has, at law, the same force and effect as an oath: s 6(5).
S 9 of the Act provides:
“(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)     the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)    tells the person that it is important to tell the truth; and
(b)     the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4)If unsworn evidence is given under this section in a trial by jury, the judge—
(a)     must explain to the jury the reason the evidence is unsworn; and
(b)    may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5)[not applicable].”
This section was introduced by s 5 of the Evidence (Miscellaneous) Amendment Act 1999 (“the 1999 Act”) which came into operation on 27 June 1999.
“Sworn evidence” is defined in s 4 of the Act as meaning “evidence given under the obligation of an oath or an affirmation” and “unsworn evidence” is defined as having “a corresponding meaning”. This definition was introduced by the 1999 Act. “Young child” is defined in s 4 of the Act as “a child of or under of the age of 12 years”. As has been seen, each of K, D and A was a young child at the time of the trial and when the offences were alleged to have occurred.
Before the coming into operation of the 1999 Act, the giving of sworn evidence by a young child was governed by s 12 of the Act which provided:
“12(1)     A young child who is to give evidence before a court is not obliged to submit to the obligation of an oath unless –
(a)the child is of or above the age of seven years; and
(b)the judge is satisfied that the child understands the obligation of an oath.
(2)    If a young child, who is not obliged to submit to the obligation of an oath, is to give evidence before a court and –
(a)the child appears to the judge to have reached a level of cognitive development that enables the child –
(i)to understand and respond rationally to questions; and
(ii)to give an intelligible account of his or her experiences;
and
(b)the child promises to tell the truth and appears to understand the obligations entailed by that promise,
unsworn evidence of the child will be treated in the same way as evidence given on oath.
(3)    In any case in which unsworn evidence of a young child is not assimilated under subsection (2) to evidence given on oath –
(a)the child’s evidence will be evaluated in the light of the child’s level of cognitive development; and
(b)a person who has been accused of an offence and has denied the offence on oath cannot be convicted of the offence on the basis of the child’s evidence unless it is corroborated in a material particular by other evidence implicating the accused.
(4)    A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).
(5)    Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.”
The 1999 Act repealed s 12(1), (2) and (3).
Also, prior to the 1999 Act, there was some discussion as to whether a person required a belief in God and future rewards and punishments in another world before an oath could be taken on the Bible: see Schlaefer v R (1992) 57 SASR 423, R v T (1998) 71 SASR 265, R v Simmons (1997) 68 SASR 81. See also the discussion by Lander J in R v Climas (1999) 74 SASR 411 at 422-426.
In my view, the 1999 Act removed what may be called discrimination on the basis of religion or no religion and also upon the basis of age, with the consequence that any proposed witness, regardless of religious beliefs or no such beliefs or age is presumed to be capable of giving sworn evidence unless the judge determines that the person does not have a sufficient understanding of the matter set out in s 9(1) in which case the presumption is displaced.
In Climas, the Full Court had to consider questions of law which had been reserved by the trial Judge presiding over a trial of a person charged with inciting a child to commit an indecent act. The child was aged 8 years at that time and the offence was alleged to have occurred shortly before the commencement of the 1999 Act.
It is unnecessary for present purposes to mention these questions of law and the answers given by the Court, however observations made in the course of reasons given by two of the judges are instructive for present purposes.
Duggan J made the following observations about s 9(1). He said at 416-417:
“Under the new provisions the focus has changed from a consideration of the ability to understand the nature of the oath to a consideration of the ability to understand an obligation which is common to both oath and affirmation. King CJ explained the nature of this obligation in R v Whittingham (1988) 49 SASR 67 at 69 when he said:
‘The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked.’ ”
Later in his reasons, at 419, Duggan J expressed the view that in the case of children under the age of 10 years, even though there is no criminal sanction for not telling the truth, the child should understand the telling of the truth in the witness box is a serious matter which may have serious consequences for the accused. Whittingham is not a case concerned with s 9(1). It was decided well before the 1999 Act and was concerned with a direction to the jury. Nevertheless Duggan J adopted the observation of King CJ. Lander J went further. He said at 431:
“The presumption in s 9(1) is that a person of any age is capable of giving evidence under the obligation of an oath or an affirmation in any proceedings unless the judge otherwise determines for the reason given in the subsection.
The statutory presumption can be displaced, as s 9(1) provides, if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
Any inquiry therefore under s 9(1), if it arises, is as to whether the witness simply has sufficient understanding of the obligation to be truthful in giving evidence by taking an oath or making an affirmation. It is not an inquiry into the witness’s understanding of an oath or affirmation. Nor is it an inquiry into the witness’s religious beliefs or whether the witness has a belief in God. It is merely an inquiry into whether the witness has sufficient understanding of the obligation to be truthful under an oath or an affirmation. In that respect the Court will simply inquire as to whether the witness understands the meaning of truth and whether the witness understands that in giving sworn evidence there is an obligation to be truthful.”
He went on to say that because of the provisions of s 9(2), the understanding of the obligation to be truthful requires more than the matters set out in that subsection. He said that it requires that the person is thereby accepting the solemnity of taking an oath or making an affirmation “and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth”: at 431. He said that because a child under the age of 10 years could not commit a criminal offence and therefore could not be guilty of the offence of perjury, the obligation to be truthful entailed in giving sworn evidence does not emanate solely from the legal sanction for failing to do so. He said at 431-432:
“… The obligation arises from the public declaration in taking an oath or making a declaration, the accompanying recognition of the solemnity of that declaration, the recognition of the importance of truthfulness in the proceedings and the acceptance of the moral, and in the case of a person over the age of 10 years, the legal sanctions in failing to comply with that public declaration.
Section 9(1) therefore, in my opinion, contemplates obligations attaching to sworn evidence which would not attach to similar statements made outside the Court even though social obligations would suggest that those extra curial statements should also be truthful.”
Duggan J rejected the notion of a moral obligation when there is no legal sanction: at 419.

I do not think that there is any obligation on the part of a judge to conduct any inquiry under s 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted. Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, although it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given or of what a witness has said in a statement or otherwise to an investigator which suggests the need for an inquiry. Information provided by counsel may require an inquiry to be undertaken. It is not difficult to think of other reasons. S 9(1) does not require an inquiry merely because the person is a young child.
In order to resolve the issues raised in the proposed grounds, I do not think it is necessary to decide if all of the views expressed by Lander J are correct. However, I think the words “sufficient understanding of the obligation to be truthful entailed in giving sworn evidence” justify the approach taken by Duggan J.
Mr Schapel for the applicant contended that the inquiry conducted by the learned Trial Judge in relation to each of the girls was inadequate and therefore the trial miscarried and the verdicts of guilty must be set aside.
The first observation to be made is whether there was any need to conduct an inquiry in relation to any of the girls. There is nothing about their respective ages which demanded an inquiry. If that was so, the law would have remained as in the repealed s 12(1) under which a young child could not take an oath unless the judge was satisfied that the child understood the obligation of an oath. That was a condition precedent to the taking of the oath. Under s 9(1) a young child, like any one else, is presumed to be capable of giving sworn evidence unless the judge determines that he or she does not have the requisite understanding. I do not regard the observations of Doyle CJ in R v Starrett (2002) 82 SASR 115 as contrary to this view. He said at 119:
“The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial.”
It seems to me that those observations were made in the context of where an inquiry is required. I do not understand the Chief Justice to be saying that an inquiry must be made in every case involving a particular class of witness. Also, the circumstances in Starrett are different from in the present case. In that case the complainant gave unsworn evidence without there being an inquiry and the necessary determination by the trial Judge.
There is nothing in the materials before us which suggests that any of the girls did not have the required understanding. I expect that the learned Trial Judge considered that he was obliged to conduct the inquiry or that he did so ex abundanti cautela. At all events the inquiries were conducted and it is necessary to examine whether in the case of any of the girls the presumption was displaced.
Accepting the observations of Duggan J in Climas, the inquiry had to be directed as to whether the girl under consideration did not have a sufficient understanding of the obligations to be truthful entailed in giving sworn evidence. I accept that an understanding involves appreciation of what is the truth and what is untruthful or a lie, the importance of taking the oath or affirmation to impress upon her the importance of telling the truth in the witness box and by comparison to the importance of telling the truth on every day occasions. I have mentioned the observations of Duggan J that the person must have an understanding that failure to tell the truth may have serious consequences for the accused.
I have regard to those observations but I do not think they provide a formula to determine whether the presumption in s 9(1) is displaced. I do not think there are any particular questions which must be asked. However, any inquiry thought to be necessary should enable the judge to determine the question in s 9(1).
Mr Schapel submitted that in the case of a person over the age of 10 years to avoid the presumption being displaced, there must be an understanding of the legal sanction in failing to give truthful evidence. In all cases there must be an understanding of the moral sanctions in failing to give truthful evidence. There must be an appreciation of the solemnity of the taking of the oath or affirmation over and above the bare promise to tell the whole truth and an appreciation of what the person says on oath could involve consequences of a different nature from those which might follow if the witness was asked to make statements outside a courtroom.
I do not accept that an inquiry about these matters should be undertaken as a matter of course. If that was the case, such an inquiry would have to be undertaken of all witnesses as s 9(1) does not discriminate on the basis of age or any other reason. There is no reason to construe the section as requiring an inquiry when the person is a young child. Also, it is not clear to me what is meant by a moral obligation to tell the truth. Such an obligation may be different from, but is similar to, a religious obligation which is no longer a relevant matter. It may be understood in relation to a person holding an office or position of public importance, but it is difficult to see how it may apply to a young child.
If an inquiry is required, I accept the other matters submitted by Mr Schapel should be investigated but it does not follow that the judge cannot be satisfied that there is a sufficient relevant understanding unless all of those matters are the subject of inquiry. That satisfaction may be obtained by the answers to questions about specific matters or from more generalised questioning. The point to be made is that a judge may be satisfied about these matters without asking a specific question that is very likely to be of little use. It is unlikely that a person would answer the question, “Do you know the difference between the “truth and a lie” in negative, but generalised questioning may provide a reliable answer.
I now turn to the inquiry made by the learned Trial Judge with respect to each girl.
Before K made an affirmation, the learned Trial Judge conducted an inquiry pursuant to s 9(1). She was regarded as a vulnerable witness and answered questions during the course of the inquiry and gave evidence through a closed circuit television link pursuant to s 13(2)(a) of the Act.
The learned Trial Judge asked K questions about her name, age, her place of residence and her school and grade. She answered these questions appropriately and relevantly. The following then occurred:
“Q Do you know what it means to tell the truth [K].
A Yes.”
She then said that she knew she was at Court and that it was a place where telling the truth is very important. She was informed that she would be asked questions by lawyers in the case and by him and she promised to tell the truth. She said that she had to do so even though she may have promised someone that she would not do so. When she was asked what was the problem about not telling the truth in Court, she said, “You can hurt someone”. She said she would not do that and she would not guess if she had forgotten something.
The closed circuit television was de-activated. The learned Trial Judge then intimated that he was satisfied that K understood the difference between truth and a lie and that it was important to tell the truth in Court. He accepted her assurance that she would tell the truth.
Mr Schapel acknowledged that K had given evidence at the first trial before a District Court Judge and jury which was aborted and at the trial before the second District Court Judge and a jury which resulted in verdicts of acquittal on counts 1 and 10 using a closed circuit television link. On both occasions an inquiry was conducted pursuant to s 9(1). During the inquiry by the first of those judges, K answered questions as to why she was at the Court by saying, “Because someone had done something bad to me”, having said that she knew she was in a courthouse. She said that she knew that she would be asked questions in Court about what had been done to her, that the questions would be important questions and much more important than questions which she would usually be asked by other people. She said she understood they would be very important questions and could have serious consequences. She was asked what was meant by that and she said that she could get into trouble if she did not tell the truth. Also she said that her answers, meaning her evidence, could have serious consequences for other people and in particular, the accused. K told the learned Judge that the difference between taking an oath and affirming had been explained to her shortly before the inquiry commenced. She said she preferred to affirm. She told the learned Judge that she was aware that it was most important that in Court she honestly, correctly and truthfully answer all questions asked of her. She said that the reason it was important to answer honestly, correctly and truthfully was so that she did not hurt innocent people. She said that she knew that both the questions and the answers would be important. She also said that she understood the difference between telling the truth and telling lies. She was asked to explain the difference and she said that telling the truth is being honest and telling lies “is something that is not true”.
The closed circuit video link was de-activated. The Judge intimated that he was satisfied that K had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence on oath or affirmation. Defence counsel told the Judge that he did not want to be heard.
At the trial before the second Judge and jury, the Judge also conducted an inquiry of K pursuant to s 9(1). She told him that she remembered the questions she had been asked during the inquiry by the first Judge and she was told that everything said by the first Judge was true and she must abide by what he said which she said she understood.
The second Judge then asked some further questions in response to which K said that she understood the difference between the truth and a lie. When asked to explain the difference she said that the truth is something that had happened and a lie is something that is made up. The learned Judge told her that he wanted to stress that her answers to questions must be truthful and she must not make anything up and she said she understood. She said that she knew that she must not leave anything out of the evidence which she was to give. The Judge said to her that he wanted her to understand that telling the truth in the Court was much more important than telling the truth at home or at school, which she said she understood. She agreed that her answers may have important consequences for other people and that if she told lies other people will suffer. She said she understood that if she told lies there may be consequences for her in that she could be punished. She said that it had been explained to her that the difference between taking an oath on a Bible or simply making a promise to tell the truth had been explained to her and by promising to tell the truth she understood that to mean an affirmation. It was explained to her that other persons in court would be asking questions and her answers must be truthful. If she told lies there would be consequences for her and other people.
The closed circuit television link was de-activated. Defence counsel did not make any submissions and the second Judge intimated that he formally determined that he was satisfied that the complainant K did have sufficient understanding of the obligation to be truthful in giving sworn evidence and that therefore he would permit her to take an affirmation and then give her evidence on the basis of affirmation.
These two earlier enquiries are relevant to whether the presumption in s 9(1) had been displaced. What was said to, and by, K on those occasions must be considered along with what occurred at the inquiry conducted by the learned Trial Judge before K gave evidence in the trial which is the subject of this appeal.
In my view, K’s answers at all of these inquiries make it plain that there the presumption was not displaced. The inquiry covered all of the matters discussed earlier in these reasons except, perhaps, an understanding of a moral sanction as discussed by Lander J in Climas. However, as has been mentioned, I do not regard that matter as relevant.
Also, it is significant that three judges all saw and heard K answer questions and reached the same conclusion about her. There is no reason to conclude that the presumption in s 9(1) was displaced.
The proposed ground of appeal relating to K could not succeed and the application with respect to K should be refused.
The learned Trial Judge conducted an inquiry of D pursuant to s 9(1) in the absence of the jury before she gave evidence or affirmation. As has been mentioned, she was aged 9 years at this time. She was also regarded as a vulnerable witness and answered questions on the inquiry and gave evidence through closed circuit television link.
During the course of the inquiry she answered all questions asked by the learned Trial Judge appropriately and relevantly. She told him where she lived and at which school she attended in Grade 4. The following then occurred:
“QDo you know what it means to tell the truth.
AYes.
QWhat do you think it means, to tell things the way they really happened and not a lie, is that how you understand it.
ANo.
QDo you know that a lie is saying something which isn’t so, which isn’t true.
AI don’t understand.
QCan I ask you then: what would it mean if I said; ‘What’s the truth?’; that is, ‘What is telling the truth?’.
AWhen you say something that’s true.
QThe opposite of that is, what.
AA lie.
QIs a ‘lie’ something which just isn’t so, isn’t true; do you understand that.
ANo.
QWell, you can see me now, can you.
AYes.
QIf I said to you ‘I’ve got a big white beard and a Father Christmas hat’, would that be true or a lie.
AA lie.
QHave you got a relative of yours in the room with you there. Who’s with you there.
A[A]
QWho is [A]. Is she sitting just behind you.
AYes.
QWould that be true or a lie.
ATrue.”
She told the learned Trial Judge that the learned Trial Judge was in a courtroom. She said that she knew she was going to be asked questions by lawyers and that it was a special place where she had to be very careful to tell the truth. Also, she said it was very important to tell the truth. She said that she realised that if she did not tell the truth, she could get some people, and even herself, into trouble. She promised to tell the truth. The closed circuit television was then de-activated.
The learned Trial Judge rejected the request of defence counsel that he should ask D if she understood the difference between telling the truth and telling a lie but he declined to further question her about that matter and referred to her answer when he referred to himself as Father Christmas. He then intimated that he was satisfied that D had a sufficient understanding of the obligation to be truthful, that she understood the difference between truth and falsity and the importance of telling the truth in Court. He went on to say that he was also satisfied with her answers that she would tell the truth. He permitted her to affirm.
Some of the questions asked by the learned Trial Judge were leading questions and led to some confusion on D’s part as can be seen in the part of the inquiry which I have set out. Leading questions in this type of inquiry are unlikely to be of much benefit but it is clear that they did assist in the sense that D was not prepared to accede to any proposition which she did not understand. It may have been of more assistance if D had been asked to explain what is telling the truth or a lie in her own way. However, I think her answers to questions did show that she understood the difference between telling the truth and a lie, that a court is a place where it is important to tell the truth and she could get people and herself into trouble if she did not tell the truth.
Whilst the inquiry did not cover all of the matters discussed in Climas, I think the learned Trial Judge was justified in reaching the conclusions which I have mentioned. He saw and heard D.
In my view, there is no basis for the presumption to be displaced and I would reject the proposed ground of appeal as it relates to D.
The learned Trial Judge was informed by the prosecutor that A intended to give evidence on oath. It was submitted that he should make an inquiry pursuant to s 9(1). Defence counsel contended that the learned Trial Judge needed to inquire whether A had a belief in God assuming that the oath was to be taken on a Christian bible and as to the extent of “her relating justice education”. It is not clear what was meant by that second matter. The prosecutor contended that the relevant matter was whether A understood the importance of telling the truth and the consequences that flow from it “in court”.
The learned Trial Judge conducted an inquiry in the absence of the jury with the use of the closed circuit television link as she was also regarded as a vulnerable witness. She told him that she was in Year 6 at school. He then questioned her about matters of the Christian religion. I do not think an inquiry along these lines was appropriate, but it was very brief and did not enter into a religious sanction if untruthful evidence was given. I mention the matters which are relevant to the ground of appeal concerning A’s evidence. She said that she knew what it meant to tell the truth. She gave as an example of telling a lie that if as a girl she said she was a boy. She said she knew that she was in a room connected to the Court. She told the learned Trial Judge that she understood that she was going to be asked questions in front of a jury by lawyers in the case and perhaps by him and that she realised that the Court was the sort of place where it is very important to tell the truth. The following then occurred:
“Q Do you promise to do that.
A Yes.
QDo you promise to do that even though you might have made some promises to other people that you wouldn’t talk about some things.
AYes.
QYou promise to talk, answer all the questions.
AYes.
QTruthfully.
AYes.
QWhen you are being asked questions if you have forgotten something search your memory as hard as possible.
AYes.
QIn the end if you have forgotten it just tell us.
AYes.
QYou agree you won’t make anything up or guess at anything.
AYes.
QThat is all I wanted to say to you. We will come back to you in a moment, all right.
AYes.”
The closed circuit television link was then de-activated and the learned Trial Judge intimated that he was satisfied that A could swear on the Bible and that she appreciated the difference between truth and falsity. Defence counsel said that he had no submissions. The learned Trial Judge then went on to say: that “[A] understands the significance of swearing on the Bible and that, in particular, she understands the differences between a truth and a lie and the need to tell the truth in this place and she has promised to do so.” He said that he had no reservations about her taking an oath on the Bible

Whilst it must be acknowledged that A was not asked about consequences to her or the accused if she was untruthful in her evidence and she did say that she realised that a court was the sort of place where it is very important to tell the truth and she promised to do so.
It was submitted that the inquiry conducted by the learned Trial Judge was more appropriate in establishing whether a person could give unsworn evidence pursuant to s 9(2). The inquiry did not address A’s understanding of the sanction of an oath over and above the premise to tell the truth or as to possible consequences of untruthfulness to the accused, but I think it was sufficient to enable the learned Trial Judge to be satisfied that the presumption in s 9(1) had not been displaced.
In my view, there is no merit in the proposed new grounds of appeal and the applications of the applicant with respect to them should be refused.
I would dismiss the appeal.
NYLAND J: I agree with the reasons of Mullighan J that the appeal should be dismissed and with the orders he proposes.
ANDERSON J: I agree that the appeal should be dismissed for the reasons expressed by Mullighan J and the applications to introduce new grounds of appeal should be refused.