R v S, MD - [2017] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, MD
[2017] SASCFC 131
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
13 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
Appeal against conviction.
The appellant was convicted by jury in the District Court for unlawful sexual intercourse and indecent assault committed against his stepdaughter (V) over a period of approximately three years between 1998 and 2001. V testified as to six specific instances of offending which formed the charged offending as well as other uncharged occasions of unlawful sexual intercourse. V particularised her complaints by reference to, among other things, the schools she attended and the houses which the family lived in. V and her mother also gave evidence that the appellant was a generally violent man. The appellant denied any offending.
On appeal, the appellant complains that the Judge’s summing up unfairly bolstered the appellant’s credit, did not direct the jury as to the forensic disadvantage arising out of the passage of time between the offending and the trial, allowed the uncharged offending (both sexual and violent) to be used impermissibly, did not adequately present the defence case, and inadequately directed the jury as to prior inconsistent statements made by the appellant.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), dismissing the appeal:
1.      The Judge’s direction as to the appellants’ memory was permissible. It is commonly accepted, and expert evidence is not required to prove, that some human memories are retained vividly and others are forgotten.
2. The Judge’s direction pursuant to s 34CB of the Evidence Act 1929 (SA) regarding the forensic disadvantage suffered by the appellant as a result of the passage of time was appropriate. The Judge’s failure to use the word ‘significant’ or similar did not occasion a miscarriage of justice.
3.      The Judge comprehensively withdrew his erroneous direction on the inappropriate propensity use of the uncharged offending.
4.      The Judge’s reference to the single occasion of the first uncharged act as a pattern is a misdescription but did not occasion a miscarriage of justice.
5.      The Judge adequately directed the jury as to how V’s testimony could be used, including where V's evidence was inconsistent with the appellant’s defence.
Evidence Act 1929 (SA) s 34CB, referred to.
R v N, RC (2012) 112 SASR 399, discussed.

R v S, MD
[2017] SASCFC 131
Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: On 8 March 2017, the appellant was found guilty of one count of indecent assault[1] and five counts of unlawful sexual intercourse.[2] The finding of guilty of indecent assault was returned as an alternative to the laid charge of attempted unlawful sexual intercourse.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).
The offending of which the appellant was found guilty took place against his step-daughter, V, between 1 January 1998 and 31 January 2001. V was under the age of 17 during the period of the relevant offending. V testified that the appellant was a violent man who physically disciplined her and her brother and argued violently with her mother (M). V gave evidence that the appellant frequently indecently assaulted her and had unlawful sexual intercourse with her many times, including by acts of cunnilingus, digital penetration and vaginal intercourse. V recounted a particular occasion when she was touched on the breast prior to the first of the charged acts but otherwise could not recall the uncharged acts with any specificity. The appellant denied all of the charged offending.
The appellant appeals his conviction on grounds largely directed to the Judge’s summing up. Briefly stated, the appellant alleges that the summing up was prejudicial to him because:
·    the specific directions on V’s memory unfairly bolstered her credit;
· the jury was not adequately directed pursuant to s 34CB of the Evidence Act 1929 (SA) on the appellant’s forensic disadvantage arising from the passage of time between the alleged offending and the trial;
·    the Judge’s directions on uncharged acts allowed those uncharged acts to be used as impermissible evidence of sexual attraction or a pattern of conduct;
·    the Judge did not properly present the defence case;
·    the Judge erred in directing the jury on the use of the uncharged acts of violence; and
·    the Judge erred in his directions on the complainant’s explanation for certain prior inconsistent statements in which she denied that the appellant had abused her physically or sexually.
I would dismiss the appeal. The Judge’s direction on memory did no more than state the obvious that some childhood recollections are vividly retained whereas others fade. In any event, the issue at trial was whether the jury could be satisfied beyond reasonable doubt that V’s testimony was not fabricated and not that her memory was confused. The directions on the general forensic disadvantages caused by delay were appropriate and there were no case-specific disadvantages on which directions were required. The Judge’s direction on the use of the evidence of other sexual acts as evidence of sexual attraction were withdrawn when the jury was recalled for further directions. The Judge only left the first touching of V’s breast as evidence which might explain V’s submission and the appellant’s audacity in the commission of the offences. That direction was favourable to the appellant despite the oddity of suggesting that that single incident showed a pattern. All of V’s evidence of the appellant’s sexual and other violent offending was relevant for that purpose and it plainly did exhibit a pattern of behaviour which explained how and why the offending continued.
The Judge adequately put the defence case which was a bare denial of any offending. The Judge properly left the acts of violence to be used to explain V’s lack of immediate complaint. The Judge’s directions on V’s explanations for her inconsistent statements properly summarised the totality of V’s testimony on the topic.
My reasons follow.
The evidence
V gave evidence at her trial. She is now 31 years old. When V was three her mother commenced cohabitation with the appellant. V only learnt that the appellant was not her biological father when she was about eight years old.
V described the relationship between M and the appellant as mostly violent. They yelled and screamed as well as punched and wrestled each other. They fought or argued every one or two weeks. V testified that when they argued the appellant threatened her mother, who suffered from a major psychiatric disorder, that if she did not shut up he would take her back to Glenside Hospital. V testified that she was scared that she would lose her mother.
V testified that she first witnessed violence when the family was living at their first house in Blair Athol. She gave evidence that M and her stepfather were arguing about money when the fight moved to the front yard where she saw them throwing punches at each other and kicking each other while wrestling on the ground.
The next violent incident V recalled took place in a house at Parafield Gardens. Once again an argument started about money. M threw a drawer of a filing cabinet at the appellant, who responded by rugby tackling her. V ran away, but as she was running away she saw her stepfather sitting on top of and punching M with both hands ‘one after another’.
V testified that after that incident she and M moved into a women’s shelter. V gave evidence that she was about 15 at the time and agreed that it was probably in October 2001.
V also described occasions when the appellant was violent to her and her brother. On one occasion at their house in Parafield Gardens house the appellant lifted her brother up by the throat and threw him up against a wall. According to V, the appellant violently disciplined her and her brother. He hit them as hard as he could on the palm of their hands with a metal or wooden ruler. V said that after such beatings she was unable to make a fist. The appellant also hit V and her brother on the backside. They were only hit on the backside when they were really naughty, and it was usually with a belt against their bare backside. Unsurprisingly, V said that she was scared of the appellant.
V testified that the appellant first sexually assaulted her and she was still in primary school when the family was living in Blair Athol. V identified the first assault by reference to an occasion on which she was to help her aunt J deliver pamphlets. She first made the appellant a cup of tea and took it to him in his bedroom whilst aunt J and V’s mother were waiting outside. In the bedroom the appellant massaged one of her breasts, underneath her singlet top, for a minute of two. V testified that it happened on a hot day during summer, which was why she was wearing a tank top. That assault was not a charged act.
V gave the following evidence on when the first incident occurred:
Q.Can you just say what happened the very first time that you say that [the appellant] inappropriately touched you.
A.What would you like me to say?
Q.Well, do you know what year it was.
A.The same year I had FAYS [Family and Youth Services] come and see me. 1998.
Q.And was it at the beginning of 1998.
A.Yes.
Q.And it was summertime, was it.
A.Yes.
Q.So does that mean it occurred over the summer of ‘97, ‘98.
A.It was the beginning of 1998.
Q.So it couldn’t have been the end of 1998.
A.No.
Q.It was definitely the beginning of 1998.
A.Yes.
Q.And why are you sure about that.
A.Because it was the beginning of the year, beginning of year 7.
Q.So it was the beginning of the year when you were at [Primary School].
A.Yes.
Q.And you were doing a pamphlet run with your Aunt [J].
A.Yes.
Q.Had you delivered the pamphlets.
A.No, not yet. She just come to pick me up. It was after school.
Q.So it had been a school day.
A.Yes.
Q.And you had been to school that day.
A.Yes.
Q.So it wasn’t during the school holidays.
A.No.
It was an agreed fact that V attended the primary school where she completed year 7 at the end of 1998. She attended high school from 1999 until 2002 when she completed year 11. It was also an agreed fact that V and her family vacated their second home in Blair Athol on 3 September 1999 and moved to Parafield Gardens where they lived until November 2001. It was agreed that Housing SA records did not show when the family first moved into the second Blair Athol house. However, V testified that the family had lived at the second home in Blair Athol for about a year before moving to Parafield Gardens which meant that they moved to Blair Athol in September 1998. On the other hand, even though M was uncertain, she testified that her family had lived at the second home in Blair Athol for longer than one year and that they were there before V started year 7. At another point in her evidence M testified that the family was at the second home in Blair Athol for ‘some months’ before V started high school.
In cross-examination it was put to V that the first uncharged incident could not have taken place because she was not living at the second home in Blair Athol at the time of the first uncharged offending:
Q.And if I was to suggest that, in fact, these events couldn’t have happened because you weren’t living at [Blair Athol] you would disagree with that.
A.I was living at [the second home in Blair Athol].
Q.But not in the summer of 1997, ‘98.
A.8 - yes. Yes, I was living there.
Q.You were there for about a year, weren’t you.
A.Yes.
Q.You moved in to the house at [Parafield Gardens] in September of 1999.
A.Yes.
Q.Which means you moved in, roughly, to the [second] house at [Blair Athol] in September 1998, give or take a month or two.
A.Yes.
Q.Your evidence yesterday was that this event occurred at the beginning of 1998.
A.It could have, I could have got it mixed up sorry.
Q.See, I suggest that you say it happened at the beginning because you had someone visiting the house, a social worker, from December 1998 to May 1999.
A.Yes.
Q.Do you agree that there was no incident of inappropriate touching by [the appellant] during that time, don’t you.
A.When the social worker was visiting me there was nothing that happened then, it happened beforehand. It happened several times, but I can only remember two exact occasions.
Q.I mean, isn’t it the case that you only started delivering pamphlets in the summer of 1998, ‘99.
A.I had been delivering pamphlets all year.
Q.But it’s still your evidence that this incident and the two incidents when you went into [the appellant’s] room, and he touched you inappropriately, was in the summer of 1997, ‘98.
A.It was in the year - I don’t remember what season it was I just remember it was warm.
Q.You said yesterday it had to have been summer because it was very hot -
A.Yes.
Q.- you were only wearing a tank top.
A.It was warm, yes.
Q.Are you saying it may not have been in summer.
A.Might not have been. I did make my statement a long time ago and it has been in my head for quite a few years now. I’ve tried to block it out so many times.
V testified that the offence charged in the first count as having occurred in the calendar year 1998 also took place at the second home in Blair Athol in similar circumstances to the first assault. V was about to go out to deliver pamphlets with her aunt, but first took the appellant a cup of tea. She wanted to ask him for money so she could buy a drink while she was delivering the pamphlets. The appellant lifted up V’s top, and sucked her nipple. He gave her five dollars for a drink and then she left.
V testified that after the appellant committed the first and second assaults, he did not offend against her until 2000. V gave evidence that a social worker from the Department of Family and Youth Services (FAYS) started visiting their house once a week in 1998. V testified that the visits started while she was in primary school and continued in high school. She said that the appellant did not offend against her during the period that the FAYS social worker attended their house. It was an agreed fact that a social worker from FAYS visited the house and met with V on a weekly basis between 17 December 1998 and 11 May 1999. It follows from the agreed dates and V’s testimony that no offending took place in that period that, if V’s testimony is accepted, the first uncharged act and the first indecent assault must have occurred before 17 December 1998. That date would also coincide with the end of the school term. To so find, it would be necessary to accept that V was mistaken in her recollection that the first uncharged act occurred at the beginning of 1998.
V testified that the next offending occurred in 2000 close to Easter when V’s younger siblings were at a primary school disco to celebrate the end of term. On that night, M and her friend, D, went out to play 8-ball as they did every Thursday evening. D lived closer to the primary school so V and the appellant stayed there alone while her siblings attended the disco, and M and D played 8‑ball. V was on D’s bed petting her cats when the appellant came in and lay down next to her. He indecently touched her chest before penetrating her vagina with his finger. That penetration was the subject of count 2. The appellant then engaged in penile intercourse which was the subject of count 3. V described a harrowing experience which ended with her rushing off to the toilet. While she was in the bathroom, the appellant left to pick up her siblings. When he returned V said she was curled up into a little ball in the lounge room. The appellant offered her chocolate. M and D came home about an hour or so later.
V gave evidence that the next offending she could recall took place in July 2000, on the appellant’s birthday. She stayed at home instead of going out with her family because she was not feeling well. The appellant also stayed and they were alone. The appellant took V into his bedroom where penile vaginal intercourse took place. That was the subject of count 4.
V’s evidence was that at the time she was not taking the birth control pill, but that the appellant asked whether she wanted to commence taking it. He told her that she should take the birth control pill because she was always tired and grumpy. At some point around the age of 13, M took V to a doctor who prescribed the pill. The appellant’s counsel put to V that she commenced taking the pill because she had become interested in boys. V agreed that she became interested in boys from about the age of 15 or 16, but denied that that was the reason she was put on the pill.
V gave evidence that the offending the subject of count 5 occurred when she and her family were still living at Parafield Gardens. V testified that she shared her bedroom with her sister but that her sister often slept in her mother’s bed, and so the appellant would sleep in V’s room in her sister’s bed. V agreed that the appellant also slept in her sister’s bed because it had a firmer mattress which was better for the appellant’s bad back. V said that on one such night the appellant came over to her bed, pulled down her boxer shorts and licked her vagina. V identified this occasion as the only time that the appellant engaged in oral sex with her.
The jury found the appellant not guilty of the offence of attempted sexual intercourse charged in count 6 but returned a verdict of guilty on the alternative count of indecent assault. On that count V testified that one day after school, the appellant invited her out to the back shed. M was picking up V’s brother and sister from school at the time. The appellant asked V to kiss his penis. While the appellant was standing directly in front of V, he pulled his penis out of his tracksuit pants and put his hand on V’s shoulder and moved his penis closer to V’s face. V said that she put her lips on the appellant’s penis before recoiling. The jury’s verdicts on that count appear to follow from the Judge’s direction that a kiss without licking or sucking is not intercourse, and that the jury may have difficulty in finding that the appellant had the requisite intention for an offence of attempt. The Judge then directed the jury that the alternative verdict of guilty of indecent assault was open on the evidence that the appellant was pushing on V’s shoulder at the time.

The last of the charged offences occurred on about 11 January 2001 at the Parafield Gardens house. On the day of a birthday celebration for the friend of the family, V was alone in the house with the appellant. After showering, V went to the master bedroom to blow dry her hair. The appellant came in and had penile vaginal sexual intercourse with her.
V gave evidence that the appellant would regularly brush up against her breasts but those occasions were not specified and there were no charges in relation to that conduct.
V gave evidence that the appellant had sexual intercourse with her on other occasions which were not charged. She testified that after the first instance of intercourse, it happened again almost fortnightly, and then increased to weekly. Between the first and second charged acts of intercourse, V said that the appellant had intercourse with her, but that she could not remember ‘what room, I don’t remember the time and day’ and that ‘I have a lot of memories, they are either in my room or in mum and [the appellant’s] room’. She later agreed that she could not remember anything about the times that the appellant had intercourse with her between the time at her mother’s friend’s house and the incident in July 2000 when it was the appellant’s birthday. In response though she repeated her suggestion that it was happening every week. She agreed that M did not see it happening.
V testified that in November 2001, she was living in a women’s shelter with M. It was an agreed fact that on 1 November 2001, V spoke to a social worker named Keryn Feeney who noted that V said:
[V] said [the appellant] does not hit her, he has grounded her once before and one he got angry with her, but her mum usually deals with the discipline of the children.
In cross-examination, it was put to V that this was inconsistent with her evidence that she had been beaten by her stepfather. V explained that statement by testifying that at the time she was scared. She also gave evidence that she did not remember what she said.
It was also agreed that on 12 November 2001 V was interviewed by a psychologist whose report stated:
[V] did report that [her mother] had previously smacked her during arguments. In contrast to her relationship with her mother [V] denied that [the appellant] had ever hit or physically abused her. She described her relationship with him positively and explained this because he defended her in arguments with her mother and was lenient in enforcing house hold rules.
V testified she did not remember speaking to the psychologist but that she remembered being very scared. V was cross-examined about her statement to the social worker:
Q.In any event, [V], I suggest that on 1 November 2001, you spoke to a social worker by the name of Keryn Feeney and this is, to put it in context, after your mother and your father had separated for the last time.
A.Yes.
Q.And I suggest that she asked you some questions about your father.
A.Yes.
Q.And you said this to her ‘[the appellant] does not hit me. He has grounded me before and one time he got very angry with me, but mum usually deals with the discipline of the children’.
A.I was scared at that time but, yes, I would probably say that.
Q.Do you agree that’s what you said.
A.I don’t remember what I said. I don’t remember what I said.
Q.Can I also suggest that you were interviewed by a psychologist, a Miss Harris, on 12 November 2001. This is again after your parents had separated.
A.Yes. I don’t remember speaking to a psychologist.
Q.You don’t remember speaking to -
A.No. No, I don’t remember the psychiatrist, the social worker. It was 15 years ago.
Q.Now notwithstanding, I understand you don’t remember it, I’m required to do it this way: did you say to Ms Harris, the psychologist, that your mother had previously smacked you during arguments about that, your father had never hit or physically abused you and you described your relationship with him positively and explained that he defended you in arguments with your mother and was lenient in enforcing house rules. You say you can’t -
A.I don’t remember seeing the psychologist, I don’t remember - I remember being very scared.
In re-examination on this issue V gave the following evidence:
Q.You said you don’t remember speaking to those particular people, is that right.
A.No, I don’t.
Q.Do you remember speaking to anyone about the accused while you were living in the women’s shelter.
A.Yes.
Q.You said that you were scared at the time you were having those conversations, is that right; that was your evidence -
A.Yes.
Q.- before the break. Why were you scared.
A.I was scared and frightened that I was going to get him into more trouble and that he would come looking for me.
Q.Your parents had previously had fights and broken up, hadn’t they.
A.Yes.
Q.And gotten back together afterwards.
A.Yes.
At the trial, the only other prosecution witness was M. M testified that she saw the appellant physically discipline V and her brother. Among other things, he would smack them with either a metal or wooden ruler on the back of their hands, or their bare backsides. M also testified that the appellant had once lifted V’s brother up by this throat. She said that she only saw the appellant use a belt to discipline V and her brother a couple of times when they were in about grade three or four.
M also testified she physically fought with the appellant. She gave evidence about the fight at the first house in Blair Athol. She said that she could not remember how it started. The appellant hit her a couple of times inside the house before she left through the front door. She said that she ended up on a raised garden bed and screamed ‘help he’s killing me’ before she blacked out. In cross-examination M denied that the appellant was trying to prevent her from driving away in the car while she was intoxicated and drug affected.
M also gave evidence about a fight over money with the appellant at their Parafield Gardens home, just before she ended her relationship with him. She threw a box of receipts that she had retrieved from a cabinet at the appellant. The appellant fell off his chair, then came at M. She testified that the appellant threw her onto a coffee table, jumped onto her chest, pinned her arms down and started punching her with both arms. That was the last major argument they had before they separated.
M admitted that she had been detained at the Royal Adelaide Hospital and Glenside on between four to six occasions during the course of her relationship with the appellant. She said that on each of those occasions she would be detained for either one or three weeks. On returning home, the appellant would threaten that if she did not behave he would ring the mental health service team and send her back. She denied that the appellant was doing no more than offering to call if she were unwell. She said that the appellant was bullying her.
M admitted that she used cannabis almost daily. She agreed that the appellant did not use cannabis. She said that she had also used methylamphetamine but denied that she was a regular user at the relevant time. She said that the appellant occasionally used speed.
M testified that she spoke to V about taking the contraceptive pill after the appellant raised the topic with her when V was about 13. She said that the appellant said that V was dating or wanted to date boys and that she should be on the pill before she did. According to M, they spoke to V’s general practitioner about it who prescribed the pill when V was about 13 or 14. M testified in cross‑examination that the appellant was worried that there were twin boys who were interested in V and who might ‘get her pregnant’. She later agreed that the appellant and those boys were just friends.
It was an agreed fact that M had been interviewed by a psychologist on 12 December 2011. M denied to the psychologist that her children were ever victims of abuse or violence by the appellant. M testified that she could not remember speaking to the psychologist and could not specifically remember ever making that statement. She said that the statement that the appellant never hit the children was a lie.
The appellant gave evidence on his trial. He testified that he and M started seeing each other when she was about 20. He said that, prior to that, he had not had any other significant relationships but that he had one child with a former partner.
The appellant claimed M was a constant user of cannabis and methylamphetamine. He denied using those drugs himself. He agreed that while he was caring for M, he would sometimes have arguments and fights with her.
The appellant testified that M’s drug use was the cause of the first fight in the first house in Blair Athol. The appellant gave evidence that M, who had taken drugs on that day, wanted to go somewhere and that he tried to stop her from driving away in his car. He said that M pushed passed him through the front door. The appellant’s evidence was that he and M fell out of the door. She landed on him and he rolled over to pin her down. A man who lived across the road called out to them that he had rung the police.
The appellant agreed that he argued with M over money when they lived at Parafield Gardens. The appellant testified that he wanted to know what M had done with the money. They pushed each other around and ended up fighting on the floor in the lounge room.
The appellant agreed that his relationship with M was stormy and said that they would both be violent towards one another. He said that she would punch him, but that he would never punch her. He admitted that sometimes the fighting took place in front of the children but that most of the time he tried to stop that from happening.
The appellant testified that he acted as the father of M’s children and had a good relationship with V and her brother. The appellant testified that M generally disciplined the children, usually with her hand. He said that he used to ‘growl’ at the children but that he never physically hit them. He denied hitting them with rulers or his hands and denied smacking them on their bare bottom. As V got older, the appellant said that they got on ‘reasonably well’.
The appellant denied ever being violent towards V. He also denied ever licking or sucking her breast, having sexual intercourse with her, asking her to kiss his penis or performing oral sex on her. He denied that a social worker ever came to the house.
He denied any memory of an occasion when M played 8-ball with D on a Thursday night when V’s siblings attended a school disco. He said, if it did happen, he could not see why he would be alone with V as they usually attended D’s house as a family. He said that if there were a disco, then M would have taken her children to it. He denied all allegations of sexual intercourse or inappropriate touching on that night.
The appellant testified that they moved into the second house in Blair Athol in 1998, but in another answer testified that they resided there for seven or eight months before September 1999 when they moved to Parafield Gardens.
The appellant testified that V started taking the contraceptive pill when she was about 14 years old. The appellant gave the following evidence on that topic:
Q.How did it come that she went on the contraceptive pill.
A.She was starting to get interested in boys, and I was getting a little bit worried because of her age, and we - I thought it would be a good idea if she, you know, maybe had some protection if she started seeing boys.
Q.And did you talk to … about that.
A.Yes, I did.
HIS HONOUR: Do you mean [V] or her mother?
XN
Q.Her mother, …
A.Yes.
Q.Did she thereafter go on the pill.
A.Yes, she did.
Q.Do you know who took her to the doctor in relation to that.
A.I am not sure, but normally if we went to the doctors we used to all go together.
The appellant denied ‘pushing’ M to agree that V should take the pill, but admitted that he may have suggested it. He testified that he was not sure whether V was seeing any boys at around that time and that she had not expressed any sexual interest in any boys. He agreed that he did not let V date boys when she was 14. His evidence was that he thought it possible that she might start dating one of the two boys who lived around the corner boys but also said that as far as he knew she was not seeing or dating them. He denied wanting V to take the contraceptive pill because he was having sex with her.
The appellant testified that towards the end of his relationship with M he felt emotionally drained and testified that he was prescribed antidepressants.
In cross-examination, the appellant agreed that he slept in V’s bedroom in the Parafield Gardens house possibly once or twice a week over the period of a few months because a bed in that room had a firmer mattress. He was never concerned about sleeping in V’s room and he never had a conversation with V or M about it. He explained that he could not afford to buy a new bed after he had injured his back. He denied having regular intercourse with V while he slept in the same room as her. He testified that he could not sleep in V’s brother’s room because it smelt.
The appellant’s current partner was called to give evidence. She denied that the appellant had ever been violent with her. She also has children from a previous relationship whom the appellant cared for. She denied that the appellant had ever been physically violent towards them.
Ground 1
The appellant complains that the Judge unfairly bolstered the credibility of the complainant by observing that some memories of childhood events are vividly retained. I understand that complaint to be that the Judge’s observation on the evidence in the case resulted in a miscarriage of justice.
The Judge early in his summing up told the jury that they alone were the judges of facts and that if his Honour said anything about the facts with which they did not agree, they were bound to act on their own assessment of the facts. On the topic of V’s evidence about prior inconsistent statements that the appellant had not assaulted her, the Judge gave the following directions:
[12]You should take into account any demonstrated inconsistencies in the evidence of any one witness, or inconsistencies between evidence of one or other witnesses. You should take into account the effect upon memory of the long delay - now up to 19 years or so - between the time when the first of these events are alleged to have taken place and the time of this trial. You should take into account the general frailty of human memories, and the possible distortion of memories and events in our childhoods and teenage years. Ladies and gentlemen you are also entitled to consider whether or not some events in our early years and in this case it is really early teenage years, are so indelibly impressed upon our memories that they remain with us forever.
…
[75]You should also bear in mind when considering the effect of any possible inconsistency or apparent inconsistency, that the witnesses were describing events that happened many years ago now, getting quite close to 20 years ago, and of course, in [V’s] case she was describing evidence that happened many years ago when she was a child, or a young teenager.
[76]Ladies and gentlemen, as I said earlier, we all know that human memory is frail. We know that memories of our childhoods do become distorted but you might think that some events in our childhoods are so significant that we retain vivid memories of them or vivid memories of aspects of those events. Some of those memories from our childhood are indelibly impressed upon our memories forever, even if we cannot remember the whole of the evidence or the – or some of the detail – surrounding those significant events. You should bear those matters in mind when considering possible inconsistencies.
The appellant complains that the observation in [76] was unsupported by any expert evidence and that it undermined the defence’s impeachment of V’s reliability by reference to the inconsistencies.
The appellant also complains that the Judge’s observation was not apposite to the complainant’s own explanation for making the prior inconsistent statements which was that she was in fear of the appellant.
I would dismiss this ground. There is no need for expert evidence to support the observation which the Judge made. It is a commonly accepted, and indeed indisputable, fact about human memory that some recollections are retained vividly and others forgotten. Moreover, the observation was apposite to V’s testimony about the inconsistent statements generally in that, even though V testified that she had denied any abuse by the appellant because she was scared of him, V could not recall all of the surrounding details and circumstances of her conversations with the social worker and the psychologist.
Moreover, given the challenge to V’s credibility and reliability based on her earlier denials of abuse, it was appropriate for the Judge to contrast V’s memory of what she may have said to others, and the circumstances in which she made the prior inconsistent statements, many years earlier with her memory of the offending. Indeed, to a large extent, the observation about recollection was only of marginal relevance in that the thrust of the defence case was that the allegations were fabricated and not that V’s memory was confused.
Ground 2
The appellant complains that the Judge’s directions on the forensic disadvantage he faced because of the passage of time were inadequate. The Judge directed the jury:
[77]I now move to the topic of delay. As you know there has been a period of some 19 years or so between the first of the events alleged by [V] in this trial. I am about to give you some directions about that delay.
[78]First I say this: it is important for you to understand that delay in making complaints does not necessarily mean that [V’s] allegations are false. There may be many reasons for the delay. Having said that I say this: the overall delay has led to [V] not being able to remember some matters in detail. Indeed the delay has led to her mother not being able to remember some matters in detail you might think. That factor has disadvantaged the accused, because he is unable to test [V’s] account in detail. For example, he cannot test it about precise dates and precise times and ladies and, gentlemen, the delay in making any complaint may itself cast some doubt on the reliability of [V’s] evidence.
[79]From the accused’s point of view, the delay has disadvantaged him in a number of ways. If there had been a prompt complaint or complaints, he would have been in a position to remember back to relevant times and to remember what if anything had happened at a particular time or on a particular occasion. If there had been a prompt complaint or complaints, he again would have been in a position to remember, perhaps, who he was with or where he was at a particular time, so as to be able to produce evidence disproving the evidence of [V] by way of alibi, although as I have already directed you, and as you must remember, [the appellant] does not have to prove anything at all. If there had been a prompt complaint or complaints, there would have been an opportunity or opportunities for [the appellant] to interview potential witnesses, or perhaps for there to have been scientific or medical examinations or tests for DNA to be undertaken. You must take such disadvantages into account in assessing whether the prosecution has proved beyond reasonable doubt all or any of the charges against the accuse. And because there has been that long delay, and because the prosecution case turns completely on the evidence of [V], you must scrutinise her evidence with special care.

The appellant complains that the references in those passages to the failing memory of the prosecution witnesses undermined the force of the warning given by the Judge. That complaint must be rejected. The point made by the Judge was that V’s claimed failures of memory ‘disadvantaged the accused’ because he was ‘unable to test [V’s] account in detail’.
The appellant also complains that [79] is misleading in that he never testified that he had any difficulty in recollecting. That can be accepted, and the Judge in the direction did suggest as much. Nevertheless, the circumstance that the appellant did not expressly articulate such a complaint in his evidence does not mean that he might not have suffered that disadvantage. It was plain from his evidence that he could not recall all of the details of the family’s movements and living arrangements. Moreover, there may have been details which he had long forgotten which may have undermined V’s account. A judge should not refrain from referring to the forensic disadvantage which an accused might suffer because of his own failing memory merely because the accused has not testified about it.
In any event, the Judge’s direction here was not aimed at any failure of memory by the appellant per se. Rather, it was directed at V’s lack of memory of detail and her failure to provide trigger points which might have enabled the appellant to marshal evidence in support of, and to give a more focussed and detailed response.
The appellant next complains that the direction was general in nature and did not descend into the case-specific disadvantages from which he suffered. The appellant’s counsel, when pressed, could only refer to two such particular disadvantages. The first was that V’s aunt J with whom she had delivered leaflets had passed away between the time of the alleged offending and the trial. However, her passing was not made known to the Judge. Moreover, because on V’s account her aunt was outside at the time of the offending, there was no evidence which she could possibly have given which would have assisted him. The appellant also complains that the Judge did not warn the jury that D, in whose home the offences charged in counts 2 and 3 occurred, may have forgotten events which could have assisted the defence. However, again, V’s evidence was that the offending had occurred when she was alone with him. Furthermore, there was no material to suggest that the passage of time had denied the appellant an opportunity to obtain material evidence from D about playing 8-ball with M, or about the appellant ever having been at her house alone with V the night of the disco or on any other night.
Finally, there was a complaint that the Housing Trust record as to when V and her family moved into the second house at Blair Athol had been lost. However, on V’s evidence, which was largely supported by the appellant, the family moved into that house in about September 1998. The evidence was therefore inconsistent with V’s first account that it occurred in early 1998. However, the records from Housing SA would not have made that inconsistency any more obvious or confirmed it in any way. If the offending occurred on a summer school day at the second house, it must have occurred around early December. The jury plainly accepted that it had.
The appellant faintly argued that the Judge erred in not referring to the disadvantage as a significant one. In R v N, RC, Peek J said:[3]
The second matter is that, although his Honour had ex hypothesi come to a decision pursuant to s 34CB(2) that the appellant has suffered a significant forensic disadvantage, he only directed in terms of a “forensic disadvantage”. I consider that the requirement pursuant to s 34CB(2) that the trial Judge explain to the jury the nature of the forensic disadvantage includes a requirement that his Honour explain that part of the nature of the forensic disadvantage was that it was a significant forensic disadvantage. Without such a direction the jury may have considered that the forensic disadvantage may have been, or have been thought to be, less than significant.
(emphasis in original)
[3] (2012) 112 SASR 399 at 430, [130].
A judge’s satisfaction that an accused’s forensic disadvantage is significant will, as Peek J suggests in that passage, often lead to the use of the word ‘significant’, or a synonym, to qualitatively describe the extent of the disadvantage. However, it does not follow that the failure to use the word ‘significant’ will always occasion a miscarriage of justice. In this case, no miscarriage of justice has been occasioned by not describing the disadvantage as significant.
The real difficulty faced by the appellant on his trial is commonly encountered in the case of sexual offences against children, irrespective of any delay, because they are generally committed in the absence of any witnesses.
I would dismiss the appeal on this ground.
Ground 3
The appellant complains that the Judge directed the jury on the use of uncharged acts to prove sexual attraction when the use of the evidence for propensity purposes was ruled inadmissible at a pre-trial hearing before another Judge. After the jury retired, the Judge was informed of the preliminary ruling. The jury were recalled and the Judge accordingly redirected the jury:
[94]During my summing up when I told you how you could use the evidence of uncharged acts of sexual conduct, I said that you could use them as showing that the accused had a sexual attraction to [V]. I was wrong. You must not use the evidence in that way. Ignore any mention of sexual attraction. I will not go into the details, but I was wrong and counsel have told me why I was wrong. That is not a permissible use of the evidence. Ignore what I said about sexual attraction.
The direction of the Judge unequivocally withdrew his earlier direction. It was not limited to the use of the evidence of uncharged acts to prove sexual attraction. The Judge expressly directed the jury without qualification to ‘ignore what I said about sexual attraction’. In any event, the Judge’s original direction had only referred to the use of the uncharged acts of sexual conduct as propensity. The Judge had not given a similar direction on the evidence of the charged acts. The appellant’s complaint that the jury might have understood the redirection to only withdraw a propensity use with respect to uncharged acts, and not charged acts, must therefore be rejected.
The Judge’s comprehensive withdrawal of the use of the evidence for propensity purposes necessarily leads to the conclusion that the appellant’s complaints that the original direction failed to comply with s 34R of the Evidence Act 1929 (SA), or was otherwise generally deficient, must also be dismissed.
Ground 4
The Judge directed the jury on the use of the first offending which was the uncharged act of touching V’s breasts as follows:
[55]If you are satisfied that those uncharged incidents, or any of them to which I have just referred, occurred and some of them occurred before the charge, the subject of count 1, you may use the evidence of those that happened before the incident in count 1 to explain the accused’s apparent confidence in dealing sexually with [V] on the occasions charged, including count 1. The evidence of any uncharged incident, before the incident the subject of the first count, may explain why the accused thought he could get away with such behaviour with [V]. You may use the evidence as you see fit as evidence of an established sexual pattern against [V] before the first of the charged counts. If you are satisfied that there was such a pattern of sexual conduct between her and the accused before the incident, the subject of count 1, then that pattern could explain why the accused thought he behaved the way that he did, on the first charged count. I should explain ladies and gentlemen, I said ‘before count 1’ because obviously unless you are satisfied that there was some of the uncharged conduct before the first count, you could not use it as evidence of some established pattern of conduct between him and [V] at that time.
The appellant complains that the direction was given in error in that the single uncharged act prior to count 1 could not establish a pattern. So much can be accepted. However, the Judge’s attempt to describe a single act as a pattern could not have disadvantaged the appellant. The jury are unlikely to have been satisfied that that single incident was a pattern. Equally, the jury are unlikely to have been satisfied that, viewed in isolation, that uncharged act explained why the appellant was confident that V would not resist or complain or that it explained why V submitted. For that reason, the direction is advantageous to the appellant. The jury were entitled to have regard to the entirety of the course of conduct to consider whether or not there was a sufficient explanation for the appellant acting as brazenly as he did and for V’s submission and failure to complain immediately. It was the entirety of the conduct which showed a telling pattern of behaviour. The Judge’s reference to the single occasion of the first uncharged act as a pattern is a misdescription but it did not occasion a miscarriage of justice.
Ground 6
The appellant complains that the Judge did not adequately present the defence case. The Judge summed up the appellant’s evidence for the jury in these terms:
[80]Well I turn now to the accused’s case. I begin by giving you this direction. [The appellant] gave evidence on oath. He was not obliged to do so. He had the right to remain silent in answer to these charges, leaving it to the prosecution to satisfy you of all of the ingredients of each charge. But he chose to give evidence. The effect of this is that in assessing his evidence and the weight to be given to it, you are to approach your task in exactly the same way as you would with the evidence of any other witness. It is for you to decide what weight you are prepared to attach to the accused’s evidence in the same way as you would with the evidence of any other witness.
[81]Well ladies and gentlemen, the accused’s case is clear. It is that there was never any sexual contact between him and [V] and that he was never violent towards her or towards her brother. He agreed that there were occasions on which he and his wife, [M], were violent towards each other, but he said that when he disciplined the children he only growled at them. He told us about his memory of [M]’s mental health problems, also telling us that she was a regular user of the drug cannabis, and the drug known as speed. He said he did not use either of those drugs during their marriage.
The appellant complains that the Judge summarised the complainant’s evidence on each particular count but encapsulated the defence case in the paragraphs cited. However, that is an inevitable and necessary product of the fact that the appellant’s case was simply a denial that anything untoward had occurred.
The Judge then continued by reminding the jury of the appellant’s explanations for two aspects of the appellant’s testimony which supported the prosecution case, namely the fact that he suggested that V be prescribed the pill and that he was in the habit of sleeping in her room. The Judge said:
[82]He agreed that [V] went on the pill at his suggestion. He said he thought it would be a good idea for her to do so, so that she had some protection if she started going out with boys. In cross-examination, he agreed that she was not dating at the time she went on the pill and that she had not expressed any sexual interest in a particular boy. He said that at the time she went on the pill he did not let her date and that no-one had asked her out.
[83]He agreed there were occasions when he slept in the same room as [V] and he gave some reasons for that. You will remember that he had a bad back and that [V’s sister’s] bed in [V]’s room had the firmest mattress in the house and that [V’s brother’s] bedroom occasionally stank.
The appellant complains that those reminders of those aspects of the appellant’s testimony undermined the defence case. That complaint should be rejected. The appellant’s suggestion that V take the birth control pill, on its face, corroborated V’s accounts. The appellant gave an explanation for suggesting it in his evidence. It was important that the jury be reminded of his explanation of what, on the face of it, was strong corroborative evidence. The same can be said as to the evidence about where he slept.
Finally under this ground the appellant complains that the Judge did not direct the jury on the impossibility of count 1 occurring in the time and place alleged by V. However, the Judge did remind the jury of that topic in the course of summarising the appellant’s counsel address:
[87]Mr Mead also emphasised the inconsistency between [V]’s account of what she said happened on count 2, when Ms Borek was asking her questions, and what she said about that when Mr Mead was cross-examining her. She said to Ms Borek in what we call examination-in-chief that the accused put his finger into her vagina sliding it up and down, and in cross-examination she said that he rubbed her clitoris. Mr Mead also submitted that if you look carefully at the dates and the times at which they lived at the various houses, count 1 could not have happened. Mr Mead also emphasised the evidence that in all the times he has lived with his current partner there has not been any violence towards her or her children on his part.
In any event, a close forensic analysis of that issue would have simply led to the conclusion that if V were to be believed that it occurred, it must have been in December 1998 and not January 1998. In short, there was no impossibility. Moreover, it is not necessary in law for a judge to direct a jury on every defence argument. The question is whether a failure to do so has resulted in a miscarriage of justice. In this case it has not.
Ground 7
The Judge directed the jury on the use of the evidence of the appellant’s violence in this way:
[67][V] told us that as a result of the violence and of the threats that she heard was scared of the accused and she was scared that she would lose her mother if her mother was sent back to hospital. Ladies and gentlemen, if you accept the evidence that the accused was physically violent and made threats, then that evidence may in turn explain the accused’s apparent confidence in dealing sexually with [V] on the seven charged occasions and thinking that he could get away with that sort of sexual behaviour with her. That is, you may use the evidence of that alleged violence and verbal abuse if you are satisfied that it occurred and if you see fit, as evidence of a pattern of behaviour by which [the appellant] maintained control over members of his household, including [V]. If you are satisfied that he did maintain such control, then that fact may assist you when you consider why [V] did not complain about his behaviour - the subject of the seven counts charged – at the time.
Even though the jury did not hear evidence of any complaint, it was common ground on the appeal that V had made a complaint about the appellant’s conduct when she was 12 years of age and again when she was 16. That evidence of complaint was not led before the jury because of the appellant’s objection. The appellant was then in the favourable position of having before the jury the prior inconsistent statement that there was no abuse without hearing of a complaint V had made at about the time it occurred. Be that as it may, the Judge’s direction focussed on using the evidence of the violence as an explanation for why V did not complain ‘at the time’. The jury were not in any way misled. The evidence did explain the lack of a contemporaneous complaint on, or close to, the commission of each offence even though V did make complaints sometime later.
The appellant also complains that the Judge put a gloss on V’s testimony as to why she had denied violence on the appellant’s part. On that issue, the Judge said:
[74]I remind you here that when asked about the inconsistency between what she said in evidence about the accused being violent and what she said about him not being violent many years before, she said that when [V] said many years before that he was not violent, she was living in a women’s shelter where she had gone with her mother and that there had been occasions in the past when her mother and the children had left but her mother had chosen to go back to the accused. And so [V]’s explanation for saying to the social worker that he had not been violent to her was because she did not want to be in trouble with him if they went back to live with him again. And with respect to the apparent inconsistency about what she said to the first jury on the mistrial and what she said to you the following day about count one, she said she was frazzled on the first occasion and she told you that she even “threw up”, to use her words.
That passage summarises both V’s cross-examination and re-examination on the topic of why she denied any abuse by the appellant.
Conclusion
I would dismiss the appeal on ground 2. I would grant permission but dismiss the appeal on grounds 1, 3, 4, 6 and 7. Permission to appeal on ground 5, which complained of a decision to disallow a question in cross-examination, was refused by a Judge of this Court and the application was not renewed before this Court.
PEEK J: I would dismiss the appeal. I agree with the orders and reasons of the Chief Justice.
NICHOLSON J: I would dismiss the appeal. I agree with the orders and reasons of the Chief Justice.