R v P, TJ
[2019] SASCFC 114
•1 October 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, TJ
[2019] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Doyle)
1 October 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
Appeal against conviction.
The appellant was tried by a jury and convicted of one count of unlawful sexual intercourse with a person of or above the age of 12 years and under the age of 17 years contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant was acquitted of a further seven charges of unlawful sexual intercourse and one charge of indecent assault. The complainant was between 13 to 16 years old at the time of the offending. The appellant was her foster carer.
During trial, the appellant’s counsel introduced evidence of disclosures made to the Department of Families and Communities and to police years earlier that the complainant had been sexually abused by the appellant. There was insufficient evidence to be able to discern which, if any, of these disclosures was an ‘initial complaint’ for the purposes of section 34M of the Evidence Act 1929 (SA). The trial Judge did not give directions on the permissible and impermissible uses of these disclosures in her Honour’s summing up to the jury.
Held per Nicholson J (Stanley J and Doyle J agreeing) allowing the appeal:
1. The disclosures did not fall within and attract the requirements of section 34M of the Evidence Act 1929. However, the evidence of the disclosures constituted evidence of out of court prior consistent statements. The lack of suitable directions by the trial Judge with respect to this evidence gave rise to a miscarriage of justice.
2. The appellant’s conviction is set aside and the matter is remitted for retrial in the District Court.
Criminal Law Consolidation Act 1935 (SA) s 49, s 56; Evidence Act 1929 (SA) s 34M, referred to.
R v Bucca; R v Castle [2018] SASCFC 42, applied.
R v Jones [2018] SASCFC 80; R v Lowe [2016] SASCFC 118, discussed.
MFA v The Queen (2002) 213 CLR 606; The Nominal Defendant v Clements (1960) 104 CLR 476; Kilby v The Queen (1973) 129 CLR 460; Livermore v The Queen (2006) 67 NSWLR 659; R v Callaghan (1993) 70 A Crim R 350, considered.
R v P, TJ
[2019] SASCFC 114Court of Criminal Appeal: Stanley, Nicholson and Doyle JJ
STANLEY J: I agree with the reasons of Nicholson J and the orders he proposes.
NICHOLSON J.
Introduction
On 6 November 2018, following a trial before a jury in the District Court, the appellant was convicted of one count of unlawful sexual intercourse with a person of or above the age of 12 years and under the age of 17 years contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935 (SA). Initially, the appellant raised four grounds of appeal. A Judge of this Court granted permission to appeal with respect to grounds 1 and 4 but refused permission with respect to grounds 2 and 3. The appellant exercised the right available to him to have those two grounds referred for reconsideration by the Court of Criminal Appeal. However, at the hearing of the appeal ground 3 was abandoned.
Ground 1 relates to evidence adduced from the complainant and from a police officer in cross-examination together with certain agreed facts said to constitute evidence of out of court prior statements of complaint. It is contended that the Judge failed to provide appropriate directions with respect to this evidence giving rise to a miscarriage of justice. By grounds 2 and 4, the appellant complains about a number of comments made by the prosecutor in her closing address which the appellant contends were impermissible and which were not corrected by the trial Judge, again giving rise to a miscarriage of justice.
For the reasons that follow, I would allow the appeal on the basis of ground 1. As such, it is not necessary to reach a conclusion with respect to ground 2 or ground 4.
Background and the course of the trial
On 23 January 1991, when the complainant was not quite five years of age, she was placed under the guardianship of the Minister until she was to turn 18. She had a long term placement with the N family from 10 July 1990 to 5 October 1999. From 5 October 1999 to 15 June 2002 she was in the foster care of the appellant and his family on the appellant’s farm in rural South Australia. According to the Crown case, it was during this period, when the complainant was aged between 13 to 16, that the appellant committed multiple sexual offences against the complainant.
The appellant was tried with respect to nine counts of sexual offending. Count 1 alleged an offence of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 with respect to which the jury was discharged because they were unable to reach a verdict. Counts 2 to 9 inclusive each alleged a separate act of unlawful sexual intercourse contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935. The eight allegations included one act of causing the complainant to perform fellatio upon the appellant and seven acts (including that for count 5) of penile-vaginal intercourse. The appellant was acquitted of each of these counts with the exception of count 5.
Count 5, in contrast to the other counts, was supported by evidence independent of that of the complainant. This evidence directly contradicted the account of the appellant and his wife in important circumstantial respects. The other counts depended solely on the evidence of the complainant as to conduct said to have occurred in private between her and the appellant in various locations on the farming property where she was living and helping with the work.
It is unnecessary to canvass this additional evidence which, on one view, strengthened the prosecution case with respect to count 5. The appellant has acknowledged that there was a materially different evidentiary basis with respect to count 5. As such, there is no scope for (and no appeal ground asserting) a contention that the verdict on count 5 is unsafe on the basis of inconsistency between the verdict of guilty with respect to count 5 and the verdicts of not guilty with respect to counts 2 to 4 and 6 to 9.
The evidence of the complainant
The complainant at the time of giving evidence was 32 years of age. She explained that her first permanent foster placement when she was about four was with the N family but she was unhappy there and moved to live with the appellant’s family with whom her older sister, J, was also living. Initially the relationship with the appellant and his wife was a good one. However, it changed when the appellant started to sexually abuse her. She said that he would regularly create opportunities to have sexual intercourse with her. The complainant described in some detail the nine individual incidents relied on with respect to counts 1 to 9. She was unable to give a date for any of the counts but did identify them quite carefully with respect to the circumstances of their occurrence. Apart from count 5, each alleged offence was described as occurring somewhere on the farm or in the house when the complainant and the appellant were alone. On each occasion the appellant gave the complainant $50 from his wallet except on one occasion when he gave her $80. Typically, the appellant would plead with the complainant for sex and whilst she was resistant and uncooperative she ultimately gave into him and took the money.
The complainant said that during the relevant period, she would have had sexual intercourse with the appellant on between 50 and 100 occasions, such that the nine counts charged were, in effect, illustrative of a sexual relationship between her and the appellant.
Count 5 was different in that it was said to have occurred on an occasion when the complainant and the appellant were at Murray Bridge and stayed in a hotel. There was independent evidence from the son of the hotel owner and from a man who knew the complainant. The former gave evidence of the hotel record keeping particularly concerning a booking in the name of the appellant and inferences concerning actual occupancy that might be drawn. The latter gave evidence of seeing the complainant and “her father” in Murray Bridge on two occasions on the same night. The evidence of these two witnesses supported the complainant’s account in important respects and challenged the appellant’s account that he simply drove to Murray Bridge to pick up the complainant and bring her home.
Evidence of the appellant
The appellant was 73 at the time of the trial and in his mid-fifties at the time of the alleged offending. He and his wife started fostering children in 1996 and had had about six children on a long term basis. He described the complainant as a difficult foster child with whom he did not get along. She had difficulties at school and was suspended frequently and the appellant did not have much to do with her. According to the appellant, the complainant did not help on the farm very much. He specifically denied engaging with the complainant on the farm in various ways alleged by the complainant as providing the context within which he offended against her. He consistently denied any sexual misbehaviour and addressed each of the allegations of sexual misconduct put against him by the complainant. His explanation of the circumstances of the Murray Bridge visit was quite different from that given by the complainant and the independent witnesses.
A number of other persons, including the appellant’s wife and Mrs N, also gave evidence for the defence. That evidence was broadly supportive of that given by the appellant. In particular, the appellant’s wife gave evidence about the circumstances of life at home and on the farm and to the effect that she saw no misbehaviour by her husband much less any indication that he had engaged in sexual intercourse with the complainant on 50 to 100 occasions.
Ultimately, the jury was faced with a contest between the evidence of the complainant given on oath and that given by the appellant on oath. The Crown case was dependent on the jury being satisfied beyond reasonable doubt as to the credibility and the reliability of the complainant’s evidence concerning the conduct of the appellant with respect to each of the charged counts. As it happens, they were not so satisfied with respect to counts 2 to 4 and 6 to 9 but were so satisfied with respect to count 5.
We can never know the precise reason why the jury drew a distinction between count 5 and the other counts. The not guilty verdicts do not necessarily imply disbelief or want of confidence in the complainant’s evidence. They may simply reflect a cautious approach taken by the jury to the heavy responsibility undertaken.[1] The verdicts are consistent with the jury having adhered to the separate consideration direction given by the Judge and consistent with having exercised their entitlement to accept as reliable some but not all of the complainant’s evidence or with having taken a cautious, perhaps merciful, approach to the task that was before the jury.
[1] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34].
Nevertheless, fundamental to the jury’s verdict with respect to count 5 was its apparent acceptance beyond reasonable doubt that the complainant was telling the truth and giving a reliable account of the appellant having engaged in penile-vaginal sexual intercourse with her on the occasion they stayed in a hotel at Murray Bridge. It is in this context, that appeal ground 1, in particular, falls to be considered.
Appeal ground 1
By this ground, the appellant contends as follows.
The Learned Trial Judge erred in failing to provide the mandatory directions to the jury on the evidence of complaint as required by s34M(4) Evidence Act 1929 or, in the alternative, failed to provide directions to the jury to disregard evidence of prior consistent statements made by the complainant.
The evidence in issue
It is necessary to identify the evidence relied upon by the appellant in connection with this ground of appeal. An issue that will need to be determined is whether or not the evidence relied upon by the appellant in this context is properly to be characterised as “complaint” evidence so as to engage the requirements of section 34M of the Evidence Act 1929 (SA). Section 34M abolishes the common law relating to “recent complaint in sexual cases” but renders admissible evidence relating to the making of “an initial complaint of an alleged sexual offence”.[2] Section 34M also imposes certain requirements as to how such evidence is to be treated during a trial of a charge of a sexual offence including, a mandatory requirement for the Judge to give to the jury certain directions.[3] The notions of a “complaint” and an “initial complaint” are defined for these purposes.[4] Given that the proper characterisation of the evidence under consideration in this trial is yet to be determined, when describing the evidence I propose to use the more neutral term “disclosure”.
[2] Subsections 34M(1) and (3).
[3] Subsection 34M(4).
[4] Subsection 34M(6).
The first disclosure relied on by the appellant would appear to be one made by the complainant to a worker at (then) Families SA by the name of Jacquie Baumgurtel who later passed away. This apparent disclosure was revealed first in the cross-examination of police officer Michelle Johnson concerning entries in the police investigation diary. Police officer Johnson told the court that there was an entry which appeared to record a discussion between Detective Sergeant Bissell and the complainant to the effect that the complainant had said to Detective Sergeant Bissell “that she reported these incidents when she was about 16 or 17 years of age”. According to the note, the complainant also said to Detective Sergeant Bissell that she did not think that the worker at Families SA believed her. If the complainant had been about 16 or 17 at the time of any such disclosure to Jacquie Baumgurtel it would have taken place in about 2002 or 2003.[5]
[5] According to an agreed fact, the complainant was born on 24 May 1986.
During the re-examination of the complainant, the following evidence was adduced.
Q.You were asked questions about making complaint about what [the appellant] had done to police and/or Families SA in 2004 and 2007.
A.Yes.
Q.Did you tell anyone from Families SA prior to that time about [the appellant] and what he was doing.
A.Yes.
Q.Are you able to say who that was in Families SA.
A.Jacquie Baumgurtel.
Counsel for the appellant objected at this point on the basis that it had not been part of the prosecution case in chief. After argument in the absence of the jury, the Judge ruled that she would “disallow the question” and would direct the jury accordingly. When the jury returned, her Honour directed them in the following terms.
Thank you for your patience. Just to let you know, I have disallowed the questions that were put in re-examination regarding a prior complaint and who that complaint was made to. I ask that you ignore the answers that were given with respect to both those questions by [the complainant].
The evidence from police officer Johnson concerning the complainant’s disclosure made to Jacquie Baumgurtel was hearsay and, ordinarily,[6] not admissible as to its truth, although nothing was said about this at the time or during the Judge’s summing up. However, and leaving aside for the moment the Judge’s direction to ignore it, the evidence given by the complainant in re-examination was direct evidence as to her having made a disclosure to Jacquie Baumgurtel some time prior to 2004. As to the content of any such disclosure, the complainant acknowledged in evidence no more than that she had told Jacquie Baumgurtel “about [the appellant] and what he was doing”. It was this evidence that the jury were directed by the Judge to ignore.
[6] Subject to any successful application to admit the police investigation diary or part thereof pursuant to section 52 or section 53 of the Evidence Act 1929 which was not pursued.
A second and third disclosure by the complainant were said to have occurred on or about 21 December 2004 and on or about 26 February 2007. Police officer Johnson was also cross-examined on these topics by reference to the police investigation diary. Counsel for the appellant had the following exchange with police officer Johnson.
Q.Complaints were made to a Mr Brenton Carr at Families SA in December 2004.
A.Yes, I believe so.
Q.And complaints were made to Families SA in February '07 to a Ms Haddad.
A.Yes.
Q.And complaints were made to police on those occasions as well.
A.I'm not aware of the complaint to police in 2007.
Q.But there were earlier complaints made to police.
A.I'm not aware of those complaints. There was no police incident report raised in relation to those reports.
Again, police officer Johnson’s evidence was inadmissible hearsay and no direction was given to the jury in this respect. However, the complainant was also asked about a disclosure in 2004 and one in a 2007 during cross-examination albeit inconclusively.
Q.I want to suggest to you that in February 2007 you complained about [the appellant] sexually abusing you to police.
A.I don't remember.
Q.Was that roughly in accord with your memory.
A.I don't have a memory of that.
Q.I want to suggest that on 26 February 2007 you made notifications at the Special Investigations Unit of SAPOL concerning care previously provided to you by [the appellant]. Do you agree or disagree with that.
A.Neither. I don't know. I don't have a memory of that.
Q.You can't remember anything about that at all.
NOT ANSWERED
Q.And I want to suggest you raised similar matters with them in December 2004.
A.I don't remember that either.
Q.I want to suggest to you that in respect of the allegations you made in 2004 and in 2007 you declined to assist both the Special Investigations Unit and SAPOL in their effort to conduct investigations. Do you agree with that.
A.Say that again, please.
Q.I want to suggest to you that in respect of the 2004 allegations and in respect of the more - of the 2007 allegations, you declined to assist both the Special Investigations Unit and SAPOL in their efforts to conduct investigations into the circumstances of your complaints.
A.I don't know what year it was, but I remember I had an appointment with the police that I didn't turn up to it because I was grounded. I didn't do the dishes at my dad's house the night before, so I was grounded. He didn't know about the appointment, I didn't want to talk to him about the appointment, I never turned up. I don't know what year that might have been. It might have been the 2007.
As I have indicated, the cross-examination of the complainant (above) was inconclusive. However, as far as a disclosure by the complainant said to have been made in December 2004 is concerned, the appellant also relied upon agreed fact 16 put before the jury which was in the following terms.
16.On 21 December 2004 a notification was received by the Special Investigations Unit (SIU) of Department of Families and Communities alleging that [the complainant] had been sexually abused while she was in the care of [the appellant]. The allegations centred on [the complainant] participating in sexual intercourse with [the appellant] over an extended period.
With respect to the third disclosure, that said to have been made to Ms Haddad and identified in the transcript references set out above, the jury had before them agreed facts 18 and 19 which were in these terms.
18.On 26 February 2007 SIU received a further sexual abuse notification about [the complainant] while in the care of [the appellant]. These allegations were again referred to SAPOL.
19.[The complainant] declined to participate in any post-notification dialogue with either SAPOL or SIU regarding the 2004 and 2007 notifications.
The proceedings brought against the appellant were initiated as a result of a disclosure or complaint made to police on 19 March 2015. Again, the matter was elicited in cross-examination as follows.
Q.But when you first went to the police, I want to suggest to you that what happened is that you rang the police and you spoke to them on 19 March 2015.
A.Yes, that sounds right.
Q.You told the police that you'd been sexually assaulted or sexually abused by [the appellant].
A.Mm-hmm, yes.
Q.And you told them that he was your foster carer.
A.Yes.
Thereafter the cross-examiner explored in a little detail the process undertaken by the police in obtaining the statements by the complainant of 16 June 2015 and 3 March 2016.
In addition to the specific references to previous disclosures just now identified, police officer Johnson was also cross-examined with the assistance of the police investigation diary in general terms on this topic. This exchange took place.
Q.She had made complaints about my client on previous occasions, to Families and Youth Services.
A.Sorry?
Q.She had made complaints about my client on previous occasions to -
A.I believe so, yes.
Q.You checked the documentation on that.
A.I have looked through, there was a lot of documents.
Q.And she also made complaints to police or allegations to police on earlier occasions about my client.
A.No, not that I'm aware of.
Then there was the following exchange.
A.I'm not aware of the complaint to police in 2007.
Q.But there were earlier complaints made to police.
A.I'm not aware of those complaints. There was no police incident report raised in relation to those reports.
Q.Can I take you to an entry of 23 April 2015 and again the same entry that I was asking you questions about earlier.
A.Yes.
Q.It says in relation to the entry that she didn't think that the worker believed her from Families SA. She then goes on and says she did contact police around the same time and had made arrangements to speak with the police officer'. You didn't follow that up.
A.No, I didn't.
Q.But on the face of the record, she had spoken to police on a previous occasion.
A.On the face of it, yes.
By way of summary, leaving aside for the moment questions of admissibility, and notwithstanding the Judge’s direction to the jury to ignore the re-examination of the complainant concerning the disclosure made to Jacquie Baumgurtel in 2002 to 2003, the jury had before them evidence to the effect of or from which the following might be inferred:
(i)that in 2002 or 2003 the complainant had disclosed “these incidents” to a worker at Families SA;[7]
(ii)that in December 2004 the complainant had disclosed to the Department of Families and Communities that she had been “sexually abused while … in the care of [the appellant]” by way of “participating in sexual intercourse with [the appellant] over an extended period”;
(iii)that in February 2007, the complainant had made a further disclosure to the Department of Families and Communities of sexual abuse while in the care of the appellant; and
(iv)that on 19 March 2015, the complainant had disclosed to the police that she had been “sexually assaulted or sexually abused by [the appellant]”.
[7] The re-examination questions on this topic, withdrawn from the jury, used similarly opaque language “what [the appellant] had done” and “about [the appellant] and what he was doing”.
I raise this concern with respect to (ii) and (iii) above. There is no direct evidence from the complainant that it was she who made the disclosures to the Department of Families and Communities in 2004 and 2007. In her cross-examination (set out above) the complainant maintained no recollection of doing so. Agreed facts 16 and 18 do not specify or, at best, are ambiguous as to who made those disclosures. Left unassisted (as they were) the jury most likely inferred that it was the complainant who made the disclosures. However, the complainant never said so and the possibility that she may have spoken to someone else who made the reports identified in agreed facts 16 and 18 was not explored.
Did any or all of the disclosures qualify as an “initial complaint” so as to attract the requirements of section 34M of the Evidence Act?
Section 34M of the Evidence Act is in these terms.
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
In R v Jones,[8] the Court of Criminal Appeal[9] made the following observations concerning the reach of section 34M.
[8] [2018] SASCFC 80 at [64]-[68].
[9] Constituted by Kelly, Blue and Lovell JJ.
Complaint evidence is one of a limited number of exceptions to the rule prohibiting proof of prior, out of court, consistent statements. The purpose and relevance of complaint evidence in a prosecution case is to “boost” the credibility of a complainant. It is therefore important evidence. As Kourakis J (as his Honour then was) explained in R v H, T:
The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak of its occurrence.
Duggan J observed in R v J, JA that consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency in the content of the allegations.
A complaint will have probative value if it shows how the allegation first came to light and is evidence of the degree of consistency of conduct of the complainant which in turn is relevant to the credit and reliability of the complainant’s evidence.
Unlike the common law, s 34M does not require the complaint to be proximate in time to the alleged offence and evidence of the first complaint is admissible notwithstanding that it might be made many years after the alleged offence. Nor does s 34M preclude evidence of complaint being adduced only from the complainant without evidence being adduced from the person or persons to whom the complaint was said to be made. Nevertheless, the probative value of complaint evidence will vary greatly from case to case.
While s 34M renders admissible evidence of complaint, it is only the “initial” complaint that is rendered admissible. In one sense, there can only be one initial complaint; however the section also permits evidence to be adduced of a later complaint provided that it is “by way of elaboration” of the earlier complaint. Accordingly, unless a later complaint is an elaboration of the initial complaint, evidence can only be led of one complaint and that complaint must be the complaint first in time. An initial “complaint of an alleged sexual offence” must be referable to the offence but need not necessarily refer to the details of the occasion charged in the count under consideration. It is sufficient if it is relatively general provided that it encompasses, and in that sense is referable to, the charged offence.
(Citations omitted)
In the present case, the evidence relating to the disclosure in 2002 or 2003 was a contender to qualify as “initial complaint” evidence falling within section 34M. If so, it is conceivable that one or more of the later disclosures might constitute an elaboration thereof. However, I accept the respondent’s contention that none of the evidence referred to above qualified as evidence of initial complaint (elaborated upon or otherwise) and that section 34M simply was not engaged by the adduction of any of this evidence.
The reason for this is straightforward. There is no evidence that any disclosure by the complainant in 2002 or 2003 was the initial complaint. Furthermore, the terms of that disclosure were so lacking in detail as to be insufficient to encompass or be referrable to the allegations of sexual offending the subject of the charges.[10] Neither of the 2004 and 2007 disclosures qualify as an initial complaint. The evidence does not suggest nor did the parties suggest that either was the first complaint made and such is quite unlikely given the evidence concerning Jacquie Baumgurtel in 2002 or 2003. Further, without the identification of an initial complaint neither the 2004 nor the 2007 disclosure was admissible as an elaboration of an initial complaint.
[10] R v Jones [2018] SASCFC 80 at [68].
The prosecution did not seek to lead evidence of any of the disclosures in 2002 or 2003, 2004 or 2007 as complaint evidence pursuant to section 34M and correctly so. Counsel for the appellant acknowledged this. After the closing addresses, the Judge discussed with counsel the directions she proposed to give to the jury during her Honour’s summing up. The following exchange took place.
HER HONOUR: Complaint evidence.
APPELLANT COUNSEL: There is none.
HER HONOUR: So I'm not required to give a 34M(4)?
APPELLANT COUNSEL: I don't think so, no.
HER HONOUR: What do you say, [respondent counsel]?
RESPONDENT COUNSEL: I haven't got that to hand. It's somewhere here, that section.
HER HONOUR: The usual directions regarding consistency, just in the face of Jones, I'm just concerned to cover it off, that's all.
APPELLANT COUNSEL: I don't think there is any evidence that falls into the category of complaint evidence.
HER HONOUR: I agree, I'm just covering it off with you.
APPELLANT COUNSEL: Therefore, my submission is there is no need for any direction.
HER HONOUR: Thank you.
I agree with the respondent’s additional contention, in this context, that section 34M is directed at limiting the circumstances in which complaint evidence can be led by the prosecution to bolster a complainant’s evidence. Complaint evidence is an example of a prior consistent statement. Ordinarily such evidence is not admissible. There are exceptions such as where a party is entitled to rehabilitate the credit of a witness who has been cross-examined as to recent intervention[11] or, at common law, the right given to the prosecution to elicit “recent complaint” evidence.[12] The latter common law entitlement has been abolished in South Australia[13] but replaced with an entitlement to adduce evidence of initial complaint in the circumstances and for the purposes as prescribed by section 34M. But this entitlement is still no more than an exception to the rule prohibiting evidence of prior consistent statements being adduced to bolster the credit of a witness.
[11] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476.
[12] Kilby v The Queen (1973) 129 CLR 460 at 466.
[13] Subsection 34M(1) of the Evidence Act 1929 (SA).
I agree with the respondent’s submission that it was not incumbent on the appellant to satisfy the requirements of section 34M. Furthermore, section 34M had no application insofar as the mandatory directions required by that section are concerned. The appellant’s counsel was entitled to cross-examine witnesses on these topics for other proper purposes, principally as an attack on the complainant’s credit. The defence case was that the complainant had lied and made false allegations. As such, when considered in the context of the cross-examination of the complainant as a whole, the forensic purpose of adducing the disclosure evidence would appear to have been to support a submission that the complainant had made disclosures at times and in circumstances to suit or further her own agenda and not for their truth. Further, by not assisting the police to follow up or pursue her complaints she behaved inconsistently.
Did the Judge err in failing to direct the jury as to the impermissible uses of the prior disclosure evidence
Nevertheless, in addition to whatever proper use the appellant sought to make of this evidence at trial, it remained evidence of out of court prior consistent statements and its two most obvious potential uses by the jury in support of the prosecution case were impermissible. It was not to be used by the jury either for the truth of the out of court assertions or to bolster the credit of the complainant.
In R v Bucca; R v Castle,[14] the relevant law in this respect was briefly summarised.
[14] [2018] SASCFC 42 at [129] and [148].
In The Nominal Defendant v Clements[15] Windeyer J stated the following general principle in terms which have not been doubted.
[15] [1960] HCA 39; (1960) 104 CLR 476 at 490.
The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing.
Evidence of a prior consistent statement is hearsay evidence and not to be admitted for a testimonial purpose. Nor, ordinarily, can it be admitted in order to aid in the assessment of, that is to bolster, the witness’ credit.[16]
. . . .
Where evidence that is otherwise of a hearsay nature is introduced for the purpose of rebutting a suggestion of recent invention and only for that purpose the permissible use and any impermissible use of that evidence should be drawn to the jury’s attention.[17] Typically there will be an express direction to this effect. However, it will be sufficient if the relevant directions read as a whole convey to the jury what is permissible and what is not permissible as a mode of reasoning in this respect.
(Footnotes in original)
In the present case and notwithstanding that the evidence of prior consistent statements was adduced in the defence case through the cross-examination of the prosecution witnesses, it still was necessary that the jury be instructed as to its permissible use and directed not to rely on it for its impermissible use or uses. The summing up contains no directions concerning the manner in which the jury should approach evidence of prior inconsistent statements, evidence of prior consistent statements or hearsay evidence.[18]
[16] Gately v The Queen [2007] HCA 55 at [105]; (2007) 232 CLR 208 at 240 (Hayne J with whose reasons Gleeson CJ, Heydon and Crennan JJ agreed).
[17] See generally Windeyer J in The Nominal Defendant v Clements [1960] HCA 39, (1960) 104 CLR 476 at 495; R v Martin (No 2) (1997) 68 SASR 419 at 451 (Bleby J), R v Georgiev [2001] VSCA 18 at [44], (2001) 119 A Crim R 363 at 378, (Brooking and Phillips JJA) and R v Heinze [2005] VSCA 124 at [61], (2005) 153 A Crim R 380 at 395 (Nettle J).
[18] This is not to suggest that any such directions should be given in every case.
The Judge referred to the disclosure evidence on at least six occasions during her Honour’s summing up. On two occasions, reference was made by way of summarising aspects of this evidence (with one such occasion being during her Honour’s summary of the defence case). On two occasions, reference was made in the context of reminding the jury of the defence submissions that the complainant had acted inconsistently and was lying at the time of the earlier disclosures for her own purposes. On one occasion, the Judge made reference to the 11 year gap between the 2004 disclosure and the complainant speaking to the police in 2015. On one occasion, the Judge restated a prosecution closing submission in these terms.
Given the complaints [the complainant] made in 2004 and 07, you might think [the complainant’s] allegations are not something she is suddenly fabricating all these years later.
At no time did the Judge specifically address the two impermissible uses of the evidence. Indeed, in the comment extracted immediately above, both the prosecutor and the Judge may have been understood by the jury to be endorsing the use of the evidence to, at least, bolster the credit of the complainant, if not also for the truth of it.
It is true, as the respondent submits, that the prior disclosure evidence was general as to content and did not replicate the specific allegations made by the complainant in her evidence at trial relating to the nine counts. Nevertheless, the prior disclosure evidence is clear to the effect that the complainant was complaining about being “sexually abused” by and while in the care of the appellant by way of “participating in sexual intercourse … over an extended period”. Whilst general in nature, the disclosures were consistent with the complainant’s evidence of multiple acts of sexual abuse as charged.
In my view, there was a real risk that the jury, left unassisted, might reason in one or both of the two impermissible ways when confronted with this evidence. It is the very risk that underpins the general expectation that a Judge will direct a jury as to any impermissible uses that evidence admitted for a limited purpose might realistically be put. It is the same reasoning that underpins the mandatory requirements for directions as to permissible and impermissible uses in subsection 34M(4).
The respondent submitted that the following four circumstances militated against there being a risk that the earlier disclosures would be used as evidence of the truth or to bolster credibility.
(i)The evidence was led by the appellant, not the prosecution.
(ii)The only use discussed was that it could undermine the complainant’s credibility or provide a motive to lie.
(iii)The details of the disclosures were vague; they referred only to sexual abuse. Specific allegations relating to count 5 had not been referred to in earlier disclosures.
(iv)No suggestion was made to the jury to use the disclosure for an improper purpose – “in the absence of such a suggestion and when the use was obvious, there is no reason to find there was a risk of the jury reasoning improperly”.
Whilst these are important considerations that do carry weight, I am not persuaded that they are sufficient to obviate the risk of a miscarriage of justice in this case. As far as (i) and (ii) above are concerned, it is true that the evidence was led by the appellant in support of the defence case and not by the prosecution and that it was led in order to attack the credibility of the complainant. Nevertheless, its potential to support her credibility was self-evident. The potential to support the complainant’s credibility was referred to by the prosecutor in her closing address. The prosecutor made these submissions.
Clearly, because those complaints [2004 and 2007] were made, you might think this can’t be something she’s suddenly fabricating all these years later, there’s been complaints before.
. . . .
She told you why she finally made the complaint and saw it through in 2015 and she was in tears when she told you that. She said she went to the Royal Commission, they suggested that she do something about it. She told you it wasn’t an easy thing to speak about and she told you why she didn’t follow through earlier.
As far as the matter in (iii) above is concerned, I have already noted that the earlier complaints, whilst general in nature, were clear to the effect that the complainant was identifying a period of sexual abuse in the nature of sexual intercourse engaged in by the appellant as her foster carer. This is quite consistent with the complainant’s description in evidence of the nine counts of sexual abuse against the background of multiple additional acts of sexual intercourse during the foster care period.
As far as (iv) is concerned, I disagree that no suggestion was made to the jury that the disclosures could be used for an improper purpose. I accept that the overarching submission put to the jury, certainly by the defence and in the summing up, was to the effect that the defence relied on the disclosures to support inconsistency of conduct and a fabrication of the allegations. However, both the prosecution and the Judge did alert the jury to the possibility that the earlier disclosures were a contraindication of “suddenly fabricating all these years later”. In any event, notwithstanding that the jury were made aware of the permissible use, in the absence of being specifically directed not to use the disclosures testimonially or to bolster the credibility of the complainant, there remained an appreciable risk that the jury might reason this way.
I referred earlier to the context in which ground 1 is to be considered, that is, the fact that the jury acquitted on grounds 2 to 4 and 6 to 9. The respondent maintains that the jury was unlikely to have used the disclosure evidence improperly given the acquittals. The jury must have relied on something else, the additional independent evidence, to reason to guilty on count 5 without misusing the disclosure evidence. This may have been so. However, the reasoning masks an assumption that there was no misuse of the disclosure evidence the reliability of which cannot be known.
It is plain enough that the jury had a concern with respect to the complainant’s evidence; they were not prepared to accept it, beyond reasonable doubt, insofar as the counts on which they acquitted are concerned. Whether the jury simply acted cautiously or had a genuine difficulty with the truthfulness or reliability of the complainant’s evidence in these respects, cannot be known. It may be that the additional independent evidence of count 5 was sufficient to alleviate the jury’s concern with the complainant’s evidence. Nevertheless, in the event that either or both of the improper uses of the disclosure evidence did form part of the reasoning of some or all of jury members (and notwithstanding the acquittals), it cannot be known whether the prosecution case for count 5 still would have been accepted had that improper use been taken away.
In my view, the lack of suitable directions with respect to the disclosure evidence has given rise to a miscarriage of justice and I would allow the appeal on the basis of ground 1. The matter is not one apt for the application of the proviso.
Grounds 2 and 4 – the prosecutor’s comments
Given my conclusion with respect to ground 1, it is unnecessary to consider or reach a conclusion with respect to grounds 2 and 4. However, given there may be a retrial it may be of assistance if I make the following somewhat general observations concerning the five comments by the prosecutor about which the appellant complains in ground 2. They are set out in Appendix A. I have numbered the comments for convenient reference.
As far as comments 1 to 5 are concerned, the appellant’s primary complaint is that the prosecutor was putting assertions of fact or mixed fact and opinion to the jury on matters about which there was no evidentiary foundation.
I agree with the appellant’s submission that embedded in each of these comments was an assertion of fact, express or implied, unsupported by evidence in the trial. The embedded assertions have been italicised in Appendix A, apart from in comment 4. As far as comment 4 is concerned, the six statements referred to were not tendered. Thus the factual assertion of consistency across the statements, implied by comment 4, had no evidentiary foundation.
As a general proposition an advocate should not give evidence at all including in the guise of submission. In Livermore v The Queen,[19] the New South Wales Court of Criminal Appeal, after reviewing relevant authorities, identified five features of a Crown address that have “either alone or in combination, consistently been held to justify censure” by the Court, including “a submission to the jury based upon material which is not in evidence”. The Court further observed as follows.[20]
In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.
[19] [2006] NSWCCA 334, (2006) 67 NSWLR 659 at [31].
[20] Livermore v The Queen [2006] NSWCCA 334, (2006) 67 NSWLR 659 at [32].
It is contended by the respondent that some of the propositions of fact were no more than common sense or well accepted within the community. Nevertheless, a prosecutor, ordinarily, should refrain from giving the imprimatur of the prosecution’s office to unsupported statements of fact. In R v Callaghan,[21] Pincus JA and Thomas J (with whose reasons, in this respect, Fitzgerald P agreed) observed:
[I]t is not appropriate that Crown Prosecutors use the dignity of their office in order to “tell” a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.
[21] [1994] 2 Qd R 300; (1993) 70 A Crim R 350 at 356.
The Judge directed the jury in conventional terms that a proposition put by counsel when questioning a witness does not, of itself, constitute evidence. However, her Honour did not refer to counsel’s submissions in this context nor did she specifically correct before the jury any of the prosecutor’s assertions of fact as being without evidentiary foundation. She was not asked to do so. Nevertheless, it does not necessarily follow that a miscarriage of justice resulted. Without being exhaustive, the following considerations are relevant.
First, the failure of counsel at trial to object to the comments is of potential significance to the question of whether in the circumstances of a particular trial something said or not said, in fact, occasioned any prejudice. The point was put succinctly by Peek and Doyle JJ in R v Lowe.[22]
While the fact that trial counsel did not object does not prevent interference by an appellate court if there is a real risk of miscarriage of justice, it is nevertheless relevant to the assessment of whether there is such a risk.[23] As stated by Eames AJ for the Victorian Court of Criminal Appeal in R v Ibrahim:[24]
It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury not treated as of mere passing relevance to an academic appellate debate.
(Footnotes in original)
[22] [2016] SASCFC 118 at [13].
[23] R v Loader (2004) 89 SASR 204, 217 [54] (Duggan J with whom Besanko and Anderson JJ agreed). See also La Fontaine v The Queen (1976) 136 CLR 62, 73; Chamberlain v R (1983) 72 FLR 1, 12; R v Aziz [1982] 2 NSWLR 322, 331; R v Carbone (No 2) (1976) 14 SASR 280, 287-8; R v Ormond [2012] SASCFC 130, [28]-[31] (Gray J; see also comments by Peek J at [93]-[96]); Farrell v The Queen (1998) 194 CLR 286.
[24] (2003) 7 VR 141, 154 [50]. Vincent and Eames, JJA and Ashley, AJA.
Second, a number of the prosecutor’s statements of fact in the present case might be seen as matters of common sense or common knowledge and unlikely to divert the jury from a proper consideration of the task before it.
Third, whether or not a miscarriage has been caused by such comments will be a matter of degree. As the respondent submitted:
[C]ases in which it was determined a miscarriage had occurred involved comments which were inflammatory, inaccurate, overly emotional and generally unfair on topics which were of significance in the trial.[25]
(Footnote in original)
[25] See R v Livermore(2006) 67 NSWLR 659; Lyndon v R [2014] NSWCCA 112; R v Smith [2008] SASC 135 at [38] and [40] (Doyle CJ); Gonzales v R [2007] NSWCCA 321 at [107]; R v Attallah [2005] NSWCCA 277; R v Pollock [2008] QCA 205 at [79].
Fourth, again as the respondent has submitted, whilst not determinative, the fact that the jury acquitted on most charges supports a conclusion that the jury was not overborne or misled by the comments.
Conclusion
I would allow the appeal on the basis of ground 1. I would set aside the conviction with respect to count 5 and remit the matter to the District Court for a new trial.
DOYLE J: I agree with the reasons of Nicholson J, and with the orders he has proposed.
APPENDIX A
Appeal Ground 2
Comment 1
Now, it's difficult to think that anyone could sexually abuse a young girl, they are
not easy things to think about, but it does happen and often it involves persons you never think could do such a thing, persons of good reputations, persons with no criminal history.Comment 2
Generally in these cases you don't have any independent evidence to corroborate any particular charge, but I suggest here you do.
Comment 3
More often than not, sadly we are dealing with alleged sexual offending against children, often the allegations don't come to light until sometime later, and here the allegations, at least in full didn't come to light until March 2015 and that's some 13-15 years after the alleged event.
Comment 4
[The appellant’s counsel] referred to the complainant providing police with six statements and yet, in terms of the actual conduct she describes in relation to each and every charge, he didn't point to one inconsistency of her version.
Comment 5
There was no opportunity for DNA testing or medical examinations that would support what [the complainant] has told you. This puts her at a disadvantage, and of course it puts the defendant at a disadvantage too. You'll no doubt hear from [the appellant’s counsel] about that and the judge will give you a direction about that, but that is the very nature of these offences; behind closed doors, no witnesses to the actual offending, the power imbalance between the child and the adults involved and the allegations not coming to light, therefore, until a much later date.
25
1