R v Sierke - [2011] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIERKE
[2011] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
10 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
Appeal against conviction of rape – appellant found guilty by judge alone of raping victim by having anal intercourse with her without her consent – appellant and victim were in a sexual relationship – victim alleged appellant had anal intercourse with her against her will – appellant denied the allegation – trial judge was satisfied as to the credibility of victim – trial judge convicted the appellant. Victim was using alcohol and drugs on the night of the alleged rape – whether trial judge should have considered the reliability of victim as distinct from her credibility – whether miscarriage of justice. Trial judge commented that he “scrutinised all the evidence” – whether onus of proof was reversed. Appellant first interviewed by police 13 months after alleged offending – whether trial judge erred in failing to direct himself relating to delay – whether appellant was forensically disadvantaged. Whether verdict was unsafe.
Held: Appeal allowed – trial judge should have considered the reliability of victim – a miscarriage of justice occurred. Trial judge directed himself properly in relation to onus of proof – trial judge did not reverse the onus of proof. Appellant was forensically disadvantaged by delay – trial judge’s failure to direct himself did not, of itself, amount to a miscarriage of justice to justify setting aside the conviction. There was clear evidence which, if believed beyond reasonable doubt, made out the offence – verdict was not unsafe – retrial ordered.
Evidence Act 1929 (SA) s 34CB, referred to.
R v Curtis (1991) 55 A Crim R 209; R v Daniel [2010] SASCFC 62, applied.

R v SIERKE
[2011] SASCFC 53
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: In my view the appeal should be allowed, the conviction set aside and a new trial ordered. I agree with the reasons prepared by David J.
SULAN J: I would allow the appeal. I agree with the reasons of David J.
DAVID J: The appellant was convicted by a judge of the District Court, without a jury, of one count of rape of a female (“V”). The offence was alleged to have occurred in the early hours of the morning of Friday 15 June 2007 at the house at which the appellant was living. The appellant and V were both full time students at university and at the time of the allegation were in a sexual relationship. The Crown case at trial was that during their relationship V had made it plain to the appellant she was not interested in anal sex. It was her evidence at trial that on the morning of 15 June 2007 he had anal sexual intercourse with her against her will. The appellant denied that such an act of intercourse took place either then or at any other time.
Both the prosecution and the defence called a number of witnesses, some of whom were present at the house during the early hours of the morning of the day of the alleged offending and there was evidence of a complaint made by V to her mother. It was clear however that the prosecution case rested solely on the evidence of V and was directly opposed by the appellant’s evidence.
This appeal is concerned with arguments about the adequacy of the judge’s directions to himself when assessing the evidence of V and also that the verdict was unsafe.
Trial
The prosecution case at trial was that V, who was aged 20 at the time of the allegation, and the appellant were both university students in 2007 and since February of that year had been in a sexual relationship. During that year V lived on campus at the University in provided accommodation and the appellant lived in a house with his younger brother and two other people. During their relationship V would often stay with the appellant overnight at his house. She gave evidence that about two months into the relationship he began asking for anal sex but she made it clear that she was not interested in sexual activity of that kind and gave evidence that she told him not to ask again. She said however he would constantly bring it up. She said she never agreed to have anal sex with him.
She told the Court that throughout their relationship there was a common social activity on Thursday nights. She would often go with her friends to the Marion Shopping Centre complex where there was a pool hall and a couple of bars. She would then meet the appellant later on in the evening. After they met she would usually stay at his house. She gave evidence of Thursday night, 14 June 2007. She, with a number of girlfriends, arrived at Marion at about 9:30 pm and went to a bar called Shennanigans where she started drinking. She told the Court that she was drinking mainly vodka and also took drugs on that evening. She had an ecstasy pill as well as some white powder which she thought was cocaine. She thinks she consumed those drugs at about 11:00 pm. She met the appellant a little before midnight as she usually did, at Shennanigans and they started drinking together. She left Shennanigans at about 1:00 am. When she left she had consumed about four or five standard drinks of vodka initially, and then another one or two drinks per hour for the duration that she was at Shennanigans and then had one further drink at a further establishment called the “New York Bar and Grill”. She went to the New York Bar and Grill with her friends and was not with the appellant. She left the New York Bar and Grill at 3:00 am and then travelled to the appellant’s house, she thinks, by taxi.
When she arrived at the appellant’s house she went outside to a back shed where she joined a number of friends and consumed another alcoholic drink and smoked marijuana. There, in the shed, was the appellant, a friend called Mark Chatfield and another friend, Catherine Harris. At the time Mark Chatfield and Catherine Harris were also in a sexual relationship. After smoking marijuana in the shed, V and the appellant decided to go to bed. She gave evidence that she thought that overall, after her first arriving at Shennanigans until she went to bed, she may have consumed approximately 11 alcoholic drinks. She gave evidence that she woke up due to a sharp pulling pain in her anus and found the appellant with his penis inside her anus. That evidence was the basis of the charge of rape. She had not agreed to him doing that. She yelled at the appellant and was crying and ran outside. At the time this happened it was dark but starting to get light. The appellant came outside to try to console her but she said “Fuck off, don’t follow me”. She returned to the room and demanded that he take her home which he did. She said that she did not see anybody awake when this event happened and any other people who were there, she thought were asleep. In the lounge room area Mark Chatfield and Catherine Harris had been sleeping on a mattress. V gave further evidence that when the appellant dropped her off at her home it was just starting to get light.
She spoke to the appellant a few days later in an attempt to find out why he did what she had forbidden. She did not get a satisfactory answer and the relationship broke up. A few days to a week later she said she missed the appellant and they resumed their relationship, which lasted for about three days before she broke it off permanently. During those three days she resumed having sexual intercourse with the appellant, but stopped part-way through because of the thoughts of what he had done previously.
V gave evidence of trying to tell her mother what had happened. She gave evidence that she telephoned her mother about a week or so after the alleged rape and said to her that she was “raped in the arse”. Her mother put down the telephone and V did not hear from her mother again for some time.
She said that about a month later she spoke to her mother on the telephone and arranged to meet her in the city for lunch. She told her mother what had happened.
As matters turned out, V continued to see Mark Chatfield and eventually formed a relationship with him. At the time of the trial they had become engaged to be married. He accompanied her to the police station on 26 December 2007 when she first complained to the police about the rape.
V was cross-examined extensively at trial. It was put to her that she was lying about the allegations of rape. She said in cross-examination that she did not see anybody in the house other than the appellant between the time of the offending and her finally leaving the house.
A police officer, Donna Marlene Spark, gave evidence that she attended with another police officer at the address of the appellant at about 1:15 pm on 27 July 2008. The appellant was conveyed to the Sturt Police Station, having been arrested, and an interview was conducted. In the interview he denied that he had continually asked V for anal sexual intercourse although they may have spoken about it as a general topic. The appellant said she was not interested. He denied to the police ever having had anal sexual intercourse with V but described an occasion when she behaved oddly when they were in bed together. Whilst touching her in the area of her buttocks she woke, screamed at him and ran from the bedroom. He said this incident stuck in his head but he denied ever having had anal sex with her.
The prosecution called a pharmacologist, Jason Mark White, to give evidence of the effect of drugs. He gave evidence that there would be virtually no effect on V from the taking of an ecstasy tablet at around 11:00 pm on 14 June 2007 and taking a small amount of cocaine about that same time. His expert evidence was that the effect of those drugs is relatively short term so there would be no effect at about 5:00 am to 6:30 am the following morning when these alleged events are said to have taken place. He gave evidence of the effect of cannabis. He said that cannabis does have some impairing effects on functions and can produce some impairment in thinking, ability to concentrate and some impairment of memory. He also gave evidence that the effects of cannabis and alcohol are additive. The ability to concentrate and the ability to think is impaired by both alcohol and marijuana and, according to Professor White, a combination of both would make that impairment greater.
Mark Chatfield and Catherine Harris were both called as witnesses for the prosecution.
They were in a sexual relationship at the time of the allegations. They have since broken up and Mark Chatfield at the time of trial was engaged to be married to V. Mr Chatfield was friends with the appellant and they started a course together at university in 2006. He gave evidence of the common social activity on Thursday nights. By reference to the time in 2007 when exams were held he gave evidence of what happened on the night of 14 June 2007. He said that he went to the appellant’s house at about 11:00 pm and waited for him to come home. They then went out to Shennanigans at Marion, arriving there at about 11:30 to 12:00 midnight. Whilst at Shennanigans they were drinking. He remembers V coming up to them. He said that V said to them that she had been trying cocaine out in the parking lot. They went to a pool hall and from there eventually returned to the appellant’s house at 3:00 to 3:30 am. He did not attend the New York Bar and Grill that night. He said he had not had a huge amount to drink. When he arrived at the appellant’s house, he went outside to the back shed and was there with the appellant and Catherine Harris. At some stage V came into the shed. She said she was not feeling very well and she and the appellant then went to the house to go to bed. In the shed the only person Mark Chatfield saw smoking marijuana was the appellant.
Mr Chatfield then gave evidence that the appellant returned to the shed for about half an hour and smoked some more marijuana. They all then went back into the house. He said that he and Catherine Harris pulled out a mattress and put it on the floor in the lounge room. The appellant went into his bedroom. He thought the time at that stage was approximately 4:30 to 5:00 am. He gave evidence that at that time he went to bed and went to sleep but at about 7:30 to 8:00 am he was awoken by someone crying. He said the crying was powerful and lasted for about ten minutes and it woke both he and Catherine Harris. He spoke to Catherine Harris about the crying but Catherine Harris told him not to get involved, that it was something between the appellant and V. He then went back to sleep. He woke at about 10:30 am. He said that they watched a little bit of television and he and Catherine Harris left by midday.
Catherine Harris gave evidence that she was in a relationship after the night of these events with the appellant, from August 2007 until about March or April 2008. She first met the appellant in about March 2007. She was in a relationship with Mark Chatfield on the night of 14 June 2007. She gave evidence of arriving at Shennanigans on that evening. She left at about 10:30 pm to go to Charlton’s Bar Pool Hall. She was with a friend. At about 1:00 am her friend went home and she went to meet Mark Chatfield and the appellant and V at Hungry Jack’s. From there they went to the New York Bar and Grill and stayed there until about 1:30 am. She was not sure whether V came to the New York Bar and Grill. They left at about 3:00 am and went back to the appellant’s house. She said Mark Chatfield, V, the appellant, a person by the name of Jabul and herself were in the shed outside the house. She saw others smoke marijuana but she did not. She remained in the shed until about 4:30 am and went inside to watch television. She said people left the shed at various times to go inside but V was the first. She said she and Mark were on a mattress in front of the television and Mark was sleeping on and off but she watched television until 8 o’clock in the morning. She went to sleep at about 8:00 am. She said that whilst watching television she did not speak to anybody but at one stage, at about 7:30 am, saw the appellant getting a glass of water. After going to sleep at about 8:00 am, she woke about three hours later. She said she did not hear anything unusual during the time that she was watching television. She left the appellant’s house during mid afternoon. In particular, before she went to sleep at about 8:00 am she did not hear any crying in the house at all and in particular from the bedroom of the appellant.
The mother of V (“VM”) gave evidence of a conversation on the telephone with V in June or July 2007 when V told her that she had been anally raped. V gave evidence that her mother did not give her a chance to elaborate on that complaint. VM hung up on her. She said she did not want to discuss it because the same type of thing had happened to her. VM gave evidence that the telephone kept ringing but she turned it off. Some week or weeks later V rang again while VM was at work and eventually there was an arrangement to meet at a city restaurant. On that occasion V told her of the allegation of anal rape.
It is to be noted that there is no complaint about the judge’s directions to himself on the question of that complaint.
The defence case
The appellant gave evidence denying the allegations. He was a student at university commencing in 2006. In June 2007 he was doing night work during the week and was living with his brother Jonathon, a person called Jabul and Jabul’s sister, Nokki. In June 2007 he was in a sexual relationship with V. That commenced in about February of 2007. He gave evidence consistent with the prosecution case that they would attend a number of bars on Thursday nights at the Marion complex. He would often join others, including V, later because he finished work at approximately 11:00 pm. They usually drank at Shennanigans. When questioned by his counsel about the night of 14 June 2007, by reference to his work, he clocked off at 10:48 pm, then went home. That journey would have taken 15 minutes. He thinks that Mark Chatfield was there and they had arranged to go to Shennanigans. He thinks he arrived at Shennanigans at about 11:30 pm. He gave evidence that he definitely saw Jabul and V there. He thinks he was originally there with Mark Chatfield and Jabul and that V arrived some time later. He said they stayed at Shennanigans until just after 1:00 am and he drank approximately six pints of beer. He said that they went to New York Bar and Grill and outside of that establishment, or Hungry Jack’s, he once again saw V. He said that at that stage V told him that she had taken cocaine. That was the only occasion that she had said anything about taking cocaine. He got the impression that she was much more energetic and excited than normal. They went into New York Bar and Grill until it closed at about 3:00 am. He cannot remember how he got home that morning. He thinks however that he was with Mark Chatfield, V, Catherine Harris and Jabul. When they arrived at his place he went to the shed and smoked some cannabis. He thinks the only person who was not smoking cannabis was Catherine Harris. He gave evidence that he, Mark Chatfield, Jabul and V were smoking cannabis. The appellant gave evidence that he thinks he went to bed at about 4:30 that morning. He denied inserting his penis into V’s anus on that morning or any other time. He denied that on that occasion she jumped out of bed and started yelling at him. He also denied that she was crying loudly and that she went out into the back yard. He said there was no altercation between the two of them about him putting his penis in her anus. He gave evidence that Mark Chatfield and Catherine Harris stayed over on that evening and when he woke the next morning he saw them watching television in the lounge room. He said that V had gone but he did not know how she left the house. He told the Court that that was her normal routine when she stayed over, namely, that she would normally find her own way home by either bus or taxi.
He gave evidence that there was only one break-up of his relationship with V and that was in late July. He then entered a relationship with Catherine Harris. He also gave evidence that he was never confronted by V with her allegation that he had anally raped her. He first became aware that V was alleging rape when he was arrested by the police.
He gave evidence of the conversation he had during the police interview when he said that V had “freaked out” when he was touching her in the area of the buttocks. He said that was not the night of the allegations which he referred to as the “night that [V] said she had taken cocaine”. The occasion he was telling the police about was a different occasion. During that occasion there was no anal sexual activity. He also denied in evidence that he constantly badgered V about having anal sex. He agreed that on one occasion he asked for it and she said she was not interested.
The defence called three witnesses, namely, the appellant’s brother Jonathon, the person known as Jabul, and Jabul’s sister, Nokki. All of them were living at the time in the same house as the appellant. Jabul can remember an occasion when V was said to have taken cocaine. He said he heard this from other people. V was outside Shennanigans, crying, when Jabul heard this information. He said that he went home that evening and saw V back at his house in the shed outside. He formed the impression that V was intoxicated. He said that after he went to bed that morning he did not hear any crying or screaming, or commotion.

Jonathon gave evidence that during the period just before exams in June of 2007 nothing unusual happened in the household. He did not hear any odd noises or yelling or crying. He never saw nor heard V crying.
Nokki, who was also living at the house, could not recall an incident where V was crying in June of 2007.
The trial judge in his reasons considered that the three defence witnesses took the matter no further.
The case came down to a diametrically opposed contest between the evidence of V and the evidence of the appellant. There was no evidence (nor did there have to be) which could fit the traditional description of corroboration and there was very little, if any, outside evidence, other than the testimony of the two main witnesses. Although Mark Chatfield gave evidence of hearing V crying during the night and discussing that fact with Catherine Harris, thus supporting V on that aspect of the case, it is to be noted that the evidence of Catherine Harris is entirely different. Her evidence was that she was awake until 8:00 am and never heard anything.
The judge’s reasons
The trial judge, having summarised all of the evidence and directed himself on the elements of the charge and the onus of proof, plus correctly directing himself on the use of the complaint evidence of the mother, then dealt with the topic of the reliability and the credibility of the witnesses. In relation to V’s evidence he concluded that:
[V] was an impressive witness. She told a coherent story, was frank about her drug use and her drinking. She readily conceded that she could not remember or was unsure of details of some of the events of the night. There was some convincing detail. For example, in describing the accused’s persistent requests for anal sex she spoke of his raising the topic at times when they were bored, saying he knew what he would like to do, but he had been told that he was not even to discuss it with her. In the same way, her description of how she felt about the accused in the days immediately after the alleged offence is convincing.
In my opinion she was a genuine witness who gave accurate and reliable evidence.
He then dealt with the obvious discrepancy between the evidence of Mark Chatfield and Catherine Harris concerning the crying during the morning. He concluded that Mark Chatfield was accurate and telling the truth when he said he heard V crying and that Catherine Harris has, at least, reconstructed events. He then discussed the defence case and found the following:
The defence case is that [V] and Mark Chatfield are liars: that [V] has maintained an elaborate lie for many years and that Mark Chatfield has lied to support her. I reject that submission. [V] has told a detailed and coherent story, a story that fits with the accused’s evidence that they had discussed anal sex on a number of occasions and that she had made it clear to him that she was not interested. I also reject the submission that [V], having heard her mother’s account about anal rape in her mother’s marriage, has woven a false story based on what her mother told her.
He then said:
As I said, the accused gave evidence. He was not obliged to do so. He could have remained silent. I have treated his evidence in the same way as I have treated the evidence of the other witnesses. He was a fairly confident witness who was not shaken in cross examination but there are aspects of his evidence and of his interview with police on account of which I disbelieve him. It seems to me that he told the police the bizarre story of [V]’s “freaking out” to explain her behaviour after the occasion of the alleged offence. Further, he told police that he could remember an occasion when [V] had taken cocaine but that he did not know where it was that she had done so. That is in stark contrast to his evidence that he clearly remembered where [V] took the cocaine and the surrounding circumstances. He admitted in cross examination that he was interested in having anal sex with [V] and that he was aware that she had no desire to do so. I reject his evidence that there was no incident in his bedroom in the early hours of 15 June 2007 as described by [V].
The appellant now argues that, for a number of reasons, the conviction constitutes a miscarriage of justice and should be set aside. He further argues that the verdicts were unsafe and unsatisfactory and could not be supported by the evidence and this Court should substitute a verdict of not guilty.
At the outset I indicate that it is my view that the trial judge has erred in his analysis of the evidence in failing to deal with the question of V’s reliability as distinct from merely considering questions of her credibility.
Although the case was defended on the basis that V and Mark Chatfield were liars, the surrounding facts demanded attention to the question of her reliability, even if she considered she was telling the truth, and so demanded a consideration of the effect of alcohol and drugs, or indeed both, when considering her evidence, bearing in mind of course that there was little outside support. The trial judge in the passage stated above found that he rejected the submission that V and Mark Chatfield were liars. In order to convict the appellant, the judge was required to be satisfied beyond reasonable doubt that V’s evidence was both honest and reliable. He quite correctly directed himself that that of itself is not a basis for conviction. However, he does not discuss the question of reliability.
In R v Curtis[1] the accused was charged with rape. The complainant had consumed a considerable amount of alcohol and smoked marijuana and was admittedly drunk. The issue was one of consent and, in particular, focused on whether at the moment of penetration the accused appreciated that the complainant was not consenting or was recklessly indifferent as to whether she was consenting or not. The judge in that trial directed the jury about intoxication concerning the accused’s perception. The judge also reminded the jury of the effect the smoking of marijuana had on the complainant. Duggan J said:[2]
[1] (1991) 55 A Crim R 209.
[2] (1991) 55 A Crim R 209 at 223.
The circumstances of the case required the jurors to focus their attention on the appellant’s state of mind. The appellant’s interpretation of the complainant’s attitude from her actions was crucial to this assessment. On the appellant’s version the complainant left the room to go to the toilet and a short time later she was seen sitting on the couch having a cigarette with the other man. At this stage she was naked from the waist down and a blanket covered the two of them. In cross-examination she conceded the possibility of this state of affairs. Furthermore she also stated that she returned to the bedroom and, after being grabbed and held by the appellant, decided to lie back on the bed and submit to intercourse. In my view these circumstances rendered it necessary for the trial Judge to give more than general directions as to the relevance of intoxication. The case called for a more extensive direction on how events such as those to which I have referred might have been perceived by a man affected by the consumption of alcohol and marijuana. The possibility of misconceiving the complainant’s attitude should have been raised in this context: Wilson (1986) 42 SASR 203; 22 A Crim R 130.
The issue of the complainant’s intoxication was also of considerable relevance. The combined effect of alcohol and marijuana was considerable in her case and, on her version, it rendered her unconscious for a period of time. It was important for the jury to consider whether the intoxication may have accounted for, or contributed to, conduct from which the appellant inferred consent. It was also relevant in assessing her general reliability as a witness, particularly in the light of her vagueness as to certain important events. Unfortunately, although His Honour reminded the jury that the smoking of marijuana had a considerable effect on the complainant, he did not proceed to discuss the relevance of that fact in evaluating her conduct on the evening and her evidence before the jury.
(Emphasis added)
That decision was cited with approval in R v Daniel[3] where Sulan J said:[4]
As to the complainant’s state of intoxication, the only directions that the trial Judge gave were:
… Secondly, you should consider whether, in her intoxicated state, she lost her inhibitions and did consent but has now forgotten that or is now unwilling and perhaps ashamed to admit that in the cold, hard, sober light of day.
The Judge directed the jury to closely scrutinise the complainant’s evidence, and that they could only convict if they were convinced of its reliability in establishing guilt beyond reasonable doubt.
In my view, the direction failed to adequately instruct the jury that, in considering the reliability of the complainant’s evidence, and whether they could be satisfied beyond reasonable doubt of the appellant’s guilt upon her evidence, her state of intoxication was relevant. It was relevant to her perception, and to her recall of the events. It was also relevant, when considering her credibility.
In restricting his direction to the question of whether the complainant might have lost her inhibitions, but has now forgotten, or is now unwilling to admit her conduct, the trial Judge failed to give a sufficient direction about the relevance of the complainant’s state of intoxication. As Duggan J observed [in Curtis], the state of the complainant’s intoxication was of considerable relevance. I consider that the direction did not give sufficient emphasis to the need for the jury to consider the complainant’s state of intoxication when assessing the reliability of her evidence.
(Footnote omitted)
[3] [2010] SASCFC 62 at [46].
[4] [2010] SASCFC 62 at [48]-[51].
On the facts of this case I am of the view that the trial judge was required to deal with the question of V’s reliability. I agree with the appellant’s argument in this Court that in considering the question of reliability the judge needed to address:
1the fact that V had ingested an amount of cocaine;
2she had smoked marijuana;
3that she had, on her own evidence, 11 alcoholic drinks, mainly vodka;
4on his own finding, she was intoxicated;
5that the fact that they were in bed together was not an unusual occurrence as they were in a sexual relationship therefore the possibility of mistake of the nature of the sexual activity was more likely;
6that, on her own evidence, she took up the relationship again for a short while.
I agree with the respondent’s submissions in this Court that in a trial by judge alone it is not necessary to deal with every fact in detail. It is also the province of the trial judge to come to his or her own conclusions in assessing the reliability and credibility of witnesses. In my view, however, in the present case the way in which the trial judge has dealt with the reliability aspect of V’s evidence was inadequate and amounted to a miscarriage of justice.
Other arguments
There were other matters put to this Court criticising the judge’s approach which I can deal with briefly. It was put that at one stage of his reasons the trial judge said:
The accused is charged with a very serious offence said to have been committed when the complainant was significantly intoxicated by alcohol and marijuana. So were other witnesses, including the accused. In those circumstances I have scrutinised all the evidence, especially that of the complainant, with great care.
The appellant argues that as the appellant is one of the witnesses whose evidence has been scrutinised being “part of all the evidence” that somehow reverses the onus of proof. I reject that submission. The learned trial judge was merely making a general observation that he had to look at the matter carefully. Elsewhere in his summing up he directed himself in an exemplary and orthodox fashion on the onus of proof.
There was a further argument put that he should have dealt with the question of delay. It is to be noted that the offending as found proved occurred on 15 June 2007 and the appellant was interviewed by the police on 25 July 2008, some 13 months later. I set out in full s 34CB of the Evidence Act 1929:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)     A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)     If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)     An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase “dangerous or unsafe to convict” or similar words or phrases.
The appellant argues that although 13 months is comparatively not a great deal of time between the alleged offending and arrest, there may be a forensic disadvantage in that the appellant may have been in a better position to identify the actual night on which these allegations are said to have taken place. Further, the witnesses may have been in a better position to recall the actual night. Thursday night was a social night. Over a period of time, the events of each Thursday night would have merged. To expect witnesses to have a clear recollection of what happened on one Thursday night 12 months before from another Thursday night at about that time is virtually impossible. The reliability of witnesses’ recall is highly debateable. In that regard, the appellant was at a forensic disadvantage. Others in the house may have more clearly recalled the relevant night and events if it had not been that over 12 months had passed before they were asked to recollect the events of the night. In that sense there was a forensic disadvantage which the judge should have taken into account when scrutinising the evidence. However, I am of the view that his failure to do so would, of itself, not amount to a miscarriage of justice to justify setting aside the conviction.
The appellant argues that the verdict was unsafe. Despite the imperfections of the trial judge’s directions in failing to deal adequately with the question of reliability, there is clear evidence by V which, if believed beyond reasonable doubt, makes out the offence. There is no requirement of law that her evidence be corroborated. There was a complaint to the mother and at least one witness (Mark Chatfield) who supported one aspect of her evidence. In my view that submission should be rejected.
Conclusion
For the reasons given I would allow the appeal. I would set aside the conviction and order a new trial.