R v S, DD - [2010] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, DD
[2010] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Peek)
24 December 2010
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED
Appeal against conviction – appellant charged with one count of indecent assault and two counts of unlawful sexual intercourse with J, his daughter – appellant found guilty of indecent assault (count 1) and unlawful sexual intercourse (count 2) – appellant acquitted of one count of unlawful sexual intercourse (count 3) - alleged offending charged as occurring between July 1987 and July 1991 – prosecution adduced complaint evidence made by J to three people, S, a school counsellor, and a police officer - appellant objected to admission of this evidence but trial Judge permitted evidence to be led.
Whether evidence of J’s complaints was properly admitted at trial – whether J’s complaint to S constituted an “initial complaint” per s 34M Evidence Act 1929 (SA) – whether complaints to S and a police officer were sufficiently referable to actual charges laid – whether complaint evidence was probative of consistency of conduct of J – whether complaint evidence should have been excluded in exercise of Judge’s discretion – whether directions given to jury in relation to complaint evidence and uncharged acts were adequate – whether verdicts on counts 1 and 2 were unsafe and unsatisfactory – whether re-trial should be ordered.
Held: (Peek J; Duggan and Anderson JJ agreeing) appeal allowed – convictions on count 1 and count 2 set aside – evidence of complaints made by J properly admitted at trial – J’s complaint to S was capable of being an “initial complaint” per s 34M of the Act – J’s complaints to both S and the police officer were capable of being complaints with respect to a sexual offence charged, as required under s 34M – evidence of J’s complaint to S and police officer was capable of demonstrating “consistency of conduct” of complainant – however, trial Judge’s directions to jury in relation to complaints were inadequate – Judge did not relate the complaint evidence to the particular counts and this failure affected verdicts on both counts 1 and 2 – failure of the trial Judge to comply with s 21(5) Evidence Act 1929 did not result in a miscarriage of justice.
(Duggan J; Anderson J agreeing): re-trial ordered on counts 1 and 2 – unnecessary for trial Judge to direct jury that uncharged acts did not provide context for conduct alleged in first count – verdicts on counts 1 and 2 were not unsafe and unsatisfactory – occasions relied upon in counts 1 and 2 were sufficiently identified – verdicts are not inconsistent – most likely explanation for differing verdicts was absence of complaint by J in relation to count 3 – re-trial on counts 1 and 2 should be ordered – conduct of re-trial would not be different in any relevant respect – appellant would not lose any significant forensic benefit on re-trial.
(Peek J): complaint evidence must be capable of demonstrating “consistency of conduct” per s 34M(4)(a)(ii) before it is admitted as evidence of an “initial complaint” under s 34M(3) – s 34M does not oust or modify the availability of the Christie and fairness discretions – it cannot be said that the Judge erred in the exercise of his discretion to exclude evidence of complaint evidence – in relation to uncharged acts, the trial Judge did not relate the uncharged acts to the different counts – the verdicts on counts 1 and 2 were unsafe and unsatisfactory considering the acquittal on count 3 – re-trial should not be ordered – verdict of acquittal should be entered on each of count 1 and count 2 – re-trial would proceed on a fundamentally different basis from first trial and appellant would be unfairly deprived of the forensic benefit of the acquittal on count 3 – delay in prosecution and the lack of strength of the prosecution case also militate against a re-trial.
Criminal Law Consolidation Act 1935 (SA) ss 56, 49(3), 352; Evidence Act 1929 (SA) ss 34M, 21, 21(5); Crimes Act 1900 (NSW) ss 327, 328, referred to.
R v Markuleski (2001) 52 NSWLR 82, applied.
S v The Queen (1989) 168 CLR 266; R v K (1997) 68 SASR 405, distinguished.
Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; R v Corkin (1989) 50 SASR 580; R v H, T [2010] SASCFC 24; R v Christie [1914] AC 545; R v Lobban (2000) 77 SASR 24; Coco v The Queen (1994) 179 CLR 427; R v J, JA (2009) 105 SASR 563; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v Amjad [2010] SASCFC 68; M v The Queen (1994) 181 CLR 487; The Queen v Nguyen (2010) 85 ALJR 8; R v Hingst [1999] NSWCCA 335; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; R v Murre [2001] NSWCCA 286; R v Gbojueh (2009) 103 SASR 545; MacKenzie v The Queen (1996) 190 CLR 348; Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; R v Melville (1956) 73 WN (NSW) 579; R v Hansen (2002) 84 SASR 54; R v C (1993) 60 SASR 467; R v T, T (2004) 90 SASR 567; Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; R v Dolan (1992) 58 SASR 501; R v Szejnoga (1998) 199 LSJS 97, considered.

R v S, DD
[2010] SASCFC 80
Court of Criminal Appeal: Duggan, Anderson and Peek JJ

DUGGAN J: The facts of this matter are set out in the judgment of Peek J.
Evidence of complaint
I agree with Peek J that the evidence of the complaints made by J was properly admitted at the trial.
In determining whether the trial Judge gave adequate directions to the jury on the proper approach for considering the complaint evidence, it is important to have regard to the circumstances in which such evidence might demonstrate consistency. Those circumstances were explained by Doyle CJ in R v Szejnoga:[1]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
These comments have particular relevance in a case such as the present where a course of conduct involving a series of offences is alleged and when there is evidence of uncharged acts.
[1] (1998) 199 LSJS 97 at 102.
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
In the present case, the conduct alleged in the first and second counts was some months apart. It was alleged that a large number of similar but uncharged acts took place over the same period.
The trial Judge’s directions were in broad and general terms. He said:
Now, members of the jury, this evidence about when she told people about these events is, in any other context, hearsay evidence and would not come before the jury because the law does not usually allow for hearsay evidence to be given. But in cases such as this, where sexual allegations are made, the law makes an exception to that. It says that you are entitled to hear this evidence because, if you accept it - and that is the first step in your process again, because if you do not believe that these statements were made at all then the whole discussion of this topic is pointless - but if you accept that these conversations took place it may demonstrate, firstly, how these allegations ‘came to light’, is the expression used in the legislation; that is, how they came to the notice of the police. The law says you are entitled to know that in relation to a sexual case. Further, that you may use the evidence if you consider that it demonstrates consistency of conduct. In other words, whether it demonstrates that [the complainant] acted in a way that you might expect of a person in her situation as to when she made this complaint.
Now whether or not it demonstrates that to you is again entirely a matter for your judgment. The issue of when she complained and in what circumstances is before you. Does it demonstrate consistency of conduct and therefore does it bolster the credibility and the reliability of her evidence? Or does it, as Mr Lyons put to you, demonstrate inconsistency because of what she told the police officer about ‘possibly’ with the penis? So these are matters for you to consider again.
If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial Judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts.
It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.
Furthermore, the jury should have been told that the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency. The summing up did not include such a direction.
I agree with the observations made by Peek J as to the manner in which a finding of consistent conduct by way of complaint in relation to count 2 could have affected the jury’s assessment of count 1.
The issue of consistency was of considerable importance in the case. In my view, the convictions on the first and second counts must be set aside.
Uncharged acts
Ms Shaw QC, for the appellant, argued that the trial Judge should have related the evidence concerning the uncharged acts to each of the three counts in the information.
The trial Judge gave the following directions on uncharged acts:
You also heard evidence of a great number of other allegations of sexual impropriety by [the appellant] on [the complainant] and none of those other allegations have been the subject of a charge. Her evidence was that there were many other acts of what might be described as indecent assault but also digital penetration, that is, with a finger, of her vagina, which might constitute unlawful sexual intercourse. There is also the behaviour which she alleged of him looking through the window while she was undressing, while they were living at Charlton Gully.
Now, members of the jury, ordinarily such evidence does not come before a jury. The usual rule is that the accused should only be tried on the evidence which relates to the particular counts on the information that are before the court, and not on other conduct. Evidence of these other events has been put before you for a particular purpose and I must give you a specific direction about how you may use that evidence, and perhaps an even more strong direction about how you may not use that evidence.
Firstly, you should not use the evidence at all until you are satisfied that it is true. If you are so satisfied, the evidence may be used because it provides a context in which the charged acts occurred, the three charged acts. Otherwise the evidence of the three charged acts might seem less credible because they just appear out of the blue, with large gaps between them. So it completely changes the character of the alleged behaviour if you are also aware on [the complainant’s] evidence that there were a number of other incidents as well.
The fact that on her evidence there were these many occasions may explain why she silently submitted to this behaviour, if you are satisfied that she just came to accept the behaviour as commonplace and that she just decided to submit without complaint. It may also explain, as Ms Wildman suggested to you, why [the complainant’s] memory of specific occasions is poor. Because it happened, on her evidence, so often it is difficult to distinguish between any particular act.
They are the ways in which you are entitled to use that evidence of what is called uncharged conduct. But I must specifically warn you against using it in inappropriate ways, and there are a couple of aspects to that.
Firstly, it would be inappropriate to conclude from that evidence that, because you might be satisfied that [the appellant] perpetrated some or all of that other conduct, he must therefore have committed the three particular charged acts. In other words, you must not reason ‘Well, he did it a whole lot of times, therefore he must have done it on the three occasions charged on the information’. That is not what the law regards as permissible reasoning. You must be specifically satisfied beyond reasonable doubt of those three charged acts before you can return a verdict of guilty on them.
Another way in which it should not be used is simply to conclude that [the appellant] is the sort of person who might be likely to commit such an offence, or indeed sexual offences in general, and therefore he is likely to have committed the three charged acts. In other words, that is what is sometimes called propensity reasoning. It is a conclusion he had a propensity to commit a particular type of act and therefore it is more likely that he committed the three acts on the information. That, again, is impermissible reasoning.
Put simply, because you might be satisfied in a general sense that some sexual misconduct did occur, that is not sufficient to prove the three counts on the information beyond reasonable doubt. Unless you are specifically satisfied that those three particular incidents occurred on the evidence before you then it is not sufficient to constitute proof beyond reasonable doubt.
According to the appellant’s argument, the uncharged acts could not assist in providing context in relation to the offence charged in the first count because they occurred after that offence.
The evidence of a course of conduct involving sexual abuse was admissible in relation to the other counts in the information. If the jury found that the first offence was committed, the circumstances of its commission could be used as part of the series of events which established the contextual evidence. It is true that the subsequent events could not help to explain the behaviour and attitude of the complainant concerning the conduct alleged in count 1, bearing in mind that it was said to be the first act of sexual abuse. However, that would have been evident to the jury. Furthermore, the evidence was relevant to the first count in relation to the other use identified by the trial Judge, namely, as a possible explanation why, because of the many occasions on which sexual abuse was alleged, the complainant could not recall more details of the alleged offences.
In my view it was unnecessary for the trial Judge to direct the jury on the obvious consideration that subsequent events did not provide context for the events which occurred in relation to the offence alleged in the first count.
Ms Shaw raised another issue in relation to the uncharged acts. The complainant gave the following evidence concerning a trip to Adelaide:[2]
QYou have told us about things that happened in the house at Charlton Gully and also the house in Eden Street; other than those two houses, was there any other location you can remember anything of a sexual nature happening with the accused.
AI’m just not a hundred per cent sure about this but when I moved to Adelaide, had to go over there for some treatment when I was younger, probably around 14, and we went over there for about three months and we were staying with an uncle and aunty.
QYou said that you weren’t sure whether or not something happened then.
AYeah, I’m not a hundred per cent sure, but I have a feeling that something did happen there but I can’t be a hundred per cent sure.
It is claimed that the trial Judge failed to direct the jury to ignore this evidence because of its uncertainty.
[2] Transcript of Proceedings R v S, DD (District Court of South Australia 08/1813, Judge Chivell, 13 August 2008) 114.
The first comment to be made is that the complainant did not give any evidence as to sexual abuse on this particular occasion. The other point is that the jury were told they were not to use any evidence of uncharged acts unless satisfied that the evidence was true. In my view, the argument in support of this ground should be rejected.
Unsafe and unsatisfactory verdicts
The next ground of appeal asserted that the verdicts were unsafe and unsatisfactory. The following particulars were advanced in support of this ground:
9.2The prosecution’s case depended upon the evidence of the complainant alone.
9.3The applicant gave evidence on oath denying the charges.
9.4The applicant was prejudiced in his ability to refute the charges because of the delay and the lack of specificity in the charged and uncharged acts.
9.5The complainant had made various prior inconsistent statements in relation to material facts.
9.6The jury aquitted the applicant of the third count where the prosecution’s case was of a continuous course of offending with the charged and uncharged acts inextricably mixed.
9.7There was a lengthy delay in reporting the matter to police and an earlier report that was discontinued.
9.8The complainant admitted regular and amicable contact for many years following the alleged offences.
In addition, it was argued that the verdict of not guilty on the third count was inconsistent with the verdicts of guilty on counts 1 and 2.
I leave aside at this stage the argument that the verdicts were inconsistent.
I have considered the evidence in accordance with the requirements of M v The Queen.[3] This was a case of word against word. Furthermore, the issue of delay is a relevant matter to take into account, along with the fact that the file in relation to the police investigation in June 1988 could not be found.
[3] (1994) 181 CLR 487.

As to whether the occasions of the alleged incidents were insufficiently identified, I respectfully disagree with the proposition that it is useful to compare this case with S v The Queen.[4]
[4] (1989) 168 CLR 266.
In that case Dawson J pointed out that:[5]
… the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count. No application was made that the prosecution be put to its election for the purpose of identifying the specific occasions upon which it relied as constituting the offences in question, nor did the trial judge put the prosecution to its election. Instead, he left it to the jury “to determine ... whether on the three occasions cited in the indictment, the accused did have carnal knowledge of his daughter ...”. The indictment, of course, did nothing to specify which of the multiple acts of intercourse were those alleged to constitute the offences with which the applicant was charged. The applicant was convicted upon all three counts.
His Honour continued:[6]
Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a “latent ambiguity” in each of the counts: see Johnson v. Miller, per Dixon J. That ambiguity required correction if the applicant was to have a fair trial.
(Footnote omitted)
Dawson J stated that the prosecution should have been made to elect. He said it was possible, in view of the way in which the case was presented, for individual jurors to rely upon different occasions as constituting the relevant offences.[7]
[5] (1989) 168 CLR 266 at 273-274.
[6] (1989) 168 CLR 266 at 274.
[7] (1989) 168 CLR 266 at 276.
Gaudron and McHugh JJ said:[8]
The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant’s guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty “would plainly have been the same”. See Van der Meer v. The Queen, per Deane J. That being so, it cannot be said that there was no substantial miscarriage of justice.
(Footnote omitted)
[8] (1989) 168 CLR 266 at 287-288.
In the present case, while there was a similarity between the offences charged and the uncharged acts, it is my view that the occasions relied upon in the first and second counts were sufficiently identified and the trial did not suffer from the type of flaw, akin to duplicity, which led to the setting aside of the convictions in S v The Queen.
I have had regard to the evidential inconsistencies referred to in the judgment of Peek J and I have taken into consideration the other matters set out in the points of argument under this heading. However, after reading the evidence of the complainant I would reject the suggestion that her evidence was so unreliable as to render the convictions unsafe. Furthermore, I do not regard the lost police file as a factor which resulted in an injustice to the appellant.
In my view, it has not been established that the convictions are unsafe and unsatisfactory.
Inconsistency
There remains the argument relating to inconsistency. In R v Markuleski,[9] Spigelman CJ undertook an extensive review of cases decided subsequent to Jones’ case[10] which deal with the issue of inconsistency of verdicts. In the course of his reasons the Chief Justice said:[11]
In some cases a jury has acquitted on counts which were not the subject of the original complaint. Although such a discrepancy is capable of affecting credit, it has not been found to require an acquittal on other counts.
In R v JJT,[12] a factor distinguishing the acquittal and the conviction was that the day after the alleged incidents, the complainant went to the police but lodged a complaint only in terms of the count on which the jury convicted but not in terms of the other count. Gleeson CJ said (at 6):
“True it is, as the jury were instructed, that the complaint did not amount to corroboration. Nevertheless, the question of consistency was one which the jury were entitled to regard as important and they were entitled to regard the complaint that was made on the day following the events as inconsistent with the evidence in relation to count 3, but as consistent with the evidence in relation to count 2.”
In R v ACK,[13] a similar discrepancy arose. The original complaint did not include reference to the incident on which the jury acquitted. No relevant inconsistency arose (at [51]‑[53]).
In R v Asplin,[14] a number of not guilty verdicts were distinguished on the basis that they had not been included in the original complaint (at [25] and [35]).[15]
(Footnotes added)
[9] (2001) 52 NSWLR 82.
[10] Jones v The Queen (1997) 191 CLR 439.
[11] (2001) 52 NSWLR 82 at [83]-[86].
[12] (New South Wales Court of Criminal Appeal, 3 December 1997, unreported).
[13] [2000] NSWCCA 180.
[14] [1999] WASCA 148.
[15] See also Williams v The Queen [2000] TASSC 182.
In the present case the directions to the jury authorised the jurors to regard the complaint made by the complainant as giving rise to consistency of conduct in relation to the first and second counts. However, although the trial Judge’s directions on complaint were broadly expressed and did not differentiate between individual counts, it must have been clear to the jury that there was no complaint in relation to the offence charged in the third count which was alleged to have occurred some years later. As the authorities stated above point out, the fact that there were complaints in relation to certain alleged offences, but not with respect to others, can be an important consideration in explaining why the jury may have reached different verdicts.
There is the further consideration that the trial Judge gave the jury the following direction:
You are not obliged to accept everything that a witness says. There may be some things that a witness has said which you find you are satisfied with and not others. It may relate to different incidents where different circumstances prevail which may affect either the credibility or the reliability of the evidence. So it is not an all-or-nothing situation. You can believe some things a witness says and not others. It is up to you.
And later:
Members of the jury, there are three counts on the information obviously. It is important that I say that you must give separate consideration to each count. A finding of guilty or not guilty in relation to one count does not necessarily mean that the same finding should or must be given in relation to any of the other counts. There may be different considerations which apply to each count.
In my view the verdicts are not inconsistent.
I agree with the conclusion reached by Peek J as to ground 10.
In my view a retrial on counts 1 and 2 should be ordered. I do not consider that the conduct of the trial would be different in any relevant respect or that the appellant would lose any significant forensic benefit if an order for retrial were made. This is not a case in which the appellant would be placed at a disadvantage by reason of the absence of a particular item or items of evidence led at the first trial which cast doubt on the credibility of the complainant.
In my opinion the case of R v K[16] referred to by Peek J is distinguishable. In that case the appellant was charged with two counts of indecent assault and two counts of unlawful sexual intercourse. It was alleged that the offences were committed on the appellant’s nephew. The jury returned verdicts of guilty on the charges of indecent assault and not guilty on the charges of unlawful sexual intercourse. The appellant appealed against conviction on the counts of indecent assault.
[16] (1997) 68 SASR 405.
It was alleged by the complainant that the appellant showed him a video of a pornographic nature on the occasion of one of the alleged acts of unlawful sexual intercourse. Evidence was called to establish that there was no video recorder available in the household at the time.
The Court set aside the convictions on the indecent assault counts because an inadequate Longman warning had been given. Doyle CJ and Lander J, Bleby J dissenting, decided not to order a retrial. Doyle CJ placed particular reliance on the evidence concerning the video. His Honour stated that the two acquittals on the counts alleging unlawful sexual intercourse were explicable by reason of the evidence relating to the video cassette recorder and confusion in the complainant’s evidence about which count was related to the use of the recorder.
In the present case the evidence in relation to the third count does not disclose any consideration of this nature which is of forensic relevance to the other counts. As I have pointed out, the most likely explanation for the differing verdicts in this case was the absence of complaint in relation to the third count. In my view the delay is not of particular significance in deciding whether a retrial should be ordered and I have expressed the view that the verdicts on the first and second counts are not unsafe or unsatisfactory.
I would allow the appeal, set aside the convictions on counts 1 and 2 and order a retrial on those counts.
ANDERSON J. I would allow the appeal and set aside the convictions on counts 1 and 2. I agree with the reasons of Duggan J and I would order a re-trial on counts 1 and 2.
PEEK J. This is an appeal against two convictions by majority verdict of indecent assault and unlawful sexual intercourse, the appellant being acquitted of a third charge of unlawful sexual intercourse with the same complainant.
The Information upon which the trial was conducted
The Information upon which the trial was conducted (with the name of the complainant replaced with the letter “J”) appears as follows:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
(S, DD) between the 10^th day of July 1986 and the 31^st day of July 1987 at Port Lincoln, indecently assaulted (J), a person of the age of about 12 years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
(S, DD) between the 31^st day of July 1987 and the 10^th day of July 1991 at Charlton Gully, had sexual intercourse with (J), a person under the age of 17 years.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
(S, DD) between the 31^st day of July 1987 and the 10^th day of July 1991 at Charlton Gully, had sexual intercourse with (J), a person under the age of 17 years.
An overview of the prosecution case
The complainant, (whom I will refer to, without disrespect intended, as J), was born on 10 July 1974 and was the daughter of the appellant. At the relevant times, J lived with her father, her mother and a younger brother and sister in the Port Lincoln area, initially in the town at Eden Street and later some thirty kilometres out of town on a property at Charlton Gully. It was an agreed fact that the family resided at Eden Street from 21 December 1974 until they moved to Charlton Gully on 31 July 1987, thus placing her then age at just over 13 years.
J gave evidence that over the period from about 1986 to 1990, commencing at Eden Street and concluding at Charlton Gully, the appellant committed many acts of digital touching and penetration of the vagina which were not the subject of charges but would each have constituted a criminal offence. These acts were described by J in a rather general way and were said to each begin with the appellant massaging her legs and concluding with touching of the vagina and/or insertion of one or more fingers into the vagina. These numerous uncharged acts were indistinguishable as between themselves. They concerned exactly the same form of conduct charged in counts 1 and 2 but were very different to count 3 (of which the appellant was acquitted) which charged full penile/vaginal intercourse.
None of the uncharged acts could be identified as occurring on any particular occasion by reference to concurrency with, of proximity to, some other objectively identifiable event and there was no evidence in relation to any of the counts or uncharged acts that independently corroborated the evidence of J that any of them occurred.
One of the important features of this case is that the alleged number of uncharged acts of digital interference with the vagina (generally estimated as occurring on a regular basis “every couple of weeks” and therefore allegedly numbering on that calculation well over a hundred) was so large in comparison to the number of charged counts being counts 1 and 2, and the allegations so similar, that the general allegation of continuing digital interference tended to assume more prominence than the particular counts 1 and 2.
It was, of course, vital that particular charges be properly isolated from the mass of general allegation, that clear and adequate directions be given in this regard and that such particular charges be seen to be proven beyond reasonable doubt. One important and overarching question on this appeal is the degree to which these goals have been achieved.
The evidence of the complainant in relation to uncharged acts
J described general sexual interference at Eden Street as follows:
Q:After that first occasion did the accused continue to touch you in that sort of way?
A:Yes.
Q:Can you recall all of the details of each and every time he did something like that to you?
A:Most times it - it was - it happened a lot of times but it was like - it was a very similar behaviour every time that he would do it and a lot of times it would start with like rubbing of your feet and then he would move up your legs and then he would be touching you.
Q:When you say ‘touching you’ where would he touch you?
A:On my vagina.
Q:Just concentrating still on things that happened at the house at Eden Street. How often would that type of thing happen in the house?
A:I couldn’t give you a specific number but it was a lot of times. It was sort of - it may have happened, you know, like, it happened like on a regular basis, maybe, you know, every couple of weeks.
J stated that the appellant continued to touch and digitally penetrate her vagina after they had moved to Charlton Gully:
Q:Once you moved to that house did things of a sexual nature continue to happen?
A:Yes.
Q:Once or more than once?
A:On lots and lots of occasions, I can’t be specific but it was a lot of times.
Q:Did they happen in one or more rooms of that house?
A:In more rooms.
Q:Which rooms did sexual things take place with the accused in that house?
A:In both of the bedrooms that I was in, in the lounge room and in my mum and dad’s room.
The evidence of the complainant in relation to count 1
Count 1 charged an offence of indecent assault which was alleged to have occurred during the period of 10 July 1986 to 31 July 1987 at the family home at Eden Street, Port Lincoln and was alleged to be the first occasion when the appellant sexually interfered with J.[17]
[17] Despite the fact that count 1 charged indecent assault rather than unlawful sexual intercourse, the case was opened as involving actual digital penetration of the vagina following massaging of her feet by the appellant. This aspect will be further referred to below.
The commencement date 10 July 1986 was selected because that was J’s 12^th birthday and her evidence was to the effect that she was about 12 years of age when the interference at Eden Street commenced. The conclusion date of 31 July 1987 was selected because that was the agreed date when the family moved from Eden Street to Charlton Gully.
J gives no further detail as to when this incident the subject of count 1 occurred, be it by reference to early or late in the one year period or by reference to some nexus with some other objectively identifiable event.
It was stated that count 1 related to the first time digital interference occurred and this is a method of charging that is often resorted to. However, caution is required in such circumstances. There is a real danger of an approach developing whereby a series of uncharged acts, which is admitted ostensibly under a rubric such as “relationship evidence”, really becomes the whole focus of attention. In such circumstances it is almost inevitable that the impression will be conveyed that since any series of incidents ex hypothesi has a “first incident”, then a charge that is said to be the first incident of the series is necessarily established if the series is established.
J stated that count 1, the first act of sexual interference, occurred at Eden Street on the bed in her parents’ bedroom when her mother was asleep in the same bed. She described massaging by the appellant culminating in digital penetration of the vagina with “just one finger”. As to the factual elements that might distinguish the subject matter of count 1 from the other allegations of offending, the matter of massaging is clearly to be eliminated since J stated that it was common for members of the family to massage each others feet and alleged that each incident of sexual interference by the appellant was preceded by such an event. The location in the house is also not distinctive since J has alleged that she was otherwise interfered with in bedrooms in both houses as well as other rooms.
Accordingly, the only matters upon which J could be meaningfully cross-examined were the aspect of the presence of her mother, the precise nature of the actions performed by the appellant and associated matters such as the clothing worn by J at the time. In each of these areas J proved to be less than consistent. Repeatedly, she explained such inconsistencies by reference to the difficulty of distinguishing one occasion from another. Similarly, in her final address, the prosecutor justified all inconsistencies by reference to that difficulty, particularly having regard to the effluxion of time.
J agreed in cross-examination that when she first spoke to Detective Hall in 2006 she described the first occasion when the appellant sexually interfered with her as being a touching of the exterior area of the vagina with no allegation of penetration by a finger. The following passage then appears:
Q:Can you tell us why you did not tell Detective Hall at that stage, when you were speaking to him, about this very first incident, that your father put his finger in your vagina?
A:I think that it was because I was trying to sort out my memories.
Q:This was the very first incident -
A:And, other - and it was also - it happened over 20 years ago.
Q:But this was the very first incident, surely it being the very first incident wasn’t it something that always stuck in your mind about exactly what your dad did?
A:I think because I have tried to block out all the memories of the sexual abuse that it made it very difficult for me to recall the incidents and because the way that the sexual abuse happened and how many times it happened and the similarities in the sexual abuse it was very difficult for me to recall specific events.

It would appear that J signed her 2006 statement as correct on 1May 2006 and it was not until 11 June 2007 that she first asserted to Detective Hall that there had been vaginal digital penetration on the occasion of the first offence. At this time, the allegation made was of penetration by fingers (plural). However, it is to be noted that at trial J alleged that penetration was by one finger and not plural “fingers”.
It is also to be noted that count 1, which is said to refer to this incident, in fact charges indecent assault (which is consistent with J’s previous allegation to Detective Hall in 2006) rather than unlawful sexual intercourse (which is the more appropriate charge for her later allegation of digital penetration made on 11 June 2007).
There were thus three versions as to count 1, chronologically being: no penetration, penetration with “fingers” and finally penetration by one only finger. During the course of the trial further inconsistencies emerged and matters were thus summarised in cross-examination:
Q:If you look at the first paragraph of your statement did you speak to Detective Hall on 11 June 2007?
A:Yes.
Q:When you spoke to Detective Hall did you say to Detective Hall ‘I can recall that my dad initially was rubbing the outside of my vagina and then placed his fingers into my vagina’, did you say that to him in relation to the first incident?
A:Yes.
Q:It was your evidence yesterday that in relation to that first incident your father put just one finger in your vagina, do you remember giving that evidence yesterday?
A:Yes.
Q:Do you agree with me that what you told Detective Hall was that he placed his fingers, plural, into your vagina, do you agree with me?
A:That’s what it says there, yes.
Q:Do you agree with me that what you told Detective Hall isn’t consistent with what you said here in evidence, is that right?
A:Yeah, I suppose so, yeah. I don’t think it really matters that it was more than one finger does it?
…
Q:When you first spoke to Detective Hall you make no mention of your father, on that first incident, putting his finger into your vagina in relation to that first incident?
A:Yes.
Q:Then some over 12 months later you then speak to Detective Hall again and you tell him that he did not only stick a finger in your vagina but he stuck fingers in your vagina?
A:Yes.
…
Q:Do you agree with me that when you first spoke to Detective Hall on 9 February 2006 that you told Detective Hall, in relation to this first incident, that your father put his hand down the front of your pants?
A:    Yes.
Q:And yet in this trial, do you agree with me, that you told the court that you were wearing a nightie and you had no pants, do you agree?
A:    Yeah.
Q:So what you said in this court was inconsistent with what you told Detective Hall on that first occasion, correct?
A:    Yes, it is.
The cross-examiner also established that J did not state that her mother was present in the bedroom during her first statement signed on 1 May 2006 and only mentioned that for the first time in June 2007. The further passage then appears:
Q:My question related to the fact that when you first spoke to Detective Hall you made no mention about your mum lying in bed next to you?
A:Yep.
Q: Then you say in June 2007 you think your mum was lying in bed next to you?
A:Yep.
Q:What I am suggesting to you is that the fact that if your mum had been lying next to you when your father came and sexually abused you, wouldn’t that have been something that you would have remembered?
A:Well obviously it doesn’t look like that I do.
J’s continual retort to suggestions of inconsistency was that it was difficult to be specific about specific incidents. Thus the passage:
Q:You were specifically asked questions about Eden Street in this court and you told the learned prosecutor that it happened more in the bedroom than the lounge room?
A:In the bedroom more than the lounge room.
Q:That’s been your evidence in this court, isn’t that right?
A:Yep.
Q:That is inconsistent with what you have told Detective Hall when you first spoke to him, you told him that it occurred mainly in the lounge room, isn’t that right?
A:That’s what it says there, yes.
Q:Well those were your words to Detective Hall weren’t they?
A:Yeah.
Q:One of them has to be wrong, which one’s wrong, did it mainly occur in the lounge room or did it mainly occur in the bedroom?
A:I really don’t see much difference in where it occurred but it did occur and it happened so many times it was – it’s really confusing about where it happened the most and I was only - I was moved to Charlton Gully when I was around 14 so, you know, that is a really long time ago.
Q:You also gave evidence in this court when being questioned by the prosecutor that at Eden Street - just remember I am concentrating on Eden Street at the moment -
A:Yep.
Q:that your father inserted fingers into your vagina in the bedroom, your bedroom, correct?
A:Yes.
Q:Do you say that that happened in your bedroom once or more than once where he actually inserted fingers into your vagina whilst you were in the bedroom?
A:I would have to say that it happened more than once.
Q:Quite regularly did he insert his fingers in your vagina whilst you were in the bedroom; I am talking about your bedroom?
A:I can’t be specific about how many times it happened over that period of time.
Q:Was it numerous times?
A:Numerous times, yeah.
Q:Is it something you always remembered, your father on numerous times, whilst you were in that bedroom in Eden Street, put his fingers into your vagina?
A:Yes.
Q:Would you agree with me that when you first spoke to Detective Hall that you did not tell Detective Hall of any sexual touching in your bedroom at Eden Street; would you agree with me that that is the situation, that’s what you told Hall?
A:If that’s what it says in the statement, yeah.
…
Q:What I am suggesting, just to make it perfectly clear, what I am suggesting is at no time when you first spoke to Detective Hall did you tell him that any sexual touching took place in your bedroom at Eden Street, would you agree with me on that?
A:In the bedroom?
Q:At Eden Street.
A:If that’s what it says in the statement then I suppose so.
Q:You were quite adamant when you gave evidence in this court that more abuse took place in the bedroom than anywhere else in the house, weren’t you?
A:I think when I gave my statement it was - and I made it quite clear that I - it was like a pattern of behaviour and that it happened so many times that it’s really hard to be specific about specific incidents.
J was asked in re-examination about the disparities between her first and second statements to Detective Hall in the following passage:
Q:You were asked some questions generally about giving your first statement to Mr Hall and then giving your second statement to him; the process of giving your first statement to him, did you find that an easy or a difficult thing to do?
A:It was very difficult.
Q:Why was it difficult?
A:It was very upsetting and emotional and my memories of what had happened were not very good, like it was very blurry, you know, I couldn’t remember - because it was such a pattern, there was such a pattern of behaviour it was hard to work out specific incidents and he wanted me to try and remember specific incidents for the statement.
J’s memory generally
As to the matter of J’s memory generally, the following passage appears in her examination in chief:
Q:You have told us about things that happened in the house at Charlton Gully and also the house in Eden Street; other than those two houses, was there any other location you can remember anything of a sexual nature happening with the accused?
A:I’m just not a hundred per cent sure about this but when I moved to Adelaide, had to go over there for some treatment when I was younger, probably around 14, and we went over there for about three months and we were staying with an uncle and aunty.
Q:You said that you weren’t sure whether or not something happened then?
A:Yeah, I’m not a hundred per cent sure, but I have a feeling that something did happen there but I can’t be a hundred per cent sure.
J was cross-examined on this matter and it was established that when she first spoke with Detective Hall on 9 February 2006 she was prepared to make a detailed allegation against the appellant in relation to this occasion at Adelaide. The cross-examination proceeds thus:
Q:You said this to Detective Hall ‘I can remember that during my stay in Adelaide my dad attempted to have sexual intercourse with me at my aunty and uncle’s house. I think this occurred during the day when it was just my dad and I at home. I believe that he abused me on this occasion by again rubbing by legs before rubbing my vagina and inserting a finger into my vagina’. Did you say that to Detective Hall?
A:It’s - yeah.
Q:Because you go on to say to Detective Hall ‘I do not know how long he did this for or exactly what room in the house we were in. I can recall dad trying to take his behaviour further by having actual penis to vagina sexual intercourse. I don’t know whether my dad removed his clothing or whether he removed my clothing but something happened to me to make me feel that he wanted to have sex with me. I can remember denying my dad any chance to have sex with me. I can remember that my dad became very angry with me. I have tried to block all the abuse out of my thoughts and this is why I have trouble recalling actual events on this day and the fact that it was so long ago makes it difficult’. Is that what you told Detective Hall?
A:Yes.
Q:That’s what you told Detective Hall on 9 February 2006, is that correct?
A:Yes.
Q:Then on 11 June 2007 didn’t you tell Detective Hall that you couldn’t be certain that dad touched you at all, isn’t that what you told Detective Hall? If you look at the top of p.3 of that statement dated 15 November 2007, which reported your conversations with Detective Hall on 11 June 2007.
A:Yeah.
Q:You agree with me that in relation to that incident you said ‘I’m not one hundred per cent sure that my dad even touched me on this occasion but I can remember my dad getting angry with me’?
A:Yes.
Q:How old were you when you went to Adelaide for this?
A:I think I would have been maybe 14 or 15.
Q:So did this take place after you had told Ms Hopewell about the sexual abuse that you say your father did on you?
A:I’m not a hundred per cent sure of when exactly it was.
…
Q:You just get confused with the lies you have told people about any sexual abuse, isn’t that right?
A:I don’t get confused, I have a problem with my memory.
Q:But this was a completely new house, a completely new experience for you, wasn’t it?
A:Yeah, I suppose so.
Q:Then on one other occasion you told Detective Hall that your father was sexually abusing you, on the next occasion you speak to him you say ‘I’m not sure that he even touched me’.
A:I just have a feeling, that’s all I can say. I can’t remember the specifics of it, but I just had a feeling that something happened there and - but I can’t remember exactly what it was.
Thus there was a quite detailed allegation against the appellant made to Detective Hall on 9 February 2006 but later on 11 June 2007 J stated to the same detective that “I’m not one hundred per cent sure that my dad even touched me on this occasion but I can remember my dad getting angry with me.”[18]
[18] Cf the rather similar passage in J’s cross-examination in a different context referred to below where she gave at trial explicit evidence of having seen the school counsellor for the particular purpose of complaining of sexual interference by the appellant but is established as having previously stated that she could not recall the purpose of the visit to the school counsellor.
J’s evidence in relation to count 2 at Charlton Gully
Count 2 was particularised as an offence of digital penetration, again following massaging of her feet by the appellant, and factually very similar to count 1. It was alleged to have occurred at the home at Charlton Gully after the family moved there from Eden Street, but the date of commission was particularised extremely broadly as a time period of approximately four years between 31 July 1987[19] and 10 July 1991.[20]
[19] The agreed date when the family moved from Eden Street to Charlton Gully.
[20] J’s 17^th birthday.
The commencement date 31 July 1987 was selected because that was the agreed date when the family moved from Eden Street to Charlton Gully, J stating that count 2 occurred at Charlton Gully. The conclusion date of 31 July 1987 was selected because that was J’s 17^th birthday and her evidence was to the effect that she was 15 or 16 years old at the time of commission of count 3 (the last act of interference) and that some time after that she left the family home when she was aged 16.
Importantly, J agreed in cross-examination that she did not initially say anything at all to Detective Hall in her first statement about this particular incident, and only mentioned it for the first time in her 2007 statement.
J stated in court that this incident occurred when she was about 14, at night in the lounge room at Charlton Gully during winter time, when there was a fire burning there. She describes this incident – massaging of the feet followed by digital penetration of the vagina – in very much the same way as the numerous uncharged acts. J gives no particularity as to when to the incident the subject of count 2 occurred, be it by reference to a year, early or late in the period or by reference to some nexus with any other objectively identifiable event.
J’s evidence in relation to count 3 at Charlton Gully
As can be seen from the above, all of the uncharged acts together with counts 1 and 2 could be compendiously described as acts of digital penetration of the vagina following massaging of the legs. However, count 3 was the one act that can be distinguished from the others, being an allegation of full penile/vaginal intercourse together with surrounding details. The occurrence of count 3 is described by J thus in evidence in chief:
Q:Was there an occasion when the accused did something of a sexual nature to you that was quite different from the other times?
A:Yes.
Q:What sort of thing was that?
A:He had sexual intercourse with me.
Q:I’ll come to the details in a moment. What do you mean by that, what did he do to you?
A:He put his penis in my vagina.
Q:How old were you when that took place?
A:I think I was about 15 or 16.
Q:Do you remember what year you were in at school?
A:Year 11.
Q:Where in the house were you immediately before that happened?
A:In the lounge room.
Q:Was it daytime or night-time?
A:It was daytime.
Q:How did things start that day?
A:It was similar to how things usually started, with the massaging of the feet.
Q:After he massaged your feet what happened next?
A:He picked me up and carried me into his bedroom.
Q:When he was massaging your feet where in the lounge room were you?
A:I was on the lounge.
Q:Where was he?
A:He was sitting on the end of the lounge.
J then recounts an episode of full vaginal sexual intercourse in the appellant’s bedroom, preceded by the appellant turning away and getting something out of a drawer which suggested to her at the time that he may have put on a condom.
J stated that no further sexual interference occurred after that episode and that she moved out of home not long after that.
J leaving home and her subsequent association with the appellant
When J was 16 years old she left home and moved to live with friends in Port Lincoln. She asserted that this was mainly because of the alleged sexual offending but conceded on cross-examination that part of the reason she moved out was because she in any event wished to do so since she had various friends who lived in Port Lincoln and the social life was far better for her in the town than being stuck on the property at Charlton which was about 30 kilometres out of town.
Further, in lengthy cross-examination J agreed that she kept in contact with her mother and father and very soon after moving out commenced to come and have dinner with them on a regular basis. She agreed that she continued to collect firewood, go fishing and go cockling alone with her father. She also agreed that she left her own young child Roxanne in the care of her parents on many occasions such as when going away for sporting weekends and that this practice continued for years. Further, there was a period when she separated from her partner for a period of three months and during that time she and her children lived with her mother and father. Later, she and her partner reconciled and chose to rent a house and live right next door to her mother and father for 22 months while she was having a house built; during that period she allowed her children to come and go to and from her parent’s house next door as they pleased. She would regularly have her parents baby sit Roxanne while she was away, pick her up from school and so on.
The appellant understandably contended that it would have been obvious to J that her father could have taken many opportunities to interfere with her children had he been so inclined[21] and that her preparedness to leave the children with him was a strong indicator that he had not in fact ever interfered with J at all. The trial Judge referred to this argument in his summing up as “compelling”.
[21] There is no suggestion that he ever did so.
The complaint evidence
The complaint evidence sought to be adduced by the prosecution consisted of three aspects. First, an initial complaint by J to the witness to whom I will refer without disrespect as S. Second, and consequential upon her conversation with S, a visit by J to the school counsellor (with S waiting outside while they spoke). Third, and consequential upon the visit to the school counsellor, a complaint by J to police on 28 June 1988.
The appellant objected to the admission of all of the above complaint evidence and a voir dire hearing was held in order to resolve the objection. The trial Judge permitted the evidence to be led.
J’s evidence in relation to her complaint to S
J gave oral evidence that she thought that the person she first told about the sexual abuse was S, that she (J) would have been about 14 at the time in about Year 9 and that what she spoke to S about “was something to do with the sexual abuse but I’m not a hundred-per-cent of - I don’t know exactly what I said but I just know that was the topic”.
J’s evidence in relation to the school counsellor
J stated that S suggested that she see the school counsellor and that within the next few days, she went with S and spoke with him, while S waited outside. J was asked these questions by the prosecutor:
Q:After you spoke to S what happened from there?
A:I spoke to a school counsellor.
QWhy did you do that?
A:I think from my conversation with S, she may have suggested that.
Q:How long after you spoke to S did you speak to the school counsellor?
A:I think it was within the next couple of days maybe.
Q:Did you go to see the school counsellor alone or with someone?
A:I think S came with me to the office but didn’t go in with me.
Q:I don’t want to go into the details of what was said but did you speak to the school counsellor?
A:Yes.
Q:After speaking to the school counsellor did you speak to someone else?
A:I remember speaking to the police.
Q: Why did you go and speak to the police?
A:I think that that may have been initiated by the counsellor.
Q:How long after you spoke to the counsellor did you speak to the police?
A: It might have been a period of a couple of days, I’m not sure.

In cross-examination, J was asked about her previous statements to Mr Press, the original assigned prosecutor in this matter, about the visit to the school counsellor:
Q:He asked you questions about seeing the school counsellor, didn’t he?
A:Yep.
Q:You told him ‘I don’t remember what I said to him’ didn’t you?
A:Yeah.
Q:You also told him this - ‘I don’t remember why I went to see him. Perhaps I was angry at my family for some reason’ - that’s what you told him didn’t you?
A:Possibly, I can’t remember exactly.
Q:Was that the situation that you went and saw the counsellor because you were angry with your family, is that correct?
A:Not that I’m - I can’t recall. I’m not sure.
Q:When you spoke to (S) is it the situation that you were angry at your family, not just your dad, but your whole family, is that right?
A:I don’t think so. I don’t know.
Q:Do you agree with me that you told Mr Press last year ‘I don’t remember why I went to him, to see him, perhaps I was angry at my family for some reason’?
A:I’m not sure. I don’t remember.
The following agreed fact was placed before the jury without comment as to its relevance at the time:
On 27 September 2009, (J)…said to Mr Ian Press, a prosecutor for the Director of Public Prosecutions, ‘I remember seeing a school counsellor. I don’t remember why I went to see him. Perhaps I was angry at my family for some reason’.
J’s evidence in relation to her complaint to the police
J further stated that shortly after seeing the counsellor she complained to a female Port Lincoln police officer about sexual abuse by her father and spoke “about the sexual abuse that had been happening with my father”. She said that she gave greater detail than she had to S. She could remember the fact that she answered questions by the officer but could not remember the questions that she was asked and the answers that she gave.
S’s evidence in relation to the complaint to the school counsellor
When S was called on the voir dire hearing to give oral evidence, she stated that she could not recall the exact words but that J basically said to her at school that her dad had sexually interfered with her and that J was very upset at the time, crying and quite distraught. S was very specific about the visit to see the counsellor, even to the point of stating that she initially went in and heard J tell the counsellor what she wanted to talk about:
Q:Once she told you that information what happened from there?
A:We went to the student counsellor’s office.
Q:How long after you’d had the conversation with her was it that you went to the student counsellor’s office?
A:When we finished the conversation.
Q:Once you got to the student counsellor’s office what happened next?
A:We went in and (J) told him what she wanted to talk about and he asked me to leave the room.
Q:And did you leave the room?
A:Yes.
Q:What did you do once you left the room?
A:I waited in the hall for her and then the bell went to go back to lesson and I had to go back to lesson so -
Detective Hall was also called on the voir dire hearing and stated that he first made contact with S on 15 May 2006 and at that time she stated that she could not “recall any events or disclosures re sexual abuse”. Hall stated that he had further contact with S on or about 24 October 2009 and it was then that she first stated that she remembered that there had been a complaint. It was an agreed fact at trial[22] (evincing an acceptance by the prosecution of the accuracy of Detective’s Hall’s report to Mr Press, the original prosecutor, in relation to his first conversation with S) that:
S … said to police when she first spoke to them that she had no recollection of any disclosures at all and she stated that she would have remembered this.
(Emphasis added)
[22] At the close of the prosecution case and subsequent to the completion of the evidence of S.
The evidence of ex-police officer Sharon Pearson in relation to complaint
The evidence of ex-police officer Sharon Pearson was that she filled in a crime report in relation to a complaint by J against her father at 6.30pm on 28 June 1988. It appears that J gave a lengthy statement and in turn the appellant later participated in a lengthy police interview. However, most of the documentation has been lost and all that survives is the original crime report. Ms Pearson was able to give evidence that J had made allegations against her father of sexual penetration through refreshing her memory for the crime report she had submitted. She gave evidence that she had noted on the crime report the words “on numerous occasions involving penetration of the vagina with finger and possibly penis?”
It is to be noted that at trial J was adamant that up to the time of the complaint to the police (and up to the time of count 3 which was alleged to be long after the date of the complaint to police on 28 June 1988) the only penetration had been digital.
The school counsellor
It was indicated to the Court (in the absence of the jury) that the school counsellor had been spoken to by police and indicated that he had no memory whatsoever of J complaining to him that she had been sexually interfered with by her father. He was not called.
A chronological summary of the charges and evidence
A chronological summary of the charges and evidence referred to above is as follows:

10 July 1974
Date of birth of J.

10 July 1986
Start of date range for count 1 at Eden Street (J’s 12^th birthday).

31 July 1987

·        agreed date when the appellant’s family moved from Eden Street to Charlton Gully:

·        end of the date range for count 1 at Eden Street.

·        start of date range for count 2 at Charlton Gully.

·        start of date range for count 3 at Charlton Gully.

28 June 1988
Ex-police officer Ms Sharon Pearson filled in a crime report in relation to a complaint by J against her father which included the note “on numerous occasions involving penetration of the vagina with finger and possibly penis?”

Note that:

·        It can not be determined whether 28 June 1988 was before or after the period of time within which, on the prosecution case, count 2 was alleged to have been committed.

·        Subsequent to 28 June 1988, the long statement taken by ex-police officer Sharon Pearson from J was lost, as was the record of a long interview held with the appellant on an unknown date after 28 June 1988.

10 July 1990
J’s 16^th birthday. J states that:

·        Count 3 occurred when she was 15 or 16.

·        She left her the Chandler Gully home when she was 16.

10 July 1991
·        J’s 17^th birthday.

·        End of date range for count 2 at Charlton Gully.

·        End of date range for count 3 at Charlton Gully.

1 May 2006
J signed first statement to Detective Hall:

·        as to count 1, did not allege that penetration of the vagina had occurred or that her mother was present.

·        as to count 2, did not describe what was to be later count 2 as a charge separate from the general allegation of digital offending on various occasions in different rooms.

15 May 2006
S stated to Detective Hall that she could not “recall any events or disclosures re sexual abuse” by J and that she would have remembered this if it had occurred.

27 September 2009
J stated to Mr Press, a DPP prosecutor, that “I remember seeing a school counsellor. I don’t remember why I went to see him. Perhaps I was angry at my family for some reason”.

On or about 24 October 2009
S first stated to Detective Hall that she remembered that J had made a complaint to her.

August 2010
At trial, S disputes the evidence (and agreed fact) that on 15 May 2006 S had stated to Detective Hall that she could not “recall any events or disclosures re sexual abuse” by J and that she would have remembered this if it had occurred. She asserts that on 15 May, 2006 she had stated to Detective Hall that she “had a vague recollection but I couldn’t say anything for certain”.

August 2010
At trial, J can give no reason for having said to Mr Press, a DPP prosecutor, that ‘I remember seeing a school counsellor. I don’t remember why I went to see him. Perhaps I was angry at my family for some reason’ and states in cross-examination that she could not remember making such a statement.

Recent complaint evidence at common law

The strict basis upon which evidence of recent complaint in sexual cases could be received at common law was stated by Barwick CJ (with the concurrence of McTiernan, Stephen and Mason JJ) in Kilby v The Queen[23] thus:[24]
The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever 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 and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.[25]
[23] (1973) 129 CLR 460.
[24] Kilby v The Queen (1973) 129 CLR 460 at 472.
[25] If there was substantial delay in the making of a complaint, the jury were entitled to take such matter into account when assessing the credibility of the complainant. However, it is important to note that such a delay was not considered to be positive evidence of consent to sexual conduct. See generally the decisions of the High Court in Kilby v The Queen (1973) 129 CLR 460 and Crofts v The Queen (1996) 186 CLR 427.
In Crofts v The Queen[26] Dawson J stated:[27]
Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or delay. On the other hand, a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint or lack of a recent complaint can go. It does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts.
[26] (1996) 186 CLR 427.
[27] Crofts v The Queen (1996) 186 CLR 427 at 434.
The matter was also authoritatively summarised by King CJ in R v Corkin:[28]
A complaint by the alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence and only for the purpose of showing the consistency of the complainant’s conduct in making the complaint and of the statement or statements made by the complainant at the first reasonable opportunity with the complainant’s evidence in court…
(Authorities omitted)
[28] (1989) 50 SASR 580 at 581.
The requirement that a complaint could only be received if the prosecution established that it was made at the first reasonable opportunity was designed to restrict the reception of such material to complaints that were spontaneous and truly responsive to the relevant conduct. This aspect was explained by King CJ in R v Corkin thus:[29]
The requirement that a complaint be made at the first reasonable opportunity is designed to limit the admissibility of statements out of court to those which have some genuine weight in demonstrating consistency of conduct. A complaint made spontaneously and soon after the event possesses weight for this purpose; one made after an interval of time during which motives for concoction may have arisen, possesses little value for that purpose.
[29] R v Corkin (1989) 50 SASR 580 at 582.
Section 34M of the Evidence Act 1929 (SA)
Section 34M has significantly altered the law in relation to complaints in sexual cases. It provides:
34M – Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•       when the complaint was made and to whom;
•       the content of the complaint;
•       how the complaint was solicited;
•why the complaint was made to a particular person at a particular       time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)    it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)    it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Admissibility of the complaint evidence in the present case
The grounds of appeal were lengthy but may be stated to raise essentially four challenges to the admissibility of the complaint evidence, namely:
1.   The complaint to S did not constitute an “initial complaint” because there was a possibility that J had previously complained to a different person.
2.   The complaint to S did not sufficiently refer to an actual charge laid.
3.   The complaint to the police officer on 28 June 1988 did not sufficiently refer to an actual charge laid.
4.   The complaint evidence was not probative of consistency of conduct of the complainant.
During the course of argument there was a deal of merging of matters relevant to admissibility, discretion and directions. It must be remembered that the existence of blemishes on evidence, even serious blemishes, will not usually prevent the admissibility of the evidence although they may engage the operation of a discretion to exclude and will require the Judge to give proper directions to the jury. Further, where there are multiple counts, the fact that the evidence may be admissible only in relation to one or some of such counts will not preclude reception of the evidence, although here the twin protections of the possible exercise of a discretion and the obligation to give directions may be of particular importance.
1. The contention that the complaint to S was inadmissible because it did not constitute an “initial complaint”
It was contended that the evidence did not exclude the possibility that J had complained to some other person prior to complaining to S with the consequence that any complaint made to S was not an initial complaint within the meaning of s 34M.
While I consider that the postulated structural legal argument is valid, this challenge fails in the present case because the evidence, taking it at its highest, was capable of supporting a finding that the first complaint was made to S. Accordingly, the trial Judge did not err in this respect in leaving the matter to the jury. I would therefore reject this first challenge.
2. The contention that the complaint to S was inadmissible because it did not sufficiently refer to an actual charge laid
It was contended that on the correct construction of s 34M(3) the words “an initial complaint of an alleged sexual offence” correspond to the words “a charge of the sexual offence” second appearing in s 34M(3) in the sense that it must be apparent that “the sexual offence” that was complained of is the same “sexual offence” that is charged.
This argument is conceptually correct and consequently there will be a clear obligation on the trial Judge to direct the jury as to which charges the evidence relates and to which it does not.
However, the question of whether the evidence can be received at all will very much depend on a close examination of the facts involved.[30] J asserts that she spoke to S about the topic of sexual abuse by the appellant which evidence must be taken together with S’s evidence that “J basically said to her at school that her dad had sexually interfered with her”. Taking the whole of the evidence at its highest – and ignoring certain other weaknesses of the evidence to which I will later return in a different context – I consider that the evidence is capable of establishing a “complaint of a sexual offence” that sufficiently refers to one of the sexual offences that is charged against the appellant[31] – namely count 1 (alleged to be the first episode of offending).
[30] Such an argument may succeed where there is inconsistency between the complaint and the charge such as if a complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged. As an example, a complaint in the year 2010 of sexual intercourse at Victor Harbour in the year 2000 could not be admissible under s 34M (ie. as complaint evidence) in relation to a charge of an offence against the same complainant but occurring at Adelaide in 2005. Similarly, a complaint constituting a specific and definite allegation of a precise type of sexual offending, say anal intercourse without consent, could not be admissible under s 34M in relation to a charge of oral intercourse. Further, a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”.
[31] The question as to the need for specific directions to the jury to which this gives rise is a separate matter and addressed below.
As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity.
The effect of the above approach may enable the evidence to be received but it is particularly important that the jury be carefully directed as to the uses to which the complaint evidence adduced can, and can not, be put including the particular count(s) in relation to which it is, and is not, admissible. I will return to this aspect of required directions below.

Of course, the real problem was that the jury may have considered that the learned trial Judge was endorsing such an approach in his summing up. His Honour commenced consideration of the topic of “inconsistent statements” thus:
Members of the jury, another technique which you can bring to bear when evaluating the evidence of a witness is what has been called by both counsel previous inconsistent statements. What that means, and I am sure it is obvious to you once it is spelt out, you can gauge the credibility and the reliability of a witness by comparing their evidence with what they have said on another occasion.
If you are satisfied there is an inconsistency, the next step is to consider whether the inconsistency is significant. It is entirely for your judgment as to whether you think it is significant or not. When an inconsistency was put to (J), for example, about whether it was one finger or fingers plural that was inserted into her vagina - this was arising out of the second statement she gave to Detective Hall - her perhaps rather frustrated reply was ‘Does it matter?’ That is really the nub of the question for you: do you think it matters? It is for your judgment as to whether it matters or not.
(Emphasis added)
With all respect to his Honour, I do consider it unfortunate that his Honour, directed in a way that was rather suggestive of the answer: ‘No, it does not matter’.
Further, while his Honour did refer to inconsistencies in relation to whether there was digital insertion, and by how many fingers, and whether J’s mother was present, his Honour did not direct as to the cumulative nature of such evidence and relate it to a question of real significance, namely whether the evidence of J could be safely accepted as proving a particular count as distinct from a general allegation of repeated uncharged acts of the same kind. Rather, it seems to me, his Honour directed in a way that tended to minimise the importance of such matters by reference to the delay that had occurred. Thus his Honour stated:
If you consider these inconsistencies, is there an explanation for them? (J) told you her memory was blurry, she said it was very difficult to be specific. She said she tried to block it out over the years. She said that, after she gave the first statement, she thought of these further things and so she mentioned them in the second statement. These are explanations for you to consider.
On the other hand, you will also consider Mr Lyons’ submissions to you; how could one forget the circumstances in which the first of these events occurred, how could one forget, for example, her mother was lying alongside her if, indeed, that was true? That is what I mean. These are matters for your judgment as to how you use these inconsistencies, if you find they are inconsistencies.
It is true that in the second paragraph his Honour directed that defence counsel had suggested an alternative view, but the jury may well have thought that such second alternative was second best. The rhetorical question ‘Does it matter?’ posed by J and adopted by the Judge in the previous passage was powerful medicine. To repeat a snippet from the judgment of Kirby J in Doggett v The Queen[58] referred to above:
…In a case such as the present, the powerful effect of the testimony of a person such as the complainant can carry along a jury’s reasoning towards a conclusion of guilt that sweeps aside any problems in the prosecution’s case.
[58] Doggett v The Queen (2001) 208 CLR 343 at 383 [150].
So in the present case, the jury needed to closely bear in mind that if an accused person is to be reduced to defending a substantial period of his life that ended some twenty or more years earlier, the “forensic weapons” that he has left must not be permitted to be blunted by inadequate directions or by the disarming words of the complainant, “Does it matter?”.
The words of Adams J (with whom Giles JA and Hulme J agreed) in R v Murre[59] are well known but are well worth repeating:
[27]Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions.
[59] [2001] NSWCCA 286 at [27].
The acquittal of the appellant on count 3
The matter of the verdict of acquittal returned on count 3 is a very important consideration.
As was observed in R v Gbojueh[60] in a case such as the present, the significance of a difference in verdicts in relation to the same kind of offending against the same complainant should be assessed by reference to the question of whether the guilty verdict is unsafe or unsatisfactory or unreasonable in all of the circumstances of the cases as distinct from examining a suggested inconsistency in vacuo.
[60] (2009) 103 SASR 545 at 553.
I have re-read a number of the authorities in this area including the decisions of the High Court in MacKenzie v The Queen,[61] Jones v The Queen[62] and MFA v The Queen,[63] various decisions of the South Australian Court of Criminal Appeal including, of course, R v Kirkman,[64] and the full bench decision of the NSW Court of Criminal Appeal in R v Markuleski (and a number of the cases referred to therein, virtually all of which I have read at one time or another). I do not intend to produce a further dissertation on the matter and will restrict my remarks to the following observations pertinent to the present case.
[61] (1996) 190 CLR 348 at 367.
[62] (1997) 191 CLR 439 at 453-455.
[63] (2002) 213 CLR 606 at 617.
[64] (1987) 44 SASR 591.
The first point to be emphasised is that while due regard must be had to the possibility of a difference in verdicts being caused by a variety of possible reasons, if no logical reason for differentiation is discernible then the real possibility of an unreasonable or unsafe or unsatisfactory verdict must be faced and not ignored.[65]
[65] As Kourakis J stated in R v Gbojueh (2009) 103 SASR 545 at 561 [48]. “If a logical basis on which to distinguish between the different verdicts cannot be found, then the acquittal on the first count must ineluctably leave the second charge in doubt.”
One possible basis of reconciliation that must be addressed is the Kirkman[66] doctrine as approved by the High Court in MacKenzie v The Queen.[67]However, that approach must not be taken too far. As Gaudron, Gummow and Kirby JJ observed in MacKenzie:[68]
Consideration of the factors mentioned by King CJ in Kirkman cannot be elevated to the point that “mercy” on the part of a jury is always sufficient to justify apparent inconsistency between verdicts on alternative counts.
[66] (1987) 44 SASR 591.
[67] (1996) 190 CLR 348 at 367.
[68] MacKenzie v The Queen (1996) 190 CLR 348 at 370. It may be remembered that the factual situation there was a conviction of one count of perjury under the Crimes Act 1900 (NSW), s 327 and acquittals on two alternative counts based upon s 328 of the Act which alleged perjury intending to procure an acquittal. All three counts concerned the same occasion of the defendant, a respectable solicitor, giving evidence at the trial of his accused client. In all the circumstances of the case, a view by the jury that one conviction of the lesser charge would suffice is quite understandable.
The Kirkman approach may be apt in cases where convictions have been returned on one or more serious charges proven in a clear and definitive way with acquittals returned on one or more other charges which were possibly viewed as excessively complex or, in a lay sense rather than a legal sense, relating to essentially the same conduct as the serious offences. However, the Kirkman approach is unable to account for the present pattern of verdicts. Count 3 is clear and straight forward as compared to the other counts. It is, and would be perceived by the jury to be, more serious than the other counts. It would be viewed by the jury as a full completed act of incest and it cannot be reasonably suggested that the jury would consider that the matter was too complicated to prove, or not serious, or that it was a repetitive charge, particularly since it was the only such charge of full vaginal intercourse.
A further matter that may sometimes explain an acquittal on certain sexual charges is a doubt that penetration has not been proven.[69] There can be no doubt about that here. J clearly described insertion of the penis in the passage earlier referred to earlier in the judgment and the following additional passage should also be referred to:
[69] The question of whether or not an alternative verdict not dependent on proof of penetration will be important in such cases.
Q:Where was he when he inserted his penis into your vagina?
A:He was - he just laid on top of me.
Q:Once he inserted it, what did he do next?
A:He moved it in and out.
Q:How long did he do that for?
A:I don’t know, but it seemed like an awfully long time.
…
Q:What did he do once it stopped?
A:I’m not sure what he did but I know that I got up and got out of there.
Q:Where did you go?
A:I just got out of there. I’m not sure whether I went to my bedroom or - but I know I just was pretty upset and I was crying.
Q:Was that the only time that he had sexual intercourse with you like that?
A:Yes.
Another matter that may sometimes justify different verdicts is a difference in the quality of the evidence on the various counts. For example, if verdicts of guilty are returned on counts where there is corroborative evidence and acquittals where there is none, the convictions may sometimes (but not always) be saved by resorting to reasoning that the jury were simply being over cautious and, being able to convict on counts where there was corroborative evidence, decided to restrict their guilty verdicts to those counts. Without descending into an analysis of that theory, it is sufficient to say that it clearly can not operate in the present case where there was no corroborative evidence on any of the counts.
In the present case, as I understood the argument, there were only two possible reasons advanced as to how the difference in verdicts could be justified as other than based on a positive rejection of the sworn evidence of the complainant involving damage to her credibility.
The first argument involved reference to the note made by ex-police officer Pearson on 28 June 1988 - “on numerous occasions involving penetration of the vagina with finger and possibly penis?”- it being contended that this evinces some uncertainty on the topic of penile/vaginal intercourse and presumably as it pertained to count 3 which was alleged to have occurred literally years later. I can not accept that this argument has any force at all. I would simply repeat the two questions, perhaps rather rhetorical, that were put to counsel during the course of the appeal hearing. The first was:
Mr Illingworth, I just want to be clear on what you are saying. You are saying that at some time after count 1 and either before or after count 2, we can’t be sure, but at some time after count 1 there was a statement to a police officer, a summary of which she recited because the record was lost, to the effect that there were a number of allegations of digital and whatever her words were, ‘possibly penile’. Then, years after that, it is said by the complainant that there is a case of full penile-vaginal intercourse, which she describes very specifically, with the condom and everything. And you are saying that the jury probably acquitted of that, not because they disbelieved her or what have you, but because, years before that, in relation to a quite different offence, a police officer purported to record what she said as ‘including possibly penile’. That’s your argument, is it?
The second question was:
Mr Illingworth, if they were to be hanging so much weight on those words ‘or possibly penile’, they’d throw out counts 1 and 2 as well, because apropos counts 1 and 2, the complainant said they were all digital and, on your argument, the statement by the police officer ‘possibly penile’ would show just as much uncertainty in relation to counts 1 and 2.
I understood counsel to acknowledge the force of these observations and no convincing reply was made. That last comment is not to be taken as any reflection on counsel since I consider that there was simply no reply to be made.
The second of the two arguments advanced was that the jury may have had a doubt as to whether the complainant may have been aged 17 at the time of count 3. I consider that that is an impermissible line of argument in the present circumstances. J gave clear evidence that she was 15 or 16 in Year 11 at the time and also clearly stated that she left home some time after count 3 when she was 16. No one at trial ever suggested she might have been over 17 at the time of count 3 and there was no basis to do so. Indeed, if there was any basis (for example, dated records associated with her address immediately after she left home) the prosecution would have been under a positive duty to disclose such material as being inconsistent with guilt of the charge. Equally, if there was any such material known to the accused, he could easily have brought it to bear without prejudicing his overall tactical position.[70]
[70] For example in a submission of no case to answer in the absence of the jury.
In any event, I consider that the prosecution submission here was the type of matter referred to in the decision in R v Gbojueh[71] by Gray and Sulan JJ thus:[72]
The Director submitted that this conduct by the complainant prior to the first count of rape, if accepted by the jury, could have caused the jury to consider there was a doubt as to the question of the defendant’s state of mind. It was suggested that the alleged conduct of the complainant could have led the defendant to believe that she was leading him on, so that he was in a state of mind that she was consenting when in fact she was not. It was further said it was open to the jury on that evidence to conclude that there was a doubt as to whether the defendant had the necessary criminal intent, and in particular that the prosecution had not disproved that the defendant was not recklessly indifferent as to whether the complainant was consenting. To put it another way, that the jury may have taken the view that the prosecution had not excluded a reasonable hypothesis consistent with innocence.
The difficulty confronting this submission is that it stands in sharp contrast to the basis on which the trial was conducted. The submission in our view was no more than speculation. There was no evidence to support the submission. It was not the defence case that the defendant may have been mistaken about the complainant’s consent. The issue at trial was whether or not there had in fact been consent. Neither counsel referred to the possibility of a mistake or a lack of intent on the part of the defendant. The respective versions positively excluded any possible misunderstanding. The question did not arise. The trial Judge did not raise any such question during his summing up or suggest that any such issue arose for the jury’s consideration. An appeal in this Court is not to be treated in isolation or ignoring how the trial proceeded before the jury. An appeal court should have regard to how the case was conducted at trial. An appeal is not an academic or intellectual exercise to be conducted in a vacuum. It is intended to deal with the merits of the case as it was presented before the jury.[73] Generally, the parties are bound by the way in which the case was presented at trial, although there are instances where the incompetence of counsel in presenting the defence case may result in the appeal court considering matters not raised at trial. As we have observed, the theory advanced by the Director bears no resemblance to the manner in which the evidence unfolded.
We do not consider it to be tenable that the evidence referred to the Director could be said to provide a basis on which the jury reached their different verdicts. The Director accepted that this was the only basis on which it could be suggested that the verdicts could be reconciled.
[71] (2009) 103 SASR 545.
[72] R v Gbojueh (2009) 103 SASR 545 at 553.
[73] R v Melville (1956) 73 WN (NSW) 579, 581 per Street CJ.
Giving full consideration to the judgments of the High Court in MFA v The Queen,[74] both in relation to the correct approach to the earlier decision of the High Court in Jones v The Queen[75] and generally, and bearing in mind that Jones was a very fact-specific case, it is nevertheless apparent that there are similarities between that case and the present case. In Jones v The Queen,[76] the jury convicted on two counts and acquitted on one. Gaudron, McHugh and Gummow JJ stated:
The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count. Whatever the explanation may be, however, the jury’s rejection of the complainant’s account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count.
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.
In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury’s finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.
[74] (2002) 213 CLR 606 at 617.
[75] (1997) 191 CLR 439 at 453-455.
[76] (1997) 191 CLR 439 at 453-455.
I consider that the present case is governed by the same principles as those applied by the South Australian Court of Criminal Appeal in R v Hansen[77] and R v Gbojueh.[78]In R v Hansen,[79] the appellant was convicted of five counts of unlawful sexual intercourse with a 14 year old male and acquitted of a three counts, the eight counts relating to three separate incidents. Lander J (with whom Doyle CJ concurred) stated:[80]
In this case it does not seem that the jury’s verdicts on the sixth, seventh and eighth counts can be rationalised for the reasons given by the former Chief Justice[81]. There were three separate incidents. It is very difficult to see why the jury were not satisfied beyond reasonable doubt in respect of two of those incidents but satisfied in respect of the third. In each case the jury had to rely almost entirely on MWJR's evidence. There was nothing about the quality of his evidence which would explain the jury’s satisfaction in regard to the third incident, having regard to their verdicts in respect to the first and second incidents. I do not think in convicting the appellant on those counts and acquitting him on the others that the jury’s verdict can be explained by some innate sense of fairness and justice.
[77] (2002) 84 SASR 54 at 71.
[78] (2009) 103 SASR 545 at 554.
[79] (2002) 84 SASR 54.
[80] R v Hansen (2002) 84 SASR 54 at 71.
[81] A reference to the judgment of King CJ in R v Kirman (1987) 62 SASR 367.

Similarly, in the case of R v Gbojueh[82] referred to above, Gray and Sulan JJ also came to the view that the difference in verdicts bespoke disbelief of the complainant. Their Honours stated:
At trial there was a striking difference between the evidence of the defendant and that of the complainant. The defendant submitted that the complainant consented to the acts of intercourse, the subject of the two charges of rape. The complainant’s evidence was unequivocal - she did not consent, vehemently protested and struggled to resist the defendant. This was not a case where there was a mistake as to consent. Such a conclusion was not open on the evidence.
In these circumstances, the verdicts on the two counts of rape cannot stand together. There was no evidence, other than the complainant’s, to support the third count – the alleged rape in March 2007. No reasonable jury that had applied their mind properly to the facts in the case could have arrived at a verdict of guilty on one charge and not guilty on the other charge. There is no proper way to reconcile the verdicts. The verdict of guilty is unsafe and unsatisfactory.
[82] (2009) 103 SASR 545 at 554.
I find that the appellant has made out ground 9 of appeal and I do so on both of two alternative bases.
The first basis is that, having regard to the verdict of acquittal on count 3 and to the whole of the evidence in the case, I find that the verdicts on counts 1 and 2 are unreasonable.
The second alternative basis is that, having regard to the combined effect of the verdict of the acquittal on count 3; and the whole of the evidence in the case; and the terms of the summing up; and the dangers of a miscarriage of justice posed by the matters of delay; and the relationship between the uncharged acts and counts 1 and 2 as analysed above; and the matters referred to in ground 9 of the Grounds of Appeal (sub-paragraphs 9.2 to 9.8 inclusive), I find that the verdicts on counts 1 and 2 are unsafe and unsatisfactory.[83]
[83] Thus see the approach in Jones v The Queen (1997) 191 CLR 439 at 446 per Brennan J: “The absence of an adequate direction, the acquittal on the second count, the delay in the prosecution and the evidence of the relationship of the child with the appellant and his wife show that the verdicts of guilty on the first and the third counts are unsafe and unsatisfactory. Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal. In those circumstances, it would not have been reasonably open to them to convict on the first and third counts. Therefore it was necessary to allow the appeal.” Similarly see per Gaudron, McHugh and Gummow JJ at 455: “As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.”
Ground 10 of appeal
Ground 10 of the Grounds of Appeal complains of the failure of the trial Judge to comply with s 21(5) of the Evidence Act 1929 (SA) and inform J of her right to make an application to be exempted from the obligation to give evidence against her father. Section 21 relevantly provides as follows:
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3) Where it appears to a court to which an application is made under subsection (2) —
(a)that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of —
(i)serious harm to the relationship between the prospective witness and the accused;
or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness:
and
(b)that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
…
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a)is aware of his or her right to apply for an exemption under this section; or
(b)is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
…
In R v C[84] there was a similar failure considered by the Court of Criminal Appeal in circumstances where the court determined to allow the appeal on other grounds. King CJ there observed:
Although the alleged victim was not made aware of her right to apply for exemption as required by subs (5), she was a competent witness. There was therefore lawful evidence upon which the appellant could be convicted. If this conviction were not to be set aside on other grounds, it would be necessary to consider the application of the proviso to s 353 of the Criminal Law Consolidation Act 1935. Relevant considerations would be degree of any risk of harm to the witness or the relationship with the accused, and the Court of Criminal Appeal’s assessment of whether the nature and gravity of the alleged offence and the importance of the proceedings would outweigh the other relevant considerations. If the Court of Criminal Appeal concluded that any application for exemption would have necessarily been refused, there would be no miscarriage of justice.
[84] (1993) 60 SASR 467.
In the present case there is no evidence as to whether J would have wished to make such an application if she had known of the right to do so and the matter has been left on a completely hypothetical basis. However, I consider that the Court should conclude that “any application for exemption would have necessarily been refused” having regard to the considerations referred to by King CJ. Accordingly, while ground 10 of appeal may be made out as a strict matter of law, I consider that, if it were the only ground to be made out, the proviso should be applied.[85]
[85] I note that a majority of the Court in R v T, T (2004) 90 SASR 567 were prepared to dismiss a similar ground on the basis that the trial Judge would have refused an application if made, expressing the view that it would “be quite contrary to the policy of the law requiring such matters as sexual crimes upon children within families to be prosecuted, that relevant evidence should be withheld to protect the relationships of the accused person by reference to the evidence given by the complainant at trial”.
Conclusion as to the success of the appeal
I consider that the appellant has established non-directions amounting to misdirections in relation to the complaint evidence and uncharged acts as well as making out ground 9 of appeal. There can be no room for the application of the proviso in the present case and counsel for the Crown quite properly did not contend to the contrary.
Order for re-trial or judgment of acquittal?
It is clearly the case that when a verdict is found to be unreasonable on the basis that it can not be supported by the evidence a re-trial should not be ordered[86] and that is the primary finding I make under ground 9 of appeal.
[86] Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
On one view, that should also be the position if a verdict is set aside solely on the ground of inconsistency and this appears to have been the approach taken by Gray and Sulan JJ in R v Gbojueh.[87]
[87] (2009) 103 SASR 545 at 554.
However, I note that in R v Hansen,[88] Lander J (with whom Doyle CJ concurred) considered the possibility of ordering a re-trial in such circumstances but decided against it on the basis that the appellant would be faced with a trial that would proceed on a fundamentally different basis from his first trial. His Honour stated:
I think, in this case, unfortunately the verdicts are illogical and cannot be reconciled. The verdicts, in my opinion, must be set aside. That leads to the question as to whether or not it would be appropriate to order a new trial.
The appellant argued that there should be no order for a re-trial. If there were to be a new trial no evidence could be led of counts one to five or the circumstances surrounding those counts. In those circumstances the appellant would lose the benefit of the acquittals he has received in relation to those counts in the further trial. The appellant submitted that, in those circumstances, the trial would proceed on a fundamentally different basis from his first trial.
I agree. I think the appellant would lose the advantage of the acquittals on counts one to five on any retrial. I would not order a re-trial.
[88] (2002) 84 SASR 54 at 71.
In some cases an appeal is allowed on a number of grounds, one only of which involves a complaint of inconsistency. R v Dolan[89] was such a case. King CJ there upheld the appeal on a number of grounds but also stated:
The most disturbing features of the case are the verdicts of not guilty returned by the jury on the two most serious counts, the one of penetration with a dildo and the other of penetration by the penis. These verdicts are only explicable on the basis that the jury entertained doubt as to the evidence of the girl on these points. She gave clear evidence of penetration on more than one occasion by both the dildo and the penis. The medical evidence was at best from the prosecution’s point of view equivocal. If the credibility of the alleged victim as to these incidents is in doubt, it is impossible to feel any confidence about the truth of the other charges.
If there were another trial upon the counts upon which the appellant was found guilty, the evidence led from the girl could not, as a matter of law, include the dildo incident and the penis incident which were identified as the subject of the charges on which he was acquitted, and in my opinion, could not as a matter of fairness include the other dildo and penile incidents. It would therefore be a fundamentally different story than that put forward at the trial under review and I do not think that a trial conducted under those circumstances could be regarded as satisfactory.
[89] (1992) 58 SASR 501 at 506.
Similarly, in R v K[90] Doyle CJ (with whom Lander J concurred) allowed the appeal principally upon the ground of a lack of a required warning and associate compounding matters. His Honour then stated:[91]
Although subsequent events cannot impact upon the duty of the trial Judge, it is relevant to note that the jury must have had some reservations about B’s evidence. They acquitted the appellant on count three and on count four. The acquittal is not explicable on the issue of penetration, because the jury were also directed on an alternative verdict of attempt. The acquittal might well be due to confusion which emerged in B’s evidence about whether it was count 3 or count 4 that was linked to the video cassette recorder.
Be that as it may, the jury must have had some doubts about B’s evidence at the end of the day. This simply reinforces the point that this was a case in which it was desirable for the jury to be guided in the way in which doubts in relation to a particular count might affect evidence in relation to other counts.
[90] (1997) 68 SASR 405.
[91] R v K (1997) 68 SASR 405 at 411.
His Honour later stated:[92]
The question of whether a retrial should be ordered must be considered in the light of the circumstances of each particular case: Cheatley v The Queen [1981] Tas R 123. Notwithstanding that, it is not uncommon for an order to be made for a retrial.
But there are particular circumstances in this case which lead me to a different conclusion. To begin with, a trial on the two remaining counts would be significantly different from the trial already conducted. In particular, the appellant would lose the benefit of the impact of the evidence given by JJ at the first trial in relation to the video cassette recorder. The appellant would also lose the benefit that he should have got at the first trial from an adequate direction about the possible significance for B’s credibility of the difficulties in the prosecution case relating to counts 3 and 4, and the manner in which those difficulties and any doubt arising from them could affect the jury's approach to counts 1 and 2. Nor can it be said that the prosecution case is a particularly strong one. In addition, we were informed that the appellant has already served almost six months of the 10 month non-parole period fixed by the trial judge when he sentenced the appellant on count 1 and count 2.
Taking all those matters into account, I consider that this is an appropriate case in which to substitute a verdict of acquittal rather than to order a retrial.
[92] R v K (1997) 68 SASR 405 at 415.
Similarly, Lander J stated:[93]
Whilst I agree with Bleby J that it could not be said a properly directed jury was unlikely to convict or that it would probably acquit there are particular circumstances in this case that make it inappropriate to order a retrial and appropriate to substitute a verdict of acquittal. Those circumstances are identified in the reasons of Doyle CJ. The appellant would lose significant forensic benefits which were available to him on the trial of all four counts but would not be available to him on a retrial of counts one and two. In a matter which depends so much on the assessment of the credibility of the complainant those forensic advantages ought not to be underrated.
[93] R v K (1997) 68 SASR 405 at 415.
The present case is clearly within the category of cases where a re-trial would proceed on a fundamentally different basis from his first trial and the appellant would unfairly be deprived of the forensic benefit of the acquittal on count 3. In addition, other factors such as the delay in prosecution and the lack of strength of the prosecution case militate against a re-trial.
Accordingly, on either approach, I would order that a judgment and verdict of acquittal be entered on both counts.
Orders
I would allow the appeal, quash each of the convictions on count 1 and count 2 and direct a judgment and verdict of acquittal be entered on each of count 1 and count 2.

10 July 1974	Date of birth of J.
10 July 1986	Start of date range for count 1 at Eden Street (J’s 12^th birthday).
31 July 1987	· agreed date when the appellant’s family moved from Eden Street to Charlton Gully: · end of the date range for count 1 at Eden Street. · start of date range for count 2 at Charlton Gully. · start of date range for count 3 at Charlton Gully.
28 June 1988	Ex-police officer Ms Sharon Pearson filled in a crime report in relation to a complaint by J against her father which included the note “on numerous occasions involving penetration of the vagina with finger and possibly penis?” Note that: · It can not be determined whether 28 June 1988 was before or after the period of time within which, on the prosecution case, count 2 was alleged to have been committed. · Subsequent to 28 June 1988, the long statement taken by ex-police officer Sharon Pearson from J was lost, as was the record of a long interview held with the appellant on an unknown date after 28 June 1988.
10 July 1990	J’s 16^th birthday. J states that: · Count 3 occurred when she was 15 or 16. · She left her the Chandler Gully home when she was 16.
10 July 1991	· J’s 17^th birthday. · End of date range for count 2 at Charlton Gully. · End of date range for count 3 at Charlton Gully.
1 May 2006	J signed first statement to Detective Hall: · as to count 1, did not allege that penetration of the vagina had occurred or that her mother was present. · as to count 2, did not describe what was to be later count 2 as a charge separate from the general allegation of digital offending on various occasions in different rooms.
15 May 2006	S stated to Detective Hall that she could not “recall any events or disclosures re sexual abuse” by J and that she would have remembered this if it had occurred.
27 September 2009	J stated to Mr Press, a DPP prosecutor, that “I remember seeing a school counsellor. I don’t remember why I went to see him. Perhaps I was angry at my family for some reason”.
On or about 24 October 2009	S first stated to Detective Hall that she remembered that J had made a complaint to her.
August 2010	At trial, S disputes the evidence (and agreed fact) that on 15 May 2006 S had stated to Detective Hall that she could not “recall any events or disclosures re sexual abuse” by J and that she would have remembered this if it had occurred. She asserts that on 15 May, 2006 she had stated to Detective Hall that she “had a vague recollection but I couldn’t say anything for certain”.
August 2010	At trial, J can give no reason for having said to Mr Press, a DPP prosecutor, that ‘I remember seeing a school counsellor. I don’t remember why I went to see him. Perhaps I was angry at my family for some reason’ and states in cross-examination that she could not remember making such a statement.