R v Robins No. Sccrm-98-66 Judgment No. S7013

R v ROBINS
[1998] SASC S7013

Court of Criminal Appeal: Millhouse, Perry and Nyland JJ

Millhouse J. I have had the advantage of reading the Reasons of my sister and brother, about to be delivered. They have summed up neatly the arguments including her supplementary submissions referring to Graham v R (1998) 57 ALR 404 advanced by Mrs Marie Shaw QC. I agree in substance with the way in which my sister and brother have disposed of the arguments.
That being so, it follows I think the appeal should be dismissed
Perry and Nyland JJ. This is an appeal against conviction.
Following a trial in the District Court, the appellant was found guilty by verdict of a jury of two counts of rape. The first count alleged that the appellant inserted his finger into the complainant’s (C’s) anus without her consent. The second count alleged an act of vaginal sexual intercourse. Both offences were alleged to have occurred on the same occasion, on 23 November 1996 at Mount Barker.
The principal matters argued on the appeal relate to rulings made by the trial judge, which the appellant challenges, as to the admission of evidence of complaints made by C after the alleged rapes, of her distress, and as to so-called “background” evidence of the prior sexual relationship between the parties.

Factual Background

C met the appellant in 1984. In 1989 they formed a de facto relationship by which they had two children.
The eldest child, D, was born in 1990 and the second child, R, was born in 1992.
C described her relationship with the appellant as “stormy”. There were arguments regarding their sexual relationship and other matters. Her testimony portrayed the appellant as “sexually demanding” and on occasions aggressive. She further testified that on occasions he had used physical force towards her, and had “coerced” her into having sex.
There was evidence of separations occurring between 1989 and 1993, following the birth of each of the two children. C ultimately decided to terminate the relationship in July of 1993.
Subsequently C was granted custody of both children. The appellant was granted access to the children on a weekly basis. Because of the access arrangements, C and the appellant continued to have contact with one another. From time to time they discussed reviving their relationship. C testified that from her point of view this was for the sake of establishing a stable family life for her daughters. At times in the period following the break up, C consented to having sexual intercourse with the appellant. In her evidence, she stated that on some of these occasions he had been extremely forceful.
C’s evidence was that approximately two and a half years before the offences which are the subject of this appeal, she stopped having sexual intercourse with the appellant because she realised that he was “just using [her]”.
In early 1996, C formed a relationship with another man (K) and became pregnant to him in about June of that year. Her third daughter, E, was born on 25 February 1997.
There were complications with this third pregnancy. E was originally a twin but unfortunately one foetus died early on in the pregnancy. The pregnancy was also exacerbated the presence of haemorrhoids, a fact that will become relevant later.
C’s relationship with K was not harmonious. There was a period of some months where they separated. However, they subsequently resumed their relationship after the birth of E, and later married.
We turn now to the night in question, 23 November 1996. At this time C lived in a house in Mount Barker, which was the house which she had formerly occupied with the appellant. The appellant lived in the same area. Although six months pregnant by K, her relationship with him was such that, at that time, they were not close.
C’s evidence was that she awoke at 1.30 am to see a figure standing in her bedroom, near the bed. When she asked who it was, he replied, “It’s me, Trev [the appellant]. I’ve come to love and protect you”.
He went on to say that he had lost his way from a party and had found himself at C’s house, so he thought he would “come and get a root ...”.
It was not disputed at the trial that the appellant was affected by alcohol. Indeed, in her evidence C noted the smell of alcohol about him and the fact that he was slurring his words.
The accused proceeded to mount the bed and give C a “brotherly hug”. At the time she was wearing a track suit. He complained that she was wearing too many clothes, and started to pull her pants down. She kept pulling up her pants, resisting his attempts to remove them. This happened a few times. She told him that she was not interested in sex, that she was pregnant, and that he had a girlfriend.
The appellant responded that he knew that she was pregnant, that she was alone and that she “wanted this”. When C threatened to call the police, the appellant laughed. Then, before she had realised it, he had penetrated her vagina with his penis. She found this unpleasant as her vagina was dry and it stung. The appellant continued to penetrate her vagina, moving up and down, and also penetrated her anus with his finger approximately three times. C said each time the appellant did so she grabbed his hand and pulled it away because it was extremely painful due to her haemorrhoids.
These are the acts which constitute the acts of rape for which the appellant was convicted.
At one time during the incident C changed her position so that she was on top of the appellant. She did so because she was fearful for her baby, having already lost the twin. She said that she felt powerless and scared. She did not want to wake her daughters, and the appellant showed no sign of stopping. She told the appellant to “come inside [her]” because she wanted to get it “over and done with”.
The appellant found that he could not ejaculate due to the alcohol which he had consumed. Eventually he ceased vaginal intercourse and went to sleep. On C’s evidence, this was approximately 3.00 or 3.30 am. She made attempts to move him from the bed, but was unsuccessful.
She got up and found that the back doors to the house were open. This was surprising, as she was sure that she had locked them before retiring. She was not sure if she should ring the police. In the end, she did not do so because she thought they would not understand if they saw the appellant in her bed, and she was worried about what her daughters would think if they saw their father with the police in such circumstances.
As a result of this, she got back into the bed and went back to sleep. She awoke at about 7.00 am. At that time the appellant, who was awake by then, asked C if she was interested in further sex. She said, “You can forget it”. At this point, the second daughter R came into the room. According to C, the appellant said to her, “I fucked your mummy”.
Sometime later that morning the appellant left, taking his daughters with him, exercising his right to access.
The complainant then had a shower because she “felt dirty”. Later, at approximately 10.00 am, she phoned her friend Ms Stanford. She told her what had happened. Ms Stanford suggested that what had occurred constituted rape. Ms Stanford rang the Rape Crisis Counselling Service and put the complainant in touch with them. Later that day, Ms Stanford took the complainant to Yarrow Place Clinic (a Rape Counselling Centre at the Women’s and Children’s Hospital), where she underwent a medical examination by Dr Maiolo.
After the incident, C also spoke to her next door neighbour Ms Fechner. The evidence was not entirely clear as to when C spoke with her. C’s recollection was that it was either on the day of the offence, the following day, or the following weekend. Ms Fechner gave evidence that it was on the same weekend as the incident in question , that is, the same day or the day after the offence. She said that C was very upset, agitated and shaking. She did not give evidence of the content of her conversation with C.
On Sunday 24 November 1996, the complainant spoke with a police officer in the Sexual Assault Unit of the Angas Street police station. At the time she decided against charging the appellant with rape, preferring to charge him with breaching a restraining order and unlawful entry. She said she was too upset at the time to make a detailed statement.
On 26 November 1996, C signed an affidavit which was filed in the Family Court, alleging that the appellant raped her. In January 1997, before the birth of her third daughter, she contacted the police and informed them that she would be ready to make a detailed statement after the birth. She gave a statement then. The charges were then laid.
During the course of the Crown case, a number of matters were raised in evidence which are now the subject of appeal. These included the fact that a restraining order had been taken out against the appellant by C; that at one stage access arrangements had changed and that the appellant had to collect the children from outside the Mount Barker police station; that the appellant was a user of cannabis; and that on 24 November 1996, when the appellant left with the children, he may still have been intoxicated from the night before. Certainly there was a clear implication that he had been driving under the influence when he arrived at C’s home the previous evening.
The appellant’s version of events was very different. The appellant gave evidence that he and C were still having consensual sexual intercourse from time to time after their break up in 1993 and that this continued until January 1996. This was in conflict with C’s evidence that they had not had consensual sexual intercourse for 2 and a half years prior to the incident.
As to the night of the alleged offences, the appellant stated in evidence that he had been at a party at Nairne and had left to get food with some other guests from the party. However, he subsequently lost his way and found himself in the vicinity of C’s house. He admitted that he was affected by alcohol. He said that when he found himself near C’s house he thought that he would “check on the kids”.
He left his vehicle in C’s driveway and checked the front door, which he found locked. He then proceeded to the rear of the house where, on his evidence, he found the back door was unlocked. He entered the house through that door, closing it behind him.
He proceeded to the girls’ room but found that they were not there. At this point he decided to ask C where the children were and entered her bedroom. On his account, after she awoke to find him in her bedroom they had a conversation for about 15 minutes including a discussion about C’s relationship with K, and the difficulties C was having with the latter at the time. During the course of this conversation, the appellant stated that C agreed to have sex with him as a “one-off thing”.
He gave evidence that there was foreplay, including oral stimulation of her vagina (this was never put to C in the course of cross-examination), followed by consensual vaginal intercourse, during which he inserted his finger in her anus and moved it in and out, which on his account was something that they had done previously. The appellant stated that he did not ejaculate and that the intercourse then ceased and he went to sleep.
In the morning when he awoke, he again asked C for sex but she declined. He went back to sleep after remarking that she was a bit of a “hypocrite”. Eventually he left with the girls.

Grounds of Appeal

The grounds upon which the appeal was argued were:
That the evidence of the complaint to Ms Stanford was wrongly admitted.
That the evidence of complaint and/or distress given by Ms Fechner was wrongly admitted.
That the evidence of distress given by Dr Maiolo was wrongly admitted.
That the evidence of the existence of the restraining order, access at the police station, use of cannabis by the appellant, and that the appellant may have driven his children whilst intoxicated should not have been admitted.
Alternatively, the learned judge erred in failing adequately to direct the jury in relation to the evidence of complaint and of distress.
Evidence of prior forced sexual intercourse ought not to have been admitted.
Alternatively, in relation to grounds [4] and [6], the learned trial judge failed adequately to direct the jury as to the proper use of the evidence referred to in those grounds.

The grounds of appeal may conveniently be dealt with under four headings:

.The admissibility of the evidence of complaint/distress.
.The learned trial judge’s summing up in relation to the complaint/distress evidence.
.Irrelevant evidence which the appellant contends ought to have been excluded on the grounds of prejudice to the accused.
.The evidence of prior forced sexual intercourse and of the history of the prior relationship between the parties.

The admissibility of the evidence of complaint and distress

The complaint to Ms Stanford

The appellant complains of the learned trial judge’s decision to admit evidence of the complaint given to Ms Stanford whom C rang the morning after the offences, after the children had left with the appellant. C’s evidence was that she said to Ms Stanford that “[the appellant] had come and broken in and forced his way into me ...”. Ms Stanford, who was called by the prosecution, gave evidence that C had rung her and told her that: “‘Trevor [the appellant] had forced himself on her last night’. She (C) was very upset. She just kept repeating that he had forced himself on her, that she was trying to get him off her, he would not get off, he kept saying he would not get off, ‘I tried to get him off me’”.
C also said that Ms Stanford had told her that this amounted to rape and that she had to do something about it.
It has long been accepted that evidence of a recent complaint in cases of sexual assault is admissible.[1] As Barwick CJ said in Kilby v R:[2]
“The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. What ever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely an exception constituting a buttress to the credit of the woman who has given evidence of having been subjected to the sexual offence.”
[1] See R v Lillyman (1896) 2 QB 167 and Kilby v R (1973) 129 CLR 460.
[2] Ibid at 472
It is clear that such a complaint must be made at the first reasonable opportunity, and that the substance of the complaint must be regarded as a “spontaneous and unvarnished narrative”.[3] Evidence of complaint may be excluded if it is found to have not been made at the first reasonable opportunity. However, as Matheson J in Jonkers v Police said: [4]
“What is the first reasonable opportunity will depend on the circumstances, including the character of the complainant and the relationship between the complainant and the person to whom she complained, and the persons to whom she might have complained and did not do so. It is enough if it is the first reasonable opportunity ...”.
[3] R v Freeman (1980) VR 1 at 5.
[4] (1996) 67 SASR 401 at 407.
We do not think that it can be said that in all the circumstances C failed to complain at the first reasonable opportunity. In the present case, the rape must have concluded at approximately 3.00 am or thereabouts. C attempted to move the appellant after he had fallen asleep, but found that she was unable to do so. She was distressed and disturbed by the events that had occurred and was burdened with the added difficulty that it was her former de facto and the father of her children who was responsible. She was fearful that her complaint may not have been taken seriously, and was also concerned about the effect on her two young daughters had she invited the police into her home to deal with their father.
For these reasons, we do not think that it was unreasonable for C to wait until her daughters had left the house with the appellant before she took the opportunity to contact Ms Stanford and make a complaint.
In Valentine v R[5] the Court of Appeal accepted that a complaint could be recent and admissible although it may not have been made at the first opportunity which presented itself to the complainant.
[5] (1996) 2 Crim App. R 213 see also R v Simpson unreported, CCA (Millhouse, Perry & Nyland JJ) 20 August 1998, Judgment No. S6802 at 6-8
It is now clear from the authorities that it is for the trial judge to exercise his or her discretion whether or not to allow evidence of recent complaint to be left to a jury.
In the present case, we can find no reason to interfere with the exercise of the learned trial judge’s discretion in that respect, as to the complaint to Ms Stanford.
Mrs Shaw QC for the appellant attacked the admissibility of the complaint on a separate ground, namely, that the evidence of complaint was the result of leading questions put to C by Mrs Stanford. A well known authority on this point is the decision of R v Osborn.[6] As Ridley J put it in that case:
“... the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect and will render it inadmissible; but a question such as ... ‘What is the matter?’ or ‘Why are you crying?’ will not do so.”[7]
[6] [1905] 1 KB 551.
[7] R v Osborn (supra) at 556.
At this point it is necessary to examine the passages of evidence to which this particular complaint is directed.
The first passage of evidence occurs in C’s examination in chief. It appeared as follows in the transcript:
“Q.... Can you remember what you said to her.
A.Well, words to the effect that Trevor had broken in and attacked me.
Q...... Can you remember the words you used.
A.Not entirely, just that he had come and broken in and forced his way into me, and she didn’t really realise what I was saying.
Q...... Did you have to repeat what you said.
A.Then I said to her, ‘Well, I certainly didn’t break into his house at 1.30 and demand to have sex with him’, or words to that effect, and then she realised what I was saying and she said, ‘You realise that is rape’. She said, ‘You will have to do something about it or tell someone’.
The next relevant passage of evidence occurred in Mrs Stanford’s examination in chief. It appears below:
“Q.... She rang you on the telephone, did she.
A.Yes.
Q...... What did she say to you.
A.She said that Trevor had forced himself on her last night. She was very upset. She just kept repeating that he had forced himself on her, that she was trying to get him off her. He wouldn’t get off, he kept saying he wouldn’t get off. ‘I tried to get him off me.’
Q...... Did you seek some clarification from her.
A.I had to ask her several times what she meant, she wasn’t talking very clearly. She was crying and I just had to clarify exactly what she meant.
Q...... What did she say when you sought clarification.
A.Well, I said to her, ‘[C], I think what you’re talking about is rape’. She just kept saying, ‘Why would he do that? He wouldn’t get off me. Why would he do that? I am pregnant’. She didn’t specifically say that he had raped her. She wouldn’t use that word, but I just kept trying to say to her, ‘Look, [C], what you’re describing to me sounds like rape’.”
When this testimony is examined in context, Ms Stanford cannot have been said to have elicited the complaint by leading questions.
Ms Stanford’s remark in relation to the use of the word “rape” can best be characterised as the conclusion which she drew as a result of the complaint made to her by C. This was not a case where Ms Stanford put a series of propositions to C suggesting to her that the appellant had raped her.

Counsel for the appellant at the trial failed to object to evidence relevant to this ground at the time when it was adduced. However, in light of the conclusions which we have reached, it is unnecessary to comment further as to that aspect of the matter.
In our view, this ground of appeal is not made out.

The evidence of complaint given by Ms Fechner

The appellant also complains that evidence of a second complaint was wrongly admitted during the course of the trial.
During the course of her examination in chief, C stated that she had “mentioned what had happened” to her next door neighbour, Ms Fechner. She gave no further detail of what she had said.
As we have already pointed out, there was no evidence from Ms Fechner of what was said at the time. However, Ms Fechner did give evidence about the emotional state of C at the time when she spoke to her.
This Court has previously held that evidence of multiple complaints is not admissible. In the ordinary case, there can be little probative value in admitting evidence which shows that the same complaint was subsequently made to another person.[8]
[8] R v Wilson, Tchorz and Young (1986) 42 SASR 203. See also R v Tana (1986) 43 SASR 161.
Evidence from C that she had “stated what had happened” to Ms Fechner was, therefore, strictly not admissible. But the main focus of Ms Fechner’s evidence was as to C’s emotional state, evidence of which, as we go on to explain, was admissible. The brief mention by C of what she said to Ms Fechner is, in our opinion, unlikely to have had such an effect upon the jury, particularly having regard to the learned trial judge’s summing up, which we come to, as to have occasioned a miscarriage of justice.
The appeal on this ground must be dismissed.

The evidence of distress given by Ms Fechner and Dr Maiolo

The appellant complains of the evidence of distress which was led at the trial from Ms Fechner and Dr Maiolo during the latter’s examination of C.
The common law has recognised that in cases of rape, evidence of the victim’s distress either at the time of, or subsequent to the act amounting to rape may be corroborative of the victim’s testimony that intercourse took place without consent. The law views such evidence as admissible if an inference can properly be drawn that the cause of the distress was the accused’s crime, and if the risk of concoction can be safely eliminated.[9] Indeed, as Ligertwood notes:
“Only where the distress is capable of being regarded as having been directly caused by the alleged assault will its probative force be regarded as deriving independently of the victim’s credit. If this inference is fairly open, the distress may be left to the jury as potentially corroborative but strictly upon this basis. Even so, juries should be warned about placing too much reliance upon that distress.”[10]
[9] See Ligertwood, Australian Evidence, 2nd ed, Butterworths 1993 [4.39]. See also R v Redpath (1962) 46 Crim App R 319; R v Flannery [1969] VR 586; R v Yates [1970] SASR 302; R v Byczko (No 2) (1977) 17 SASR 460; R v Freeman [1980] VR 1.
[10] Ligertwood (supra). See in particular the cases cited at footnotes 160 and 161.
In relation to Ms Fechner, the relevant passage of evidence is as follows:
“Q.... How did she appear to you.
A.Nervy, a little bit upset. When I said, ‘Are you all right’, she just broke down. She was a mess.
Q...... How did she appear at that stage.
A.Very upset, agitated, shaking.
Dr Maiolo gave evidence in the following terms:
“Q.... During the course of the medical examination, can you describe [C’s] demeanour.
A.Yes, she was upset. She cried during the interview and complained that her nipples were painful at the time.”
The key question is whether or not the evidence of distress possessed a sufficient causal nexus to the allegation of rape such as to render it sufficiently independent to be regarded as corroborative and therefore admissible at law.
Mrs Shaw QC for the appellant submitted that the evidence of distress led from Ms Fechner and Dr Maiolo was prejudicial insofar as it lacked sufficient connection to a contemporaneous complaint. In support of this submission, Mrs Shaw drew attention to the case of R v Sailor.[11] In that case, the complainant was raped at knifepoint by an acquaintance. Her assailant walked her back to her house and she arrived home at approximately 1.40 am. She spoke briefly to her father at this point, who had been awakened by her arrival home and then went to sleep until 7.00 am. She took a subsequent telephone call from her mother, went out to a nearby shop and eventually arrived at her cousin’s place to use his telephone. She telephoned a friend and first complained of the rape. The Court of Appeal had little difficulty in accepting that the complaint was made at the first reasonable opportunity.
[11] (1994) 2 Qd R 342.
In relation to the issue of distress, McPherson JA, with whom Byrne JA concurred, said this:
“The complainant agreed that, although she had been upset on her return home at 1.40 am, she did not show her distress to her father for fear that he would do something extreme. The first time she exhibited distress to an independent witness was when she telephoned Gail from her cousin’s place. Kelly, who went to collect her in the car, said that when the complainant came out she looked very nervous; her face was very red as if she had been crying; once she got into the car she was shaking and nervous; and she could not stop crying before they got home. Gail confirmed that, when about five minutes later, Kelly arrived back home, the complainant was crying and shaking, and, as Gail said, was ‘just different’ from her normal self.
The onset of the distress condition was therefore contemporaneous or nearly so, with the telephone conversation with Gail in which the first complaint was made. It is reasonable suppose that the complainant’s distress was prompted by her recollection of the event she was recounting. The alleged rape had taken place some eight or more hours before the distressed condition was observed by Kelly and Gail. The question is whether her condition at the time and in those circumstances, was, as the judge directed the jury, capable of constituting corroboration of the complainant’s evidence that she had been forced to submit to intercourse without her consent.”[12]
[12] R v Sailor supra at 344.
As McPherson JA went on to note, the question is essentially whether “its [the evidence of distress] connection with the incident involving the alleged rape was not so tenuous or remote as to preclude the inference that the two were causally related”.[13]
[13] Ibid at 345.
In the circumstances of this case, the evidence of distress led from both Ms Fechner and Dr Maiolo demonstrated a clear causal nexus with the allegation of rape made by C.
We would dismiss the appeal on these grounds.

The learned trial judge’s summing up in relation to the evidence of complaint and distress

The learned trial judge summed up in relation to the issues of complaint and distress in the following manner:
“... evidence of complaint made to another person, by the alleged victim of a sexual offence of what allegedly occurred in the commission of that alleged offence, and/or evidence of apparent distress displayed by the alleged victim to another person, may be introduced into evidence if that evidence of complaint and/or distress is capable of being regarded by you, the jury, as having been made or displayed as soon as reasonably possible or to be expected after the alleged offence, and is capable of being regarded as the spontaneous account or appearance of the alleged victim in relation to the incident which is the subject of the charge.”
The learned trial judge then went on to explain to the jury that it was entirely a matter for them as to what they were to make of such evidence (in this case the relevant evidence of C, Mrs Stanford, Ms Fechner and Dr Maiolo).
His Honour went on to explain the need for the complaint to have been made spontaneously and that it needed to have been made “as soon as reasonably possible or to be expected after the alleged offences ...”. The learned trial judge also explained to the jury that the purpose of complaint evidence was to buttress the credibility of C, and the purpose for which evidence of distress evidence could be used, that is corroboration of the complainant’s version of events.
In relation to the evidence of distress, the learned trial judge said, inter alia:
“... in relation to the evidence of [C’s] apparent distress soon after these alleged offences, and the evidence of the subsequent behaviour and appearance ... and her physical appearance as seen by Mrs Stanford and, later that day by Mr Maiolo and, perhaps, Ms Fechner. That evidence, also, cannot be regarded as evidence of the truth of what is alleged to have happened during the commission of these alleged offences. That evidence is relevant only to [C’s] credibility; that is, whether you believe and accept her evidence with regard to these alleged offences; that is, whether you accept her evidence of what she told you happened in her bedroom that morning.”
The learned trial judge then went on to give detailed directions as to how the jury could proceed to use that evidence and the conclusions which they could permissibly come to by using the evidence in the manner in which he had instructed them.
Having closely read the summing up in relation to these aspects of the trial, there is nothing to support the view the learned trial judge failed to give the jury adequate directions in relation to the use of the evidence on these topics.

Irrelevant evidence which the appellant contends ought to have been excluded on the ground of prejudice to the accused.

In his notice of appeal, the appellant lists four discrete matters which Mrs Shaw QC submitted lacked any substantial relevance to the facts in issue, and when considered individually or collectively should be found to be unduly prejudicial to the appellant.
The various matters which were complained of in the notice of appeal were as follows:

Evidence of the existence of a restraining order.
The fact that access was granted at the police station.
The use of cannabis by the appellant.
The fact that the appellant may have driven his children whilst intoxicated.

Mrs Shaw’s outline of argument expanded on these matters. when she attacked the admission of evidence in relation to:

.Previous physical violence towards the complainant.
.The history of the appellant’s excessive alcohol consumption being led from his sister.
.Cross examination of the accused in relation to lies made in a family court
affidavit.

Standing back from the matter and looking at the totality of that evidence, it could be said that much of this evidence reflected poorly on the appellant’s credit, and had little or any relevance to the facts in issue. However, we are of the view that none of these matters, either individually or collectively, were of such significance that any unfairness in the reception of the evidence in question could not adequately be addressed by appropriate directions from the learned trial judge.
During the course of a criminal trial, from time to time prejudicial material may be inadvertently elicited from witnesses. Ordinarily it will be for the trial judge to ensure that no undue prejudice ensues by giving appropriate directions to the jury. Insofar as it may be irrelevant, it is of course, in any event, inadmissible.
It should be noted that some of the evidence on these topics was adduced during the course of cross examination by counsel for the appellant. Furthermore, no objection was taken by the appellant’s counsel to so much of the evidence in question as emerged during the course of examination in chief by counsel for the Crown.
After a careful scrutiny of the learned trial judge’s summing up, in our view, any prejudice the appellant may have suffered by the receipt of evidence on these topics was cured by the learned trial judge’s clear direction to the jury to put those matters out of their minds. Defence counsel sought no further direction on these matters when prompted by the learned trial judge.
This ground of appeal is not made out.

Evidence of prior forced sexual intercourse and prior sexual history between C and the appellant

We now turn to the question of the admission of evidence of “forced” sexual intercourse and the prior sexual history between C and the appellant.
At the trial, during the course of her evidence in chief, C gave the history of her relationship over the years with the appellant. We have already referred to the essential details. In order to deal with this ground of appeal, we give further details:-
C said that “it was a stormy relationship”. She explained:
“It was up and down, a lot of arguments ... there was some arguments about sex and just work around the house and things like that. ..... My ex partner, my partner at the time (the appellant) was angry if I didn’t give him sex. Sometimes I was too tired. ...... He was demanding.
Q...... As a result ... what was his behaviour, like, towards you.
A.Very aggressive.
Q...... In what way.
A.He would shout at me and put downs about my character or my looks.
Q...... What sort of put downs were used.
A.You’re ugly, you’re stupid.”
She went on to say that he was aggressive in other ways and “a few times” physically abused her and hit her. She said that he used to throw things around.
C explained that they separated after D was born, but that they returned to live together until they finally split up in 1993. It was then that an order was made through the Family Court giving the appellant access to the children, the access to be given and taken at Mount Barker police station. At some stage, however, when the appellant lost his licence, she would take the children to his home.
Their dealing with each other after the parties had finally separated but during the periods of access were described by C as “fairly up and down, stormy. Sometimes he (the appellant) would be really friendly and other times he would be abusive”. His behaviour was worse when he was drinking and smoking marijuana.
She spoke of the fact that at times there were discussions with a view to restoring the relationship, and with that in mind, occasionally, during the course of access visits, she yielded to his request for sexual intercourse, but she said that “sometimes he was extremely forceful ....”. She was asked:
“Q.... On those occasions (of consensual sexual intercourse during access visits) were you participating in that sexual intercourse by consent.
A.At times, because I thought it would get my family back together.”
When sexual intercourse occurred in those circumstances, it occurred mainly at the appellant’s shack where he lived at Mount Barker, but occasionally at her house.
During the course of cross-examination it was suggested to C that the only reason she had sexual relations with the appellant after they split up in 1993 was not because she loved him but because she hoped he might return and provide a “father figure” for the family.
There was no cross-examination clearly directed towards suggesting to C that her evidence that he was at times forceful and demanding was untrue, although it was put to her in general terms that the appellant had never had sexual intercourse with her against her will. It was specifically put to her that she consented to the incident which occurred on 23 November 1996.
In relation to this particular ground, Mrs Shaw QC submitted that the Director required leave under s34(i) of the Evidence Act 1929 (SA) before evidence of prior sexual history, including incidents of violence or “coerced” or “forceful” sex could be led. Furthermore, she submitted that any evidence of general background or history of the relationship was not relevant or admissible, and that there was no proper purpose for admitting such evidence in the circumstances.
Further she submitted that the evidence of violence or forceful sex which was adduced was more prejudicial than probative and should have been excluded in the exercise of the trial judge’s discretion.
S34(i) of the Evidence Act 1929 states in part:
“(1).. In proceedings in which a person is charged with a sexual offence, no question shall be asked or evidence admitted-
(a).... as to the sexual reputation of the alleged victim of the offence; or
(b) except with the leave of the judge, as to the alleged victims sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
......”
Subs(2) of the section goes on to state:
“In deciding whether leave should be granted under subs(1)(b), the judge shall give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and shall not grant leave unless satisfied that the evidence in respect of which leave is sought-
(a).... is of substantial probative value; or
(b)would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence against the alleged victim,
and that its admission is required in the interests of justice.”
Commonly, the section operates to restrain counsel for the accused in cross-examining the complainant. Here, however, the relevant evidence was given by C, apparently willingly, during the course of her examination in chief by counsel for the Crown.
Mrs Shaw QC submitted that s34(i) is in mandatory terms, and applied, however willingly the evidence was given, and whether it was given during the course of evidence in chief or cross-examination.
In support of that submission, she cited Dimian.[14] That case concerned the construction of s409(b) of the Crimes Act 1900 (NSW) which is in substantially similar terms to s34(i) of the Evidence Act 1929. In Dimian, Hunt CJ at Common Law said:
“What should not be overlooked is the principle purpose for which the section was introduced in 1981, which was to reverse the somewhat extraordinary decisions given by the courts last century that a complainant’s lack of chastity was relevant to her credit as a witness and to reduce the admissibility of evidence as to the complainant’s prior sexual experience to those issues in relation to which it was truly and logically probative, with a discretion to exclude the evidence even in such cases where its probative value does not outweigh any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.”[15]
[14] (1995) 83 A Crim R 358.
[15] Dimian (supra) at 365. See also Beserick (1993) 30 NSWLR 510 at 518, 66 A Crim R 439 at 425.
As to the legislative history of s34(i) of the Evidence Act, the section was inserted by Act No 84 of 1976, namely, the Evidence Act Amendment Act. The Minister’s second reading speech to the amending Act contained, inter alia, the following passage:
“The restriction upon cross examination of the alleged victim of a sexual offence is, in the Government’s opinion, a necessary reform. Presently, it is not uncommon for counsel to embark on cross examination about prior sexual experiences, although the topic of cross examination bears no direct relevance of any allegation that is at issue in the proceedings. The purpose of the cross examination is merely to blacken the character of the prosecutrix and thereby to seek to prejudice the jury against her. The Bill provides that such cross examination will only be permitted by leave of the judge, and leave will not be granted unless the subject of cross examination is directly relevant to the matter that is in issue at the trial.”
From that passage, it would seem to be clear that the amendment was directed to what was thought to be unduly intrusive cross-examination. But it must be accepted that the section is not worded so as to confine its operation to cross-examination.

The section was, then, of application to this case insofar as counsel for the Crown sought to lead the evidence which the appellant now complains of, from C.
Given the attitude of C and of counsel for the appellant, if an application to that end had been made, there seems little doubt that the trial judge would have granted leave to the Crown to lead the evidence.
In coming to that conclusion, we bear in mind that the adduction of the evidence, given that it was given willingly by C, could hardly be said to have subjected her to any “unnecessary distress, humiliation or embarrassment”.
We do not think that it can be said that the admission of such evidence, could have been said to have caused a substantial miscarriage of justice so as to render the trial of the accused unfair. We note that the question of the adequacy of the judge’s directions to the jury in this regard is a separate matter, and we will address that question in due course.
In these circumstances, although there was a breach of s34(i), it did not give rise to any injustice. As to this contention by the appellant, we would apply the proviso.
There is, of course, the question whether the evidence of the previous sexual relationship between C and the appellant was, in any event, relevant and admissible. Mrs Shaw QC contended that, notwithstanding the failure by counsel for the appellant to object to the evidence, the learned trial judge erred in admitting it. In support of that contention, she referred to the decision of the High Court in Gipp v R.[16]
[16] (1998) 155 ALR at 15.
That case involved an appeal against the conviction of the appellant on seven counts of sexual abuse of his step-daughter. The offences were said to have occurred when the step-daughter was between the age of 10 and the age of 16. She gave general evidence that the appellant had sexually assaulted her when she was 4 years of age, and that the assaults continued until she left home at the age of 16 years.
One of the grounds upon which the appeal was allowed and the conviction overturned was the view reached by the majority in the High Court that the trial judge’s direction to the jury that they had only to be satisfied with respect to the complainant’s evidence of sexual abuse prior to the date of the offences in question on the balance of probabilities, was erroneous.
Gaudron J took the view, in any event, that the general evidence of a history of sexual abuse in the circumstances of that case, the evidence was not directly relevant as “similar fact” or “propensity evidence”, and furthermore, it was not relevant to some subsidiary issue such as would be raised if it was necessary to explain “lack of surprise or failure to complain”.[17]
[17] Ibid 19-20.
As to those latter matters, that is, lack of surprise or failure to complain, she agreed with McHugh and Hayne JJ, who otherwise dissented as to the outcome of the appeal, that such evidence might be admissible if those matters were raised as an issue at the trial. During the course of their joint judgment, McHugh and Hayne JJ observed:
“In this case the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges.”
In his reasons for judgment, Kirby J approved the following passage from the decision of the Court of Appeal of Victoria in R v Vonarx:[18]
“[W]here evidence of criminal conduct other than that which is charged, is being introduced into evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused was the kind of person likely to commit the offence charged.
The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him ... only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred.” [19]
[18] 15 November 1995 (unreported) per Winnecke P, Callaway JA and Southwell AJA.
[19] Court of Appeal (Vic), 15 November 1995, unreported at 12-13 per Winnecke P, Callaway JA and Southwell AJA.
Of course, in this case, there was the important distinction that it is doubtful if one could properly conclude that the relevant evidence as given by C, both as to the period when they were living together and after the split up, was evidence of prior criminal conduct as opposed to evidence of a stormy and at times somewhat violent relationship.
Furthermore, the evidence as to acts of intercourse occurring after the split up during periods of access was favourable to the appellant, insofar as the jury might accept that, at least on occasions, they were consensual. Indeed, that aspect of the matter was drawn out by the appellant during the course of his counsel’s cross-examination of C.
In this particular case, it would have been utterly unreal for the jury to have been given part of that history and not the full history, as deposed to by C.
The jury simply could not sensibly have understood the evidence of what is alleged to have occurred on the night of 23 November 1996 without an explanation of the nature of the relationship between the parties before then.
To have given them that history in a piecemeal and selective fashion, limiting it only to such matters as might have been thought by the appellant to have been favourable to his cause, would have been to give to the jury a distorted and unreal picture of the context of the alleged offending.
Quite apart from any other matters, the evidence of C as to the prior sexual history was necessary to understand how she reacted, on her account of the matter, to the assault which she alleged the appellant had perpetrated on the night in question.
It must be accepted, as was emphasised in Gipp, that in cases such as this where a history of a prior sexual relationship is adduced, the trial judge must give careful directions to the jury as to how the evidence is to be approached.
In this case, we are satisfied that the learned trial judge gave a careful and adequate direction as to those maters. He said, during the course of his summing up:
“Generally speaking, the jury are not informed of alleged behaviour or misconduct of an accused person on any occasion other than the occasions which are the subjects of the charges being tried. The additional evidence which was here received may be described as evidence of the relationship which is said, or alleged, to have existed between the accused and [C] at or around the time of the commission of these alleged offences….
The evidence of what was said, or alleged, to have occurred between the accused and [C] on occasions which are not here the subjects of the two alleged offences was here received, or admitted into evidence, as indicating (if you are satisfied that the facts upon which the evidence, or any part of that evidence, is based, had been proved beyond reasonable doubt) the relationship which existed between those two persons around the time in question, and as establishing (again, if you are satisfied that the facts upon which that evidence, or any part of that evidence, is based, have been proved beyond reasonable doubt) the context and setting in which these alleged offences are said, or alleged, to have occurred.
That evidence was here admitted for the purpose (again, if you are satisfied that the facts upon which that evidence, or any part of that evidence, is based, have been proved beyond reasonable doubt) of enabling you, the jury, properly to appreciate and evaluate the evidence of both the participants in these alleged offences; that is, the accused and [C], who was previously his de facto wife and who is the mother of his two children. Without the knowledge that these offences are alleged to have occurred in the context of the setting of that relationship (again, whatever that relationship really was, and that is for you to decide), you would not be able properly to appreciate and evaluate the evidence of the two participants in these alleged offences….
However, as indicated, it is important also, indeed even more important, that you be directed as to the uses, or purposes, for which, or to which, that relationship evidence must not here be put by you. The accused can be convicted of either or both of these alleged offences only if you are satisfied that the conduct, which has here been identified as the subject of either or both of the alleged offences, did occur. It is not permissible for you to convict the accused, of either or both of these alleged offences, on the basis that, although the conduct identified in either or both of the alleged offences has not yet been proved, nevertheless you are satisfied that some other, discreditable conduct (that is, the conduct described in the evidence of the relationship which previously existed between those persons) has been proved. That would be a quite improper and impermissible manner for you to approach the consideration of these alleged offences.
Evidence of what is alleged to have occurred between the accused and [C] on any other occasion must not be used by you, when considering these alleged offences, as indicating a propensity, inclination or disposition of the accused to commit crime or crimes of a particular kind, or as indicating that, from his previous behaviour, he is the kind of person who is likely to have committed these alleged offences and, therefore, that he did commit them. Such an approach by you to this case would be, as I say, quite improper, and I am sure that you will not adopt it.” [Emphasis added]

Further Submission by Appellant

After the conclusion of addresses and the preparation of the above reasons, Mrs Shaw QC, by letter addressed to the presiding judge, drew the attention of the Court to the recent decision of the High Court in Graham v R[20]. She submitted that the decision “is relevant to the question of the failure to seek leave to call evidence where leave is required under a statute.”
[20] (1998) 157 ALR 404
In that case, evidence of a complaint of a sexual assault, made many years afterwards by the alleged victim, was held not to be admissible having regard to s66 of the Evidence Act 1995 (NSW) as it was not “fresh in (her) memory” within the meaning of the section. Its admissibility was, therefore, dependent upon leave being given under s108, which relates to re-establishing the credit of a witness in certain stated circumstances, including situations where it is or will be asserted that the witnesses’ evidence is fabricated or reconstructed. At the trial, no leave was sought or obtained under s108; indeed, no-one thought to refer to the Act at all, the question being dealt with by reference to common law principles.
During their joint judgment, Gaudron, Gummow and Hayne JJ observed[21]:-
“Because the trial was conducted without reference to the Evidence Act by those who then appeared for the prosecution and the defence and was conducted as if the common law applied, unaffected by the passing of the statute, evidence of the complaint by K to N was admitted without consideration of the issues just mentioned as affecting the discretion to admit it. Because its admission was not inevitable, we cannot say that the appellant did not lose a significant chance of acquittal and it follows that the appeal should be allowed.”
[21] ibid 406
It is clear from that passage that the learned judges may well have taken a different approach if the giving of leave would have been “inevitable”. In this case, as we take a different view as to the likelihood that the relevant evidence would have been admitted under s34(i) of the Evidence Act 1929, the decision in Graham does not lead us to reconsider or qualify the conclusion we have expressed as to that aspect of the matter.

Conclusion

In our opinion, the appeal should be dismissed.

[1998] SASC 7013

22 December 1998