R v P, G - [2019] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, G
[2019] SASCFC 7
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Lovell)
25 January 2019
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - CHILDREN
Appeal against conviction.
The appellant was convicted following a trial in November 2017 before a judge and jury in the District Court of maintaining an unlawful sexual relationship with a child contrary to section 50 of the Criminal Law Consolidation Act 1935.
The Judge admitted pursuant to section 13BA of the Evidence Act 1929 evidence by the complainant in the form of audio visual records of interviews conducted in February 2015 and July 2016.
The appellant appeals and applies for permission to appeal against his conviction on five grounds:
1. The Judge erred by failing to give a direction in the nature of the warning in section 9(4) of the Evidence Act.
2. The Judge erred by failing to direct the jury as to the status, and the permissible and impermissible uses, of the recorded interviews.
3. The Judge erred by failing to direct the jury in accordance with section 34D of the Evidence Act in relation to the recorded interviews.
4. The Judge erred by failing to direct the jury in accordance with section 12A of the Evidence Act in relation to the complainant’s evidence or alternatively to direct the jury to scrutinise her evidence with special care.
5. The verdict is unreasonable or cannot be supported having regard to the evidence.
Held per Blue J (Kelly and Lovell JJ agreeing) granting permission to appeal but dismissing the appeal:
1. Section 9(4) of the Evidence Act does not apply to evidence in the form of audio visual records of interviews admitted pursuant to section 13BA (at [31]) and there is no basis to imply an obligation to give a warning in similar terms to the jury (at [37]).
2. The Judge gave to the jury a warning as required by section 13BA(6)(b) before admission of the evidence and in the circumstances it was not necessary to repeat that warning during summing up (at [45], [50] and [52]). The Judge was not required to further direct the jury as to the status, and the permissible and impermissible uses, of the recorded interviews (at [56], [58] and [61]).
3. Section 34D of the Evidence Act does not apply to evidence in the form of audio visual records of interviews admitted pursuant to section 13BA (at [71]).
4. The exception in section 12A(1)(b) of the Evidence Act permitting a warning that it is unsafe to convict on a child's uncorroborated evidence did not apply (at [112]). The Judge did in substance direct the jury to scrutinise the complainant’s evidence with special care by directing that it must assess her evidence very carefully because a conviction was dependent on her evidence (at [121]).
5. The verdict is not unreasonable or incapable of being supported having regard to the evidence (at [125]).
6. Permission to appeal granted but appeal dismissed (at [127]).
Criminal Law Consolidation Act 1935 (SA) section 50; Evidence Act Act 1929 (SA) sections 9, 12A, 13BA, 34CA, 34D, 34M, 52, 53, referred to.
Longman v The Queen (1989) 168 CLR 79; Mahmood v State of Western Australia [2008] HCA 1, (2008) 232 CLR 397.; R v Cheng [2015] SASCFC 189; R v Cronin [2018] SASCFC 61, (2018) 131 SASR 111; R v Haak [2012] SASCFC 19, (2012) 112 SASR 315; R v J, JA [2015] SASCFC 189; R v Mattsson [2011] SASCFC 114; R v Murray (1987) 11 NSWLR 12; R v Perara-Cathcart [2015] SASCFC 103; R v Sparks [2017] SASCFC 171; Robinson v The Queen [1999] HCA 42, (1999) 197 CLR 162; SKA v The Queen [2011] HCA 13, (2011) 243 CLR 400, considered.

R v P, G
[2019] SASCFC 7
KELLY J:

I agree with Blue J.
BLUE J:
The appellant P, G was convicted following a trial before a judge and jury in the District Court of maintaining an unlawful sexual relationship with a child.[1]
[1] Criminal Law Consolidation Act 1935 section 50(1).
The Judge admitted pursuant to section 13BA of the Evidence Act 1929 (SA) (the Act) evidence by the complainant in the form of audio visual records of interviews conducted in February 2015 and July 2016. The Judge also admitted pursuant to section 34M of the Act evidence of complaint by the complainant to her mother in October 2014.
The appellant appeals and applies for permission to appeal against his conviction on the following grounds:
1The Judge erred by failing to give a direction in the nature of the warning in in 9(4) of the Act.[2]
2The Judge erred by failing to direct the jury as to the status, and the permissible and impermissible uses, of the recorded interviews.[3]
3The Judge erred by failing to direct the jury in accordance with section 34D of the Act in relation to the recorded interviews.[4]
4The Judge erred by failing to direct the jury in accordance with section 12A of the Act in relation to the complainant’s evidence or alternatively to direct the jury to scrutinise her evidence with special care.[5]
5The verdict is unreasonable or cannot be supported having regard to the evidence.[6]
[2]    Question of permission referred to the Full Court.
[3]    Question of permission referred to the Full Court.
[4]    Considered by the single Judge to be a question of law.
[5]    Ground 5 in the notice of appeal. Question of permission referred to the Full Court.
[6]    Ground 4 in the notice of appeal. Permission granted by the single Judge. Despite repeated observations by this Court about the correct wording of an appeal under what is now section 158(1)(a) of the Criminal Procedure Act 1929 (SA), this appeal ground is worded in terms of the verdict being “unsafe” and “against the weight of the evidence”.
A single Judge granted permission to appeal on the fifth ground listed above, considered that ground 3 raises a question of law on which permission is not required and referred to the Full Court the question whether permission should be granted on the remaining grounds.
Background
The complainant is the daughter of the appellant. She was born in January 2004. Her parents separated in 2007, after which she resided primarily with her mother.
In November 2011 the appellant commenced residing in the house at which the conduct the subject of the charge allegedly occurred (the appellant’s house).
Between November 2011 and March 2013 the complainant and her brother were left in the appellant’s care every second week from the conclusion of school on Friday until the commencement of school on Monday, during the alternate week from the conclusion of school on Monday until the commencement of school on Tuesday, and for portions of school, Easter and Christmas holidays. In March 2013 the access visits were suspended for two months and when they resumed they only included one overnight per fortnight and after September 2013 did not include any overnights. After February 2014 there were no access visits.
The prosecution case was that the appellant licked and touched the complainant’s vagina on multiple occasions during access visits to the appellant’s house over part of the date range between November 2011 and March 2013.
The complainant gave evidence that on occasions when she stayed overnight with the appellant he licked her vagina. She said that this occurred on multiple occasions and that usually afterwards the appellant washed her private parts with the showerhead while she was standing in the bath. She did not understand the significance of this at the time and did not understand that it was wrong. The appellant told her not to tell anyone. By the time the access visits were suspended the appellant’s conduct had stopped.
The complainant gave evidence that later she heard girls at school talking about porn and did not know what it was. She looked on a porn site using the family iPad by “googling” the word “porn” and saw images of adult women performing cunnilingus on each other which stuck in her head and which she found disturbing.
The complainant gave evidence that she spoke to a family friend about what she saw on the porn site, who told her that it was a bad thing. What she saw on the porn site reminded her of what had happened with the appellant and she realised that it had been wrong.
The family friend gave evidence that in October 2014 he noticed an abrupt change in the complainant’s mood. She was normally very chatty and bubbly but was now morose and silent. A couple of weeks later she asked to speak to him in private and told him that she had viewed some pornographic images. She was quite distressed and crying. She said something to the effect “Do people really do that?” He suggested that she speak to her mother about it and she agreed to his mentioning it to her mother and then to speak to her mother herself. He spoke to her mother a couple of days later.
The complainant’s mother gave evidence that in October 2014 she noticed a change in the complainant’s mood. The complainant was generally happy, balanced and upbeat but she became withdrawn and depressed. She then noticed porn on the family iPad and told the complainant that it was against God’s rule. The family friend told the complainant’s mother that the complainant wished to speak to her about something. They went for a walk and the complainant raised the topic of the appellant but was unable to bring herself to say what had happened. She wrote it down. She wrote a mixture of abbreviated English and her mother’s native language “Dad was li my Pи. Also was tou my Pи”. The complainant’s mother understood that the word that the complainant wrote at the end of the sentences was an abbreviation of “Pi-sia” which is a name of a child's genitalia in the complainant’s mother’s native language. The complainant’s mother understood that the complainant was conveying “Dad was licking my private part. Also was touching my private part”. She asked the complainant if this was what she meant and the complainant said yes.
In February 2015 the complainant was interviewed by Detective Senior Constable Arkit when she was 11 years old. An audio visual record was made of the interview. This interview was conducted before the enactment of section 13BA but it is common ground that it was admissible pursuant to the transitional provisions contained in subclause 1(1) of Schedule 1 to the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA)[7] (the Vulnerable Witnesses Act) notwithstanding that it was not conducted in compliance with requirements imposed by Part 17 Division 3 of the Summary Offences Act 1953 (SA) (the Summary Offences Act).
[7] As amended by section 27 of the Statutes Amendment (Attorney General's Portfolio) Act 2016 (SA).
In July 2016 the complainant was interviewed again by Detective Senior Constable Arkit when she was 12 and a half years old. An audio visual record was made of the interview. This interview was conducted in compliance with requirements imposed by and under Part 17 Division 3 of the Summary Offences Act.
The trial
The trial proceeded in November 2017. The Director had filed an application pursuant to subsection 13BA(2) for admission of the audio visual records of the interviews pursuant to section 13BA of the Act. Before the jury was empanelled, the Judge indicated that she would view the records of interview before ruling on their admissibility. Defence counsel told the Judge that the defence was happy for both records of interview to be shown in full to the jury and said that it was accepted that the complainant was capable of at least giving unsworn evidence in the first interview. The Judge viewed the audio visual records of interview and ruled that the pre-conditions in section 13BA had been met and the records of the interviews were admissible.
The prosecutor sought permission to adduce additional evidence in chief from the complainant and defence counsel sought permission to cross-examine the complainant. This permission was granted by the Judge.
The Judge indicated that she considered that the presumption in subsection 9(1) of the Act applied to oral evidence to be given by the complainant. The prosecutor and defence counsel accepted this course.
Evidence was given by Detective Arkit, the complainant, the complainant’s mother and the family friend. The appellant did not give or adduce evidence.
Necessity for direction in the nature of a section 9(4) direction: ground 1
No complaint is made about the ruling by the Judge that evidence of the audio visual records of interview was admissible pursuant to section 13BA of the Act.[8]
[8] Ground 1 of the notice of appeal as drafted was that the Judge erred in failing to comply with the provisions of subsection 13BA(3) in relation to determining the admission of the interviews. During the hearing of the appeal this contention was abandoned. Instead the contention was advanced that the Judge erred in failing to give the warning required by subsection 9(4).
The appellant contends that, because the Judge did not say that she considered that the complainant was capable of giving sworn evidence, it should be inferred, or the appeal should be conducted on the basis, that the Judge was only satisfied that the complainant was capable of giving unsworn evidence. The appeal can be determined on this assumption.
The appellant contends that, when an audio visual record of evidence is admitted pursuant to section 13BA of the Act and the judge is not satisfied that the complainant was capable of giving sworn evidence, there is an implied requirement for the judge to explain (in the same or similar terms to subsection 9(4)) to the jury the reason the evidence was unsworn which is because the complainant did not at the time of the interview have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
The appellant acknowledges that no suggestion was made by defence counsel (or the prosecutor) at trial that a warning in terms of subsection 9(4) was required but points to the fact that a warning in terms of section 9(4)(a) is mandatory regardless of whether a request is made by defence counsel.
The Director contends that subsection 9(4) does not apply to evidence admitted pursuant to section 13BA because section 9 only applies to testimonial evidence and evidence admitted pursuant to section 13BA is not testimonial evidence. There is no basis to imply such a requirement.
Section 9 relevantly provides:
9—Unsworn evidence
(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 criminal trial, 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.
…
(6)Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
Section 13BA provides:
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2)     An application for an order under subsection (1) must—
(a)     be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b)     be filed in the court; and
(c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d)     otherwise be made in accordance with the rules of court.
(3)An audio visual record of the evidence of a witness may be admitted under this section if—
(a)     the recording has been made pursuant to—
(i) section 12AB; or
ii) Part 17 Division 3 of the Summary Offences Act 1953; and
(b)     the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c)     the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d)     during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a)     rule as inadmissible the whole or any part of the recording; or
(b)     before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a)     if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b)     if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c)     if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a)     explain to the jury that the law allows the court to admit evidence in this form; and
(b)     warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
The second interview was conducted, and the first interview was deemed[9] to have been conducted, in accordance with Part 17 Division 3 of the Summary Offences Act. For ease of reference I refer to interviews deemed to have been conducted in accordance with that Division as if they were conducted in accordance with that Division. That Division relevantly provides:
[9]    By subclause 1(1) of Schedule 1 to the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as amended by section 27 of the Statutes Amendment (Attorney General's Portfolio) Act 2016 (SA).
Division 3—Recording interviews with certain vulnerable witnesses
74EA—Application and interpretation
(1)     This Division applies to a person being interviewed as a potential witness who is—
(a)     a child of or under the age of 14 years; or
(b)     a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
(2)     In this Division—
serious offence against the person means—
…
(c)     a sexual offence; or
…
74EB—Obligation to record interviews with certain vulnerable witnesses
If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows:
(a)an audio visual recording of the interview must be made in accordance with the regulations;
(b)     the interview must be conducted by a prescribed interviewer;
(c)the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.
74EC—Admissibility of evidence of interview
(1)In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless—
(a)     the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or
(b)     the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance.
(1a)If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of any other offence, evidence of the interview may be admissible under section 13BA of the Evidence Act 1929 if—
(a)     an audio visual recording of the interview is made in accordance with the regulations; and
(b)     the interview is conducted by a prescribed interviewer; and
(c)     the manner in which the interview is conducted meets the prescribed requirements to the prescribed extent.
(1b)If a prescribed interviewer's conduct and recording of an interview does not meet the requirements of subsection (1a)(c), the court may nevertheless admit evidence of the interview if satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b) or (1b), the court must—
(a)    draw the jury's attention to the non‑compliance by the prescribed interviewer; and
(b)    give an appropriate warning in view of the non‑compliance,
unless the court is of the opinion that the non‑compliance was trivial.

Regulations 20 to 23 of the Summary Offences Regulations 2016 (SA) prescribe interviewers and requirements for the purpose of Part 17 Division 3 of the Summary Offences Act.
In R v Sparks[10] this Court described the relationship between section 9 and section 13BA of the Act in the following terms:
By reason of the provisions [contained in section 13BA], the evidence of the witness contained in the audio visual record is equated to testimonial evidence. However, in the case of an out of court interview pursuant to Part 17 Division 3, the potential witness’s answers are not given in court, are not given in a proceeding (which often will not exist at the time of the interview) and are not testimonial.[11]
[10] [2017] SASCFC 171.
[11] At [40] per Blue J (with whom Kourakis CJ and Hinton J agreed).
On the proper construction of sections 9 and 13BA, subsection 9(4) does not apply to evidence of an audio visual record of interview made under Part 17 Division 3 of the Summary Offences Act admitted pursuant to section 13BA of the Act.
First section 9 only applies to testimonial evidence and, for the reasons given in R v Sparks, evidence of an audio visual record of interview made under Part 17 Division 3 of the Summary Offences Act admitted pursuant to section 13BA of the Act is not testimonial evidence even though it is equated to testimonial evidence. Subsection 9(4) does not apply to such evidence for the same reasons as it was held in R v Sparks that subsection 9(1) does not apply to such evidence.
Secondly section 9 deals differentially with sworn and unsworn evidence. Sworn evidence essentially continues to be governed by the common law. Unsworn evidence is the creation of and governed by section 9 and is the subject of special requirements imposed by subsection 9(4) as to directions to the jury. By contrast, section 13BA deals homogenously with sworn and unsworn evidence alike, both as to the requirement that the court be satisfied as to the witness's capacity to give sworn or unsworn evidence when the recording was made and as to the directions required to be given by the judge to the jury.
Thirdly section 9(2)(a)(ii) imposes a prerequisite for a judge to permit a witness to give unsworn evidence that the Judge explain to the witness that it is important to tell the truth. This self-evidently cannot occur before a person answers questions during a recorded interview conducted pursuant to Part 17 Division 3 of the Summary Offences Act. While it is a prerequisite to the admission of such a recorded interview under section 13BA(3)(d) that the witness is available if required to give evidence in court, the witness will not in fact give any evidence in court unless the criteria under subsection 13BA(5) are satisfied and the judge gives permission pursuant to that subsection. Accordingly there will not necessarily be any occasion for the judge to give an explanation to the witness and in any event such an explanation could only apply prospectively to evidence given in court.
Fourthly section 13BA creates its own regime for requiring directions to be given by the judge to the jury under subsection 13BA(6). These directions are different from, and inconsistent with, the directions mandated by subsection 9(4) in respect of unsworn testimonial evidence.
The appellant contends that it should be implied that a judge is required to explain (in the same or similar terms to subsection 9(4)) to the jury the reason the evidence was unsworn which is because the complainant did not at the time of the interview have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
Subsection 13BA(6) explicitly sets out the directions a judge is required to give to a jury if evidence in the form of an audio visual record is admitted under section 13BA(6). There is no basis to imply a requirement to additional directions that the legislature did not include in that provision. Moreover the tenor of the direction required by section 13BA(6)(b)(ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence is inconsistent with an implicit requirement to warn the jury in the terms contended by the appellant.
This ground of appeal is not established.
Directions as to use of section 13BA evidence: ground 2
The appellant contends that:
1the Judge failed to give the warning required by section 13BA(6)(b) because:
a.while the Judge before the evidence was admitted referred to the matters identified in section 13BA(6)(b), what the Judge said on that topic did not have the status of a warning; and
b.in any event the Judge did not repeat what was said when she came to sum up to the jury;
2the Judge did not in her summing up or otherwise differentiate between the status, evaluation or weight to be given to the evidence admitted pursuant to section 13BA compared to the complainant’s testimonial evidence.
Giving of a subsection 13BA(6) warning
The appellant’s first complaint under this heading is that what the Judge said before the evidence was admitted did not have the status of a warning as required by section 13BA(6)(b). The appellant accepts that it is not essential that the word “warn” be used but contends that what the Judge said did not amount to a warning as a matter of substance.
Subsection 13BA(6) requires a judge to:
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
The Judge said to the jury before the evidence of the recorded interviews was admitted:
Ladies and gentlemen, we're about to embark on the playing of the interview dated 25 February 2015... I need to tell you a few things before this interview commences. This is an interview, as you've already heard, between Detective Arkit and [the complainant]. The law permits that the prosecution present evidence of the child in this way in cases such as this, but as a result of the evidence being given in this way there are a couple of things that I have to tell you.
The first is that you must not draw an adverse inference against the accused for the fact that the evidence is introduced in this way, nor must you allow it to affect the weight that you give to the evidence because it's given in this way by an interview between the police officer and the child as opposed to evidence that is given from the witness box just as Detective Arkit has done... So the same direction applies to both it and the interview of 19 July.
It is to be observed that the Judge followed the statutory wording contained in subparagraphs (i) and (ii) of section 13AB(6)(b) almost word for word. The appellant does not complain about the minor divergence between the statutory wording and the Judge’s words. Rather the appellant contends that the Judge did not give the words the status of a “warning” as required by section 13AB(6)(b). The appellant points to the established dichotomy between a direction and a comment and contends that what the Judge said on this topic falls on the comment side of that dichotomy.
In Mahmood v Western Australia[12], in the context of a case in which a direction was required by the trial judge to overcome the prejudicial effect of remarks by the prosecutor, Gleeson CJ, Gummow, Kirby and Kiefel JJ said:
The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen. It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed.[13]
[12] [2008] HCA 1, (2008) 232 CLR 397.
[13] At [16]. (Footnote omitted)
What the Judge said to the jury was couched in imperative terms. The jury was instructed that it “must not” draw an adverse inference against the accused from the fact that the evidence was introduced in the form of an audio visual record of interview. The jury was instructed that it must not allow the fact that the evidence was given in the form of an interview between the police officer and the complainant, as opposed to evidence given from the witness box, to affect the weight that the jury gave to the evidence. What the Judge said cannot be characterised as having the status of mere comment which could be ignored. Aside from using the word “warn”, it is difficult to conceive how the Judge could have used more mandatory language.
The appellant’s first complaint is not established.
The appellant’s second complaint is that the Judge did not repeat what was said before the evidence was admitted when she came to sum up to the jury.
Section 13BA(6) does not specify when a judge must give the prescribed warning. It leaves the timing to the discretion of the judge. In some cases a judge may consider it appropriate to give the warning when the evidence is admitted. In other cases a judge may consider it appropriate to give the warning during summing up. In other cases a judge may consider it appropriate to give the warning on both occasions. Contrary to the submission of the appellant, there is no a priori requirement that the warning be given on both occasions or even starting point that a warning should usually be given on both occasions unless the circumstances do not require it.
The warning required by section 13BA(6)(b)(i) is not to draw from the admission of evidence in the form of a recorded interview any inference adverse to the defendant. The evident purpose of this warning is to avoid the jury reasoning that the evidence is taken in this form because the witness fears the defendant and the defendant is therefore more likely to be guilty. This warning is expressed in similar terms to the first part of the warnings required by subsections 13A(12) and 13(7) in respect of special arrangements for protecting vulnerable and other witnesses respectively.
In the present case the complainant gave testimonial evidence via audio visual link pursuant to section 13A. The Judge gave to the jury the warning required by subsection 13A(12) immediately before the complainant gave such evidence. Accordingly, the jury was twice warned not to draw any inference adverse to the appellant due to the form in which evidence of the complainant was adduced. No suggestion was made by defence counsel (or the prosecutor) that a further warning should be given during summing up. In the circumstances, no such further warning was required.
The warning required by section 13BA(6)(b)(ii) is not to not to allow the admission of evidence in the form of a recorded interview to influence the weight to be given to the evidence. The evident principal purpose of the warning is to avoid the jury reasoning that less weight should be given to the evidence than if it had been given by testimonial evidence because it is not given before the jury, it is not given on oath and there is no cross-examination of the witness. Of course the provision is also calculated to avoid the jury giving more weight to the evidence than if it had been given by testimonial evidence and this is also part of the evident purpose, but the risk that the jury would give it more weight is slight compared to the risk of the jury giving it less weight.
This warning is expressed in similar terms to the second part of the warnings required by subsections 13A(12) and 13(7) in respect of special arrangements for protecting vulnerable and other witnesses. Immediately before the complainant gave testimonial evidence via audio visual link, the Judge gave to the jury the warning required by subsection 13A(12). The complainant gave evidence in chief represented by over 13 pages of transcript and was cross-examined for a period represented by 27 pages of transcript. Her testimonial evidence essentially covered the ground covered by her recorded interview evidence. No suggestion was made by defence counsel (or the prosecutor) that a further warning should be given during summing up. In the circumstances, no such further warning was required.
Differentiation between recorded interview and testimonial evidence
The appellant complains that the Judge did not in her summing up or otherwise differentiate between the status, evaluation or weight to be given to the evidence admitted pursuant to section 13BA compared to the complainant’s testimonial evidence.
The appellant cites the following passage from the judgment of Duggan J (with whom Nyland J agreed) in R v J, JA[14] referring to the difference between testimonial evidence and evidence admitted pursuant to repealed section 34CA of the Act:
In my view it was important for the trial Judge to tell the jury, as he did, that the interview could be used to prove the truth of the facts asserted in it by the complainant. On the other hand, I do not think it was appropriate to instruct the jury that the videotaped interview is to be considered in the same way as the complainant’s evidence in court without further explanation. That statement is correct insofar as it might reflect s 34CA(3) which permits the jury to use the out-of-court statement to prove the facts asserted in the statement. However, that does not imply that the assessment of each of these categories of evidence is to proceed along the same lines.
The jury should be told that in the case of each category of evidence, the videotaped interview and the evidence in court, that they are at liberty, subject to their assessment of the evidence, to treat what was said as evidence of the facts, but that the assessment of each category must have regard to the circumstances relevant to it. Some aspects of the assessment are common to both categories, but others are not.[15]
[14] [2009] SASC 401, (2009) 105 SASR 563.
[15] At [77]-[78].
The appellant also cites the following passage from the judgment of Sulan and Peek JJ in R v Cheng[16] referring to the same difference:
There can be no doubt that the Judge directed the jury that L’s interview (exhibit P1) was L’s evidence-in-chief and was to be considered in the same way as evidence given in court by any other witness, including that of the appellant. These are serious misdirections.[17]
[16] [2015] SASCFC 189.
[17] At [58].
Section 34CA was replaced by section 13BA with effect on 1 July 2016. Repealed section 34CA contained no equivalent of section 13BA(6)(b)(ii) which requires a judge to direct a jury not to allow the admission of evidence in the form of a recorded interview to influence the weight to be given to the evidence. This prevents a judge directing a jury that it can or should give less weight to evidence in the form of a recorded interview compared to testimonial evidence. To the extent that the appellant contends that the Judge erred by failing to differentiate between the weight to be given to the evidence admitted pursuant to section 13BA and the complainant’s testimonial evidence, this would have been directly contrary to section 13BA(6)(b)(ii).
The appellant cites the following passage from the judgment of this Court in R v Sparks[18] in relation to section 13BA:
By reason of the provisions [contained in section 13BA], the evidence of the witness contained in the audio visual record is equated to testimonial evidence. However, in the case of an out of court interview pursuant to Part 17 Division 3, the potential witness’s answers are not given in court, are not given in a proceeding (which often will not exist at the time of the interview) and are not testimonial.[19]
[18] [2017] SASCFC 171.
[19] At [40] per Blue J (with whom Kourakis CJ and Hinton J agreed).
The appellant contends that this is authority that evidence admitted under section 13BA has a different status to testimonial evidence and the jury should have been directed to this effect. While it is true that evidence admitted under section 13BA does not have the status of testimonial evidence, to direct the jury to the effect contended by the appellant would be to suggest that it has less weight and would be inconsistent with section 13BA(6)(b)(ii) in the same way as a direction that it has different weight to testimonial evidence.
The appellant contends that the Judge should have differentiated between the evaluation of the evidence admitted pursuant to section 13BA compared to evaluation of the complainant’s testimonial evidence.
On the one hand, a direction in generic terms that the jury should evaluate evidence admitted pursuant to section 13BA differently to testimonial evidence would suggest that it has different weight and would be inconsistent with section 13BA(6)(b)(ii). On the other hand, there is nothing in section 13BA that prevents a judge by way of comment drawing the attention of a jury to specific features of a complainant’s recorded interview evidence. For example if a recorded interview comprised highly leading questions, there is nothing that prevents the judge drawing the jury’s attention to this feature provided that the judge makes it clear that the evaluation of the evidence is the province of the jury.
In the present case, the appellant’s complaint is put at the generic level rather than a complaint that the Judge did not direct the jury’s attention to a specific feature of the recorded interview evidence. In the different context of ground 5, the appellant contends that one of the questions during the first interview was leading but in reality it was hardly leading and was an isolated question. No request was made by defence counsel for a direction relating to evaluation by the jury of the interviews. In the circumstances there was no requirement for the Judge to comment on evaluation by the jury of the interview evidence.
Other matters and conclusion
The appellant complains that the Judge failed to direct the jury as to the permissible and impermissible use of the recorded interviews. The appellant cites the decision of this Court in R v Perara-Cathcart[20] in which it was observed that a failure to direct a jury as to the permissible and impermissible uses of discreditable conduct evidence as required by section 34R of the Act is an error of law. However, unlike section 34R, section 13BA does not require a direction as to the permissible and impermissible uses of recorded interview evidence. The appellant does not identify any impermissible uses of the recorded interview evidence about which the jury should have been warned. No request was made by defence counsel at trial for such a direction. There is no merit in this complaint.
[20] [2015] SASCFC 103 at [12]-[18] per Kourakis CJ and [56] per Stanley J.
The appellant complains that the Judge did not direct the jury whether it was or was not entitled to reason that the complainant’s allegations were to be given extra weight because they were repeated on multiple occasions, namely in evidence of complaint to the complainant’s mother, during the two recorded interviews and during the complainant’s testimonial evidence. The appellant does not identify why a direction was required in the particular circumstances of this case. No request was made by defence counsel at trial for such a direction. The fact that mere repetition of a story does not necessarily enhance its credibility is a matter that is within a jury’s ordinary experience: it does not fall into that category of matters where the court has esoteric knowledge and experience that should be communicated to the jury so that it does not fall into erroneous reasoning. There is no merit in this complaint.

The appellant makes a faint complaint that the Judge did not direct the jury as to the use that could be made of the evidence of complaint to the complainant’s mother which was admitted pursuant to section 34M of the Act. The Judge gave directions as to the permissible and impermissible uses of the complaint evidence in the terms required by section 34M(4)(a) and (b). The appellant does not identify why the Judge’s directions were inadequate in this respect. No request was made by defence counsel at trial for any further direction. There is no merit in this complaint.
This ground of appeal is not established.
Directions as to weight under section 34D: ground 3
The appellant contends that the Judge erred by failing to direct the jury in accordance with section 34D of the Act in relation to the recorded interviews.
Section 34D provides:
34D—Weight to be attached to evidence
(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2)For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
Section 34D was introduced into the Act in 1949 at the same time as section 34C.[21] Section 34C renders admissible in civil proceedings a statement made by a person in a document tending to establish a fact if the person had personal knowledge of the matter and is called as a witness or (subject to one exception) cannot practicably be called as a witness.
[21] Evidence Act Amendment Act 1949 section 3.
Subsequently other provisions were introduced into the Act that rendered non-testimonial statements admissible, including section 45A (now section 53) in respect of business records and section 45B (now section 52) in respect of other documents. In 1988 section 34CA was introduced into the Act. Unlike section 13BA, section 34CA treated recorded interviews as secondary evidence (in a manner akin to sections 45A and 45B) and not as primary evidence of the witness.
Section 34D makes no reference to directions to a jury. However, in R v Cheng[22] Sulan and Peek JJ held that, in a case in which the Act renders a statement admissible as evidence in a jury trial, section 34D implicitly requires the jury to be instructed of the need to have regard to the matters identified in section 34D and that section 34D applied to evidence admitted pursuant to section 34CA.
[22] [2015] SASCFC 189.
The appellant contends that the reasoning in R v Cheng in respect of evidence admitted pursuant to section 34CA applies equally to evidence admitted pursuant to section 13BA. This contention must be rejected.
Section 34D applies only to “a statement rendered admissible as evidence by this Act”. This is apposite to statements treated by the Act as hearsay (secondary evidence) but rendered admissible by the Act notwithstanding that they are treated as hearsay. By contrast to repealed section 34CA, section 13BA does not treat recorded interview evidence admissible under that section as hearsay: it treats it as primary evidence by the complainant notwithstanding that it is not testimonial evidence.
This construction of section 34D is reinforced by the provision in subsection 34D(2) that a statement rendered admissible by the Act is incapable of amounting to corroboration of the witness’s evidence. This is apposite to documentary evidence such as a document admitted pursuant to section 34C. It is not apposite to recorded interview evidence admitted pursuant to section 13BA which is treated as the evidence of the witness.
In R v Cronin[23] Vanstone J (with whom Nicholson J agreed) held that section 34D has no application to evidence admitted pursuant to section 13BA. Even if this Court were free to decline to follow that decision, there is no reason to do so because it is, with respect, correct.
[23] [2018] SASCFC 61, (2018) 131 SASR 111, at [34]-[39].
This ground of appeal is not established.
Directions as to uncorroborated evidence: ground 5
The appellant contends that:
1the Judge erred by failing to direct the jury in accordance with section 12A of the Act in relation to the complainant’s evidence;
2alternatively the Judge erred by failing to direct the jury to scrutinise the complainant’s evidence with special care.
The appellant relies on the same matters in support of each contention and also in support of ground 4 that the verdict is unreasonable or cannot be supported having regard to the evidence. I address each contention sequentially bearing in mind the inter-related nature of the issues.
Warning unsafe to convict
Section 12A of the Act provides:
12A—Warning relating to uncorroborated evidence of child in criminal proceedings
(1)In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—
(a) the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b)a party asks that the warning be given.
(2)In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.
In R v Mattsson[24] Sulan J (with whom David and Stanley JJ agreed) said:
The question of what amounts to “cogent reasons” will depend on the circumstances in each case. The fact that a young child, giving evidence some years after the event, may have given inconsistent accounts about matters peripheral to the actual events do not, of themselves, amount to cogent reasons. The fact that there are some issues for the jury to consider, and even for the jury to be concerned about, does not mean that there are cogent reasons to justify a warning in terms of s 12A. For cogent reasons to exist, they should be compelling, convincing and powerful. What amounts to such reasons will depend upon the circumstances of each case. An error in the date or time when events occurred may, in some cases, be crucial, whereas, in others, it may be of less significance. In some instances, the exact description of where an offence is alleged to have taken place may be of great importance to the assessment of a child’s reliability, whereas, in other cases, it may throw little light on that issue.
In my opinion, the complaints about the complainant’s evidence do not amount to cogent reasons to doubt the reliability of her evidence. The fact that inconsistencies existed is not sufficient to constitute cogent reasons requiring a warning to be given. As I will come to discuss, the inconsistencies were not so pervasive as to constitute powerful or compelling reasons to doubt the complainant’s evidence.[25]
[24] [2011] SASCFC 114.
[25] At [20]-[21].
In R v Haak[26] Kourakis J (with whom Sulan and Stanley JJ agreed) observed that section 12 should be construed against the background of the common law under which there was a discretionary practice, not a rule of law, that judges would often warn juries that it was unsafe to convict on a child's uncorroborated evidence although they may do so if convinced that the witness is truthful and reliable[27] and said:
In my view, the warning required by s 12A of the Act is that it is unsafe to convict on the particular child witness’s evidence because there are cogent reasons, “apart from the fact that the witness is a child”, to doubt the reliability of his or her evidence because of his or her state of cognitive development, psychological immaturity, susceptibility to influence, or other youth related circumstances. Inconsistencies between the accounts given by the child, a paucity of detail, or the inclusion of fanciful details all may, depending on the circumstances, raise the prospect that the child’s testimony is affected by such factors. It is not possible to be definitive about the features of a child’s evidence which will engender that concern. However, only when the cogent reasons to doubt the child’s testimony are related to the juvenile immaturity to which the child witness warning alerts juries must a judge warn the jury that it is “unsafe to convict on a child’s uncorroborated evidence.”
Other inconsistencies, improbabilities or weaknesses, which are not related to the developmental factors which may detract from the reliability of a child’s testimony, may call for a special comment or warning in the circumstances of the particular case. That however is another matter altogether and is entirely within the discretion of the trial judge.
…
In this particular case, C was very young at the time of the offending and when she gave evidence. I accept that some aspects of C’s evidential accounts which the appellant contends give reason to question her reliability reflect her limited cognitive development. However, for reasons elaborated below in relation the unreasonable verdict ground of appeal, properly understood, those features of C’s evidence do not give any cogent reason to think that her evidence of the offence itself might be the false product of her still developing, juvenile cognitive capacity.[28]
[26] [2012] SASCFC 19, (2012) 112 SASR 315.
[27] At [21]-[28].
[28] At [31]-[32], [35].
In R v Mattsson the complainant was about six years old at the time of the alleged offending and about nine years old at the time of the trial. In R v Haak the complainant was five years old at the time of the alleged offending and six years old at the time of the trial.
Section 12A imposes two conditions that must be satisfied before a Judge is permitted to give an unsafe to convict warning. First a party must ask that the warning be given. Secondly the warning must be warranted because there are cogent reasons (apart from the witness being a child) to doubt the reliability of the witness’s evidence.
The Director accepts that the first condition was satisfied because defence counsel before addresses requested a warning and the Judge indicated a provisional view against giving a warning notwithstanding that defence counsel did not renew the request after addresses. Accordingly the disposition of this ground turns on whether the second condition was satisfied.
The appellant contends that, by reason of a combination of several matters, there were cogent reasons to doubt the reliability of the complainant’s evidence. Ultimately it is necessary to consider the matter holistically after considering the individual matters identified by the appellant.
Consistency of story
The appellant contends that there were three inconsistencies between the stories told by the complainant over the course of the first recorded interview, the second recorded interview and her testimonial evidence at trial, namely:
1the complainant said during the first interview that the appellant did not do anything else to her apart from licking her vagina but:
a. in her evidence at trial she said that he also touched her vagina with his hands;
b. during the second interview shr said that he also sometimes did something with her upper (referring to her breasts);
2the complainant said during the first interview that the events occurred in the bedroom but during the second interview she said that they also occurred in the bathroom.
A consideration of the first and second interviews and the complainant’s evidence at trial as a whole does not bear out these contentions.
The questioning of the complainant during the first interview was relatively cursory and it was no doubt for this reason that the second interview was conducted. Even questioning during the second interview was not as detailed or exhaustive in some areas as the questioning during the complainant’s evidence at trial.
During the first interview, the complainant was reticent about describing physically what the appellant did to her and asked to write it down (as she had earlier done with her mother). She wrote “dad took me into his bedroom and he was fully dressed. It was in the evening and he was licking my private part”. The complainant told the interviewer that this happened multiple times until visits were suspended. The interviewer asked questions by way of clarification but did not ask whether the conduct occurred anywhere other than the bedroom. During the second interview, the interviewer asked if it ever happened not in the appellant’s bedroom and she said that it happened in the bathroom but not as frequently as the bedroom and only about three times. There is no inconsistency between the first and second interviews in this respect.
During the first interview, the interviewer asked if the appellant did anything else while he was licking her private parts and she said no. This question was confined to the appellant doing something else at the same time as performing cunnilingus: it did not enquire whether he did something else when he was not performing cunnilingus. During the second interview, the complainant said that the appellant sometimes licked her breasts but not as frequently as licking her vagina. There is no inconsistency between the first and second interviews in this respect.
During the second interview, the interviewer asked whether the appellant did anything with his hands and she said that he might have done something but she did not remember. During her evidence in chief at trial, the complainant was asked about a circle that she had been asked by the interviewer to draw on a picture of a girl given to her by the interviewer to designate the location of the appellant’s attention. The prosecutor asked why she drew the circle and she said that it was because that was the part of the body where the appellant touched her. The prosecutor asked what sort of touch she was referring to and she said “licking, like, touching with hands”. Given the nature of the complainant’s answer during the second interview, there is no relevant inconsistency. This is typical of further detail drawn out from honest and reliable witnesses at trial compared to earlier accounts given by witnesses.
Overall, the manner in which the complainant told the story from the first interview through the second interview to her evidence at trial was entirely typical of the types of differences and further detail that emerge when honest and reliable adults give evidence.
Clarity of memory
The appellant contends that the complainant displayed a lack or vagueness of memory of details on matters central to the offending.
The appellant contends that the complainant could not recall where in the bedroom the events would occur, how she would be taken to the bedroom, what her pyjamas looked like, how the appellant would perform the sexual acts upon her, what she would do when he was performing sexual acts on her and whether the appellant would make noises during the sexual acts, referring to questions and answers during the first interview. This is not a fair description of the relevant questions and answers. The complainant was asked where in the appellant’s bedroom it would happen and said that she thought that it occurred on the appellant’s bed. She was asked “how it would happen that you would, from when you went to your dad’s bedroom” and she said that he just took her there. She said that she wore pyjamas and was asked what they looked like and she said that sometimes they had long sleeves and sometimes they had short sleeves. She was asked how the appellant licked her private parts and she said he just licked it with his tongue. She was asked what she would do during this and she said “I do not know, I didn’t understand what was happening”. She was asked whether the appellant made any noises and she said that she did not remember, indicating that she did not remember his making any noises, which is unsurprising.
The appellant contends that the complainant could not recall how she felt when the abuse was occurring and when she was in the shower afterwards, referring to questions and answers during the first interview and at trial. This again is not a fair description of the complainant’s answers. During the first interview, she was asked how it made her feel when it was happening and she said that she did not understand what was happening at the time so she did not really remember now but she later came to understand what had happened. In evidence in chief at trial, she gave similar evidence about how she felt when it was happening and in the shower afterwards. It is quite apparent from the whole of her evidence over both interviews and at trial that when she was only around eight years old she did not realise its significance in contrast to the strong feelings that she experienced when she was ten and three quarters years old and realised its significance in retrospect. This is entirely unsurprising.
The appellant contends that the complainant could not recall the first or last time the abuse occurred in the bathroom, referring to questions and answers during the second interview. Again, in circumstances where the occasions were indistinguishable, this is entirely unsurprising.
The appellant contends that the complainant’s recall, or lack of recall, in relation to the alleged offending contrasts with an excellent memory in relation to matters unrelated to the offending. The appellant points to the complainant’s description of the layout of the appellant’s house, which is entirely unsurprising. He points to her description of a charity event she attended at the end of the school year; however, she described this in answer to a question in cross-examination asking her to describe an event of which she had a good recollection as a happy event. He points to her description of a Halloween party, which is entirely unsurprising. The remaining matters to which the appellant refers involve the complainant’s viewing of the pornography and subsequent discussion with her mother which are not only related to the offending but were matters that engendered strong emotions that were likely to be remembered.
Overall, the level of the complainant’s memory was entirely what was to be expected if she was giving honest and reliable evidence.
Discussion with family friend
The appellant contends that the complainant’s question of the family friend “Do people really do that?” in reference to the pornography depicting cunnilingus between adult women is inconsistent with such acts having been performed on her.
This contention fails to take into account the fact that the complainant was only around eight years old when the charged conduct allegedly occurred and on her own evidence she did not understand its significance at the time, which was unsurprising. By contrast, when she was ten and three quarters years old, she was disturbed to see images of adult women performing cunnilingus on each other. Moreover, it would be natural for a child to ask a quasi-grandfather a question in open terms in words such as those used by the complainant. This is not inconsistent with the acts having been performed by the appellant on the complainant at a much younger age in an entirely different context.
Risk of contamination
The appellant contends that the viewing by the complainant of pornography showing cunnilingus between adult women in October 2014 gave rise to a risk of contamination because it was the same sexual act alleged to have been perpetrated on the complainant by the appellant.

The appellant does not elaborate why viewing that pornography in October 2014 was liable to give rise to false memories by the complainant of the appellant performing cunnilingus on her at a younger age. In addition, the evidence of the family friend and the complainant’s mother demonstrated that the complainant had already become disturbed as a result of viewing the pornography before her mother criticised her for doing so. This is consistent with the complainant’s evidence that the viewing of the pornography led her to realise that what the appellant had done to her was wrong and, in retrospect, abhorrent.
Circumstances of initial report to mother
The appellant refers to the fact that the complainant’s first report to her mother of the appellant’s conduct was in the context of, and immediately after, being told off by her mother for viewing pornography. The appellant refers to the complainant’s evidence that her mother said that it was against God’s rule, the material was sodomy in God’s eyes, it was bad for her to deceive her mother and she could not have communion unless she confessed to what she had done. The appellant refers to the complainant’s description of her mother’s reaction as the most upset she had seen her and her experience as the most emotional experience in her life.
The appellant suggests that the complainant’s mother’s reaction may have prompted her to invent allegations about the appellant’s conduct to deflect attention from herself or alternatively to lead her to imagine the appellant’s conduct. As to the former, the evidence of the complainant and her mother was consistent that despite views about accessing pornography her mother expressed her love and support for her daughter. As to the latter, there is no apparent reason why her mother’s reaction would have prompted the complainant to imagine the appellant’s conduct. While of course both possibilities raised by the appellant are theoretical possibilities, invention and imagination are always theoretical possibilities whenever any witness gives evidence.
Leading questioning by her mother
The appellant contends that the initial report to the complainant’s mother was elicited by leading questioning by her mother.
The complainant’s mother said that the complainant introduced the topic by saying words to the effect “Mum, I want to tell you something but I think that you will be very upset by that”. She reassured her by saying words to the effect “I'm fine, I'll listen to what you say and I'll be fine and I just want to see what's troubling you that much”. The complainant then said words to the effect “Did dad do something very bad to you while you were living with him?” She replied words to the effect “Well he was generally quite angry and difficult to live with”. The complainant asked whether it was normal for a father to wash his children”. She replied “Well, if they're young then, yes, it's fine”. The complainant said her father had washed her in the shower and had done something very bad to her. She asked “What exactly did he do to you?” and at that point the complainant wrote the words “Dad was li my Pͷ. Also was tou my Pͷ”.
Given the context of the discussion leading up to the words written by the complainant, it is quite clear that the complainant was saying that the appellant had licked and touched her vagina. The mere fact that the complainant’s mother confirmed this with her by saying it back to her does not in the circumstances constitute leading questioning.
After this, the complainant’s mother gave evidence that they had the following conversation:
I said 'Did it happen only once?', and she said that 'No, it was more than that'. I said 'How many times?', and she said she couldn't remember. I asked whether that was every time when they were with the father and she said 'No, it didn't happen every time, that it happened a number of times'.
This is not leading questioning.
Leading questioning by interviewer
The appellant contends that the complainant was asked leading questions by the interviewer as recorded in the records of interview. The only question identified as leading is a question during the first interview “tell me what your dad would do to the pyjamas”.
The interviewer asked the complainant what she was wearing when the appellant took her into his bedroom and licked her private part and she said pyjamas. The interviewer asked what the appellant would do to the pyjamas and the complainant said that he took the bottom part off and then did it. The interviewer did not suggest to the complainant that the appellant took off her pyjamas: the complainant said this herself. On a scale of leading from 1 to 10, this question might be regarded as a 2. In the context of the interview as a whole, it was entirely insignificant in terms of leading.
On an assessment of both interviews as a whole, they were not leading.
Holistic consideration
On a holistic consideration of all of the matters raised by the appellant and of the complainant’s story as told to her mother, during both interviews and during her evidence at court, there were not cogent reasons to doubt the reliability of the complainant’s evidence either in absolute terms or because of her state of cognitive development, psychological immaturity, susceptibility to influence or other youth related circumstances. No unsafe to convict warning was permitted under section 12A of the Act.
This ground is not established.
Scrutinise with special care
The appellant contends in the alternative that the Judge erred by failing to direct the jury to scrutinise the complainant’s evidence with special care.
In R v Murray[29] Lee J (with whom Maxwell and Keldham JJ agreed) said:
The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.[30]
[29] (1987) 11 NSWLR 12.
[30] At 19.
In Longman v The Queen[31] Brennan, Dawson and Toohey JJ said:
… what par (a) abolishes is the requirement to give a warning, not a judge’s discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim’s evidence in the light of common human experience. By force of par (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only.[32]
McHugh J said:
As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it.[33]
[31] (1989) 168 CLR 79.
[32] At 87.
[33] At 107.
In Robinson v The Queen[34] Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ referred with approval to the passage from Lee J’s judgment cited above; referred to an important inconsistency in the complainant’s evidence, inconsistency in the complainant’s subsequent conduct and features indicating suggestibility; and concluded:
Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. [35]
[34] [1999] HCA 42, (1999) 197 CLR 162.
[35] At [26].
The appellant accepts that there is no rule of law or practice which requires a trial judge to use particular words or apply a particular formula.[36]
[36] R v N, RC [2012] SASCFC 37, (2012) 112 SASR 399, at [91] per Sulan J.
The appellant contends that the matters referred to above required the Judge to direct the jury that it should scrutinise the complainant’s evidence with special care.
The Judge in the course of summing up to the jury gave standard directions about the need and importance of the prosecution proving the appellant’s guilt beyond reasonable doubt. The Judge also said:
In this case the prosecution rely upon the evidence of [the complainant] in order to prove their case. As such, you must assess her evidence very carefully. It is only if you can accept her evidence beyond reasonable doubt that you could find the accused guilty.
The appellant contends that the Judge should have directed the jury to scrutinise the complainant’s evidence with special care. The Judge directed the jury that they must assess her evidence very carefully. There is very little difference between the effect of the two directions. In the circumstances considered above, it is doubtful that the Judge needed to give the direction that she did but the direction that she did give was perfectly adequate.
This ground is not established.
Verdict unreasonable or cannot be supported: ground
The appellant contends that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
In SKA v The Queen[37] French CJ, Gummow and Kiefel JJ said:
[37] [2011] HCA 13, (2011) 243 CLR 400.
It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:
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.
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The QueenMcHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
…
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.[38]
[38] At [11]-[14].
Having conducted an independent review of the evidence and taken into account the appellant’s submissions on this ground which are summarised above in the context of ground 5, I do not experience a reasonable doubt about the guilt of the appellant. The jury of course had the advantage of seeing and hearing the evidence firsthand. There is no basis on which it could be concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
This ground is not established.
Conclusion
I would grant permission to appeal on those grounds in respect of which the question of permission was referred to this Court. I would dismiss the appeal.
LOVELL J:
I agree with the reasons of Blue J and the orders he proposes.