R v S - [2015] SASCFC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v S
[2015] SASCFC 179
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
4 December 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for aggravated assault.
The appellant was the husband of the complainant. He was found guilty of one count of aggravated assault committed in March 2012 and not guilty of one count of rape on the same day and several counts of aggravated assault and rape on other occasions.
The appellant appeals against the conviction on four grounds:
1.       the Judge failed to direct the jury that the date of the offence alleged in the information was a material particular;
2.       the verdict of guilty was inconsistent with the not guilty verdicts on the other counts and the verdict was therefore unreasonable;
3.       the Judge failed properly to direct the jury that the appellant had suffered a forensic disadvantage and the jury must have regard to it when scrutinising the evidence; and
4.       the verdict was unreasonable or cannot be supported having regard to the evidence.
Held Blue J (Kelly and Stanley JJ agreeing):
1.       The date of the offence alleged in the information was not a material particular (at [48]).
2.       The verdict of guilty on count 4 was not inconsistent with the not guilty verdicts on the count alleging rape on the same day or the other counts (at [61]).
3. The appellant did not suffer a significant forensic disadvantage and no direction under section 34CB of the Evidence Act 1929 (SA) was required (at [83]).
4.       The verdict was not unreasonable or incapable of being supported having regard to the evidence (at [97).
5.       Appeal dismissed (at [98]).
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 48, s 285C; Evidence Act 1929 (SA) s 34CB, referred to.
Page v Butcher [1957] SASR 165; R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171, discussed.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Phillips v The Queen (2006) 225 CLR 303; SKA v The Queen (2011) 243 CLR 400; R v Andrews-Weatherfoil Ltd (1971) 56 Cr App R 31; R v Blair [2005] SASC 319; R v Kirkman (1987) 44 SASR 591; R v Liddy (2002) 81 SASR 22; R v Nguyen (2010) 242 CLR 491; R v Wilkinson [1970] Crim LR 176; R v Wilson (2007) 169 A Crim R 553, considered.

R v S
[2015] SASCFC 179
Court of Criminal Appeal: Kelly, Blue and Stanley JJ

KELLY J: I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J:
The appellant S, appeals, by permission, against a conviction for aggravated assault.
The appellant was found guilty in the District Court of one count of aggravated assault[1] committed in March 2012 (count 4). He was found not guilty of one count of rape[2] on the same day (count 5) and three counts of aggravated assault and four counts of rape on four other occasions before and after March 2012 (counts 1 to 3 and 6 to 9).
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3).
[2] Criminal Law Consolidation Act 1935 (SA) s 48.
The appellant appeals against the conviction on four grounds:
1.the Judge failed to direct the jury that the date of the offence alleged in the information was a material particular;
2.the verdict of guilty was inconsistent with the not guilty verdicts on count 5 and the other counts and the verdict was therefore unreasonable;
3.the Judge failed properly to direct the jury that the appellant had suffered a forensic disadvantage and that the jury must take this into account when scrutinising the evidence; and
4.the verdict was unreasonable or cannot be supported having regard to the evidence.
Background
The appellant and the complainant met in early 2006 and married in December 2006.
Counts 1 to 3
The complainant gave evidence that in 2009 the appellant punched her in the arm a couple of times and kicked her a couple of times. Following this the appellant had sexual intercourse with her. This was the subject of one count of aggravated assault (count 1) and one count of rape (count 2). The information alleged that this occurred between the end of April and the beginning of June 2009. However, in her evidence the complainant said that it occurred around their daughter’s birthday in late August or in the third or fourth school terms of 2009.
The complainant gave evidence that in 2010 the appellant grabbed her by the neck and then by the breasts. Following this the appellant had sexual intercourse with her. This was the subject of one count of rape (count 3). The information alleged that this occurred in May 2009. However, in her evidence the complainant said that it occurred when their second child was conceived. This would have been later in June 2009.
In July 2010, the complainant told a friend, V, that the appellant had raped her.
Counts 4 and 5
The complainant gave evidence that in 2012 she arrived home in the mid afternoon from food shopping in their regional centre and the appellant was home from work early. He was normally not home until 5.30 pm or later. The appellant was the principal at a school in the local town and the complainant and appellant were living in a house nearby. The complainant told the appellant that while in the regional centre to do the food shopping she had run into an acquaintance T and had lunch with her.[3] The appellant asked the complainant what had been discussed. The appellant was a bit angry and the complainant surmised that the appellant thought that they had talked about school behind his back. The appellant left the house to go to the shed and did not return until between 6.00 and 7.00 pm after she had put the children to bed.
[3] The complainant’s evidence was that the lunch was at the Cafe. The location of the lunch became relevant at the trial for reasons which become apparent.
The complainant gave evidence that, when the appellant returned, he was carrying a wooden dowel. They both went into the bedroom and had a further conversation about the complainant’s visit to the regional centre. The appellant raised the dowel to hit the complainant, she raised her arms to protect herself and the appellant hit her in the arms with the dowel. The complainant slipped onto the floor and the appellant stood on the back of her knee and hit her on the back. Following this the appellant had sexual intercourse with her. This was the subject of one count of aggravated assault (count 4) and one count of rape (count 5).
The complainant gave evidence that the lunch was at a particular café. She said that she could not recall having lunch with T at the bakery but was not sure.
On 15 March 2012, the complainant attended on H of the local Community Health Service. She told H that when she returned after food shopping, she had left the house in a mess and the appellant had said he did not like that at all and gone off to the shed for 2½ hours. He had returned with a stick and beaten her across the back, and more happened but the complainant was unable to tell H about it.
On 22 March 2012, the complainant gave to H a typed statement prepared on 21 March 2012. She said in the statement that on 9 March 2012 she arrived home from food shopping and having lunch with T at around 4.15 pm to find the appellant home, which was unusual. The appellant was upset because the house was a mess, he thought the complainant had spent too much money at shopping and the complainant had had lunch with T. The appellant left the house to go to the shed and did not return until about 7.00 pm. She described the appellant hitting her with the stick in the same manner as she described in her evidence. She said “Afterwards we had sex. I didn’t resist or anything I knew it would be finished then.”
On 23 March 2012, the complainant attended on Dr W. Dr W observed bruises on the complainant’s arm. Dr W noted that the complainant told her that she had had non-consensual sex with associated beatings on several occasions with pieces of wood.
On 30 March 2012, the complainant attended on Dr G. Dr G observed bruising to the complainant’s knee. The complainant told her that it was due to an incident three weeks earlier.
Counts 6 to 9
The complainant gave evidence that later in 2012 the appellant became angry because she had not washed the dishes after dinner. He forced her onto the floor and kneed her in the chest. He grabbed her by and punched her in the breasts. He then led her to the bedroom. Following this the appellant had vaginal and anal intercourse with her. This was the subject of one count of aggravated assault (count 6) and two counts of rape (counts 7 and 8).
On 21 June 2012, the complainant told H that there had been another aggressive incident at home. The complainant gave to H a typed statement. She described in the statement an occasion in the same manner as she described in evidence the occasion summarised in the previous paragraph.
The complainant gave evidence that in 2013 the appellant became angry and kicked her in the knee. This was the subject of one count of aggravated assault (count 9).
Subsequent events
On 25 July 2013, the complainant gave a statement to the police concerning the incidents about which she ultimately gave evidence at trial. She said in the statement that the incident that became the subject of counts 4 and 5 occurred on 9 March 2012.
On 25 July 2013, the police arrested the appellant and charged him with the assault and rape offences.
In July 2013, following his arrest, the complainant left the appellant.
The trial
The trial proceeded in July 2015.
Before the commencement of the trial, the appellant gave notice pursuant to section 285C of the Criminal Law Consolidation Act 1935 (SA) that he intended to adduce alibi evidence in respect of counts 4 and 5, namely an extract from his school timebook containing an entry for 9 March 2012 showing a start time of 7.30 am and finish time of 6.00 pm.
The complainant, H and V gave evidence at trial as summarised above.
T gave evidence in which she said that she recalled bumping into the complainant at the regional centre and having lunch together. She said that she had lunch with the complainant at the bakery. She said that she did not have a recollection of having lunch with the complainant at the Café but it was clear from her evidence that she could not rule it out as being impossible. T gave evidence that the lunch would have been in 2010, 2011 or 2012. She checked her diaries for those years but had not recorded it.
Dr G and Dr W were not called to give evidence. There were agreed facts about their consultations with the complainant in March 2012 as summarised above.
The appellant gave evidence denying that he ever assaulted or raped the complainant. He tendered an extract from his school timebook which contained an entry for 9 March 2012 showing a start time of 7.30 am and finish time of 6.00 pm. He also called evidence from seven witnesses who testified to his good character.
Before the Judge commenced summing up to the jury, the jury asked a question about the importance of the dates alleged in the information as the dates on which the offences were allegedly committed. The prosecutor contended that the dates were not material particulars and the appellant contended that they were. The Judge ruled that they were not material particulars and subsequently directed the jury accordingly. This is the subject of ground 1.
The appellant invited the Judge to give a direction under section 34CB of the Evidence Act 1929 (SA) in terms of forensic disadvantage. The appellant did not seek a direction in any particular terms or identify any particular forensic disadvantage. The prosecutor contended that there was no significant forensic disadvantage arising from delay. The Judge said that since it had been asked for, he would give some sort of a direction. He subsequently gave a direction about forensic disadvantage. This is the subject of ground 3.
The jury found the appellant guilty of count 4 and not guilty of the remaining counts. This is the subject of ground 2.
Ground 1: date as material particular
The first ground of appeal is that the Judge wrongly directed the jury that the dates of the offences alleged in the information were not material particulars. The Judge’s direction was given in response to a question from the jury. While nothing turns on it in respect of this ground of appeal, it is likely that the jury’s question was prompted by the differences between the dates alleged in the information and the evidence in respect of counts 1 to 3 than in respect of counts 4 and 5.
The following general principles apply to the materiality of the alleged date of the offence.
1.In determining materiality, regard is had not only to the terms of the information but also to the manner in which the prosecution conducts its case at trial and to the consequential effects on the manner in which the defence conducts its case.[4]
2.The basic rule is that the date on which it is alleged in the information that the offence occurred is not regarded as material.[5]
3.There is an exception to this rule when the date is of the essence of the offence.[6]
4.The Crown must allege a single offence that occurred on a single occasion (whether that occasion be identified by reference to date or otherwise).[7] It follows that, if the information alleges and it is the prosecution case at trial that an offence occurred on one occasion, a defendant cannot be convicted of committing the offence on a quite different occasion (whether that occasion be identified by reference to date or otherwise).[8]
5.If the information and the conduct of the case by the prosecution result in the defendant not being made sufficiently aware of the case he or she has to meet by reference to the alleged date of the offence (or otherwise), a miscarriage of justice will occur.[9]
[4]    R v Pfitzner (1976) 15 SASR 171 at 185-186 per Bray CJ, 191-195 per Wells J and 215 per Sangster J.
[5]    R v Dossi (1918) 13 Cr App R 158 at 159-160 per Darling, Atkin and Shearman JJ; R v Liddy[2002] SASC 19, (2002) 81 SASR 22 at [256] per Mullighan J (with whom Williams and Gray JJ relevantly agreed); R v Wilson [2007] SASC 129, (2007) 169 A Crim R 553 at [57] per Gray J (with whom Duggan and White JJ agreed).
[6]    R v Dossi (1918) 13 Cr App R 158 at 159-160 per Darling, Atkin and Shearman JJ; R v Liddy(2002) 81 SASR 22 at [256] per Mullighan J (with whom Williams and Gray JJ relevantly agreed); R v Wilson [2007] SASC 129 at [57] per Gray J (with whom Duggan and White JJ agreed).
[7]    Page v Butcher [1957] SASR 165 at 173 per Reed J; R v Pfitzner (1976) 15 SASR 171 at 191-195 per Wells J; R v Liddy(2002) 81 SASR 22 at [257] per Mullighan J (with whom Williams and Gray JJ relevantly agreed). This is commonly known as the rule against duplicity.
[8]    Page v Butcher [1957] SASR 165 at 173 per Reed J; R v Pfitzner (1976) 15 SASR 171 at 191-195 per Wells J.
[9]    R v Pfitzner (1976) 15 SASR 171 at 186 per Bray CJ and 192 per Wells J; R v Liddy(2002) 81 SASR 22 at [256] per Mullighan J (with whom Williams and Gray JJ relevantly agreed).
In R v Dossi,[10] the English Court of Appeal said:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment.[11]
[10] (1918) 13 Cr App R 158.
[11] At 159-160 per Darling, Atkin and Shearman JJ.
In Page v Butcher,[12] the defendant was charged with indecent interference on about 31 October 1956 at Nairne. Particulars were given identifying a specific occasion of touching the complainant’s vagina in the porch outside the defendant’s classroom. The complainant gave evidence of this occasion and of another occasion on which the appellant touched her stomach. The Magistrate was not satisfied beyond reasonable doubt that the defendant touched the complainant’s vagina but was satisfied that he touched her stomach and convicted on that basis. The Magistrate considered that the place of touching was not an essential element in the offence charged. Reed J allowed the defendant’s appeal, saying:
…the particulars supplied did more than state the spot where it was alleged that the appellant touched the girl; they identified the incident or occasion with which he was charged.… And so in the present case, by the particulars supplied, the complainant indicated the transaction or incident in respect of which the appellant was charged to the exclusion of any other incident which might have answered the description of an “indecent interference”. Throughout the case there was no suggestion that the appellant had touched the girl’s vagina on more than one occasion. There was therefore no uncertainty as to the offence charged, arising either upon the complaint itself or upon the evidence in relation to it.
…
The problem in the present case appears to me to be whether upon a complaint for an offence against the section in question the appellant can lawfully be convicted of another offence against the same section.[13]
[12] [1957] SASR 165.
[13] At 169-171. (Emphasis added)
In R v Pfitzner,[14] the defendant was charged with selling Indian hemp on Saturday, 10 April 1976 based on a confession to police two days later that he had sold Indian hemp on the previous Saturday night. He contended that the confession was induced by violence. He adduced alibi evidence of his movements on the Saturday night in question. The trial Judge directed the jury that the date alleged in the information was not essential or material. That direction was upheld by this Court on appeal (Bray CJ dissenting). Wells J said:
… the true rule governing the present case is flexible. It is founded, generally speaking, upon the propositions that a miscarriage of justice occurs if an accused person is not made sufficiently aware of the case he has to meet; but that no such miscarriage occurs if the accused is sufficiently made aware of the case he is to meet, even though there is a technical flaw in the formalities of the charge…
Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer…
One or two examples will make the point clear. The defendant is charged with making an affray on a particular date. The Crown opening discloses that the witness to be called would depose to two quite separate incidents, each of which would, ex facie, answer the description given in the particulars in the information. ... the defence would plainly be entitled to call upon the Crown to elect which incident was alleged to form the subject of the charge, even though the particulars as they stood correctly described both…
Take a slightly different case. The accused is charged, on two counts, with indecent assault… The two indecent assaults are alleged to have been committed during a journey in a motor car which the accused drove, and in which the girl was a passenger. According to the Crown opening, the car stopped on four occasions during the journey and the two offences allegedly were committed at two of the stopping places; each of the four stopping places could be identified by the girl. It seems to me that if the whole conduct of the Crown case rested upon allegations that the two offences occurred at stopping places 1 and 3, it would be wrong to direct the jury that they could convict of the offences alleged even if they believed that they occurred at stopping places 2 and 4 notwithstanding that those convictions would be wholly consistent with the particulars. It could well be otherwise, however, if the girl was so frightened and confused that she was unable to say where the offences were committed save that the car was not travelling at the time and the case was presented and fought on that basis. The exact structure of the forensic contest would determine what was, and what was not, in the circumstances, fair to the accused.
Those cases … demonstrate at least that the course of the trial is crucial for the determination of what is fair to the accused; the Crown could not justifiably rely simply on the words of the particulars in the information.[15]
[14] (1976) 15 SASR 171.
[15] At 192-193.

Sangster J said that the trial Judge’s charge to the jury did not contain any misdirections.[16]
[16] At 215.
Bray CJ dissented on the facts but formulated the approach in similar terms to Wells J, saying:
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it.[17]
[17] At 185.
In the present case, the basic rule prima facie applied that the date of 9 March 2012 alleged in the information was not material. There was no suggestion that there were two separate occasions such as in Page v Butcher.[18] The appellant relies on the fifth principle identified at [32] above, namely that he had an alibi based on his school timebook showing that he was at school in the afternoon when the complainant said he had come home early and he conducted his case at trial to his prejudice based on the prosecution case being confined to the offence occurring on 9 March 2012.
[18] [1957] SASR 165.
The information alleged that counts 4 and 5 occurred on 9 March 2012 and the complainant nominated that date in her statements to H in March 2012 and to the police in July and August 2013. However, in his opening to the jury, the prosecutor identified the date as being “on about 9 March 2012” and in her evidence in chief on the first day of trial the complainant made it plain that she was not saying that the incidents occurred on 9 March 2012. The prosecutor made it plain that his case did not depend on the incidents occurring on that date as appears from this passage:
Q. Do you know or recall the exact date that this occurred.
A. No.
The prosecutor’s opening and the complainant’s evidence in chief expressing vagueness as to the precise date on which the incidents occurred must be understood in the context that the appellant had given notice to the prosecution of his intention to adduce evidence of the timebook suggesting that he was still at school until 6.00 pm on 9 March 2012. By the first day of the trial, the appellant knew that the prosecution was running the case on the basis that the incidents did not necessarily occur on 9 March 2012 but only around that date and that his proposed evidence of the timebook was not therefore necessarily inconsistent with the prosecution’s case and the complainant’s evidence. No adjournment of the trial was sought by the appellant in light of this to investigate conducting his case differently.
The fact that the case was being run on the basis that the incidents did not necessarily occur on 9 March 2012 was reinforced during the initial cross-examination of the complainant:
Q. And what day was this.
A. I can't remember now.
Q. You can't remember now.
A. No.
Q. What month was it.
A. I'm not sure.
Q. You're not sure what month.
A. I'm not sure.
At this point, the cross-examiner for forensic reasons (because of the timebook) sought to have the complainant commit to the incidents occurring on 9 March 2012. This was the opposite approach to that of the prosecutor who had opened the case and led the complainant’s evidence on the basis that the complainant could not say that this was the case.
The cross-examiner put to the complainant the content of her statements to the police in July and August 2013 but the complainant continued to express uncertainty as to whether the incidents occurred on 9 March 2012:
Q. You gave a statement to police in this matter on Thursday, 25 July 2013 at the [regional centre] Police Station, didn't you.
A. Yes.
Q. And you were trying to be honest in that statement.
A. Of course, yes.
Q. Did you say this: 'On Friday, 9 March 2012 I arrived home from doing the food shopping with the children.
When we got there, [the appellant] was already home, which was unusual'.
A. Yes.
Q. So you recall saying that to the police.
A. Yes.
Q. And does that refresh your memory about the day that this rape and assault occurred.
A. Yes, yes.
Q. So it was on Friday, 9 March 2012.
A. I believe so, yeah.
Q. Did you also give another statement to the police at the [regional centre] Police Station on Monday, 19 August 2013.
A. Yes.
Q. And you were trying to be honest in that statement.
A. Yes.
Q. You were doing your best to tell the truth: yes.
A. Yes, yes.
Q. And did you tell the police on that occasion that you were certain it was Friday, 9 March that this incident occurred.
A. I was recalling when it had happened by something that I had written and I believed that I had written the right date on that, yes.
Q. So you were certain about the date of this event, weren't you.
A. I think so, yes.
The cross-examiner then put to the complainant credit card statements showing that she used her bank card on 9 March 2012 at the Café, Woolworths and the grocery store and this indicated that the incidents occurred on that date. While the complainant agreed, the overall effect of her evidence was that she did not know whether the incidents occurred on 9 March 2012 or shortly before or after that date.
In the circumstances, the defence was not misled by the prosecution and could not have believed that the prosecution was running a case that the incidents occurred on 9 March 2012 as opposed to shortly before or after that date.
The appellant did not during the trial point to any evidence that he would have adduced or investigations he would have made if he had been told earlier that the prosecution case was that the incidents occurred shortly before, on or shortly after 9 March 2012.
The forensic significance of the timebook should not be exaggerated. First, the incidents the subject of counts 4 and 5 were alleged to have occurred after 6.00 to 7.00 pm when the appellant would have been home in any event based on the timebook. Secondly, the appellant might have come home briefly and then returned to work, clocking off at 6.00 pm. Thirdly, the interchange described by the complainant occurring when she arrived home mid afternoon was not a dramatic one. Nevertheless, if the appellant had been misled by the prosecution that it was running a case that the incidents occurred on 9 March 2012 as opposed to shortly before, on or after that date and suffered prejudice as a result, the prosecution would have been bound by its conduct.
The date of the offence alleged in the information was not a material particular. The first ground of appeal fails.
Ground 2: inconsistent verdicts
The second ground of appeal is that the verdict of guilty on count 4 is factually or logically inconsistent with the not guilty verdicts on count 5 and the other counts and the verdict is therefore unreasonable.
Where the issue is factual or logical inconsistency,[19] the following general principles apply.
[19] For the differences between legal or technical inconsistency and factual or logical inconsistency, see MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v The Queen [2002] HCA 53, (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ.
1.A verdict will only be set aside due to factual or logical inconsistency if it entails that the verdict is unreasonable.[20]
2.Verdicts cannot be considered inconsistent unless they cannot stand together as a matter of logic and reasonableness to the extent that no reasonable jury applying its mind properly to the facts could have arrived at the composite conclusion.[21]
3.In assessing whether two verdicts are inconsistent:
(a)     if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury performed its function as required, that conclusion will generally be accepted;[22]
(b)    if there is some evidence to support the verdicts that are said to be inconsistent, it is not the role of the appellate court on this ground to substitute its opinion of the facts for one which was open to the jury;[23]
(c)    the possibility must be considered that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.[24]
4.In assessing whether verdicts are inconsistent or whether they are unreasonable, an appellate court should consider whether the jury took a “merciful” view of the facts on one count, applying an innate sense of fairness and justice in place of strict principles of law (as opposed to the jury members not properly performing their function by entering into a compromise between themselves).[25]
5.The ultimate test is whether the different verdicts represent, on the public record, an affront to logic and commonsense which strongly suggests a compromise of the performance of the jury’s duty, such that the verdict is unreasonable and intervention is necessarily required by the appellate court to prevent a possible injustice.[26]
[20] R v Blair [2005] SASC 319 at [35] per Besanko J (with whom Duggan and Debelle JJ agreed).
[21] MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ; MFA v The Queen (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ.
[22] R v Wilkinson [1970] Crim LR 176; MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ; MFA v The Queen (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ.
[23] MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ.
[24] R v Andrews-Weatherfoil Ltd (1971) 56 Cr App R 31 at 40 per Eveleigh J (with whom Lord Widgery CJ and Donaldson J agreed); MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v The Queen (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ.
[25] R v Kirkman (1987) 44 SASR 591 at 593 per King CJ (with whom Olsson and O’Loughlin JJ agreed); MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ; MFA v The Queen (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ; Phillips v The Queen [2006] HCA 4, (2006) 225 CLR 303 at [71] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
[26] MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); Phillips v The Queen (2006) 225 CLR 303 at [71] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
The appellant contends that the prosecution case relied on the credibility and reliability of the complainant’s evidence. The appellant contends that the not guilty verdict on count 5 demonstrates that the jury was not satisfied beyond reasonable doubt of the complainant’s evidence about the sexual intercourse which took place on her evidence immediately after the assault the subject of count 4 and this was fatal to her veracity or reliability in respect of the events just before that intercourse.
The Judge directed the jury that it was required to consider each count separately in light only of the evidence that applied to it and that it would be wrong simply to think that because the jury found the accused guilty of one count he must therefore be guilty of the others or because the jury found the accused not guilty of one count he must therefore be not guilty of the others. The Judge directed the jury that it did not have to accept or reject all that a witness had said: it might reject some parts but accept other parts.
The issues in relation to the offences the subject of counts 4 and 5 were different. The only real issue in relation to count 4 was whether the appellant hit the complainant with a wooden dowel on her arms and back: there was no issue that if he did so she consented or that he did not have the requisite state of mind. In relation to count 5, the real issues involved the states of mind of the complainant and appellant: did the complainant consent to sexual intercourse and was the appellant aware of that or reckless as to whether she was not consenting? On the evidence, the jury may well have accepted the complainant’s evidence about what physically occurred but not have been satisfied beyond reasonable doubt that the appellant was aware that, or reckless as to whether, she was not consenting as opposed to acquiescing in the intercourse.
In her written statement prepared on 21 March 2012, the complainant said “Afterwards we had sex. I didn’t resist or anything I knew it would be finished then.” She did not say that she did not consent or that she manifested a lack of consent or that the appellant knew that she was not consenting.
In her evidence in chief, the complainant did not say that she said anything to the appellant suggesting that she was not agreeing to sexual intercourse or attempted to push him away or otherwise resisted physically or verbally. She said that she was crying as a result of the assault but not as a result of the intercourse. She said that he squeezed her nipples really hard. These two matters might have been regarded by the jury as equivocal in the context of the requirement for satisfaction beyond reasonable doubt.
The appellant gave evidence that he never had intercourse with the complainant believing that she was not consenting.
On the whole of the evidence, the jury may well have accepted the complainant’s evidence as to what occurred but entertained a reasonable doubt whether the appellant appreciated that she was not consenting to sexual intercourse.
The appellant’s submissions on appeal focused on count 5 although his ground of appeal also encompasses the remaining counts of which the jury found the appellant not guilty. Those other counts related to different occasions in different circumstances the subject of different evidence.
The complainant in her evidence about the sexual intercourse that occurred on the three occasions the subject of counts 2, 3, 7 and 8 did not say that she told the appellant that she was not agreeing to sexual intercourse or attempted to push him away or otherwise resisted physically or verbally. The jury may well have entertained a reasonable doubt whether the appellant believed that the complainant was not consenting to the intercourse. Indeed, the prosecutor himself suggested in a question to the complainant that she acquiesced in the intercourse. While the complainant gave evidence that on each occasion the intercourse was preceded by violence, the jury may nevertheless have entertained a reasonable doubt about the appellant’s state of mind.
There were important differences as to the existence and level of corroborating evidence between count 4 and the other three assault counts. The corroboration in relation to count 4 included not only the complaints to H and Dr W but also the observations made by Dr W of bruises on the complainant’s arm. There was no corroborative evidence at all in relation to counts 1 or 9. While H gave evidence of a complaint in writing about the assault the subject of count 6, there was no corroborative medical evidence in relation to that count. The Judge directed the jury about the use and relevance of the complaint evidence and the medical evidence.
The verdict of guilty of count 4 was not factually or logically inconsistent with the not guilty verdicts on the other counts. This ground of appeal fails.
Ground 3: significant forensic disadvantage
The third ground of appeal is that the Judge failed adequately to direct the jury about the significant forensic disadvantage to the appellant as a result of the time that elapsed between the alleged offending and the trial.
The appellant makes three complaints about the Judge’s direction to the jury. The Judge did not direct the jury that the appellant suffered a forensic disadvantage but left this to be determined by the jury. The Judge did not adequately explain to the jury the nature of the forensic disadvantage. The Judge did not direct the jury that it must take the forensic disadvantage into account when scrutinising the evidence.
Immediately before the Judge summed up to the jury, the appellant asked the Judge to give a section 34CB forensic disadvantage direction to the jury. The appellant did not identify the nature or extent of the forensic disadvantage said to have resulted from the time elapsed between the alleged offending and the trial. The prosecutor contended that section 34CB was not enlivened because the elapsed time had not resulted in significant forensic disadvantage. The Judge did not rule on the question whether the section was enlivened but adopted a pragmatic approach of giving some sort of direction because the appellant asked for it. The Judge said:
Since it has been asked for I think I'll give some sort of a direction.
The Judge then incorporated the following direction into his summing up to the jury:
The fact, ladies and gentlemen, that the complaints were late and did not get to the police for a considerable period of time means that you should consider whether the accused has been subject to what lawyers call a forensic disadvantage. You see, if someone makes a complaint ‘Well, he did something to me 18 months ago on a particular day that I can’t remember’ it is very hard for you to defend that sort of charge because you can’t remember what you were doing 18 months ago on a particular date let alone if a particular date isn’t supplied. Whereas, if someone makes a complaint ‘This is what he did to me two days ago’ or ‘yesterday’, then it is very much easier to defend yourself because you can say ‘Well, I was at church yesterday morning. You can check with the parishioners’ or ‘I was at lunch at [town]. You can check with the publican’.
Bear in mind that the accused, you may think, has had some difficulty in explaining where he was on a particular occasion and has had the disadvantage of me saying to you ‘Well, the date isn’t the crucial thing, if you got the date wrong that is not the be-all-and-end-all’. That does make it harder for an accused person to defend a charge and so you should bear that in mind. That is as a result of the police not getting involved and not investigating very soon after the offences are alleged to have occurred.
Section 34CB of the Evidence Act 1929 (SA) relevantly provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
…
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; …
The obligation of a judge to give a direction under the section is triggered by the judge forming the opinion that the time elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant. In the present case, the Judge did not form that opinion but decided pragmatically to give some form of direction to the jury because it was requested. The first question that therefore arises is whether the elapsed time did result in a significant forensic disadvantage to the appellant.
The section requires that the forensic disadvantage suffered by the defendant be “significant”. Any lapse of time is likely to result in some forensic disadvantage but the requirement to give the direction is only triggered by a level of forensic disadvantage that is significant.

Application of the section needs to be considered in the context of a typical trial. A typical trial takes place two to three years after the events the subject of the charges. Witnesses’ recollections of the existence and detail of events tend to vary according to the significance to them of the event and of the detail in question. Witnesses’ memories are always impaired by the lapse of time however short that lapse may be. These matters are common knowledge and are self-evident to a jury.
The time elapsed between the alleged offending in March 2012 and the trial in July 2015 was about 3¼ years. The time elapsed between the alleged offending in March 2012 and the defendant’s arrest in July 2013 was 16 months. The typical cases in which a section 34CB direction is given involve delays of one or two decades. While there is no lower limit on the elapsed time and the focus of the section is on the degree of forensic disadvantage suffered by the defendant as a result of the elapsed time and not on the length of that elapsed time as such, in general terms it may be expected that the forensic disadvantage would be greater where the delay is in the order of one or two decades than in the order of one or three years.
The significance of an event or aspects or details of an event that is relevant at trial varies considerably. The most significant events are those that are the subject of the charge and are in contest and the most significant aspects or details of such events are those aspects or details that are in contest. Some events are of lesser significance because they form part of the background to or context of the charge. Some events are relevant to the credit of a witness and their significance varies according to the issues in contest as to the credit of that witness and the significance of the witness’s evidence about the events to the witness’s credit.
The appellant identifies two disadvantages that he contends he suffered as a result of the elapsed time. First, medical evidence would have been available as to whether the complainant suffered any injury as a result of the incident the subject of count 4. Secondly, T could have been spoken to as to whether she had lunch with the complainant at the Café.
In relation to the first topic of medical evidence, witness statements were provided by Dr W and Dr G. By agreement between the prosecution and the defendant, neither doctor was called to give evidence but instead there were agreed facts about their observations of and what they were told by the complainant at the consultations in March 2012.
There is no reason to believe that, if Dr W or Dr G had been approached earlier by the police, they would have been able to provide any more detail than that recorded in their patient notes and addressed in their witness statements. It may be expected that they recorded all relevant observations of and statements by the complainant in their patient notes. The time elapsed between March 2012 and July 2013 or July 2015 did not result in significant forensic disadvantage to the appellant by reference to the medical evidence.
In relation to the second topic of T’s evidence as to lunch with the complainant, the complainant gave evidence that on the day of the evening on which she was assaulted with the wooden dowel she had gone to the regional centre to do the food shopping and bumped into T and they had lunch. She said that the lunch was at the Café. She said that she could not recall having lunch with T at the bakery but was not sure.
The complainant had referred in her written statement given to H on 22 March 2012 to having gone to the regional centre to do the food shopping and seeing T who happened to come in to where she was having lunch and joined her for lunch. She did not say in that statement where they had lunch.
T gave evidence confirming that there was an occasion on which she fortuitously bumped into the complainant in the regional centre and they had lunch together. She gave evidence that she had lunch with the complainant at the bakery. She said that she did not have a recollection of having lunch with the complainant at the Café but it was clear from her evidence that she could not rule it out. T gave evidence that the lunch would have been in 2010, 2011 or 2012. She checked her diaries for those years but had not recorded it in her diaries.
The question whether the lunch occurred, assuming it occurred, at the Café or the bakery was of very little forensic significance. The alleged assault the subject of the charge occurred on the complainant’s evidence after she put the children to bed that evening when the appellant on his own evidence would normally have been home from work and on the face of his timebook for 9 March 2012 had left work. There was a direct conflict between the evidence of the complainant and the appellant as to whether any assault took place. One or other must have been lying: resolution by the jury of the conflict did not depend on the jury’s assessment of the reliability of the complainant’s evidence but upon her veracity and the same applies to the appellant’s evidence.
Even if the complainant was mistaken in her recollection that the lunch was at the Café and it was really at the bakery, this would have had a very limited effect on the complainant’s reliability because the location of the lunch was irrelevant to the events later that day or to any of the substantive issues in the trial and the complainant acknowledged the possibility that she had lunch with T at the bakery. To the extent that it had any effect on the complainant’s reliability, that was of very limited forensic significance because the issue as to the alleged assault depended on the complainant’s veracity and not her reliability. If T had been approached earlier about the lunch when it was fresh in her memory and had said that it was at the bakery, this would therefore have had very limited forensic significance.
Objectively, it is likely that the lunch was at the Café rather than at the bakery. The complainant’s credit card statement showed that she made a payment at the Café on 9 March 2012. The location of the lunch is unlikely to have been of significance to T and she had no particular reason to recall its location when ultimately asked about it. While of limited significance to the complainant, the location is likely to have been of more significance to her than to T if she were telling the truth because of the events that followed.
The question whether the complainant had lunch with T in the regional centre on about 9 March 2012, regardless of whether it was at the Café or the bakery, was of some forensic significance but it was relatively limited. The real contest in relation to count 4 was whether the appellant assaulted the complainant in the evening. While the complainant gave evidence that there had been a discussion between her and the appellant in the mid afternoon in which the appellant was dissatisfied with her, it was of limited significance as the complainant only described the appellant as a bit angry and that dissatisfaction apparently related to her having left the house in a mess and spent too much money at shopping as well as the lunch with T.
Objectively, it is very unlikely that, if T had been approached earlier, she would have denied having lunch with the complainant in the regional centre on about 9 March 2012. T did not deny this when she ultimately gave evidence and the complainant had no reason to fabricate the lunch with T that she referred to in her written statement given to H on 22 March 2012.
The time elapsed between March 2012 and July 2013 or July 2015 did not result in significant forensic disadvantage to the appellant by reference to the evidence of T about having lunch with the complainant in the regional centre.
This ground of appeal fails.
While it is unnecessary to consider the adequacy of the Judge’s direction to the jury, some observation should be made about the course the Judge took in the present case.
When a significant forensic disadvantage direction under section 34CB is sought, a trial judge should rule on the question whether the time elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant. If the judge forms the opinion that it has not, there is nothing to prevent the judge giving a general direction to the jury about the lapse of time independently of section 34CB but in that case it is desirable that the judge avoid using the language of the section in the direction.
If the judge forms the opinion that a significant forensic disadvantage has resulted, the judge should direct the jury to that effect. The judge should explain to the jury the specific forensic disadvantage arising in the circumstances of the case and for this purpose should invite the defendant to identify each aspect of the disadvantage alleged and hear submissions about the identification of each aspect of the forensic disadvantage to be explained to the jury. The judge should direct the jury that they must take the forensic disadvantage into account when scrutinising the evidence.
In the present case, the Judge did not explicitly include in his direction to the jury some of these matters. The Director contends that they were implicitly conveyed to the jury by the Judge’s summing up. It is unnecessary in this appeal to determine whether that is so. However, as a matter of general practice, the matters referred to in the previous paragraph should be addressed explicitly by trial judges when giving directions to the jury mandated by section 34CB.
Ground 4: verdict unreasonable or cannot be supported
The fourth ground of appeal is that the verdict of guilty on count 4 was unreasonable or cannot be supported having regard to the evidence.
On an appeal on this ground:
1.the question for the appellate court is one of fact which the court must decide by making its own independent assessment of the evidence;[27]
2.a verdict may be unreasonable or cannot be supported having regard to the evidence notwithstanding that, as a question of law, there is evidence upon which a jury might convict;[28]
3.the question which the court must ask itself is whether it thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;[29]
4.the appellate court must have regard to the jury’s advantage in seeing and hearing the evidence;[30]
5.if the evidence, upon the record itself, lacks probative force in such a way as to lead the court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to set aside a verdict based on that evidence.[31]
[27] M v The Queen [1994] HCA 63, (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen [2011] HCA 13, (2011) 243 CLR 400 at [22] per French CJ, Gummow and Kiefel JJ, [38]-[44] per Heydon J and [80] per Crennan J.
[28] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v The Queen (2011) 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ, [42]-[43] per Heydon J and [78] per Crennan J.
[29] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, R v Nguyen [2010] HCA 38, (2010) 242 CLR 491 at [33] per Hayne, Heydon, Crennon, Kiefel and Bell JJ; SKA v The Queen (2011) 243 CLR 400 at [11] per French CJ, Gummow and Kiefel JJ, [40] per Heydon J and [78] per Crennan J.
[30] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ; R v Nguyen (2010) 242 CLR 491 at [33] per Hayne, Heydon, Crennon, Kiefel and Bell JJ.
[31] M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.
Whether the jury was satisfied beyond reasonable doubt that the appellant committed the assault the subject of count 4 depended fundamentally on the jury’s assessment whether it believed beyond reasonable doubt the complainant’s evidence that the assault occurred as against the appellant’s denial. The jury saw and heard the witnesses giving evidence in order to make that assessment.
The appellant contends that the complainant’s evidence cannot be accepted in light of the evidence that the appellant was at work until 6.00 pm on 9 March 2012. The appellant relies on the timebook in this respect. However, the timebook is not conclusive. The appellant was the principal at the local school. Discharge of his responsibilities depended on his adequately undertaking his duties as principal as opposed to his strict hours of work. He was not accountable for his hours or for the hours recorded in his timebook in the same way as the teachers under his supervision were accountable. There is no evidence independent of his own evidence that he did not go home for a short time in the mid afternoon before returning to school and ultimately clocking off at 6.00 pm. There is no evidence independent of his own evidence that he did not simply record clocking off at 6.00 pm on that day because that was his customary habit even though in fact he went home in the mid afternoon.
The appellant contends that T gave evidence that she never at any stage had lunch with the complainant and that this undermines the credibility of the complainant to such an extent that the verdict is unreasonable. However, T gave evidence that she did have lunch with the complainant in the regional centre on an occasion on which they happened to bump into each other. T did not recall when this occurred. She said that it would have been in 2010, 2011 or 2012. She checked her diaries for each of those years but it was not recorded and she concluded that she did not make a note of it. The evidence of T tended to corroborate the complainant’s evidence rather than undermine it. While they differed as to the location of the lunch, that is not significant for the reasons given above.
The appellant contends that a letter the complainant wrote in September 2012 that she intended to give but did not in fact give to him supports the contention that the verdict is unreasonable. In that letter, the complainant said that she had decided to leave the complainant and start again. She accepted the blame herself for the relationship not working out and did not attribute any blame to the appellant. She did not suggest that she had been assaulted or raped. The letter was put to her in cross examination and she said that if she did leave she did not want the appellant to be exploding in anger, she wanted him to feel that it was her fault, she thought that it would be safer not to accuse him and she did feel guilty at times about what happened. It was open to the jury to accept that explanation for her not including allegations of assault and rape in the letter. That explanation is not inherently implausible. If the complainant had been assaulted or raped, it may be expected that it would have been counter-productive to allege that in a letter telling the appellant that she was leaving him.
The appellant contends that the complainant gave inconsistent evidence in relation to the other counts and in particular in relation to the timeframe of counts 1 and 2. The complainant was uncertain when during 2010 the incidents the subject of counts 1 and 2 occurred. The complainant said that they occurred around her daughter’s birthday in August 2009 and also said that she thought they occurred in term 3 or 4. It cannot be said that the complainant’s evidence about the timing of the incidents the subject of counts 1 and 2 necessarily undermined her credibility: this was a matter for the jury to assess.
The appellant also refers to the statement of agreed facts that on 23 March 2012 the complainant attended on Dr W and Dr W noted that the complainant told her that she had had non-consensual sex with associated beatings on several occasions with pieces of wood whereas in the complainant’s evidence she said that she was only beaten with a piece of wood on one occasion. However, by agreement with the appellant, Dr W was not called to give evidence and it may well be that she misunderstood what the complainant told her in this respect.
Considered individually and collectively, the appellant’s contentions and my independent review of the evidence do not establish that the verdict was unreasonable or cannot be supported having regard to the evidence. This ground of appeal fails.
Conclusion
The appeal should be dismissed.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Blue J.