R v Sciberras

R v SCIBERRAS
[2003] SASC 104
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J: I agree that the appeal should be dismissed for the reasons given by Bleby J.
NYLAND J: I agree that the appeal should be dismissed for the reasons given by Bleby J. I have nothing to add.
BLEBY J:
Introduction
The appellant was charged with one count of unlawful sexual intercourse with a person under 12, one count of gross indecency and one count of indecent assault. The trial Judge directed the jury to find the appellant not guilty on the third count, after having found that there was no case to answer. The appellant was found not guilty on count one, but guilty of the lesser offence of indecent assault. He was found guilty on count two, gross indecency. The appellant was sentenced to a period of three years and two months imprisonment, with a non-parole period of one year and six months. He now appeals against his convictions.
The facts
The charges related to incidents which allegedly occurred while the complainant, whom I will call “C”, was aged between seven and nine years. The appellant was a long term friend of C’s family. He occasionally slept at C’s home.
The first count, on which the appellant was found not guilty, related to an occasion when the appellant slept over at C’s house. C was sleeping in a tent-like cubby house erected in her bedroom. The appellant was sleeping in her bed. The appellant was alleged to have had anal intercourse with C whilst C was in the cubby house. C gave evidence that she had woken up during penetration. By their verdict of guilty of indecent assault, the jury were not satisfied that penetration had occurred. I will refer to this incident as the “cubby house incident”.
The second count, on which the appellant was convicted, related to an incident where C was showering, and the appellant was alleged to have walked naked into the shower and shown C his penis and pulled back his foreskin. C ran from the shower to her mother’s bedroom. At that time her mother was shopping. C was at home because she had chicken pox. I will refer to this incident as the “shower incident”.
The third count, on which the Judge found that there was no case to answer, related to an incident during a New Year’s Eve party at C’s home in December 1999. C was alleged to have been sitting on a stool in her bedroom when the appellant pulled her from behind so that she was touching his groin. That was how the case was opened for the prosecution. In fact, there was no evidence of such an incident, which is why the trial Judge found no case to answer. However, C did give evidence that on the same night she was sitting on a stool in her bedroom when the appellant came and from behind squeezed her breasts with his hands. I will refer to this as “the New Year’s Eve incident”.
In addition to the incidents which I have mentioned, there were two other incidents which were described by C in evidence. One of these incidents again involved the appellant coming into the shower in a similar manner to that alleged in count 2, whereupon C escaped by locking herself in the toilet until the appellant left the room. The second incident involved the appellant allegedly rubbing his penis against C after they had returned from a meal at a restaurant known as “Charlie’s Diner”. I will refer to this as the “Charlie’s Diner incident”.
C’s evidence was to some degree inconsistent with previous statements she had made and with the evidence of C’s mother. C was approaching the age of 12 at the time when she gave evidence. She was unable to place the incidents other than the New Year’s Eve incident in any chronological order. However, all except the New Year’s Eve incident seem to have happened before C’s older brother died on 14 October 1999. There was independent evidence that [C] saw a doctor on 30 October 1998 when she presented with chicken pox.
The uncharged incidents – the trial Judge’s directions
The trial Judge gave some directions to the jury about the use which they could make of the evidence said to relate to the third count, on which the trial Judge directed an acquittal. The Judge said:
“The evidence which went towards proof of that count is still available to you for use in the case. You are not asked to discard or ignore that evidence. You will recall that the reason I directed you to acquit on that count was because a particular incident described by [C] was not the incident upon which Ms Boord opened the case. However, both the incidents described by Ms Boord in her opening address (the pulling back of the child on her stool onto the accused’s groin) and the incident described in evidence (a squeezing of her breasts) were said to have occurred on New Year’s Eve 1999 and so it did not appear as if two different occasions were being described. Accordingly, this is a matter which is available to you for use in assessing [C’s] honesty and reliability. It is not easy to see how this evidence can assist the prosecution but plainly it can assist the defence in as much as it highlights that [C] has not been consistent about the New Year’s Eve incident. In summary then, the use that you can make of that evidence, notwithstanding the accused’s acquittal of count 3 is in assessing [C’s] evidence generally and the weight, if any, which you would be prepared to give to it.”
Mr Boylan QC, for the appellant, accepted that the evidence which C gave of the New Year’s Eve incident was, in effect, evidence of an uncharged act, there being no evidence of the act opened on by the prosecutor. In cross-examination C did admit that she may have told the police that the appellant had tried to touch her “down below”, but she added that “he tried to, but then he only got up to my breast and that’s when I flopped him back”.
Immediately after the passage of the summing up which I have quoted, the trial Judge gave the following direction in relation to the other uncharged acts:
“You will remember that apart from the two live charges, counts 1 and 2, and the incident which was the basis of count 3, there are two other incidents described by [C] which are not the subject of charges. The first of those is the second shower incident – because you will remember, and I have just referred to it, that [C] described two occasions when the accused came into the shower with her – and the other one I could conveniently refer to as the Charlie’s Diner incident. So these are two “uncharged incidents”. I wish to give you directions as to the use which you are entitled to make of those. Plainly, you need not reach a decision beyond reasonable doubt about them, but they are material before you which may assist you in assessing [C’s] honesty and reliability. She is obviously the central witness in this trial and in a sense, the more incidents you have before you from her, the better opportunity you have to evaluate her evidence and determine to what extent, if any, you are prepared to rely on it. And so the evidence of the uncharged incidents is available to you as material which may assist you in concluding that [C’s] evidence is reliable, or alternatively it may assist the defence in showing inconsistency or unreliability.
You will remember that in relation to the Charlie’s Diner incident [C] originally claimed that the accused’s rubbing of his penis against her was interrupted by her mother calling her for dinner. But of course the family had already been out to dinner at Charlie’s Diner so that seems unlikely and [C] did not adhere to that version. That sort of inconsistency and, indeed, others which we have already looked at, might give you concern about all of her evidence. On the other hand, you may take the view that since you know that on [C’s] account there were a number of occasions when the accused sexually interfered with her, it is not surprising that her recollection of specific incidents is at times clouded. And if you accept that there were a succession of incidents, you are entitled to treat that as going some distance to explain why the accused seemingly had confidence that he could perform these acts on [C] without fear of her calling out to her parents, or immediately running to them to complain about his conduct. All in all then, this evidence of uncharged acts tends to enlarge the canvas under consideration in the sense that it gives you more of a total picture of [C’s] allegations and enables you to evaluate the specific charges, counts 1 and 2 in a more complete, and the prosecution would say, a more true context.”
The only direction regarding separate consideration of the charges was given at the very end of the trial Judge’s summing up:
“Ladies and gentlemen, I remind you that you are entitled to have regard to all the evidence in the case when assessing the witnesses. But ultimately, in your decision, you must focus on counts 1 and 2, in whichever order you prefer, and the evidence which goes directly to prove those two counts. Only if you are satisfied beyond reasonable doubt as to the particular conduct which is the basis of the particular count under consideration may you convict; and then, of course, only after giving [C’s] evidence that particular scrutiny of which I spoke.”
The appellant complains of two aspects of this summing up. In the first place the appellant attacks the trial Judge’s direction as to the two uncharged acts that “you need not reach a decision beyond reasonable doubt about them”. Secondly, the appellant complains that the trial Judge was insufficiently specific about the use which the jury could make of the uncharged acts. I prefer to deal with the second complaint before returning to the first.
Uncharged acts – directions as to use
Evidence of the uncharged acts was not sought to be used for the purpose of supporting a conclusion that the appellant was likely, from his criminal conduct or character, to have committed the offences in question: cf Pfennig v The Queen (1995) 182 CLR 461.
The admissibility of the evidence as relevant evidence was not challenged at the trial or on appeal. It must therefore be treated as being admissible for a reason of the type summarised by Doyle CJ in R v Nieterink (1999) 76 SASR 56 at [41]:
“The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better understanding what would otherwise appear to be surprising or unlikely conduct by the victim, in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian. In some of the cases the evidence has been evidence of a relationship which was important simply because it was relevant for the jury to know whether the accused and the victim were on good terms or not.”
Nieterink was a case where the appellant was convicted of four counts of unlawful sexual intercourse, one count of indecent assault and one count of gross indecency. Evidence was led of 10 further acts of sexual misconduct involving the same victim. As to the directions that should be given to the jury in such a case, Doyle CJ, at [84] referred to a dictum of King CJ in R v Dolan (1992) 58 SASR 501 at 503:
“In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them.”
Doyle CJ, with whom Perry and Mullighan JJ agreed in Nieterink, then continued, at [85] – [86]:
“The jury had to be told the particular manner in which the evidence could be used. That could be done briefly, and along the lines indicated by me above. Usually it will not be sufficient to speak generally of the evidence as establishing background matters. It is desirable to be quite specific about its proper use, both to help the jury to approach the evidence in the correct manner, and to reduce the risk of an incorrect approach. In a case like this, the term ‘relationship’ should be avoided. The jury should be told that the evidence, if accepted, is evidence of a sexual attraction of the accused towards R.
The jury had to be warned quite specifically not to reason, if they accepted the evidence about the uncharged acts, that the accused had committed similar offences and that the accused was the sort of person who might commit the crimes charged, and find him guilty on that basis. The judge should emphasise that generalised propensity reasoning of that sort is not permissible. The jury should also be particularly warned to convict only if satisfied beyond reasonable doubt that the particular conduct the subject of the relevant count has occurred. They should be specifically warned not to reason that conduct similar to that charged has occurred, and that on that basis they can convict on a particular count.”
The requirement that a generalised propensity warning should be given, whilst necessary in some cases, cannot be taken to be a universal rule in all cases where propensity evidence of the type in question is admitted. Indeed, Mr Boylan QC, for the appellant, did not argue in this case that such a warning should have been given. In BRS v The Queen (1997) 191 CLR 275 McHugh J had said, at 305:
“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.”
That passage was cited with approval by Callinan J in Gipp v The Queen (1998) 194 CLR 106 at [174].
McHugh J expressed a similar view in KRM v The Queen (2001) 206 CLR 221 at [35] – [39]:
35.“It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim and that is so whatever the nature of the charges.
36.It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a ‘separate consideration warning’). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside, cf Jones v The Queen (1997) 191 CLR 439.
37.Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain or reasoning. …..
39.In most cases, however, the need for a propensity warning arises from evidence concerned with subsidiary issues rather than the existence of a multiplicity of counts involving the same or similar offences or by reason of the admission of similar fact or propensity evidence in respect of some but not all counts. If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate. And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment.”
These passages and the observations of other members of the Court were the subject of detailed analysis by the Chief Justice in R v Tedesco [2003] SASC 79, to which reference is made below. I will not repeat that analysis, other than to indicate that the views expressed by the other members of the High Court in KRM v The Queen were not inconsistent with the approach of McHugh J.
A warning against propensity reasoning was not considered universally necessary by the Full Court in R v Kostaras (2002) 222 LSJS 373 (Doyle CJ, Wicks and Besanko JJ). That was a case where the appellant had been convicted of four counts of unlawful sexual intercourse and where the complainant had given evidence in general terms of numerous other incidents of fellatio and indecent acts with which the appellant had not been charged. The Chief Justice said, at [56]:
“The Judge did not direct the jury at all about how they could use the evidence. Had he done so, it would not have been necessary to direct the jury not to use the evidence to support propensity reasoning. I do not consider that such a direction is always essential. There can be a danger in raising and then negativing something that has been suggested by no-one during the trial. But the need for such direction should be considered when evidence is used other than for a propensity purpose, but reveals the character or conduct that might support propensity reasoning. Usually, in such a case, as long as the directions about how the evidence can be used are clear enough and firm enough, that will suffice.”
The failure in that case was to give any directions to the jury at all about how they could use the evidence.

Finally, in R v Tedesco (supra) the appellant alleged a failure to give a propensity warning in respect of charged acts as that evidence might affect other charged acts, but in circumstances where an adequate warning had been given in respect of evidence of some uncharged criminal and non-criminal acts. Having conducted the analysis referred to above Doyle CJ continued, at [19]:
“In the light of these remarks, it cannot be said, in my view, that the law of Australia requires that a propensity warning or direction be given in all cases in which the accused is charged with multiple counts involving the same victim, and evidence on each count is admissible on each other count. In particular, it cannot be said that such a direction is always required even though the prosecution case does not rest on what I will for convenience call ‘similar fact reasoning’ or ‘improbability reasoning’ .”
It is clear on the authorities that the same applies to evidence of uncharged acts where they are not relied on for the purpose of similar fact or improbability reasoning.
In this case, the trial Judge gave tolerably clear directions as to how the evidence of the uncharged acts could be used. In respect of the New Year’s Eve incident the Judge directed the jury that they could use it for the purpose of assessing C’s evidence and the weight which they would be prepared to give to it in relation to the incidents the subject of the charges. That direction was of no assistance to the prosecution.
In relation to the two other uncharged acts the Judge directed the jury that they could use the evidence of those acts to assist in determining C’s honesty and reliability, a direction not unfavourable to the accused, and that if they accepted that there was a succession of such incidents, that could be used to explain why the accused had confidence that he could perform some acts on C without fear of her complaining to her parents. In the light of those directions, Mr Boylan QC correctly conceded that in the circumstances it was not necessary for the Judge to give a general propensity warning. The two directions given were reasonably precise on how the evidence of the uncharged acts could be used. The trial Judge did not direct the jury that the evidence could be used only for the purposes described. That might have been preferable. Such an omission did not, in the circumstances, constitute an error. The Judge prefaced the direction by making it clear that these were directions as to the use that could be made of the evidence. When taken with the later separate consideration warning, it was clear that that evidence could only play a role limited in the way the Judge described it.
The only further question is whether the reference to “enlarg(ing) the canvas” detracted from the specificity of the uses which the Judge had directed. Mr Boylan QC argued that it did, and that it may have induced a line of reasoning to the effect that where there is smoke there must also be fire. I consider that the reference was unhelpful, but I do not consider that it amounted to a misdirection. Taken in context it was the trial Judge’s means of joining the two strands together. It did not suggest any additional use to which the evidence could be put. The directions that were given were adequate when coupled with the separate consideration warning given at the end of the summing up. They did not amount to a misdirection.
Uncharged acts – standards of proof
I identified the uses to which the trial Judge said the evidence of uncharged acts could be put because it has some relevance to the appellant’s complaint relating to the trial Judge’s direction to the effect that the jury need not reach a decision beyond reasonable doubt about two of the uncharged acts.
The appellant complains that at no stage did the trial Judge direct the jury that they must be satisfied of the truth of the uncharged acts before they could be used for any purpose. He argues that it was open to the jury, in the circumstances, to use the uncharged acts as an indispensable link in reasoning to guilt. Therefore, the facts had to be proved beyond reasonable doubt. Alternatively, if the Judge was not obliged to direct the jury that the commission of the uncharged acts must be proved beyond doubt, there was an obligation to make it plain to the jury that they must be satisfied of the truth of the evidence of the uncharged acts.
Gipp v The Queen (1998) 194 CLR 106 is notable for the lack of unanimity among members of the High Court as to the basis of admissibility of evidence of the uncharged acts in that case. The accused was charged with four counts of unlawful and indecent assault and three counts of rape, all concerning his step-daughter. A nolle prosequi was entered to the first two counts of unlawful and indecent assault. Evidence of those events was nevertheless led before the jury without any explanation of the withdrawal of the charges. The trial Judge told the jury that it was led to show the relationship between the accused and the complainant, and that there was no need for the jury to be satisfied beyond reasonable doubt of those background facts. The Court allowed an appeal against his conviction on the remaining five charges.
Gaudron J did not consider that the evidence was relevant to any issue in the trial and was therefore inadmissible. Her Honour considered that such evidence could be made admissible to explain lack of surprise and failure to complain, but in the circumstances her Honour did not need to address the standard of proof where such evidence is admissible.
Kirby J expressed the view, at [142], that it was doubtful that the probative value of the evidence concerning the alleged events outweighed the substantial prejudicial effect of such evidence. He therefore questioned its admissibility. Nevertheless, when read in context, he considered that the trial Judge gave a serious misdirection. That context included a question by the jury indicating concern about the directions given about the use that they might make of the evidence of the uncharged acts. The direction therefore amounted to a miscarriage of justice.
Callinan J considered that the evidence was admissible as propensity evidence, and that as such, the directions were inadequate
McHugh and Hayne JJ, in a joint judgment, dissented in the result, but they were the only members of the Court who considered that the evidence, not being tendered as propensity evidence, was nevertheless admissible “to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed ‘unreal and unintelligible’. Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described.” (Para [72], footnotes omitted). Their Honours continued, at [79]:
“No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour’s statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen (1990) 170 CLR 573 at 579 where:
‘the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so.’
That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present.”
At [81] McHugh and Hayne JJ contrasted that with the requirements of directions for the kind of propensity evidence that describes the manner in which a person commits a criminal or wrongful act, or which shows that a person has a general disposition to commit crime or crime of a particular kind. Therefore, although in dissent, McHugh and Hayne JJ were the only Judges to express the view that where the evidence of uncharged acts is not admitted as propensity evidence, it need not establish the facts beyond reasonable doubt.
That approach was also confirmed by Doyle CJ, with whom Perry and Mullighan JJ agreed, in R v Nieterink (1999) 76 SASR 56 at [82-83]:
“The judge’s direction to the jury relating to the uncharged acts had to deal with the following matters.
The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball and Gipp (at 133-134) per McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.”
That approach was confirmed by the Court in R v Kostaras (2002) 222 LSJS 373. Doyle CJ, with whom on this occasion Wicks and Besanko JJ agreed, said, at [51]:
“The Judge should have directed the jury not to act on the evidence of the uncharged acts unless satisfied of its truth. As I said in Nieterink at [83], it may be that these acts did not have to be proved beyond reasonable doubt. They would have to be proved beyond reasonable doubt if they were to be used as proof of a sexual attraction on the part of the appellant, or as proof of a pattern of conduct from which the commission of the crimes charged could be inferred. But, as I said in Nieterink, to avoid confusing the jury with a reference to different standards of proof, they should simply have been told not to act upon the evidence unless satisfied of its truth. That is the safer course.”
I return to the purpose for which the trial Judge directed the jury that the evidence of uncharged acts could be used. The first purpose was for assisting in assessing C’s honesty and reliability. That did not require proof of any facts beyond reasonable doubt. The second purpose was to explain why the accused seemed to have confidence that he could perform the later acts on C without fear of her complaining to her parents. They were the only two purposes for which the trial Judge directed the jury that the evidence could be used. Neither of those purposes could be said to form or be interpreted as being “an indispensable link in reasoning to guilt” (see Nieterink (supra)). The trial Judge was therefore correct in saying that they did not have to be proved beyond reasonable doubt.
The first permissible purpose did not require proof of any facts. It merely required consideration of apparent inconsistencies in the evidence along with other factors relevant to C’s reliability. It was a matter for the jury, so the trial Judge effectively said, to assess her evidence on these matters and to determine what effect it had on their assessment of her reliability and credibility. When addressing the second permissible purpose, the Judge made clear that the use for this purpose could only occur if the jury accepted that there was a succession of incidents. The Judge did not elaborate further on the standard of proof at that stage. It is apparent from the context that that may have been something less than proof beyond reasonable doubt, but it was made clear that the jury ought to be satisfied that the incidents occurred. That second purpose was not an indispensable link in the evidentiary chain towards proof of guilt. It was a circumstance which, if proved, the jury, along with other evidence, could properly take into account in determining whether they were satisfied beyond reasonable doubt that the offences occurred. For the purpose for which the evidence could be used, the directions as to the standard of proof did not amount to a misdirection.
I agree that introducing directions which specifically negate the need for proof beyond reasonable doubt can be confusing, and that it is better to avoid such confusion by not referring specifically to a lesser standard of proof as was done on this occasion. However, in the circumstances, this did not amount to a misdirection.
Verdict unsafe and unsatisfactory
Mr Boylan QC argued, by reference to M v The Queen (1994) 181 CLR 487 that the verdict on the two counts left to the jury was unsafe and unsatisfactory. That test, as formulated by the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ is as follows:
“The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’. …..
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (at 492-493, footnotes omitted).
In relation to the cubby house incident, C said in evidence that the appellant’s activity was interrupted by C’s mother getting up to go to the toilet. It was established that the door to C’s bedroom was close to that of C’s mother’s bedroom, and was open, and that C’s mother would have to have gone past the open door to get to the toilet. It was suggested that it was impossible for the appellant to return to his bed in the time available, that the cubby house was too small for the appellant to fit into and that C’s evidence of penetration was unreliable, as demonstrated by the verdict of guilty of the lesser offence of indecent assault.
In relation to the shower incident, the appellant sought to make much of the confusion over the two shower incidents, but more particularly of C’s evidence that she ran to her mother’s bedroom with a towel around her and stayed there until her mother and father arrived home. C’s mother gave evidence that on one occasion she had been shopping for milk and that when she came home C came out of the mother’s bedroom. She said nothing about being accompanied by her husband or that C was only wearing a towel at the time.
To this was to be added other inconsistencies said to have arisen on C’s evidence, some of which were referred to by the trial Judge in the summing up.
As the trial Judge said, it was for the jury to assess the reliability of C’s evidence in the light of the obvious inconsistencies. It also had to be taken into account that C was still aged 11 at the time of giving evidence, and was recounting events possibly four to five years old. There were bound to be defects in her detailed recollection of those events, and it was not unlikely that when her version of some events was clinically analysed, their sequence might be improbable. The cubby house was not an impossible location for that incident to have occurred. It appears to have been a rather flimsy tent-like structure standing on the bedroom floor. Some of the appellant’s criticism was based on an assumption as to what, for example, C’s mother might have said if in fact she saw her daughter come out of the bedroom with only a towel around her. The fact is that she was not asked what C was wearing at the time, and there was nothing that would necessarily link the shower incident described by C with the occasion of the return described by C’s mother. C’s evidence allowed a finding that the appellant placed his penis between her buttocks, rather than that he penetrated her anus.
It is not necessary to venture upon every detailed criticism of C’s evidence. They were criticisms which went to the periphery of the principal events, and were not such as to require that a jury should have entertained a reasonable doubt about whether the essential elements of the offences were committed. The jury had been given adequate warnings, not the subject of criticism, about the need to be satisfied beyond reasonable doubt as to C’s reliability. The jury demonstrated some discernment in the analysis of her evidence by bringing in the alternative verdict on count 1. The jury had the benefit of assessing C in giving her evidence. There is no reason to think that they were not alive to the inconsistencies. In my opinion it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the charges of which he was convicted.
Accordingly, I would dismiss the appeal.

[2003] SASC 104

11 April 2003