R v R Nos. Sccrm-98-45, Sccrm-98-46 Judgment No. 6709 Number of Pages 18 Criminal Law Appeal and New Trial

[1998] SASC 6709

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

PRIOR, OLSSON AND WILLIAMS JJ

CATCHWORDS:

Appeal and new trial - new trial - in general and particular grounds - in general - miscarriage of justice - the appellant was convicted of unlawful sexual intercourse and indecent assault - appellant appealed on various grounds - it was argued that the verdicts were unsafe and unsatisfactory; the trial judge wrongly allowed the prosecution to lead evidence to establish bias on behalf of the appellant's wife; erred in admitting evidence to rebut a suggestion of recent invention; failed to adequately prosecute the appellant's case in the summing-up; failed to give adequate directions on the permissible use of other alleged sexual misconduct; failed to adequately warn the jury of the danger of convicting the appellant on the uncorroborated evidence of the complainant, and erred in relation to the direction on the burden of proof. - Held: appeal allowed - the appellant may have been deprived of the chance of acquittal as a result of the directions actually given with respect to the relationship evidence and the onus of proof - the jury should have been directed that the other alleged acts should not have been taken into account unless they had first been proved beyond reasonable doubt - the jury should have been told, in the summing-up, that even if they did not positively believe the evidence for the defence, they could not find an issue against the accused contrary to that evidence if that evidence gave rise to a reasonable doubt - the conviction should be set aside on these grounds alone.

(per Prior, J): Criminal Law Consolidation Act 1935 s353, referred to. Longman v R (1989) 168 CLR 79; Liberato v R (1985) 159 CLR 507; von Doussa J in Harris v Mill, cited in Selig v Hayes (1989) 52 SASR 169; R v Calides
(1983) 34 SASR 355; R v Corrigan (Doyle CJ, CCA, 15 May 1998, unreported); Brusnahan v R (CCA, 5 November 1993, unreported), applied.

(per Olsson. J): Evidence Act, 1929 s12A, referred to. M v R (1994) 181 CLR
487; R v Peake (1996) 67 SASR 297; The Queen v Calides (1983) 34 SASR 355; Selig v Hayes (1989) 52 SASR 169; Liberato v The Queen (1985) 159 CLR 507; The Queen v E (1996) 89 A Crim R 325; The Queen v Towner (1991) 56 A Crim R 221; R v K (1997) 68 SASR 405; Longman v The Queen (1989) 168 Ch R 79; Crofts v The Queen (1996) 186 CLR 427, applied. The Queen v Robertson (Victorian Court of Appeal, 30 October 1997, unreported), distinguished.

(per Williams, J): Natta v Canham (1991) 32 FCR 282; R v Shaw (1888) 16 Cox Crim Cas 503; Collaton v Correll (1926) SASR 87; R v Calides (1983) 34 SASR
355; Stirland v Director of Public Prosecutions [1944] AC 315, applied. Brusnahan v R (unreported, Supreme Court of SA, Full Court, S4246); R v Peake
(1996) 67 SASR 297; R v Lavery (No2) (1979) 20 SASR 430, discussed.

HEARING:

ADELAIDE, 21 May 1998 (hearing), 17 June 1998 (decision)

#DATE 17:6:1998

Appearances:

Appellant:

Counsel: Mrs M Shaw QC

Solicitors: Mcgee and Associates

Respondent:

Counsel: Mr S McEwen

Solicitors: DPP (SA)

ORDER: appeal dismissed..

PRIOR J

Olsson J has given a summary of the facts. Overall it is sufficient for present purposes for me to refer to that and indicate upon what grounds I would agree with him that the appropriate order in this case is for the appeal to be allowed, the conviction set aside and a re-trial ordered.

In my view grounds 5 and 6, taken together, call for the order proposed.

I agree with Olsson J that the grandmother's evidence should not have been admitted as part of the Crown case. It became admissible only upon the appellant's wife being called and denying bias. However, in the context of the issues at trial, the potential significance or impact of the evidence was minimal.

I agree with what Justice Olsson has said with respect to the third and fourth grounds of appeal. As to ground five, I agree with him that the direction given with respect to the relationship evidence was inadequate. The jury should have been told that the other alleged acts should not be taken into account unless they had first been proved beyond reasonable doubt .

The appellant may have been deprived of the chance of acquittal as a result of the directions actually given with respect to the relationship evidence and the onus of proof. The directions given at the end of the summing-up and during the retirement of the jury failed to tell the jury that, "even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence, if that evidence gives rise to a reasonable doubt. This the jury must be told" . In this case the jury sought further directions with respect to the onus of proof. The directions given focussed on credibility. A risk of error arose. Preference of the girl's evidence does not lead inevitably to a conclusion that her evidence should be accepted as proof beyond reasonable doubt .

As for the complaint that the trial judge erred in declining to give an adequate warning in relation to the dangers attendant upon the evidence of the complainant, I think the directions actually given were strong and adequate in the circumstances of the case. The overall effect of what the judge said to the jury was adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case .

I do not share the views expressed by Olsson J with respect to the first ground of appeal. The girl's story was not inherently implausible. It was open to the jury, properly directed, to accept the girl as a witness of truth and convict the appellant.

The directions given and the subject of complaint in grounds 5 and 6 were not clearly stated in a manner free from error. The convictions should be set aside on that ground alone, this being a case where the prosecution did not seek to discharge the onus it has with respect to the proviso in s353(1) of the Criminal Law Consolidation Act 1935 .

OLSSON J

On 6 February 1998 the appellant was convicted, by majority verdicts of a jury, of one count of unlawful sexual intercourse and one count of indecent assault. Both offences were said to have been committed on his 12 year old step daughter in 1996. He received a single head sentence of six years in respect of both offences, with a non parole period of two years and six months. He now appeals against both conviction and sentence.

I first turn to the outline facts.

It should be noted, at the outset, that the two counts against the appellant were brought as being indicative of a course of conduct said to have been perpetrated by him against his step daughter - commencing in late 1995 and continuing up until about the end of March 1996.

The complainant (to whom I shall refer simply as "M") was born on 28 March 1983. When she was about 8 years of age her mother formed a relationship with the appellant. The mother moved into his home in about 1992. They were later married in May 1993.

The evidence revealed that, as time went by, relationships between the appellant and M deteriorated. It was said that she was not diligent in doing her school homework (despite encouragement and help from her parents), she had very poor hygiene, would not keep her room tidy or properly attend to household chores, dressed and used make up inappropriately, used the telephone excessively and became overly interested in boys. It is clear that both parents attempted to impose some degree of discipline on her to address these perceived problems - but she became difficult and rebellious. The appellant and her mother testified that she generally behaved quite badly. It seems an undoubted fact that she came to resent the appellant and evidenced ill feeling towards him.

M's evidence was to the effect that, during the school holidays in December 1995, the appellant, dressed only in his jocks, commenced coming to her bedroom and getting into bed with her. He would, she said, do this a couple of times each week in the morning when he came in to wake her up. She testified that, initially, he would simply try to hug her, then he commenced touching her all over her body, particularly around her breasts and the area of her vagina. That was, she said, followed by him lying on top of her and rubbing his penis against her vagina, through her night attire. On New Year's Day 1996 he engaged in that type of conduct and then inserted his finger into her vagina. This evidence founded the first count of unlawful sexual intercourse.

According to M, digital penetration also occurred subsequently, on one or two occasions when the appellant came into the bathroom whilst she was having a bath.

On another occasion, she said, he took her hand and made her place it on his penis when he was wearing jocks. That founded the second count against the appellant.

M told the jury that the appellant's conduct ceased in about March 1996, near her 13 th birthday.

As 1996 wore on relationships between the appellant and her become very tense over time. She left home the following February. There had, she said, been a lot of "fighting" about rules around the house.

M gave evidence to the effect that her decision to leave home was the product of a specific incident, which had nothing to do with the prior alleged sexual conduct of the appellant towards her. She testified that, on the day in question, a dispute arose between herself and the appellant and her mother, concerning her going to a friend's house to view videos that evening and the arrangements associated with it. A considerable, heated argument ensued, the end consequence of which was, in M's words " I got sent to my room and I just sat and thought about it for a while, and I just packed two bags and left ." She asserted that she " couldn't handle all the yelling ... anymore ... It was stressing me out ."

It was common ground that M made no complaint to anyone concerning the alleged conduct of the appellant towards her until some time in September 1996, although she clearly had ample opportunity of doing so - particularly to her grandmother, with whom she quite often visited. Evidence was led that, at a birthday party for a school friend, another girl told her of problems which she was having with her father - following which M spoke of what the appellant had allegedly done to her. She did not otherwise pursue the matter at that time.

The evidence suggests that it was probably not until about 13 February 1997 that some formal complaint was made by M to the authorities, presumably at a time when she had decided to leave home and was, thereafter, placed in foster care. The details of how that came about were not revealed by the evidence.

At the conclusion of the prosecution case the appellant gave evidence on oath, in the course of which he denied any sexual impropriety with M. M's mother gave evidence which essentially supported various features of that given by the appellant.

It is important to reiterate that it is quite clear that M's decision to pack her bags and leave home did not purport to relate to any specific misconduct of the appellant towards her. It was, patently, the product of M rebelling against what, on the face of it, seems to have been quite reasonable discipline which both of her parents sought to impose on her. The evidence strongly suggests that her conduct in the home had become quite intolerable.

The appellant sought to rely upon a number of grounds of appeal.

First, he contended that, having regard to a number of features of the evidence as led, the verdicts were unsafe and unsatisfactory.

Second, he complained of the admission of certain evidence of M's grandmother bearing on the existence of a specific reason why M is said to have left home when she did. It is argued that this evidence was irrelevant to any issue and contained inadmissible expressions of opinion; and that, in any event, the learned trial judge failed to give adequate directions as to how that material should be used.

Third, it was contended that the learned trial judge erred in admitting evidence to rebut a suggestion of recent invention and failed to give adequate directions as to its proper use.

Fourth, it was complained that the learned trial judge misdirected the jury in relation to his summation of the defence case, in that:-

* he misdirected the jury as to the approach to be taken to their findings on count 1;

* he failed, adequately, to present the evidence of the appellant; and

* he did not adequately deal with the supportive evidence of M's mother.

Fifth, the appellant argues that there were inadequate directions concerning the proper use of other alleged incidents of alleged sexual misconduct on the part of the appellant and not charged against him.

Sixth, it is asserted that the learned trial judge erred in his directions to the jury as to the onus of proof.

Finally, it is complained that the learned trial judge failed to give the jury an adequate warning in relation to dangers associated with acting on M's evidence.

It is convenient to deal with the grounds of appeal seriatim.

In support of her contention that the verdicts were unsafe and unsatisfactory, counsel for the appellant emphasised these specific features of the evidence:-

- the absence of any timely complaint by M;

- the total lack of corroboration of her narrative;

- the appellant's denial on oath and the supporting evidence of M's mother;

- the clear evidence of ill will and tension between the appellant and M over a significant period of time;

- the existence of a strong motive on the part of M to fabricate the allegations;

- her young age at the date of the alleged offences

It is trite to say that, in determining whether the first ground has been made out, this court must ask itself whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, bearing in mind that the jury had the primary responsibility of determining guilt or innocence and had the benefit of seeing and hearing the witnesses. ( M v R (1994) 181 CLR 487)

Whilst, no doubt, this was, at the end of the day, a typical jury issue, it must be said, at the outset, that there were a number of very unsatisfactory features of the Crown case.

It is undoubtedly the situation that the narrative given by M was totally uncorroborated in any material respect. Whilst that is not uncommon in cases of this type, it does indicate that her evidence had to be scrutinised with care. This was particularly so when it was borne in mind that, on M's narrative, the incidents related by her were generally said to have occurred in circumstances in which (as a matter of plain common sense) a high risk of detection was ever present.

Furthermore, she made no relevant complaint until long after the event complained of, when she obviously had ample opportunity to do so, particularly to her grandmother whom she visited relatively frequently. Moreover, it is not to be forgotten that this was no timid, shrinking violet of a young girl. On the contrary, she was a self willed, rebellious and apparently precocious young person, who did not hesitate to express her displeasure in no uncertain terms, when crossed.

Critically, for present purposes, it is beyond question that there was substantial ill will and tension between M and both of her parents concerning her unsatisfactory conduct in the home and socially, which steadily built up throughout 1996 - to the point that she was determined to leave home to escape what she perceived to be unacceptable restraints being imposed on her by both of her parents. There was therefore the strongest of motives on her part to fabricate the allegations as part and parcel of a strategy to get away from the constraints of her home environment and, perhaps more importantly, to counter any move to compel her to return home.

Finally, her evidence fell to be considered against the denials of the appellant on oath and the evidence of her own mother, given in support of the appellant's case.

True it is that this court has not had the advantage of seeing and hearing M in the witness box. Due regard has to be given for that fact and the impression which she may have made on the jury.

However, on a careful and objective appraisal of the whole of the evidence as it was permitted to be led, one is left with a distinct feeling of unease. The facts to which I have referred, in combination, considered together with certain other specific problems to which I shall come in due course, compel me to the conclusion that it is impossible to conclude that it was, in fact, open to a jury, on the evidence as it stood, to have been satisfied beyond reasonable doubt as to the guilt of the appellant. In this regard the fact that the ultimate verdicts went to a majority decision only is not without its significance.

In my view this ground has been made good.

I turn to the other issues raised by the grounds of appeal.

The second ground relied upon focuses on evidence led by the Crown from Mrs D, M's grandmother. The main thrust of that evidence was intended to demonstrate that M's mother was biased in favour of the appellant, against M.

In essence the grandmother's evidence bore on these topics:-

* the circumstances in which three boys visited M on an occasion in July 1997, when M stayed with her grandmother during the school holidays; and

* an incident in September 1997, in which M's mother asked her to sign some notes related to the visitation of three boys to her home in April 1997, when M was staying with her - a circumstance which the grandmother obviously reported to M's mother at some stage.

The notes above referred to were tendered as exhibit D1 and read as follows:-

I Y... A... R... prepare this for R... D...

On Christmas Day 1996 M... R... returned to my house to stay for 3 days before returning home. On Christmas Day 1995 M returned to my house to stay for 3-4 days before returning to home.

During 1997 School holidays end of Second Term M... R... stayed with me for 4 days beginning 16.4.97. M... brought a girlfriend with her. I do not remember her name but she stayed with me while M... was here. Her friend attended the same school M... does.

On the 16.4.97, 3 boys arrived at my home. P... D... answered the door and informed me that they were here. I told M... she was not allowed to invite them into my home. M... and her friend went outside to talk with the boys. They were out the front. I remained inside but did peer through the lounge room window. They appeared to be talking. M... and her friend appeared to be doing a lot of whispering to each other while the boys were here. After 1/2 hour I went outside and questioned the 3 boys on who they were and where they came from. None of the boys attended Reynella East school. M... asked me what I was doing. I then came back inside. About 1/2 - 3/4 hour later, I went back outside & they were all behind the fence. I told M... she was to come inside. M... and her friend returned inside and the 3 boys left.

R A N...

14.9.97"

This evidence was permitted over the objection of counsel for the appellant. The rationale for its admission was that, in the view of the learned trial judge, it was proper for the Crown to anticipate the calling of M's mother by the defence and to attempt to demonstrate bias on the part of the mother against her daughter.

There can be no doubt that, at the time when Mrs D was called, no actual or inferred bias on the part of M's mother had been established. The accuracy of the notes above recited was never an issue and there was simply nothing in the evidence given prior to the calling of Mrs D which established any bias whatsoever on the part of M's mother.

I think that Mrs Shaw QC, of senior counsel for the appellant, is correct when she submits that, not only was the evidence led related to what was a collateral matter not in issue on the Crown case but, also (and more importantly) her expressions of opinion tended to undermine M's mother in an impermissible manner. It was made to appear that Mrs D was supportive of M and disapproving of her daughter in a prejudicial manner, on a basis irrelevant to the issues in the proceedings.

In the course of Mrs D's evidence the following exchanges occurred:-

"A Well, I felt my daughter was pressuring me to take sides and I didn't want to, because I didn't know what had even happened and I loved everyone. I wanted to be - I didn't want to lose either my grandchildren, M... or her siblings, because I love them all.

Q Can you describe generally your relationship with your daughter Y.

A Not very good. Shaky to say the least.

Q I take it, from what you said, that on some occasions you were not on very good terms with her.

A I seem to put my foot in it repeatedly and say something to upset her.

Q Does she do anything in response to you upsetting her.

A Well, I usually don't get to see her and the children.

Q When you signed those notes, what was your frame of mind then.

A Well, I wasn't thinking for starters. And I suppose with all the commotion of children running around and I knew that what M... had done was innocent, so I saw no reason to sign it - no reason not to sign it, because I knew it had - I couldn't see any significance in it."

In my opinion there was no justification for the admission of this evidence as portion of the Crown case. It had the unfortunate effect of pre empting an objective assessment by the jury of the mother's evidence as and when it was given. Moreover, it is difficult to see how, on any view, most of Mrs D's expressions of opinion constituted admissible evidence. They were quite prejudicial in their effect.

If Mrs D's evidence was properly admissible to rebut an allegation by the Crown of bias then the proper course would have been to call her in rebuttal, with her testimony limited to specific aspects of bias said to arise on the mother's actual evidence.

The problem was, as Mrs Shaw QC pointed out, exacerbated by the fact that, in the summing up to the jury, the learned trial judge did not give any definitive directions as to how Mrs D's evidence could properly be used and, in particular, how it ought not to be used.

I consider that this ground of appeal has been made out. Whether or not, taken alone, it could be said to have resulted in a miscarriage of justice may well be a moot point. However, its importance lies in its effect considered in conjunction with other matters.

I move on to the third ground of appeal.

Over the objection of counsel for the appellant the learned trial judge permitted evidence to be led (inter alia, from M in re-examination) to establish that she had, in September 1996, whilst attending a friend's birthday party, spoken to her girlfriends of the alleged sexual conduct of the appellant towards her. This was allowed for the purpose of negativing any suggestion of recent invention by M as of early 1997.

During the appeal much debate occurred on this topic, it being said that no substantial allegation of recent invention had ever been made. Thus the evidence was inadmissible and highly prejudicial. Moreover, it was contended that the jury was not adequately directed as to the use which it could properly make of the evidence on this aspect.

As to the first aspect it must be recalled that the evidence was permitted to be adduced against the background of the following cross-examination of M (T79-80):-

"Q You are aware now of course, aren't you, that one way for a young girl to get out of what she might see as an oppressive situation at home is to make an allegation like you have made.

A It is not - I am not lying, I am telling the truth and nothing that you say is going to make me say that I am lying because I am not lying.

Q It certainly had the effect of getting you out of the place, didn't it.

A I wouldn't have gone back no matter even if I didn't say this because this is true what happened and I wouldn't have gone back anyway.

Q But you knew, didn't you, before you made the allegation, that this was a way of getting out of home, didn't you.

A No, I didn't know that."

It is at once apparent that this constituted the clearest possible suggestion that the complaint made by M in early 1997 was, indeed, a recent invention concocted for the purpose of getting away from what she perceived to be an unduly restrictive home environment.

Some complaint was advanced to the effect that the learned trial judge did not adequately direct the jury as to the use that it could properly make of the evidence of the statements made at the friend's birthday party.

In the course of his summing up the learned trial judge dealt with the topic in this fashion:-

"On 29 September, 1996 M... R... and several girlfriends attended a birthday party for R... S... During the course of that party one of the girlfriends, C... K.., was talking about what happened to her regarding her father. M... then mentioned what happened between her and her stepfather, J... R...

That evidence may refer to the charges in this case, although it is not entirely clear, it may refer to some entirely different incident that occurred between M... and her stepfather, or to their relationship generally. If you find that what M... said to her girlfriends related to the charges in this case then you must understand the manner in which that evidence may be used. You will recall that there was a suggestion made by defence counsel that the allegations made by M... were made for the first time in early February, 1997, when she left home. The purpose of leading the evidence about what M... said at the party in September 1996 was to rebut or counter that suggestion. The evidence of what M... said at the party may be considered only for the purpose of assessing the reliability of M... as a witness and the credibility of her evidence."

He then went on to elaborate, in fairly usual terms, the conceptual basis related to admission of evidence of complaints in sexual cases.

Some complaint was made by counsel for the appellant concerning the above directions, as a result of which the learned trial judge, inter alia, further directed the jury in these terms:-

"Ladies and gentlemen, there is one thing I have been asked to clarify.

Do you remember when I was talking to you about what was said at the party on 29 September 1996. I said that the purpose of leading that evidence about what was said at the party was to rebut or counter any suggestion that M... had made up the allegations for the first time in February 1997.

I then went on to say that you could take what you find to have been said at the party into account in assessing her reliability and credibility. I may have given you the impression from the way that it was phrased that I meant her reliability and credibility generally. In other words, you may have got the impression that I was saying that, because there was some support of M...'s version of events, because there was some previous occasion on which she said something about what her father had done, that you can therefore, because of that, assume that he was an honest and truthful witness. I didn't mean to go as far as that. What I was intending to say is you can take that conversation, if you find it to be relevant, into account in determining the reliability and credibility of M... in relation to the allegation that she made up this story for the first time in February 1997."

All that need be said is that, as a consequence of the above directions, the jury could have been left in no doubt as to the approach which they should have adopted to the evidence in question.

I would therefore reject the third ground of appeal.

The fourth ground, in effect, complains of an inadequate presentation by the learned trial judge to the jury of the defence case.

This ground is, in large measure, interwoven with other grounds to which I will come. It very much focuses on what was said by the learned trial judge concerning oath against oath and a contention that, in his very brief treatment of the defence case, the learned trial judge failed to give an adequate and balanced presentation of the effect of the appellant's evidence and failed to present adequately the supportive evidence of the appellant's wife.

Little by way of specific oral submission was forthcoming on the appeal as to this ground. I must confess to being somewhat unclear as to precisely what is the real area of complaint over and above other specific grounds relied on. True it is that the summation of the defence case was quite brief - but the issues were clear-cut and of simple compass.

I see nothing, beyond other specific points raised by the appellant, to give substance to this ground.

Ground 5 asserts that the learned trial judge erred in the directions given as to the use which the jury could properly make of the complainant's evidence of other acts of sexual misconduct not separately charged. Specifically, it was said that the jury was not told that other alleged acts should not be taken into account unless they had first been proven beyond reasonable doubt. It was also argued that the jury was not directed as to the permissible and impermissible use of the evidence in question.

On this score the learned trial judge directed the jury in these terms:-

"You have also heard in this case some evidence about the conduct of the accused towards M..., both before and after the particular events which constitute the offences he is alleged to have committed. Usually a jury would not hear evidence about other conduct of an accused person because it is not relevant to the case at hand. However, it was necessary in this case for you to hear that evidence to be able to understand the relationship between the accused and M..., the background to the alleged offence, and the context in which the alleged offences are alleged to have occurred, and so that you are not hearing the evidence about the alleged offences in a vacuum, as it were.

It is important you don't misuse this evidence about other incidents. Great injustice could result if you were to reason that because the accused has done some bad things in the past he is the sort of person likely to commit the crimes with which he is now charged, and therefore he must be guilty. You should be careful to use that evidence only for the purposes I have mentioned. When it comes to deciding whether or not the accused is guilty you should focus only on the evidence that is directly related to the offences charged."

So far as it goes the direction appears to me to be unexceptionable. The only point of substance which arises is as to whether it was incumbent on the learned trial judge to tell the jury that it ought not to take the relevant evidence into account at all, unless it was first satisfied that such evidence proved the commission of other offences not charged beyond reasonable doubt.

There can be no question but that the jury was not entitled to have regard to the evidence of other sexual misconduct at all unless they were first satisfied beyond reasonable doubt that it had occurred. ( R v Peake (1996) 67 SASR 297) Such material was, potentially, highly prejudicial in nature and there was a need to ensure that adequate directions were given in relation to it. Whilst it is true, as the Crown asserted, that the need for and appropriate extent of directions on this type of topic depend on the particular circumstances of the case, nevertheless it is vital that the jury be left in no doubt that the assertions in question had to be proved beyond reasonable doubt before regard could be had to them at all.

In my view it is somewhat inexplicable that the learned trial judge said nothing on this aspect. In the result it remains a distinct possibility that the jury may simply have taken the evidence on this score more or less at face value and allowed it adversely to affect their thinking as to the offences actually charged. True it is that no complaint was made by counsel at the conclusion of the summing up, but the situation was then largely beyond redemption. To seek a re-direction would have been to focus undue attention on an aspect which could redound very adversely against the accused. It is, I consider, no answer to say that, at the end of the day, the conclusion to be drawn necessarily depended on the general level of acceptance of M as a witness of truth. Such reasoning has something of a chicken and egg flavour about it.

I consider that this ground has been made good.

In the course of her submissions Mrs Shaw QC understandably placed great emphasis on her contention that the directions as to onus of proof were erroneous and could well have given rise to a serious miscarriage of justice.

At the beginning of his summing up the learned trial judge gave a number of directions to the jury in impeccable form. These included the following:-

"There are two fundamental principles of our law that I must draw to your attention. The first principle is that every accused person is presumed to be innocent unless the evidence establishes his or her guilt beyond reasonable doubt.

What is a reasonable doubt? Well, it's simply a doubt which you, as reasonable men and women, aware of your responsibilities as jurors, are prepared to entertain at the end of your deliberations. It is not enough for there to be suspicion of guilt, or even a belief that the accused is probably guilty. Nothing short of proof beyond reasonable doubt is sufficient.

So if, on the whole of the evidence, you find that there is, or that there might be, an explanation consistent with the innocence of the accused, or even if you are simply not sure where the truth lies, then the charge has not been proved and your verdict must be not guilty."

However, in the concluding segment of the summing up, he said:-

"... There I one final point I must make about the evidence in this case, because it does really boil down to a question of who you believe. It is a question of oath against oath, and in those circumstances it is sometimes very difficult to be satisfied about something beyond reasonable doubt. It is possible, therefore, that at the end of your deliberations you simply won't be able to decide where the truth lies. You may ponder for quite some time. You may just not be sure whether the accused was telling the truth or whether M... was telling the truth . If you do find yourself in that position it follows that you must have a reasonable doubt, and if you do have a reasonable doubt your verdict must be not guilty."

(The emphasis is mine.)

In the course of their deliberations the jury requested the learned trial judge to reiterate the last half of his summing up - particularly that related to onus of proof.

Inter alia, the learned trial judge then said to the jury:-

"As I said earlier, a feeling that the accused is probably guilty is not enough, a suspicion is not enough, you must be satisfied beyond reasonable doubt. I aid at the end of the summing up that if you can't decide where the truth lies, if you simply can't decide whether M... was telling the truth or whether the accused is telling the truth then you must have a reasonable doubt and the accused is entitled to the benefit of that doubt and you would have to find him not guilty."

(The emphasis is mine.)

Mrs Shaw QC contended that the effect of these lastmentioned directions was to convey to the jury that the essence of their task was to determine which of them was telling the truth - M or the appellant.

I consider that this analysis of the directions given is accurate. Whilst, the comments made were in the broader context of what would be the situation if the jury ultimately remained uncertain as to where the truth lay, nevertheless, on each occasion, the jury must clearly have retired to the jury room under the impression that they simply had to decide which of the two witnesses was telling the truth.

Whilst, no doubt, the overall direction was an attempt to satisfy the requirement adverted to in The Queen v Calides (1983) 34 SASR 355, there are, as this court has repeatedly pointed out, serious dangers in merely inviting a jury to prefer the evidence of one principal witness to that of another. (See, for example, the discussion of the relevant authorities in Selig v Hayes
(1989) 52 SASR 169 at 171-2.)

In Liberato v The Queen (1985) 159 CLR 507 at 515, Brennan J (as he then was) dealt with the problem in these terms:-

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'."

(Although Brennan J was in the minority as to the outcome of the appeal, the statement of principle is nevertheless beyond question.)

Much the same comment was made by Kirby P (as he then was) in The Queen v E (1996) 89 A Crim R 325 at 330.

What had to be made clear to the jury, and was not in the instant case, was that they could not properly convict the appellant unless:-

(1) they accepted the substance of the evidence of M; and

(2) they were also satisfied on the whole of the evidence (including that given by the accused) that no reasonable doubt remained as to his innocence.

As the authorities amply illustrate, a direction which focuses central attention on the relative credibility of two principal witnesses almost invariably distracts attention from other evidence in the case (considered along with that of the principal witnesses) which may well have a propensity, when the totality of the evidence is weighed, to give rise to a residual reasonable doubt. As Kirby P stressed in The Queen v E (supra), it is vital that the jury be made to understand that it is"not" a question of simply making a choice between the evidence of two conflicting witnesses.

The effect of the summing up in this case is that, at the end of the day, it seems patently likely that the jury were left with the impression that they were merely to make such a choice, notwithstanding the initial, general content of the first portion of the summing up.

To adopt the expression of Allen J in The Queen v Towner (1991) 56 A Crim R 221 at 227, this aspect of the summing up went to the root of the trial - it went to the identification of what, critically, it was that the jury had to decide, to determine whether the accused was guilty as charged. It follows that, by reason of this aspect of the summing up, taken alone, the trial miscarried.

The sixth ground of appeal has therefore been made good.

For the sake of completeness I will briefly traverse the issue raised in the final ground of appeal.

The appellant contends that the learned trial judge erred in failing to give an adequate warning to the jury in relation to the dangers attendant upon the evidence of M. Specifically it was argued that there was an inadequate explanation of how the jury ought to approach a consideration of that evidence, of the rationale of the warning and of the significance to be attached to the delay in making the allegations against the appellant. It is also said that the learned trial judge ought not to have adverted to the concept of corroboration without giving a definitive explanation of that concept.

Some care must be taken in applying the reasoning in authorities published prior to the enactment, on 15 July 1993, of section 12A of the Evidence Act , 1929. This swept away any requirement to warn a jury that it is unsafe to convict on the uncorroborated evidence of a child.

On the other hand, as is illustrated by R v K (1997) 68 SASR 405, in certain cases, some form of warning is both appropriate and essential. The conceptual base of the reasoning expressed in authorities such as Longman v The Queen (1989) 168 CLR 79 and Crofts v The Queen (1996) 186 CLR 427 has not been undermined by the provisions of section 12A. Indeed, it can fairly be said that such reasoning evinces a counsel of plain common sense.

In the instant case the factors calling for a warning were the delay in making complaint, the clear evidence of continuing tension in the home due to the attempts of the appellant and her mother to impose a degree of discipline on M, a strong motive on the part of M to ensure that she was not returned to the perceived restrictive environment from which she was seeking to escape - coupled with her young age and the total lack of independent support of her assertions.

There was an obvious need for the learned trial judge to go so far as telling the jury that it was dangerous to convict on M's evidence alone, unless, having scrutinised that evidence with great care and paying heed to the warning given to them, they were convinced of its truth and accuracy (cf The Queen v Robertson , Victorian Court of Appeal, 30 October 1997, unreported).

What the learned trial judge actually said to the jury on this score was:-

"I remind you that the prosecution case depends entirely on the evidence of M... R... The accused denied her allegations. There was no evidence to corroborate the evidence of M... There is evidence of a great deal of animosity between the accused and M... That evidence is capable of providing a motive for M... to fabricate the allegations against the accused. When M... gave her evidence she was about 14 years of age, almost 15. "You should have regard to the impression you gained of her when she gave her evidence. You may well find that she was a strong-willed and rather rebellious young girl who strongly resented the attempts made by the accused and his wife to impose what they saw as reasonable parental controls on her behaviour. That assessment is one with which you may or may not agreed, as you are the sole judges of the facts, but in all these circumstances I think it is appropriate that I issue a strong warning to you about the dangers of convicting the accused on the uncorroborated evidence of M... R...

Of course, if you are satisfied beyond reasonable doubt that the accused committed any of the offences alleged against him, then that will indicate your acceptance of the evidence of M..., and your verdict must be guilty. However, before coming to that conclusion you should hesitate long and hard about convicting the accused on the uncorroborated evidence of a young girl who clearly had a motive to fabricate allegations against the accused.."

Mrs Shaw QC took issue with this formulation on the grounds that:-

* it fell short of a proper direction that the"effect" of the warning was that they were to approach their task in the manner above described;

* a failure to explain the"rationale" for the warning in the circumstances of the instant case rendered it incapable of being attributed adequate significance;

* the failure adequately to reflect on the important factor of"delay" militated against the efficacy of the warning; and

* a failure to"explain" what was meant by"corroboration" left the jury in a conceptual lacuna as to what was meant by it.

There can be little doubt that the warning given fell somewhat short of that which was mandated by the authorities to which I have referred.

If that shortfall was the main, or only, ground of appeal in this matter I would have some hesitation in concluding that, taken alone, it necessarily caused the trial of the appellant to miscarry.

However, it is, in my view, a factor to be taken into account with the other defects in the summing up and in the evidence led at trial, to which reference has already been made.

Quite apart from my conclusion as to the first ground of appeal I am driven to the further conclusion that the misdirection as to onus of proof (ground 6), when coupled with the other deficiencies to which I have adverted, combine to produce the result that this trial did miscarry.

I would, accordingly, allow the appeal and quash the convictions recorded against the appellant. Mrs Shaw QC strongly contended that, if that result was arrived at, a retrial ought not to be directed.

Even given my conclusion as to ground 1, which has been arrived at in the context of the manner in which this trial went forward and certain of the other specific grounds of appeal, I do not think that that is an appropriate end result. I would direct a retrial. On the other hand that does not pre-empt a proper consideration by the Director - having regard to the issues ventilated as to ground 1 - as to whether or not it is appropriate to again present the appellant for trial.

The foregoing outcome renders it unnecessary to consider the appeal against sentence. All that need be noted in that regard is that it was conceded by counsel for the Director on the appeal that the sentence imposed was, in the circumstances, manifestly excessive. I agree with that concession.

WILLIAMS J:

The facts of this matter and the grounds of appeal have been outlined in the reasons of Olsson J. I am in the minority in reaching the conclusion that the appeal should be dismissed and I state my reasons shortly as follows:

Ground 1

The six matters relied upon by the appellant constitute a restatement of the appellant's case before the jury and each of these matters was dealt with in the summing up. However, these matters do not bring to account the matters raised in the Crown case and in particular the evidence of the complainant together with other matters arising on the prosecution case. I agree with the view expressed by Prior J that it was open to the jury when properly directed to convict the appellant.

Ground 2

It is well established that evidence may be called to establish that a witness has been bribed, is biased or has a particular relevant interest. When such an issue is raised it is not to be treated as collateral to the issues in the case if the Trial Judge is satisfied that the interest of justice so require (see Natta v Canham (1991) 32 FCR 282 at 295-300). In my view it would have been preferable to call the evidence of Ms Dixon in rebuttal; at the end of the day little turns on her evidence or upon the procedure which was adopted (see R v Shaw (1888) 16 Cox Crim Cas 503 at 504 and Collaton v Correll
(1926) SASR 87 at 94 per Napier J as to procedure).

Ground 3

I agree with the analysis and conclusion of Olsson J that this ground of appeal is not made out.

Ground 4

In my opinion the defence case was adequately presented to the jury in the summing up.

Ground 5

In Brusnahan v The Queen (unreported, Supreme Court of SA, Full Court, S4246 quoted by Millhouse J in R v Peake 67 SASR 297 at 301) Duggan J (with whom Bollen and Mullighan JJ agreed) dealt with a question of relationship evidence and its treatment in a summing up; Duggan J said:

"In my opinion it would have been preferable for the learned trial judge to have given a more extensive direction to the jury on this topic. Although the jury were directed on the requirement of proof beyond reasonable doubt in traditional terms I think it would have been appropriate to remind the jurors that evidence of these particular facts could not be used unless they were proved to the required degree of satisfaction. Furthermore it would have been helpful to explain in more detail the relevance of the relationship between the parties to the facts in issue. However it is important in this respect to take into account the conduct of the trial. After reading the relevant parts of counsel's addresses I am confident that the jury would have understood his Honour's references to the relationship between the parties and its relevance to the case in such a way as to lead to a proper approach to the evidence. Although it is not conclusive, the fact that the learned trial judge was not asked to give further directions on this topic confirms my view as to the significance of the context of the trial as a whole. After considering the directions along with the evidence on this issue and its relationship to the evidence as a whole, I am satisfied that there was no miscarriage of justice arising from any failure to give more extensive directions on the topic."

I consider that the remarks of Duggan J may be applied to the present case. I have read the addresses of counsel. As now relevant there was no request for a further direction; I refer to the remarks of Walters J quoted below. In my view the ground of appeal is not made out.

Ground 6

In my opinion the direction given in the summing up was sufficient to satisfy the requirements of R v Calides (1983) 34 SASR 355.

Ground 7

In my view the trial Judge sufficiently warned the jury concerning the evidence of the complainant and as to a motive which she may have for fabrication of evidence and possible danger associated with her evidence.

General Comment

I repeat the remarks which I made in R v Peake (see above)-

"Upon appeal the absence of objection at trial will not determine the sufficiency of the trial judge's direction to the jury: Stirland v Director of Public Prosecutions [1944] AC 315 at 318. However, I note the remarks of Walters J in R v Lavery (No2) (1979) 20 SASR 430 at 431:

"Admittedly, the failure of the accused's counsel to take objection to a summing-up will not, of itself, deprive an appellate court of its power to interfere if there has manifestly been a mistrial or a miscarriage of justice, since it is obviously the duty of the court to ensure that an accused person has had a fair trial and to prevent a miscarriage of justice. On the other hand, the failure of counsel to object to the terms of the summing-up will have an important bearing on the question whether any miscarriage of justice has occurred, so as to entitle the accused to a new trial; a point not taken at the trial should not lightly be made a ground for quashing a conviction."

For these reasons I would dismiss the appeal.