R v Phillis - [2018] SASCFC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHILLIS
[2018] SASCFC 119
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
21 November 2018
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against conviction of one charge of indecent assault following a trial by judge alone in the District Court of South Australia.
The complainant (CS) and the appellant were family friends. It was alleged that in 1996 the appellant indecently assault CS by kissing her and touching her between her legs (count 1). It was further alleged that after moving to Queensland in 1998 the appellant again indecently touched and kissed CS. This is the subject of the uncharged act.
Between the year 2000 and 2002 the appellant and his wife visited CS’ family in Queensland. CS, her mother (KD), the appellant and his wife all visited a shopping centre together during that stay. It was during this outing that CS made a complaint to her mother of both indecent assaults.
CS and KD completed their evidence in November 2016. The Judge then adjourned the trial for a period to allow for a decision of the Court of Criminal Appeal to be handed down in relation to an audio-visual record of interview where the defendant had denied the allegation put to him. The trial resumed in early October 2017 and judgment was reserved the following day.
The appellant appeals on the grounds that:
1. The verdict was unreasonable and cannot be supported by the evidence primarily because of inconsistencies between the description of the indecent assault given by CS to police and her testimonial description of it.
2. The Judge’s reasons were inadequate particularly having regard to the delay between hearing the evidence of CS and the return of the verdict.
3. The Judge wrongly admitted evidence of CS’s complaint to KD, or in the alternative, wrongly had regard to KD’s testimony of that complaint.
4. The Judge misused the evidence of complaint to bolster CS’s credibility and failed to have regard to inconsistencies concerning the complaint evidence.
5. The Judge erred in the evidential use of the alleged indecent assault in Queensland.
6. The Judge misdirected herself on the forensic disadvantage faced by the appellant.
7. The Judge erred in the way in which her Honour used a finding that the accused had given false evidence.
Held, per Kourakis CJ (Blue and Lovell JJ agreeing), dismissing the appeal:
1. It was open to the Judge to prefer the evidence of CS to the appellant, notwithstanding the inconsistencies on which the appellant relied at trial, and to be satisfied beyond reasonable doubt of the truth of CS’s account (at [41]).
2. The delay between KS and KD testifying and the return of the verdict was longer than it ought to have been, but is not, in itself, a reason to apprehend that there has been a miscarriage of justice (at [42]-[43]).
3. The Judge correctly directed herself that the complaint was evidence of consistency of conduct and showed how the allegations came about (at [45]).
4. The Judge’s directions on the use of the indecent assault in Queensland were, on their face, correct in law (at [46]).
5. The burden of direction is to warn that CS’s recollection might not be reliable. The direction was favourable to the accused. The complaint by the appellant that the Judge may have wrongly discounted the importance to the defence of CS’s lapse of memory must be rejected (at [47]).
6. It was open to the Judge to believe the evidence of KD, to reject the appellant’s testimony on the subject and to take that lie into account in evaluating his credit (at [48]).
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v Helps (2016) 126 SASR 486, considered.

R v PHILLIS
[2018] SASCFC 119

KOURAKIS CJ: The appellant was convicted of one count of indecent assault[1] following a trial by Judge alone. The hearing commenced on 2 November 2016 but was adjourned at the request of the defence to await the delivery of judgment in a matter pending in the Court of Criminal Appeal. The hearing did not then resume until 5 October 2017. Judgment was reserved on 6 October 2017 and delivered on 27 April 2018.[2]
[1] Contrary to s 56 of the Criminal Law Consolidation Act1935 (SA).
[2] R v Phillis [2018] SADC 37.
Fortunately, as will appear, there is no reason to apprehend that the delay had any adverse effect on the Judge’s assessment of the competing testimonies given on the hearing.
The complainant, CS, was born in 1988. Her mother, KD, and her father JR, lived on a farm in regional South Australia. The appellant and his wife, CP, lived on a nearby farm. The families attended the same church. The prosecution alleged that the charged count of indecent assault was committed on the occasion of a barbeque held at the appellant’s farm in 1996. The prosecution alleged that the appellant indecently assaulted CS by kissing her and touching her between her legs. This was the subject of the charge.
CS and her family moved to Queensland in 1998 and resided in Mudgeeraba. The appellant and his wife visited them there. CS testified that on the occasion of that visit, the appellant again indecently touched and kissed her. This constituted the uncharged conduct.
In about the year 2000, CS’s family moved to Tallai in Queensland. The appellant visited them there on at least one occasion. The last occasion on which the appellant and his wife visited CS’s family in Queensland was sometime between 2000 and 2002. CS testified that on that occasion whilst at the Pacific Fair Shopping Centre, with the appellant, KD and CP, she complained to her mother of both indecent assaults. KD confirmed the making of a complaint but testified that CS referred to a single occasion on which she was indecently assaulted.
The appellant and his wife, CP, gave evidence in the defence case. The appellant denied that he had ever indecently assaulted CS. The appellant and CP gave evidence about the visit to the Pacific Fair Shopping Centre which was inconsistent with the accounts of CS and KD and with the making of a complaint. The appellant testified that he had had an intimate affair with KD when she was living in South Australia and that CS saw displays of affection between them. The defence postulated that those observations may have been the genesis of CS’s accusations.
The appellant appeals on the grounds that:
·The verdict was unreasonable and cannot be supported by the evidence primarily because of inconsistencies between the description of the indecent assault given by CS to police and her testimonial description of it.
·The Judge’s reasons were inadequate particularly having regard to the delay between hearing the evidence of CS and the return of the verdict.
·The Judge wrongly admitted evidence of CS’s complaint to KD, or in the alternative, wrongly had regard to KD’s testimony of that complaint.
·The Judge misused the evidence of complaint to bolster CS’s credibility and failed to have regard to inconsistencies concerning the complaint evidence.
·The Judge erred in the evidential use of the alleged indecent assault in Queensland.
·The Judge misdirected herself on the forensic disadvantage faced by the appellant.
·The Judge erred in the way in which her Honour used a finding that the accused had given false evidence.
I would dismiss the appeal. My reasons follow.
An unfortunate adjournment
On 2 November 2016, CS and KD completed their evidence. The hearing was then adjourned because of a defence contention that the prosecution was bound to adduce, as part of its case, the audio-visual record of an interview between the appellant and police in which he had denied the allegation of indecent assault put to him. The Judge was informed that a Court of Criminal Appeal decision on that question was pending.
It is generally undesirable to adjourn a criminal trial after it has commenced. There was no reason to do so in this case in order to await the decision of the Court of Criminal Appeal. An error of law made in the course of a trial can, if it is material, be corrected on appeal. In this case, even if the Judge had declined to order the prosecution to put the interview into evidence, and had the Court of Criminal Appeal held that the prosecution was duty bound to do so, the error could have been corrected on appeal. As it transpired, the Court of Criminal Appeal held that the prosecution carried no such duty.[3] The course of proceedings in this matter demonstrates the soundness of the general rule.
[3] R v Helps (2016) 126 SASR 486 at 492-496 per Kelly J (Lovell J agreeing), Peek J dissenting at 555 and 563.
The hearing was adjourned to 19 December 2016, and then again administratively adjourned, because the decision of the Court of Criminal Appeal had not been handed down. That decision was handed down on 23 December 2016. However, the trial was not listed for mention again until 6 February 2017. On that date it was accepted that the earliest available date for the resumption of the hearing was 5 October 2017. That is surprising and the reasons for such a long delay are not apparent. The hearing resumed on 5 October 2017 when the appellant and his wife gave evidence, and judgment was reserved on 6 October 2017 after closing addresses. The Judge delivered her verdict and reasons on 27 April 2018.
The evidence
CS testified of an occasion when she and her family visited the appellant at his farm for a barbeque when she was eight years old. She went inside to use the bathroom. As she was walking along the hallway after using the bathroom, the appellant pulled her into the lounge room. He sat her on the couch and moved his hands up and down her legs, to the point of touching her underwear, as he kissed her neck and then her lips. CS described the kiss as ‘pashing’. She explained that she meant by that that the appellant put his tongue in her mouth. The appellant stopped when he heard the kitchen door open and shut.
CS testified that the appellant assaulted her for a second time when he visited her family after they had moved to Queensland and were living in Mudgeeraba. CS and the appellant were in the kitchen. CS testified that she was wearing her school uniform. The appellant placed her on the bench and stood between her legs, kissing her shoulder and her mouth. He again placed his tongue in her mouth. The offending did not last as long as the first occasion at the farm because the appellant again stopped when he heard a door open. CS was asked how the touching compared with the first occasion. She described it as ‘pretty much the same’. She was asked how the kissing compared with the incident at the farm. She answered that it did not last as long.
CS testified that she did not complain earlier about either incident because she was scared and confused. She thought she may get into trouble.
CS was cross-examined on a statement which she gave to police in April 2015. She explained that she first typed her account of the appellant’s offending and sent it to police who then re-typed it. She then read over and signed the police statement. It was put to her that she did not tell police that the appellant had put his tongue in her mouth. She responded:
I said that he pashed me and that’s what I believe is putting your tongue in somebody else’s mouth is, pashing.
There followed a line of questions and answers to the same effect in which CS maintained that explanation. She was then cross-examined in detail about her evidence-in-chief that the appellant’s fingertips touched her underpants when she was assaulted at the appellant’s farm. She responded:
No, I’m just saying like his fingertips touched my undies, yes, but he didn’t touch them like – I’m trying to just like, he didn’t touch them with this part of his fingers, he touched them with the very tip, like it’s not like he was feeling up there, it’s just his hands were going so far up my legs that the tip of his fingers like, you know, grazed the top of my undies. It wasn’t like a feeling, groping situation.
It was then put to CS that she had not told the police that the appellant touched her underwear. She responded that she did not go into that much detail and that she was not asked questions as detailed as she was being asked in court.
CS was also challenged on her recollection in evidence-in-chief that she was wearing her school uniform on the occasion of the second assault. She was asked why she had stated in 2015 that she could not remember what she was wearing. She answered:
Yeah, because like I said, I’m not 100% certain. So in my statement I thought it was just better to say that I [didn’t] remember because I’m not 100% sure and that’s simply why I said I didn’t remember.
CS testified that the appellant and his wife, CP, visited her family again when they were residing in Tallai. CS gave evidence that she did not remember them arriving but remembered driving to the Pacific Fair Shopping Centre with her mother, KD, the appellant and CP. KD asked CS to stay in the car while she popped into the shops to buy something. When the appellant announced that he would also stay in the car, CS was gripped by panic and ran to her mother who had already entered the Pacific Fair Shopping Centre. CS gave the following account of the complaint she then made to her mother:
I just remember saying ‘I don’t want to be in the car, I don’t want to be in the car’ and then she asked ‘Why’ and then I said ‘I’m scared of him’ and then she said ‘Why’ and then I just – I can’t remember the exact wording – I know I didn’t go into details of what exactly happened. I just remember saying ‘Because he’s touched me’ … All I said – I said that he’d touched me – I think – I can’t remember. I can’t remember the exact words. I just remember that I said – I remember telling her that he’d touched me. I don’t remember saying about kissing or anything like that. I just remember saying that he’d touched me. … I did say two times but I didn’t get into details about like, it was on his farm, it was at the Mudgeeraba house. I didn’t get into that much detail.
(Underlining added)
KD’s evidence was that the appellant and his wife visited Queensland twice, once at Mudgeeraba and later at Tallai. KD testified that she went to the Pacific Fair Shopping Centre on the occasion of the complaint because she had an appointment at a solarium. CP got out of the car with her because CP wanted to shop at Target. CS was left in the car with the appellant for a short time before running up to her.
KD gave the following evidence of the making of that complaint:
AShe was crying uncontrollably but her whole body she was just shaking all over. So straightaway I could detect something was wrong but I was hoping for the best but it wasn't the case. So I just asked her. I said 'Why are you crying?', and 'what's wrong?', and she said that she just didn't want to be left alone with [the appellant] and I said 'why, what's wrong?', and she proceeded to tell me what he had done to her and so at that stage I was kneeling down talking to her and trying to calm her down because she was shaking and she told me that she had, in her words, she was only what, 10 at the time, he put his tongue in her mouth and he had put his hands up her skirt and he did something to her so that's what she told me at the time so.
QNow, I think you might have mentioned it, can you remember the exact words that [CS] said to you.
AThat was the exact words. She just said 'He put his tongue in my mouth trying to kiss me and he put his hand up my [skirt]. Not at that time, not right then but while they were visiting us.
It is not clear whether KD’s evidence that CS was aged 10 is a reference to CS’s age at the time of the complaint or to CS’s age at the time of the offence, because CS was at least 12 at the time of the complaint and eight at the time of the offence charged. Properly understood, KD’s testimony was a reference to CS’s age at the time of the complaint. In so doing, KD was attempting to explain the brevity and simplicity of CS’s language in the making of the complaint.
KD testified that she rang her husband and informed him of CS’s complaint. KD testified that after the complaint was made, CS and she went back to the car together. They returned home with the appellant and CP. KD testified that she asked her sister to come and take CS for the evening.
The appellant’s counsel put to KD and CS that the appellant’s wife, CP, got out of the car at the Pacific Fair Shopping Centre and was always in the company of KD. It was put to CS and KD that CS made no complaint against the appellant at the Pacific Fair Shopping Centre. CS and KD maintained that CS did make a complaint against the appellant at the shopping centre.
An alternative account of the genesis of CS’s allegation was suggested by the appellant’s counsel. It was put to KD that the mother of one of CS’s school friends had rung her that night after they had returned home from the Pacific Fair Shopping Centre. That parent, it was suggested, had informed KD that CS had made an allegation to a school friend that the appellant had indecently touched her. KD denied that she received such a phone call. KD testified that on that night she stayed in the media room with her sons whilst her husband JR spoke to the appellant.
It was put to KD that she had had an affair with the appellant over many years when she lived in South Australia, and that CS may have seen them together. She denied that they had an affair.
The appellant denied indecently assaulting CS on the occasion of a barbeque at his farm. He testified that he did visit CS’s family at Mudgeeraba but denied indecently assaulting CS on that occasion. He testified that he visited CS’s family twice at Tallai. He gave evidence that on the last occasion they went to the Pacific Fair Shopping Centre on the second day of his visit. The appellant testified that CP left the car with KD followed a few minutes later by CS. They all returned 10-15 minutes later. No one appeared upset.
The appellant testified that they had dinner together that night but later he was approached by his wife who informed him that JR, CS’s father, had alleged that the appellant had kissed CS ‘passionately’. The appellant testified that he was informed that the allegation had come from the parent of one of CS’s school friends. The appellant testified that the allegations were put to him by JR the next morning and that he denied them but a mutual decision was made that it would be best if he left.
The appellant testified that he had a sexual relationship with KD from 1986 for about nine years. He described an incident at his farm when KD visited him with CS in the car. On that occasion, he and KD kissed in front of CS. He described other occasions on which CS may have witnessed signs of affection between them. The appellant testified that he disclosed the affair to his wife only after the allegation that he indecently assaulted CS was made against him on the occasion of their visit to Queensland.

CP gave evidence generally confirming her husband’s account of events at the Pacific Fair Shopping Centre and later at the home.
The Judge’s directions
The Judge gave herself the following direction on the use of the alleged uncharged offence which occurred in Queensland:
[9]The accused is also alleged to have behaved in a way similar to the charged act, whilst in Queensland. That uncharged subsequent act is alleged to have occurred a few years later when CS and her family had moved to Queensland and the accused and his wife visited. On the prosecution case it was during this visit that the accused again touched and kissed CS. The prosecution did not seek to rely on the uncharged act for purpose of propensity, but rather to provide the context and the complete narrative to the charged offence. Even if I am satisfied that the uncharged act occurred, that does not absolve me from the task of determining whether the offence with which the accused has been charged is made out. I must not reason that because I am satisfied of the uncharged act by the accused that therefore he is the sort of person who would commit the offence with which he has been charged.
The Judge reminded herself of the defence submissions on the inconsistencies between CS’s testimony and her statements to police, and the inconsistencies between the evidence of CS and KD on the matter of the complaint:
[66]Mr Lyons said there were significant inconsistencies between CS’s evidence and what she told police regarding the tongue in her mouth, the accused touching her undies and being in her school uniform when the incident took place in the kitchen in Queensland. Mr Lyons identified discrepancies between the evidence of CS and that given by her mother regarding the shopping centre trip. In particular, he noted that CS’s mother had said CS was crying whereas CS said she did not start to cry until after she started to talk to her mother. According to KD, CS was extremely distressed, crying and still upset when they returned to the car, yet neither the accused nor [CP] noticed anything.
…
[73]Mr Lyons was critical of the evidence given by both CS and her mother. I have considered the inconsistencies Mr Lyons has raised. In my view, there is no meaningful inconsistency between the versions of the complaint as described by CS and her mother or any that detrimentally affect the credibility of either witness. The complaint that CS made to her mother was spontaneous and made at a time when she was concerned at being left alone in the accused’s company.
The Judge directed herself on the use of the complaint evidence as follows:
[74]The evidence of CS’s complaint can be used to show how the allegations first came to light and as evidence of consistency of conduct on the part of CS. I remind myself that the evidence of complaint is not to be used as evidence of the truth of CS’s statement to her mother about the accused’s conduct.
The Judge made the following finding on the motive suggested by the defence for CS falsely fabricating allegations against the appellant:
[75]In this case it was suggested that there is evidence from which it could be inferred that CS has a motive to make false allegations against the accused. The defence case is that CS fabricated the allegations and colluded with her mother to cause harm to the accused in payback for the affair the accused alleges he had with CS’s mother. Any such motive is relevant to her credibility.
[76]I have rejected the motive put forward by the defence. It is implausible. Even accepting the accused’s evidence that he had a sexual relationship with KD, it would not give credible support to the alleged motive. It would seem from the accused’s evidence that from both his and KD’s perspectives, neither were particularly aggrieved when the relationship came to an end and it would seem not to have played a part in the breakdown of KD’s marriage to JR, which occurred some years later. KD had entered a new relationship when her marriage broke down and remarried five years later.
[77]I remind myself that having rejected the alleged motive for CS to lie, does not mean that I would find that she is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.
The Judge gave herself the following direction on the forensic disadvantage the appellant faced at trial:
[78]CS first made a complaint to police in April 2015, that is, approximately 18 years after the offending is alleged to have occurred and there has been some further delay before the matter has come to trial. Despite on the defence case the accused being aware that there was at least an allegation that he had kissed CS “passionately” and was said to have complained to a school friend that she felt uncomfortable around the accused, which was of sufficient concern for him to leave the house, I have directed myself that the delay has resulted in a significant forensic disadvantage to the accused.
[79]In particular, given the delay, the accused has been unable to test the account given by CS in detail. There is a danger in the memories of all witnesses having been distorted and particularly in the case of CS who was a child at the time the alleged events took place. While the accused does not have to prove anything, a prompt complaint would have allowed him and his wife to be in a position to remember back to the relevant time and remember what, if anything, happened so as to be able to produce evidence discounting the evidence of the complainant. Had there been a prompt complaint, there would have been an opportunity for the accused to interview potential witnesses, particularly anyone involved in the complaint CS allegedly made to her school friend.
[80]I have taken into account the forensic disadvantages faced by the accused in considering whether or not the prosecution has proved its case beyond reasonable doubt.
The Judge accepted the testimony of CS:
[81]I found CS to be a careful and honest witness. She gave her evidence in a manner that did not display any defensiveness and did not seek to make her evidence more impressive or dramatic by having a complete memory of the events.
[82]The spontaneous complaint she made to her mother was telling. Her evidence as to why it was that she had only made this complaint some considerable time later, can readily be accepted. The confusion and fear she experienced when the offending took place, both in South Australia and in Queensland, could have led to hesitation on her part in disclosing the events. That she did not complain until she was confronted with another opportunity for the accused to be alone with her is entirely reasonable.
The Judge did not accept the appellant’s evidence that he had had an affair with KD:
[89]His evidence as regards the affair was in many respects totally implausible. He gave a very general description of the presence of KD’s children during his sexual encounters, saying he was only “a bit worried” about the relationship getting back to CS’s father, even though he suspected the children may have seen “something”. In cross examination, he said he was not more worried because he felt the children were young enough that they would not repeat what they had seen. He went on, however, to concede that CS would not, at age seven or eight, have been too young for her to have known what she had seen. The accused said he and KD made efforts to disguise their acts of affection, yet he made no inquiries of his own or of KD as to whether CS had seen anything, even though he said he thought that she may have. The accused conceded that his impression of KD, when their relationship finally ended, was that she was not aggrieved in the slightest way about what happened between them.
[90]I have examined the accused’s evidence and his demeanour at trial and found no explanation for the lack of detail in his descriptions due to embarrassment or feelings of dishonour. I find that the evidence the accused gave as regards his sexual relationship with KD was fabricated to provide an explanation for CS having made up the allegations. The timing of his disclosure of the affair to his wife supports my findings in this regard.
The Judge rejected the evidence of CP about the phone call from a parent of one of CS’s friends. The Judge observed that ‘there was an element of rehearsal’ in the way in which CP testified. The Judge also rejected the appellant’s evidence about the phone call. The Judge rejected the appellant’s evidence that he had never indecently touched CS. The Judge concluded:
[97]… I have reminded myself that having rejected the accused’s denials does not mean I am able to find him guilty. I must be satisfied beyond reasonable doubt of the charged offence. Having scrutinised CS’s evidence with care, and bearing in mind the forensic disadvantage suffered by the accused, I have accepted that CS was honestly trying to tell the truth and was a reliable witness. I am satisfied beyond reasonable doubt that the accused is guilty of the offence of indecent assault.
Consideration
It is convenient to deal first with the ground of appeal which contends that the verdict is not supported by the evidence. I would dismiss the appeal on that ground. The inconsistencies between CS’s testimony and her statement to the police are limited to minor matters of peripheral detail. CS’s answers when the inconsistencies were put to her are, on the face of the transcript, coherent and plausible.
The only significant difference between the testimonies of CS and KD as to the terms of the complaint made by CS is as to whether she complained of only a single occasion of indecent assault or mentioned two occasions. An obvious explanation for that difference is that, confronted with her daughter’s disclosure, KD may not have heard or recalled that CS complained of two separate occasions.
The explanation proffered as part of the defence case for the making of the complaint was implausible. Of course, that explanation aside, it remained necessary for the Judge to consider whether the prosecution evidence established the offence beyond reasonable doubt.
It was open to the Judge to prefer the evidence of CS to the appellant, notwithstanding the inconsistencies on which the appellant relied at trial, and to be satisfied beyond reasonable doubt of the truth of CS’s account.
As appears from the passages cited from the Judge’s reasons above, the Judge did not explain why the particular inconsistencies relied on by the appellant’s counsel at trial did not leave her in any doubt about the truthfulness and reliability of CS’s account. The Judge did, however, expressly advert to the inconsistencies when summarising the closing address of the appellant’s counsel. The inconsistencies on which the appellant’s counsel relied were so minor as to not require any further express consideration by the Judge. The Judge explained why she accepted that CS was a careful and honest witness. The Judge explained why she accepted the complaint evidence and accorded it significant weight. The Judge gave cogent reasons for rejecting the appellant’s evidence[4] but reminded herself that it remained necessary to consider whether the offence was proved beyond reasonable doubt. The Judge recorded her finding to that effect. Her Honour was satisfied beyond reasonable doubt of the appellant’s guilt.
[4] R v Phillis [2018] SADC 37 at [89]-[90].
I turn to the complaint that the reasons were inadequate, having regard to the delay between CS and KD testifying and return of the verdict. The primary reason for the delay, as I have already observed, was the adjournments sought by the appellant’s counsel. The Judge delivered her reasons within just over six months after hearing the evidence of the appellant and his wife and after closing addresses were made. That delay was longer than it ought to have been, but is not, in itself, a reason to apprehend that there has been a miscarriage of justice.
The lapse of 17 months between hearing the testimony of CS and KD and the delivery of the verdict does give reason to scrutinise the verdict carefully lest the delay was productive of a miscarriage. I have concluded that it was not. The forensic contest was a simple one. The inconsistencies relied on by the defence were neither complex nor substantial and would have been evaluated in a provisional way by the Judge at the time. The Judge was reminded of them in addresses and they were expressly mentioned in her Honour’s reasons. The lapse of time has not been productive of a miscarriage of justice.
CS’s evidence of the complaint she made to KD was properly admitted. CS testified that she complained to KD of both the indecent assault which was the subject of the charge and the subsequent indecent assault in Queensland. It is not arguable that it was not a complaint within s 34M of the Evidence Act 1929 (SA). KD’s testimony related to the making of that complaint in that it confirmed that CS made a complaint of indecent assault against the appellant at the Pacific Fair Shopping Centre. KD’s testimony was no less evidence relating to that complaint because she only recalled CS complaining of a single occasion of indecent assault. The Judge correctly directed herself that the complaint was evidence of consistency of conduct and showed how the allegations came about.[5] The complaint evidence did support CS’s credibility, notwithstanding the small differences between the accounts of CS and KD.
The Judge’s directions on the use of the indecent assault in Queensland were, on their face, correct in law. Her Honour warned herself against using the evidence impermissibly to reason that the appellant was the sort of person who would commit the offence. True it is that the single subsequent offence in Queensland could not provide an explanatory context to the charged offence itself. However, it did provide a relevant context which explained the timing of the making of the complaint in Queensland.
The Judge directed herself on the forensic disadvantage faced by the appellant. The appellant impugns the direction that ‘the memories of all witnesses having been distorted and particularly in the case of CS who was a child at the time the alleged events took place.’ The appellant complains that the Judge may thereby have wrongly discounted the importance, to the defence, of CS’s lapses of memory. That complaint must be rejected. The burden of the direction is to warn that CS’s recollection might not be reliable. The direction was favourable to the accused.
The Judge’s finding that the accused gave false evidence about the affair he alleged with KD was used adversely to the appellant only as to his creditworthiness as a witness. It could properly have been used to found an inference of guilt. The lie was proved, independently of the rejection of the appellant’s testimony, by KD’s evidence. The appellant’s evidence that CS might have observed affectionate behaviour between himself and KD, and for that reason years later accused him of indecently assaulting her, is implausible. The appellant’s disclosure of the affair only when confronted with CS’s complaint strongly supports an inference that it was told out of a consciousness of guilt in an attempt to explain away CS’s allegations. Be that as it may, the Judge did not go that far. The appellant having testified as to the affair in an attempt to explain CS’s allegation, it was open to the Judge to believe KD, to reject his testimony on the subject and to take that lie into account in evaluating his credit.
Conclusion
I would dismiss the appeal.
[5] R v Phillis [2018] SADC 37 at [74].
BLUE J: I agree.
LOVELL J: I agree with Kourakis CJ.