R v Phillips - [2015] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHILLIPS
[2015] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)
7 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS
The appellant was convicted of one count of unlawful sexual intercourse committed against his step-daughter. The appellant occasionally shared a bed with the complainant, and it is alleged that on one occasion when the complainant was 14, the appellant penetrated her vagina with his finger. The appellant gave evidence on oath in his defence at trial.
The trial Judge did not adequately direct the jury as to the significance of the appellant giving evidence at his trial. The trial Judge erred in failing to recall the complainant to permit further cross-examination of discreditable conduct evidence of sexual conversations that had arisen during the complainant's re-examination. No direction was given that an adverse inference should not be drawn against the appellant for not putting his version of the conversations to the complainant. The trial Judge failed to direct the jury as to evidence given by the complainant's mother and father as to the reliability of the complainant's evidence.
Appeal allowed; The conviction is set aside, and a re-trial is ordered.
Counsel for the appellant submitted that the verdict was unsafe and unsatisfactory. The case depended upon the jury's assessment of the complainant. There was evidence to support her allegations. This ground of appeal is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34 P, s 34P(2)(a), s 34P(3), S 34P(4), referred to.
R v Copeland (1997) 194 LSJS 1; R v C [2013] SASCFC 137; R v C, G (2013) 117 SASR 162, applied.
R v Ong (2001) 80 SASR 537; R v Szach (1980) 23 SASR 504; R v J, SM [2013] SASCFC 96; The Nominal Defendant v Clements (1960) 104 CLR 476; The Queen v Lavery (1979) 20 SASR 430, discussed.

R v PHILLIPS
[2015] SASCFC 67
Court of Criminal Appeal: Sulan, Nicholson and Lovell JJ

THE COURT: The appellant and defendant, Shawn Thomas Phillips, has appealed against his conviction of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence are that between 11 March 2012 and 1 May 2012 at Seaford Rise he had sexual intercourse with BH, a person of the age of 14 years, by digitally penetrating her vagina.
Background
The complainant, BH, was the defendant’s stepdaughter. The defendant was married to and living with TH, the complainant’s mother, at the time of the offence.
In summary, the allegation is that the defendant and BH were sleeping in BH’s bed. During the night, the defendant put his finger in BH’s vagina. She told her natural father, PH, shortly after the incident. He was residing interstate. He spoke to TH, who spoke to the defendant. The defendant denied that he had indecently assaulted BH. During the conversation, he said that if it happened he must have been asleep. TH told BH to forget about it. A complaint was made to the police approximately 14 months after the event.
The grounds of appeal are:
·    The Judge erred in failing to adequately direct the jury in relation to the significance of the defendant giving sworn evidence.
· The Judge erred in permitting the introduction of evidence of discreditable conduct and of sexual discussions during re-examination of BH. The Judge also erred in refusing to allow further cross-examination of BH on these points. Alternatively, the Judge failed to consider s 34P of the Evidence Act 1929 (SA) and the exercise of his discretion in permitting the evidence to be led in re‑examination. Further, the Judge erred in failing to adequately direct the jury in relation to the evidence led of discreditable conduct and/or sexual discussions.
·    The Judge erred in failing to direct the jury in relation to their evaluation of BH’s credibility and reliability by reference to evidence of TH that BH had a reputation for dishonesty; and evidence of BH’s natural father that BH had admitted to him a previous false accusation against the defendant.
·    The verdict is unsafe and unsatisfactory, and against the weight of evidence.
The trial
BH was born on 11 March 1998 and was 16 years of age at the time of the trial, which was held in November 2014. At the time of trial, BH was living with her boyfriend, AR.
The alleged offending occurred at the home in which the defendant and TH were living, together with BH, her younger brother, who was aged 15, and her younger sister, who was aged 13. Also living at the house were a stepsister, who was aged eight, and a stepbrother, who was aged seven, the children of TH and the defendant.
BH kept in touch with her natural father who had moved interstate and who had entered into another relationship.
The defendant and TH had commenced a relationship when BH was six years of age. The defendant took on the role as the head of the household and father of all the children.
BH gave evidence that there was an occasion when she was in Year 5 when her mother was in hospital for about six weeks. During that time, the defendant looked after the children. She gave evidence that, whilst her mother was in hospital, she slept in the double bed with the defendant. She said that, on occasions, the position that they lay in the bed was what she described as “spooning”. That is when the bottom is touching the other person and you are not facing one another. She said that when she was lying on her back, the defendant would be on his side with his arm over her stomach. She said that, on occasions, her brother and sister might also sleep in the bed.
BH gave evidence that there were occasions when the defendant slept in her bed. She recalled that commencing when she was in Year 4 or 5 at school. She said that the defendant would come into her bed late at night or the early hours of the morning and they slept in the same positions as she had earlier described. She said that, on occasions, she asked him why he could not sleep on the couch or in someone else’s bed. She could not recall his response. She described their relationship as close. From time to time, the defendant would take her shopping and buy her clothes.
When she was aged 13, they moved to the house in which the alleged offending occurred. She said that when they moved to that house, two of the children, C and I, shared a room and the other two children, M and O, shared a room. Her parents slept in a separate room. She slept in a bedroom in a double bed. BH gave evidence that the defendant would sleep with her in her bed quite often. She said it would be quite late at night when everybody was asleep that he would come into her room. Initially, this occurred in a single bed. After she obtained a double bed, he would sleep in the bed but there would be no touching or spooning or hand over her stomach.
When BH asked the defendant why he came into her bed, he told her that “the little kids were in mum’s room so he did not have space”. She said that she would often see I and O in the parent’s bed.
BH gave evidence that in April 2012, when she was 14 years of age and in Year 9, the defendant came into her double bed. She recalled being woken. The defendant was touching her vagina outside her knickers. She described his hand moving up and down and then he moved it inside her knickers, and he rubbed his fingers inside her vagina. She described that as occurring “for not very long”. She moved and turned towards him and he then pulled his hand away. There was no further physical contact that night.
BH said that the night after this occurred, she spoke to her father on the telephone. She told her father that the defendant had touched her on the vagina. She said that later that evening, she spoke to the defendant and her mother. She said that her mother raised the topic, after having spoken to BH’s father.
When he was confronted with the incident, the defendant said he did not remember doing it and that, if he did it, he probably would have been asleep. He said he would have done it from habit, as he used to do it to TH when he was in bed with her. BH said that, at the end of the conversation, there was an agreement that they would move on and forget about it. The defendant said that he would not come into her bed again.
BH said that, for a few months after the conversation, the defendant did not come into her bed. However, after some time, he re-commenced doing so. She said that, initially, their bodies did not touch but, later, the spooning position resumed.
In January 2013, BH moved to live in Sydney with her father. She moved back to her mother’s Adelaide home about four months’ later. She said that after she returned, the defendant would occasionally sleep in her room in her bed.
In December 2013, she moved out of home. She said that the only occasion upon which the defendant touched her on the vagina was the one incident in April 2012.
BH was cross-examined. She agreed that when she was aged about 13, that is, before the alleged offending incident, she was given a phone. It was put to her that there were conflicts about that. It was suggested to her that at one time the defendant suggested that she might return to Sydney and live with her father because she was a bad influence on the younger children. BH denied that and said she could not remember. BH was asked questions about the fact that she ran away from home and the reasons for so doing led to the prosecutor re-examining on the topic. We deal with that aspect later in these reasons.
C, BH’s sister, gave evidence. She was 13 years of age at the time she gave her evidence. She gave evidence about the sleeping arrangements. She said that she overheard the conversation between the defendant, BH and TH on the topic of the allegation made by BH. She said the allegation involved an occurrence in BH’s bedroom. During the course of that conversation, the defendant said that he did not do it. Two days later, she heard the defendant speaking to TH. The defendant said to her that, “He thought it was mum”. They were again talking about the incident.
M, BH’s brother, who was 15 years of age at the time, also gave evidence about the sleeping arrangements. He said that he overheard a conversation when C asked the defendant why he was sleeping in BH’s bed. The defendant said he was sleeping there because the little kids took up the space in his and his mother’s bed, and he did not want to sleep on the couch because he has headaches. He also overheard a conversation involving the defendant about the allegation. He heard the defendant say that it was not true. He said that on another occasion there was a dispute about a Facebook photograph, and then an argument started. During that argument, BH complained that the defendant stuck his hands down her pants. At that stage, the defendant responded, as far as he could recall, by saying, “Oh my”. Later, he heard the defendant tell TH that he probably did it because he thought it was mum.
BH’s natural father gave evidence that BH had spoken to him about the defendant getting into bed with her. In a subsequent conversation, she again spoke. She was upset. He said that he spoke to his former wife, TH, within a day after the conversation. Within a couple of months, BH came to live with him.
TH gave evidence that BH demanded a lot of attention. She spoke about the occasions when she, TH, had to go to hospital. She spoke of how the other children would come to sleep in her bed and that occurred most of the time. She was aware that the defendant had slept in BH’s bed. She had also seen him sleeping on the couch and in one of the other children’s beds.
She spoke of an occasion when there was an argument between the defendant and BH about BH’s mobile phone. It was during that argument that BH yelled and said, “Yeah and what sort of stepdad would come into my bed? Did you know that he touched my bottom?” She said that the defendant was visibly upset and in disbelief and said, “What?” She recounted what occurred:
A[B] very quickly afterwards said that she was angry and we did sit in the living room and we had a conversation together because I wanted to know from [B] what was going on after she’d calmed down and she said that she was angry with Shawn because he’d taken her phone away from her and she apologised. She just said ‘Look, forget about it’, again not verbatim, but that conversation resulted in me talking to her about ‘Hey, you just cannot say things’.
She said that after that conversation she was unaware that the defendant ever went to BH’s bed again.
The accused gave evidence. He spoke of the children coming to sleep in bed with him and his wife. He gave evidence that BH came into their bed from time to time. He said that there were occasions when he slept in BH’s bed. He said it normally occurred when he was trying to get some sleep and after he had exhausted other avenues. He said he refused to sleep on the couch, as he often suffered from headaches and migraines. He said he used to sleep in one of the boys’ beds until the slats broke. He said that he would have slept in BH’s bed on approximately 10 to 12 occasions. He said that occurred when the children were occupying his and his wife’s bed. He said that he never cuddled BH whilst they were in bed, and he had asked her if she minded him sleeping in her bed and she had said no.
He gave evidence that there was an argument involving BH’s use of her mobile phone and about photographs that she was sending. He said that, during that argument, she claimed that he had inappropriately touched her. He said that when that occurred he was taken aback. He said he never made the statement that he “thought it must have been mum”. He denied ever digitally penetrating BH whilst she was sleeping in her bed.
He gave evidence that he had confiscated BH’s phone. He observed a message on the phone about her having sex. She eventually acknowledged that she had had sex with an 18-year-old boy. He said that they spoke about oral sex. He said that he confronted her about her knowledge of oral sex at the age of 13. He denied that he ever spoke to her about masturbation.
Subsequently, he became aware that BH had spoken to the police. He said that that was in circumstances many months after the incident when BH had run away. He and his wife had found out where she had gone and they notified the police who picked up BH and brought her home. It was during that process that she told the police of the allegation. At the time they contacted the police, BH had been missing for approximately two days.
The appeal
The directions concerning the defendant’s evidence
The defendant submits that the trial Judge failed to adequately direct the jury in relation to the significance of the defendant having given evidence on oath. Counsel for the Director conceded that no specific direction was given by the trial Judge. When the Judge was directing the jury about the evaluation of witnesses, he gave a standard direction that the jury was entitled to accept any part and reject any part of a witness’s evidence. He gave the jury directions about the credibility of witnesses and assessing their evidence in the witness box. He also directed them that they must not make assessments of witnesses, based upon any emotion or reaction they have about the circumstances of the case.
The Judge made no specific direction about the accused’s evidence. The Judge then gave some further legal directions, and then turned to the evidence. He summarised the prosecution case. He turned to the defence. He said:
... The accused says that he did sleep with his stepdaughter at times but not at the house at Christies Beach. He did sleep with her in the double bed at Seaview Downs at times when he could not get to sleep in his own bed because the younger children were there. He says that he never slept with the complainant facing the same way as she did but always with his back to her. He denied ever putting his finger into her vagina. The defence case is that [sic] complainant never confronted the accused with the allegation that he had penetrated her vagina with his finger but that she had alleged to him and to his partner that he had inappropriately touched her on the bottom.
As part of the defence case the accused has called character witnesses. You may use their evidence of his good character in determining whether the accused committed the offence, as is alleged, and in determining the question of his truthfulness as a witness.
He dealt with counsels’ submissions. He referred to counsel for the prosecution’s submissions about the accused’s evidence, and the submission that parts of his evidence are implausible. He said:
Ms Burrows submitted that his evidence was self-serving and untruthful. Correctly she said that even if you were to reject the accused’s evidence you would still have to be satisfied beyond reasonable doubt of the complainant’s evidence. Ms Burrows said that when you did reflect on [B’s] evidence and the way she gave her evidence, you would be satisfied beyond reasonable doubt of the truth and accuracy of what [B] said.
The Judge gave no direction about the assessment of the accused as a witness.
In R v Ong,[1] the accused was found guilty of two counts of false imprisonment and one count of wounding with intent to do grievous bodily harm. The accused had given evidence and was the only witness for the defence. Mullighan J, with whom Bleby and Martin JJ agreed, observed that the accused was the only witness for the defence. In summing up, the trial Judge did not say anything about the accused having given evidence at the trial. He gave a direction about witnesses generally.
[1] (2001) 80 SASR 537.
The direction he gave was in similar terms to the direction given by the trial Judge in the present case. There was no other direction about the accused having given evidence, although the trial Judge did remind the jury of the main features of what the accused had said in his evidence. Mullighan J said:[2]
In my view, the failure of the learned trial judge to give guidance to the jury as to the assessment of the accused as a witness amounted to a misdirection. In R v Copeland (1997) 194 LSJS 1, Doyle CJ, with whom the other members of the Court agreed, said (at 7):
“In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness. If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason. In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen (No 2) [1991] 180 CLR 531. I cannot think of any better way of maintaining the right balance. It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused. In short, what the judge said here seems to me to be completely appropriate for most cases.”
[2] R v Ong (2001) 80 SASR 537 at [9].

Mullighan J further observed that the observations of Doyle CJ in Copeland were of particular application in the case because the accused had put forward positive defences which were based solely on his evidence. Mullighan J considered it was essential to a fair trial that the jury had a clear understanding as to the proper use of his evidence. He observed that the failure to give assistance to the jury as to the correct approach of the evidence of the accused could have resulted in his evidence being discounted or disregarded, or in some other way being given less weight than it deserved.
Those observations are apposite to this case. The defence case relied on the evidence of the defendant. It was essential that the jury was specifically directed about his evidence and about how to approach his evidence. Further, the failure of the Judge to direct the jury that, if they rejected the accused’s evidence, they must still be satisfied beyond reasonable doubt of BH’s evidence before they could convict, exacerbated the failure to give a direction about the use of the defendant’s evidence.[3]
[3] Cf; Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66 at [11].
The trial Judge referred to the prosecutor’s submission, and he referred to it being a correct submission. In our view, that is insufficient. In a case of this nature where, essentially, the case depends upon the evidence of a complainant and where the defendant has given evidence on oath and denied the offending, it is incumbent upon the trial Judge to give a clear direction that, even if they do not accept the defendant’s evidence, they must then consider the prosecution case and be satisfied beyond reasonable doubt of the guilt of the accused before they can convict. General directions about the onus of proof are not sufficient.
In our view, the failure of the trial Judge to adequately direct the jury amounts to a misdirection. On this ground alone, we would allow the appeal and order a re-trial.
Re-examination/discreditable conduct evidence
The defendant contends that the trial Judge was in error in permitting the introduction, in re-examination of BH, of evidence relating to conversations about sexual matters. It is contended that this was evidence of discreditable conduct and, therefore, required compliance with s 34P of the Evidence Act 1929 (SA). It is contended that, even if the evidence was strictly evidence in re-examination, the trial Judge should have exercised his discretion to exclude the evidence on the grounds that its prejudicial effect outweighed its probative value, or that it could not be established that the probative value of the evidence admitted substantially outweighed any prejudicial effect it may have on the defendant.[4]
[4] Evidence Act 1929 (SA), s 34P(2)(a).
The issue arose during the cross-examination of BH in the following way:
QAnyway you ran away from home, didn’t you.
AYes, I did.
QAnd your mother and Shawn didn’t know where you were.
ANo, that’s why I ran away from home.
QIn fact there was quite a big argument before that.
AYes.
QYou’d wanted to go to a party.
AYeah, I don’t remember.
QAnd there’d been some discussion about you perhaps doing some chores before you were allowed to go.
AI don’t remember.
QYou got very angry about that, didn’t you.
AProbably.
QThen you said something to Shawn such as ‘you are nothing but a paedophile’.
ACorrect.
QHe said ‘that’s it, I’ve had enough’.
AYes.
QThen you said you were sorry and went on pleading that you be allowed to go to the party.
AWhat time was this; I ran away twice so I am confused what time you are talking about here. Are you talking about the first time I ran away or the second?
QI am talking about the time you ran away and the police found you at [AR’s] house.
AYes, that was the last time I saw Shawn, okay, that phone beforehand that he smashed was originally my phone that he had bought for me, it was a Nokia, it wasn’t my sister’s, he smashed that phone which is why I got even angrier which is why I wasn’t allowed. I did get a bit angry, he was horrible and yes, I did call him a paedophile but after that I stormed out of the house.
QAt some point after that, on that same day you said you were sorry to Shawn.
AI did not speak to Shawn again.
QYou left the house and did not say where you were going.
ANo.
QAt that stage did you have a friend called – a lad, a boyfriend.
AYes, I did not have a boyfriend at that stage.
QSorry.
AI did not have a boyfriend at that stage.
QThere was a boy who visited your home on a few occasions.
ANo, no boys were in my home while Shawn was there. Are you talking about a boy called ‘[S]’?
QYeah.
AYes. Yes, he did visit.
QAnd you parents knew about him.
AYes.
QYour mum and Shawn knew about him but then you were found by the police at [AR’s] place.
AYes, correct.
Q[AR] is a boy.
AYes, he is.
QHe is your current boyfriend.
AYes, he is.
She said that she had been away for a day and a half. She agreed that she spoke to her school counsellor and some two days later she spoke to her father. That completed the cross-examination.
The jury left the courtroom and the following exchange took place between counsel for the prosecution and the trial Judge:
HIS HONOUR:     I just thought I would take advantage of the time that we have got. Ms Burrows, were you proposing to re-examine?
MS BURROWS:   I think so, on a few brief topics.
HIS HONOUR:     It just occurred to me rather than send the witness out again if there is any objection, I can’t require you or certainly can’t require you to tell me what the topics are and you may prefer not to tell me.
MS BURROWS:   I am happy to now your Honour.
HIS HONOUR:     Yes, cross-examination hasn’t finished yet.
MS BURROWS:   No.
HIS HONOUR:     Do you think the topics are likely to be controversial?
MS BURROWS:   Possibly because they may involve things that the complainant has said about the accused prior to the alleged incident.
HIS HONOUR:     That’s what I thought. In fact, I tentatively think that cross-examination is open. Is there any dispute about that Mr Mead because the impression that the jury has is that the girl left for vague reasons or reasons of an argument and I have just been staring at the reasons why, the history of the relationship, none of which has come out, not a word of it. I would have thought the cross-examination opened that up?
Counsel for the defendant then indicated to the Judge that he wanted to consider each question on its merits and make any objection. The trial Judge responded:
HIS HONOUR:     I wanted to avoid that if I could. This is a young complainant, I don’t want the complainant having to come in and out. Now, if the prosecutor refused to tell me what her re-examination was going to be I would have understood that and I would have had to put up with it, I guess, but since she is willing to tell me, I think that it is appropriate for you to put your argument.
Now let me start from this proposition, let me not start from a proposition at all, let me identify what it is, if the prosecutor is willing to tell me, what her proposed re‑examination is.
MS BURROWS:   I intend to ask questions on the topic of why the complainant called the accused a paedophile. It was put to her that she had called him that in one of the arguments, preceding her running away. I also want to ask her about the two times she ran away and the reasons and what the nature of her relationship with the accused was leading up to those points in time and whether she saw the accused after she ran away after the last time.
HIS HONOUR:     What is behind that, I don’t know what the answer to that last one is.
MS BURROWS:   The answer is, no she did not, that is the time it was reported to the police. I am anticipating a submission that she was running away because she was angry. I am anticipating her answer will be she was running away because of the accused’s conduct at the time. The fact that she did not return to that house is relevant to what she was angry about; was it an issue about the phone or was it an issue about the accused perhaps, is what I am getting at.
HIS HONOUR:     I will tell you at the outset I don’t think I would permit you to ask the question why she called him a paedophile. I don’t know quite where that will go.
MS BURROWS:   Yes.
HIS HONOUR:     I have read the statements, I don’t know where that would go, so I can tell you if you do ask that and there is an objection to that, I will uphold it on the spot.
The trial Judge then referred to counsel for the defence, who submitted that the prosecutor is only entitled to ask questions that arise from the cross‑examination. The trial Judge responded:
HIS HONOUR: Let me put this to you for your submission, the impression the jury will be left with if you were to virtually close your cross-examination now, would be that the only tangible reason that has been given for the complainant to run away was there was an argument with her parents about a party.
The Judge indicated to the prosecutor that she should limit her re‑examination to the reasons why the defendant left. The Judge stated that he considered that the nature of the relationship at the time of running away as an explanation for BH leaving was admissible. Defence counsel submitted that a question about the nature of the relationship was too broad and did not arise from the cross-examination. His Honour agreed that it should be limited to the reason for leaving, but the answer might legitimately be the state of the relationship. His Honour said to the prosecutor:
I think Mr Mead might have a point there that the topic which has been opened up, in my view, by the cross-examination, is the reason for leaving rather than the general nature of the relationship.
The Judge indicated to defence counsel that he understood that the objection had been made, that he would overrule the objection, but if a formal objection was made in front of the jury he would indicate that he is overruling the objection. Defence counsel then indicated that he did not intend to formally object again in the jury’s presence. The Judge said that he considered that defence counsel had protected his client’s position
The jury returned and the following questions were asked in re‑examination:
QYou were asked some questions about running away from home. Do you recall being asked those questions.
AYes.
QYou told us there were two times you ran away from home.
ACorrect.
QWhen were those two times.
AThey were both after the incident.
QIn what year.
A2013.
QDo you remember what months.
ANo, I don’t remember what months, the second one was in October though.
QHow long was there between the first time of running away and the second time.
AMaybe four months.
QOn the first time that you ran away what was your reason for running away.
AI don’t remember, I ran away because I just couldn’t take it at home anymore, I just wanted some space, and, yeah.
QWhat do you mean, you couldn’t take it at home anymore.
AThere was not a lot of privacy in our house and that’s something I did need and, yeah, there was a massive argument that erupted and I just left.
QWhat as the topic of the argument.
AI don’t remember that one.
QWho did you need space from.
AEveryone in that house.
QI want to ask you about the second time that you ran away. What was your reason for running away on that time.
AI wanted to get away from Shawn.
QWhy did you want to get away from Shawn.
ABecause I decided I was over living in that house with him, I didn’t like what was happening, I didn’t like what he was doing so I just left.
QWhat was he doing that you didn’t like.
AI just found him very obsessive, way too obsessive, I didn’t have my space, I needed it from him.
QWhat do you mean by ‘obsessive’, what was it that he was doing.
AI just found our relationship odd as I grew up. It was different to my friends’ relationships with their fathers, it was different to my relationship with my real dad, it seems as if he was obsessed, meaning over controlling, always wanting to know what I was doing, always having inappropriate conversations etc.
QWhat were the inappropriate conversations.
AThere were conversations referring to head jobs and masturbation.
QWho was present for these conversations.
AMyself and Shawn.
QYou referred to conversations about head jobs. What do you mean by that.
AHe would ask when he found out that I had lost my –
OBJECTION: MR MEAD OBJECTS
MR MEAD: I am not sure this is material that properly arises from cross‑examination.
As can be seen, counsel for the defendant objected. In the absence of the jury the trial Judge indicated that he considered that the witness was entitled to give evidence about the reasons why she left. In response, counsel for the defendant submitted that the jury now has a picture and BH had given evidence of the defendant being over-controlling and of inappropriate conversations, and that should be sufficient.
BH returned to the witness box. In the absence of the jury, she was asked a number of questions on the topic of conversations she had had with the defendant, which included conversations about fellatio and masturbation. Counsel for the defendant submitted that those questions were objectionable as, in effect, the evidence had gone further than needed to establish a reason or reasons for BH to leave home.
The trial Judge overruled the objection. After the jury returned, BH then gave the following evidence:
QWho raised the topic of head jobs.
AShawn.
QWhat did you understand the word ‘head job’ to mean.
ATo put your mouth around a penis, just stuff like that I guess.
QWhat did Shawn say on the topic of head jobs.
AHe told me what I should and shouldn’t do whilst giving head.
QWho raised the topic of masturbation.
AShawn.
QWhat did Shawn say on the topic of masturbation.
AHe told me how I should put my fingers in order to reach or have an orgasm.
QWas he referring to a male or female orgasm.
AFemale.
Her evidence finished and she was released. The next witness was called. The following morning, defence counsel made an application to have the complainant re-called. The following exchange took place between the Judge and counsel:
MR MEAD:        As a result of the evidence that the complainant gave in re-examination yesterday I have instructions about that conversation which instructions have not been put to the complainant.
HIS HONOUR:     It can’t be, that’s what re-examination causes.
MR MEAD:        No, but it’s unfortunate that it’s come out this way and part of that’s perhaps – I’ve got to take responsibility for that for not perhaps perceiving where I was leading with those questions.
HIS HONOUR:     You were obliged to put your instructions, I quite understand that.
MR MEAD:        Yes, but the fact remains that evidence has come out about the sexual conversation. I’ve [sic] instructed to explain the circumstances of that conversation. If my client gives evidence he will explain what those circumstances are.
HIS HONOUR:     You’re asking me to recall the complainant?
MR MEAD:        Yes.
HIS HONOUR:     I’ll see what the prosecutor says but I’m not very keen about doing that. What do you say about that Ms Burrows?
MS BURROWS:   I don’t object on the basis that if the evidence is given by the accused about his version of the conversation it should be put to her.
HIS HONOUR:     I agree with that, as a matter of principle I agree with that. But it’s really a rule of fairness that requires instructions to be put. I don’t know that every aspect of the evidence necessarily has to be put but it’s true that evidence does. It’s partly a reason of fairness but also to give the defence the opportunity to dispel the notion of recent invention. The defence can’t be blamed for not putting something that turns up only in re-examination and I wouldn’t hear a submission that Browne v Dunn should be held against the defence – they couldn’t do anything else.
MS BURROWS:   No, certainly.
HIS HONOUR:     There’s still a rule of fairness but as against that there’s calling a 16‑year-old back to court after she’s been told she’s finished. I’m not inclined to do that.
Mr Mead, I’ll make it clear one way or the other, I don’t know how I’ll do it yet, but there cannot be any suggestion that you failed to put these things to the complainant – there can’t be any suggestion at all that you failed to do that because you didn’t have the opportunity.
MR MEAD:        No.
HIS HONOUR:     So that won’t be held against you or your client.
MR MEAD:        No.
HIS HONOUR:     There’s still the rule of fairness that says other things being equal it should be put but I’m not inclined – I’ve got to weigh up that rule of fairness with the prospect of recalling a 16-year-old and I’m not inclined to do it.
It is further contended that, having admitted the evidence, the trial Judge was in error in refusing defence counsel’s application to re-call BH for further cross-examination in respect of the matters raised in re-examination and, therefore, the defendant was denied a fair trial.
The purpose of re-examination is not merely to remove ambiguities and uncertainties. It is permitted where an answer given in cross-examination, unless explained or supplemented, may represent a distortion or incomplete account of the evidence that the witness is able to give.
Re-examination in general must arise from the cross-examination. If it does not, the question sought to be asked can be asked only with leave of the trial judge. Re-examination is, within its proper limits, a right, although the limits of that right on the occasion of its exercise are subject to the scrutiny of the trial judge.[5]
[5] The Nominal Defendant v Clements (1960) 104 CLR 476.
A trial judge, when determining the scope and limit of the re-examination, is not restricted simply to the passage in cross-examination artificially disengaged from the context of the witness’s evidence as a whole. An answer given in cross‑examination, if read in isolation, may appear unequivocal but having regard to the use that may be made of the answer by cross-examining counsel, justify extensive re-examination in order to explain or place the answer in its true context.[6] Thus significant weight must be given by an appellate court to the advantage enjoyed by the trial judge in determining the proper limits to re‑examination.
[6] R v Szach (1980) 23 SASR 504 at 512.
In The Queen v Lavery,[7] Wells J discussed the principles governing the purpose and bounds of re-examination. He said:[8]
The principles governing the purpose and bounds of re-examination have undergone some vicissitudes during the last three decades. Some twenty-five to thirty years ago the submission was often heard in the Courts of this State, “This re-examination should not be allowed because the answers given in cross-examination on which it is based admit of no ambiguity.” Ambiguity in an answer given in cross-examination is, of course, an obvious justification for re-examination designed to resolve the doubt created, but to say that re-examination is confined to questions aimed at removing ambiguities is absurd. For re-examination is allowed for much wider and more important purposes. It is to be permitted, in my opinion, whenever an answer or answers given by a witness in cross‑examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it. Cf. R. v. Pullman.
[Footnote omitted.]
[7] (1979) 20 SASR 430.
[8] The Queen v Lavery (1979) 20 SASR 430 at 451.

Walters J agreed with Wells J and added the following:[9]
... One of the objects of re-examination is to afford the witness an opportunity to explain the real character of the matter or transaction which has been brought out in cross‑examination, particularly where his credibility has been assailed and the statement got out of him in cross-examination, if left unexplained, would be apt to discredit him. It is proper for counsel in re-examination to ask suitable questions of the witness to enable him to give a full account or explanation of a matter or transaction which is susceptible of more than one construction. When the nature of the cross-examination and the effect of the suggestions it contains tend to damage the credit of a witness, I think counsel is entitled to elicit from the witness in re-examination an explanation of the whole of the matter or transaction to which an answer given in cross-examination relates. In my opinion, The Queen v. Nation provides authority for allowing the kind of re-examination of which the appellant complains in this case.
[Footnote omitted.]
White J agreed with Walters and Wells JJ.
[9] The Queen v Lavery (1979) 20 SASR 430 at 435.
In our view, the topic upon which re-examination was permitted did arise out of the cross-examination of BH. The trial judge had heard the evidence of the complainant. He was in the position, having heard the way in which the evidence had been given, to determine the “impression” the evidence may have left on the jury. His Honour was aware of the declarations of BH and of what explanation she may give. The Judge was correct in his analysis that if he refused to allow the re-examination, the jury might be left with the impression that BH’s sole reason for leaving home was that she had had a disagreement with the appellant, and that she objected to the manner in which he disciplined her. In the circumstances, counsel for the prosecution was, in our view, entitled to re-examine about matters that had occurred in the past and which contributed to BH wishing to leave home. However, the question still remains as to the proper limit of that re-examination.
During the course of the re-examination the complainant gave evidence, as already set out earlier in these reasons, of “inappropriate conversations” with the appellant. The prosecutor then asked questions designed to elicit the content of the “inappropriate conversations”. The complainant told the jury that the conversations referred to “head jobs and masturbation”. At that stage defence counsel objected to the topic being explored any further. The trial Judge took evidence on the voir dire on the topic and heard further argument. He allowed the prosecutor to continue to explore the content of the conversations.
The conversations concerning head jobs and masturbation, in the terms as stated by BH, do not necessarily reveal conduct by the appellant capable of being characterised as uncharged (criminal) conduct. Further detail would be required. Nevertheless, given the nature of this step-father/step-daughter relationship, their respective ages and when viewed in the context of the nature of the charged offending, the appellant’s conduct here could readily be perceived by the jury as discreditable conduct within section 34P. In summing up, the trial Judge treated it as an uncharged act and, therefore, discreditable conduct. As such, and given that the evidence was objected to,[10] before this evidence was to be admitted subsections (2)(a) and (3) had to have been complied with. It was also argued that s 34P(4), the notice section, also applied. Section 34P is in the following terms:
[10] R v C, G (2013) 117 SASR 162; [2013] SASCFC 83 and R v C [2013] SASCFC 137.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence ("discreditable conduct evidence )—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose ("impermissible use"); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the "permissible use") other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
As to the submission that s 34P of the Evidence Act applied and the evidence should have been rejected because no notice had been given, we reject that submission. The re-examination arose out of the questions asked by defence counsel. Defence counsel was aware of the likely content from statements which had been provided to him of the conversations. The prosecutor had determined, initially, not to lead the conversations during evidence-in-chief. The circumstances giving rise to re-examination arose as a consequence of defence counsel’s questions, when defence counsel was aware that BH alleged the conversations as a reason for leaving home. In the circumstances, the notice requirement in s 34P did not apply.
As we understand the intended use of the evidence concerning the conversations in question, it was only to add further explanation as to why BH left home and it was not relied on by the Crown to demonstrate a particular propensity or disposition of the appellant as circumstantial evidence of a fact in issue. As such, s 34P(4) was not engaged and for this additional reason there was no need to provide notice in accordance with the rules of Court.
However, the Judge still had to satisfy himself that the probative value of the evidence, if admitted for its permissible use (to amplify why BH left home), substantially outweighed any prejudicial effect it may have on the appellant (sub‑s (2)(a)). This process involves an evaluative judgment as a matter of law, not the exercise of a discretion.[11] In undertaking this evaluative judgment the Judge was required to have regard to whether the permissible use could be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that impermissible purpose (sub‑s (3)).
[11] R v C [2013] SASCFC 137 at [82]
The Judge did not expressly undertake this exercise at the time the evidence was admitted over objection. Arguably, the evidence progressed further than was necessary for the complainant to explain why she left home. Assuming s 34P was engaged, the probative value of the evidence for its permissible use (the reason why the complainant left home) had to substantially outweigh the prejudicial effect it was likely to have, in all the circumstances, on the appellant. Even if s 34P was not engaged, the probative nature of the evidence had to outweigh its prejudicial nature.
It is not necessary for us to decide the point as, for other reasons, the matter is to be remitted to the District Court for retrial. Whether such evidence should be led at the retrial will be a matter for the trial judge and may be dependent on the manner by which the evidence unfolds before him or her.
As mentioned earlier, the following morning defence counsel made an application to have the complainant re-called. He submitted that the evidence was prejudicial, and he indicated he may have made a mistake in not anticipating the extent of the re-examination. He submitted that he had specific instructions about those conversations that he wished to put to the complainant. Defence counsel indicated that the appellant would give evidence and give his version of the conversations. The prosecutor did not object to the re-call of the complainant for that purpose.
The trial Judge correctly observed that the problem arose because the evidence was given in re-examination. Defence counsel could not have put his instructions. In this matter, however, defence counsel accepted the problem arose due to his “not perceiving where he was leading with those questions”.
The trial Judge, despite the agreement by the prosecutor that she would re‑call the complainant, refused the application. The trial Judge accepted that he had the power to allow the application to re-call the witness. His Honour stated:
There’s still a rule of fairness but as against that there’s calling a 16-year-old back to court after she’s been told she’s finished. I’m not inclined to do that.
The refusal of the trial Judge to permit further cross‑examination of the respondent did, in our view, deprive the defendant of the opportunity of putting his version of the conversations. The evidence given in re-examination was potentially powerful. It is arguable that, ultimately, it came to be adduced as a result of counsel’s inadvertence. The jury was, therefore, left with the defendant’s evidence, but with no cross-examination of BH on this topic. She may have agreed with some or all of the appellant’s version. We consider the Judge’s reason for denying the defence the opportunity to further cross-examine BH was, in all the circumstances, not justified. She was 16 years of age. She had lived away from home and had demonstrated a large degree of independence. The prejudice to the appellant in the evidence being left unchallenged was potentially significant. The prosecutor had agreed to the re-call, and any inconvenience to her would have been minor. The refusal of the application on the basis of BH’s age was an error and resulted in unfairness.
Although the trial Judge did direct the jury that the only way in which the conversations could be used was to explain why BH left home, the Judge did not remind the jury that the conversations occurred some months before, and that they needed to be satisfied that there was a link between the conversations and BH’s decision to leave home. Further, the trial Judge indicated to counsel, during his ruling refusing to allow BH to be re-called for further cross‑examination, that he would direct the jury that they should not draw any adverse inference against the appellant for not putting his version of the conversations to the complainant. He did not give such a direction. That was a matter that should have been addressed.
Evidence of the complainant’s bad reputation
The complaint in respect of Ground 3 is that the trial Judge failed to give any specific directions about previous conduct of BH. In cross‑examination, TH was asked:
QYou obviously have the means of knowing the general character of your daughter from your knowledge of her generally.
AAbsolutely.
QFrom your knowledge of her general character would you believe your daughter [B] on her oath.
ANo, I don’t.
BH’s natural father gave the following evidence:
QAnd there was an occasion, wasn’t there, when [B] was in primary school, when she had said something to a school counsellor, who contacted you, about Shawn acting inappropriately and then after there had been some discussion about that, [B] admitted that she had lied about that; admitted to you that she had lied about that.
AAfter pressing her that’s what she told me.
The defendant complains that the trial Judge did not give any direction to the jury as to how that evidence might be relevant and used by the jury.
In R v J, SM ,[12] the Court of Criminal Appeal considered the oath-belief rule and whether it still has application in South Australia. In that case, the trial Judge precluded counsel from questioning a witness on the topic of whether the complainant should be believed on her oath. The Court held that the rule still exists and the Judge was in error in determining that counsel could not ask the question.
[12] [2013] SASCFC 96.
In this case, the question was asked and answered. The evidence having been given, it was incumbent upon the trial Judge to give directions to the jury as to how that evidence can be used in their deliberation. The only reference to the mother’s evidence about her daughter was when the Judge was summarising counsel’s address. He said of defence counsel:
He referred to the mother’s evidence that she would not believe her daughter. Mr Mead submitted that it would be important to see the reaction of the mother that life just carried on as normal after the complaint. The father acknowledged that [B] has lied to him once before. [B] sought to be home-schooled after the complaint was made.
The Judge gave no direction to the jury about how that evidence could be used by them, and that they should have regard to that evidence when considering BH’s reliability and whether they can be satisfied beyond reasonable doubt about her evidence.
That is a further matter which, in our view, was required to be addressed by the Judge.
Unsafe and unsatisfactory
Counsel for the defendant submitted that the verdict was unsafe and unsatisfactory.
The case depended upon the jury’s assessment of BH. There was evidence which supported her allegations. If BH is believed, then there is sufficient evidence upon which a jury properly directed could convict the accused. We consider that this ground of appeal is not made out.
For the reasons given, we would allow the appeal, set aside the conviction and order a re-trial.