R v Smith and Ashton - [2023] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITH AND ASHTON
Criminal Trial by Judge Alone
[2023] SADC 108
Reasons for the Verdicts of her Honour Judge Telfer
15 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE - PRIOR INCONSISTENT STATEMENTS AND OPENING ADDRESS
The accused were both charged with four counts of Unlawful Sexual Intercourse. The complainant for each count was ML, who was 13 years of age at the relevant time. The accused Mr John Charles Smith knew the complainant through a mutual interest in community radio. The accused Ms Michelle Renee Ashton was Mr Smith’s partner. It was alleged that ML attended the accused’s home on two occasions in 1999 and on each occasion, he was encouraged to participate in sexual acts with both accused.
ML reported the matter to police as an adult.
No case to answer was found in respect to counts 2 and 3 on the Information. This gave rise to the question of whether an inconsistency between a prosecution opening address and the evidence given by ML could be relied on as an inconsistency where it had not been otherwise proved in accordance with sections 28 or 29 of the Evidence Act 1929 (SA). An inconsistency of that kind could be relied on in assessing the weight to be given to ML’s evidence.
Held: Mr Smith and Ms Ashton are not guilty on counts 1 and 4. Mr Smith and Ms Ashton had previously been acquitted on counts 2 and 3 after no case to answer was found.
Evidence Act 1929 (SA) ss 28, 29B, 34CB, 34M; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 5, referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Jones [2018] SASCFC 80; R v A, GP [2012] SASCFC 81; Park (A Pseudonym) v The King [2022] SASCA 132; R v Trabolsi [2018] SASCFC 57; R v MAS [2013] SASCFC 122; R v Davis and Hyland (1995) 183 LSJS 186; R v Hofer (2022) 95 ALJR 937; R v Markelusi (2001) 52 NSWLR 82; Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200; Public Service Association of SA Inc v Industrial Relations Commission of SA and Another (2011) 109 SASR 223, considered.

R v SMITH AND ASHTON
[2023] SADC 108
Introduction

The accused John Charles Smith and Michelle Renee Ashton were jointly charged with four counts of Unlawful Sexual Intercourse. The offences were alleged to have been committed on two separate occasions between 1 November 1999 and 31 January 2000.
It is alleged that Mr Smith befriended the complainant ML when he was 13 years of age and then invited him to participate in sexual activities with him and his then partner, Ms Ashton. ML participated on two occasions, each at the home the couple shared in Whyalla. It is alleged that on each occasion ML was paid for his participation in the sexual activities.
The prosecution relied on the evidence of ML, Constable Woolman and Detective Brevet Sergeant Wallwork in support of its case. There was no defence case for either accused.
The accused elected for trial by Judge alone pursuant to section 7 of the Juries Act 1927 (SA).
No Case to Answer on Counts 2 and 3
At the conclusion of the prosecution case, submissions were made that there was no case to answer in respect to counts 2 and 3 on the Information dated 1 February 2022. The prosecution conceded that no evidence was given in support of the allegations opened on as underpinning count 3. The prosecution all but conceded that there was no case to answer on count 2. I found there was no case to answer on count 2 and count 3 and entered verdicts of not guilty at that time.[1]
[1] TS 283-290.
This judgement therefore sets out my reasons for verdicts on counts 1 and 4 only.
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[2]
It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge’s orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal.
(References omitted)
[2] R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
The accused have the presumption of innocence in their favour. They are each innocent of the charge unless and until the prosecution prove his or her guilt beyond a reasonable doubt, and neither need prove anything. Mr Smith and Ms Ashton cannot be convicted on any count unless the evidence relevant to that count proves the elements to the requisite standard.
I must assess the evidence of each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can accept or reject the evidence of a witness in whole or in part.
Each accused was originally charged with four counts. Subject to considerations of credit that I set out later, each count must be considered separately, and I must consider only the evidence that is relevant and admissible in respect to each.
In this matter neither accused gave evidence. They were under no obligation to do so, and I draw no inference from the fact that each of them exercised their right to silence at trial.
Elements of the Offences
Unlawful sexual intercourse has two elements:
1. The accused had sexual intercourse with another person;
2. The other person was under the age of 14.
Sexual intercourse is defined to include the following:
(a) Penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) Fellatio; or
(c) Cunnilingus.[3]
[3] Criminal Law Consolidation Act 1935 (SA), s 5.
Counts 1 and 2 were alleged to have occurred on the first occasion of sexual abuse at the home of Mr Smith and Ms Ashton. Count 1 alleges that on that occasion Mr Smith performed an act of fellatio on ML. Count 2 alleges that on the same occasion ML inserted his penis into Ms Ashton’s vagina. It was particularised during the opening address as relating to an act of vaginal penetration which occurred while Ms Ashton was position on her hands and knees and ML was positioned behind her. As noted earlier, no evidence was given in support of count 2 and I previously found the accused had no case to answer on that count.
Counts 3 and 4 were alleged to have occurred on the second occasion of sexual abuse, also at the home of Ms Ashton and Mr Smith. Count 3 alleged that Mr Smith had performed an act of fellatio on ML, and count 4 that ML had inserted his penis into Ms Ashton’s vagina. As noted earlier, no evidence was given in support of count 3 and I previously found neither accused had a case to answer on that count.
The Prosecution Evidence
Examination in Chief of ML
The complainant ML was 36 years of age at the time he gave his evidence. He worked as a registered nurse and was married with four children.
ML was born on 31 January 1986 and turned 13 in January of 1999. In 1999 he started Year 8 at Stuart High School in Whyalla. In the same year his mother got married and in October she gave birth to a baby girl. ML had a challenging relationship with his stepfather, and he considered that his mother was distracted by her new relationship and the new baby.
ML did not enjoy school particularly, and he began to attend less and less throughout 1999. What he was really interested in was music and he had ambitions to work in radio, including working as a DJ.
ML took music classes at high school and his teacher’s name was Bill Stevens. Mr Stevens was also a volunteer at the local community radio station, Triple Y, and hosted a regular session every Sunday night playing jazz music. Mr Stevens allowed ML to come to the station on a Sunday night and see how it operated, including allowing him to read the weather on the air.[4]
[4] TS 47.
ML said he first met the accused Mr Smith via his participation in the same community radio station. Mr Smith had a radio program where he played music that ML enjoyed, and he had a requests segment where listeners could call up, talk about music and make requests. ML first engaged with Mr Smith on this telephone line during his radio show.
ML then came to meet Mr Smith at the Triple Y radio station in person. ML began to attend and assist Mr Smith with the show on a Saturday night.[5] ML and Mr Smith got along because of their mutual interest in contemporary popular music.
[5] TS 49.
As time went on, they also began to talk on the telephone outside of their contact at the radio station. During one of these telephone conversations, Mr Smith invited ML to come to his house to watch music videos and listen to music. ML had an early model Nokia mobile telephone that he could use to make and receive calls independently of his mother and stepfather.
ML told the Court that although he was still only 13, he had a high level of independence. He had worked previously assisting a DJ and therefore late nights were not unusual for him. He had friends who were a year or two older than him, and it was not unusual in Whyalla to be allowed to ride his bicycle around late at night. He told the Court that his mother and stepfather were occupied with their new baby.
ML first attended Mr Smith’s home address at Ryan Avenue Whyalla in the latter part of 1999. The unit was about 5 minutes bike ride from where ML was living.
On the first visit ML was introduced to the female present as Michelle. She was pregnant. It is alleged that this female was the accused Ms Ashton, who was Mr Smith’s partner. ML and Mr Smith listened to music which was played on a computer. The computer was also able to play music video-clips which were stored on what were known as “enhanced CDs”.[6]
[6] TS 58.
After this first visit, ML visited again for the same purpose a further three or four times. The conversation between ML and Mr Smith then turned to sexual topics, with Mr Smith asking ML about his sexual experience and interests. Mr Smith asked ML whether he had ever participated in “three ways” or had sexual encounters with older people.
Mr Smith then moved to a more specific enquiry about whether ML would be interested in sexual relations with him and Ms Ashton.[7] The topic was raised enough times that ML believed that it was something that Mr Smith was genuinely interested in pursuing. During these conversations the payment of $150 for ML to participate was mentioned.
[7] TS 61.
One evening late at night, ML was speaking to Mr Smith on the telephone. Mr Smith suggested that ML come to his unit to “hang out”. ML understood from previous discussions that what was being suggested was a sexual encounter.[8]
[8] TS 64.
On his arrival ML went to the front door of the unit. When he went inside, he found both accused lying naked on a blow-up mattress on the floor of the loungeroom. The lights of the unit were off, but some of the light from a TV which was switched on illuminated the area. Ms Ashton was lying underneath Mr Smith and they were engaged in sexual intercourse. ML sat down on a small single chair that he described as a round club type chair.
ML watched both accused for about 10 minutes from the chair. Mr Smith then told ML that it would be his turn shortly. Mr Smith then took ML’s pants off and touched his genitals through his underpants. Mr Smith told ML that taking his top off would set the mood, so he did as he was asked. ML was then moved onto the mattress where Ms Ashton was lying. ML removed his underpants and Mr Smith performed an act of fellatio on him (count 1). ML felt uncomfortable and said he should just go home. Mr Smith said he was there now, and that they should just keep going.
Ms Ashton then joined in, rubbing her genitals against ML’s genitals. ML’s penis became erect, and Ms Ashton placed it inside her vagina, with her sitting on top of his body. At the same time, Ms Ashton performed an act of fellatio on Mr Smith who was standing but bending down slightly alongside her. Prior to this Mr Smith moved onto his hands and knees and put his penis into ML’s mouth for a short time.
ML recalled, after considerable prompting, that at some point in the sequence, he engaged in anal intercourse with Ms Ashton. He was unable to recall much detail about that act.[9]
[9] TS 102-103.
Mr Smith and Ms Ashton then had intercourse with one another, Mr Smith positioned behind Ms Ashton who was on her hands and knees. The intercourse then concluded and the accused both left the loungeroom to shower.
ML rode his bicycle home. After he arrived home Mr Smith telephoned ML and told him that he could collect the money from Dial-a-Dino’s pizza shop on Jenkins Avenue where he worked. ML attended the Dial-a-Dino’s the following day at about 4 pm and was handed three $50 notes by the accused from a floor safe at the shop.[10]
[10] TS 94.
ML recalled that he used the money to purchase a set of Sony MDI-V250 headphones for $130.00 from Harding and Manning in the main street of Whyalla. Mr Smith told him that he must not tell anyone about the payment of money or the sexual relations, that he was too young and people would not believe him.[11] Mr Smith told him that people would think that he was “a slut”.[12]
[11] TS 106.
[12] TS 107.
ML said that after the first incident he continued to visit the radio station with his music teacher Mr Stevens, but he had no contact with Mr Smith for a few weeks. Communication began again when ML telephoned Mr Smith on air at the radio station. When communications started again, Mr Smith asked ML if he would like to make another $150.
ML returned to the accused’s unit four to five weeks later. He said he did so because he was 13 years old and $150 was a lot of money at the time. He said in evidence that he did not realise at the time that what he was doing would be so detrimental in the long term.[13]
[13] TS 108.
ML rode his bicycle to the unit at night. When he arrived, he found that the accused were not in the loungeroom where they had been on the first visit, but were in a bedroom which had a waterbed. ML described “foreplay” occurring at first, with Mr Smith touching his chest and penis. Ms Ashton was also involved, kissing his neck. Mr Smith encouraged ML to put his fingers inside Ms Ashton’s vagina and he did as he was asked.[14]
[14] TS 111.
ML then had penis/vagina intercourse with Ms Ashton, lying on top of her on the waterbed (count 4). During that act, Mr Smith approached ML and put his penis near his face, grabbing the back of his head to encourage him to perform fellatio. ML performed fellatio for a short time, but it ceased when ML bit Mr Smith’s penis.
Mr Smith then asked ML if he had ejaculated and asked him to hurry up. He offered to “massage my prostate”.[15] ML did not know what that meant, but Mr Smith put his finger into his anus for a short time, and ML ejaculated.[16]
[15] TS 115.
[16] TS 115-116.
ML said a day or two after the second visit he spoke with Mr Smith and arranged to again visit Dial-a-Dino’s to collect $150. Mr Smith again gave him three $50 notes from the floor safe. During that visit ML told Mr Smith that he could not visit him anymore, that he had a girlfriend. That was the last time that he spoke with Mr Smith.[17]
[17] TS 122.
ML told the Court that he did not tell anyone about what had happened at the time because he feared being disbelieved.[18]
[18] TS 125.
ML said that although he saw Ms Smith and Ms Ashton around Whyalla after the second visit, he did not see Mr Smith again at the radio station.
Cross Examination ML
ML was cross examined about the circumstances in which he initially met Mr Smith. He agreed that he had told the police in statements different things about how he first met Mr Smith, whether it was from telephoning the radio station or attending there in person.[19] He said that he believed that he spoke to Mr Smith on the phone prior to meeting him in person.[20]
[19] TS 139-140.
[20] TS 140.
ML was asked about the time of year that Mr Smith first propositioned him about sex. He said in evidence that it occurred around 15-20 December 1999. ML agreed that he was initially reluctant about what was being suggested but the offer of $150 changed his mind.[21]   He was asked about whether the abuse could have occurred as late as January 2000, and he said that was not possible. He knew that it occurred before the millennium (1.1.2000).[22]
[21]   TS 147.
[22]   TS 181.
ML agreed that even though he felt uncomfortable about what had occurred, he agreed to return to the unit for a second time when he was offered another $150.
In cross examination ML was asked about the first time he told police about these matters. He was asked about a version of events that he gave an officer who took what was said down in handwritten note form. ML did not adopt the officer’s notes of what was said. The version was not reduced to a formal statement but taken by way of initial report to be later followed up.[23]
[23] TS 239.
ML did not recall the detail of what he told the police officer at the time of that first report. Constable Woolman was called to prove that the accused made statements out of court that were inconsistent with his sworn testimony. Constable Woolman said that ML did not speak of more than one occasion of sexual abuse during that disclosure. He said that he was invited to go to the home of the accused and when he arrived, he was encouraged to join the couple for sex. He said he initially declined but was pulled into the couple’s sexual activities with one another. He disclosed that his pants were pulled down and they touched him and performed oral sex on him. Afterwards they got $200 out of a safe and gave it to him.

The weight that I am prepared to place on this proved inconsistency is limited by the circumstances in which the comments were made. Constable Woolman said he did not ask ML whether there were other occasions he attended the unit apart from the one described. He said “the information I obtained was to raise a report for an assault that occurred. The investigation of that is not my purview, that’s further involvement from that report [sic]”.[24]
[24] TS 248.
It was clear that Constable Woolman was concerned to obtain enough information to raise a report that would be later investigated. He was not concerned to take a complete statement that documented ML’s experiences.
In those circumstances I place limited weight on the inconsistency between the account given to Constable Woolman and the evidence given by ML.
ML gave evidence that he was unable to recall the mobile telephone number that he was using in 1999. He agreed that he gave a number to police that actually turned out to be his grandfather’s mobile number. He disagreed that he had deliberately given police a false mobile number to prevent them checking his evidence that there had been phone contact between he and Mr Smith back in 1999. There is no basis on which I could conclude that the wrong number was given by ML to police to an attempt to obfuscate or frustrate the investigation. I conclude that the number was given in error because of the passage of time.
ML agreed that in one statement he told the police that on arriving home after being sexually abused, he took a shower. His Mother asked him why he was showering, and he told her that he had “pee’ed himself”. He said in a statement that on another occasion he arrived home late, and his mother had locked the house up with a chain and padlock and he had to break the chain to get into the house.
In respect to both the reference to urinating and the reference to the house being locked up, ML said that he now could not recall those aspects with any precision. He said in respect to breaking the chain on the house he recalls doing that, but he now could not be specific about whether it occurred after he returned late at night from the accused’s house.
ML told the police in a statement that on one occasion when he returned from the accused’s house late at night, he told his mother he had been at the home of the accused. He recalled that police then visited and spoke to him about the accused. He told the police that nothing inappropriate had happened.   He was asked about this in cross examination, and it was suggested this aspect of his report to police was entirely fabricated. He said it was possible that he was not questioned by his mother, but he maintained he did speak to police at some stage and signed a piece of paper presented to him by police.[25] ML said that he had been told by his mother that she had written to the police about concerns she had about Mr Smith. The investigating officer Detective Wallwork was unable to locate any such letter in the records held by SA Police.[26] No evidence was led about what specific “records” were searched. ML’s mother was deceased by the time this matter was reported to police.[27]
[25]   TS 179.
[26]   TS 255.
[27]   TS 265.
ML said in his evidence that he knew that Ms Ashton, the woman at the unit, was pregnant during the sexual abuse. He could not specifically recall her physical appearance in that regard. He could not specifically recall her being physically uncomfortable at any time about the sexual activity given her pregnancy.[28]
[28] TS 184.
ML was pressed about how it was possible for he or Mr Smith to be having intercourse in the missionary position if Ms Ashton was pregnant. He clarified that he believed there was many ways that could occur.[29]
[29] TS 218.
ML was asked whether he attended the radio station on New Years Eve on 31 December 1999. He denied that he had been there, saying he was no longer having any contact with Mr Smith by New Years Eve 1999.
ML believed that the first person he ever told about these offences was his former wife Ms SO. He could not recall what he had told her specifically. Shortly after he first reported the matter to the police, which included them asking about who might be the initial complaint witness, ML contacted Ms SO to let her know that he had reported the matter to the police. At that time, he was no longer married to her. It was suggested to ML that he contacted Ms SO in an attempt to have her support his version that he had told her. He disagreed with that was the purpose of him contacting her. He said “she’s my ex-wife. There’s nothing about her to support me these days”.[30]
[30] TS 216.
ML was asked in cross examination about a false report that he made to the police in the year 2000. He agreed that in that year, when he was 14 years of age, he attended a police station and told an officer that he had been attacked by three males and one female. He told police he had been held down by the three males while the female removed his pants, sat on top of him and had vaginal sexual intercourse with him. He agreed that the report was entirely false.[31]
[31] TS 172.
ML said that looking back now, he saw the false report as a cry for help. He said he was not able to now articulate why he thought making that report might lead to getting help for what the accused had both done to him.[32] He agreed that he had been dishonest, and the first time that he had corrected the matter was when he was asked about the report in the course of the investigations into this matter. He had signed a document seeking no further action on the complaint shortly after the complaint was made.
[32] TS 174-175.
The Radio Station Records
During the course of the trial information was obtained that led to the location of records retained by the radio station Triple Y which were previously believed to have been lost.[33]
[33] D 21, TS 283-284.
The records appeared to be handwritten logs recording the attendances of various different people at Triple Y between 28.12.1999 and 5.2.2000. ML had previously given evidence that he did not see Mr Smith at the radio station after the sexual offending. He said that he attended the station with his music teacher but did not see Mr Smith at any time.[34]
[34] TS 125.
The records contained an entry for 31.12.1999 “John S [M]L, Mellenium [sic] 8 pm”.[35] ML agreed it would appear that he did work a shift with Mr Smith on New Years Eve 1999. ML was taken to three further entries, one for 5.1.2000 10-12; and two for 6.1.2000 for 12-2 and 2-4, each recording “John, [M]” with a signature. ML agreed it was possible those entries reflect him attending shifts with Mr Smith on each of those days. His attention was taken to further entries that appeared to relate to him attending with Mr Smith on 7.1.2000 and 29.1.2000. ML said that he had no precise recollection of the shows in January, but he accepted that he may have been doing shows around that time.[36] He said he considered those records generally consistent with the time frame within which he was having contact with Mr Smith.
[35] D 21.
[36] TS 277.
ML’s evidence on this topic was different to his evidence in chief when he said he did not have contact with Mr Smith after the abuse. He denied doing the radio show with him on the millennium New Years Eve.
Police Witnesses and interview with Mr Smith
Constable Woolman and Detective Wallwork gave evidence on the trial. Constable Woolman’s evidence related to the proof of the terms of the original report made by ML by way of proof of out of court inconsistencies, which I have dealt with earlier.
Detective Wallwork was the investigating officer and he interviewed Mr Smith on 3 October 2019. During that interview Mr Smith admitted that he knew ML, and that ML used to call him when he worked night shifts on the radio station Triple Y.[37] He described ML as “a friend and a fan” who also used to come to his house. He said “there was a misunderstanding and we parted ways”.[38] He explained the misunderstanding as “he thought was something more than a friendship and he sort of said things to me that I didn’t like and I told him to leave”. He then made allegations that ML had “more or less” blackmailed him, but declined to go into any further detail.[39] He described the allegations as a “load of shit”. In assessing the weight I give to these denials, I bear in mind that Mr Smith was under no obligation to answer police questions. I bear in mind that at the time ML knew Mr Smith, ML was 13 and Mr Smith was 32 years of age. Those circumstances make it unlikely, in my view, that ML made advances which were not welcome and which Mr Smith rebuffed. The allegation that he was blackmailed was not accompanied by any detail and I do not place any weight on it.
[37]   P 13 and transcript MFI P14.
[38]   P 13 and transcript MFI P14.
[39]   P 13 and transcript MFI P14.
I have put aside the denials made by Mr Smith when he spoke to the police. I do not consider them plausible, and Mr Smith declined to provide any contextual or substantive detail to his version. I remind myself that Mr Smith was not obliged to provide any version at all, but I am entitled to use the lack of detail to assess the weight I am prepared to give what version he did chose to give.
Complaint and Delay
The prosecution did not rely on any initial complaint in this matter. The evidence of what ML said to his former wife Ms SO was not sufficiently specific to characterise it as an initial complaint. A statement from Ms SO was tendered by consent as the evidence Ms SO would give if called.[40] She said she could not remember if she was told about the sexual abuse, what she was told, or any details around it. She indicated there were features of the relationship that meant she had blocked out many details.[41]
[40] P 19.
[41] P 19, page 1 and 2.
Although no evidence of initial complaint was led, the prosecution led evidence from ML as to the delay in telling anyone about the abuse, and the reasons for that delay. That evidence was led over an objection made by counsel for Mr Smith. I indicated I would hear the evidence de bene esse.
Section 34M of the Evidence Act 1929 (SA) (‘the Evidence Act’) prohibits anyone, including the trial judge, from suggesting to a jury that a failure to make, or a delay in making, a complaint about a sexual offence is of itself of probative value. It does not prohibit the jury themselves engaging that line of reasoning.[42]
[42] Evidence Act 1929 (SA) s 34M(2); R v Jones [2018] SASCFC 80 at [129].
The mandatory direction set out in section 34M(4) is required only when evidence of an initial complaint has been led. In my view, section 34M does not prohibit evidence being led which might inform a jury’s assessment of the weight to be given to a failure to complain, but it does prohibit any suggestion or statement being made about that evidence.
I consider as the finder of fact, I am entitled to have regard to the evidence as to the reasons for the lack of complaint in assessing what weight I am prepared to place on the evidence of ML.
I consider the evidence as to ML’s lack of complaint is admissible. ML told the Court that he did not complain because Mr Smith told him not to. He feared that Mr Smith would follow through with his threat to call him a slut, and he feared he would not be believed.[43]
[43] TS 125.
In all the circumstances I considered this explanation plausible. ML was 13 years of age at the time, and the fear that he would not be believed was very real. The lack of complaint does not undermine the credibility of ML’s evidence.
Inconsistencies between opening address and the evidence
As ML had failed to give evidence of two acts of sexual intercourse which were part of the case that the prosecution opened on (counts 2 and 3)[44] an issue arose as to whether an inconsistency was established which reflected on the credibility and reliability of the complainant’s evidence.
[44] TS 39, 40.
The Law
Whether an inconsistency between an opening address and the sworn evidence given by a witness can be used to undermine that sworn evidence depends on what, if any, inference can be drawn from the narrative delivered in an opening address.
In R v A, GP, Vanstone J considered whether the verdict was unsafe and unsatisfactory because of an inconsistency in the description of the charged act between the opening and the evidence. Her Honour, with whom Nyland and David JJ agreed, made the following observation:[45]
The question then arises whether, because of the inconsistency between the opening address and the description given in evidence of the conduct, the judge should have acquitted the appellant of the completed charge. A submission to that effect misunderstands the nature of an opening address. It is not evidence and in particular it is not evidence that witnesses have previously made statements in accordance with what counsel foreshadows will be their evidence. There might well have been an inconsistency to be explored. However, it was not explored. Again, the appellant is bound by the conduct of his trial counsel. Again, counsel may have taken a forensic decision not to cross examine, since the conduct described in evidence was arguably less serious than the conduct outlined by the prosecutor.
[45] [2012] SASCFC 81 at [29].
This statement reflects first principles that an opening address is not evidence, that a witnesses’ credibility must be determined on the basis of evidence admissible in the trial,^[46] and that out of court inconsistencies must be proved in accordance with sections 28 and 29 of the Evidence Act. It is consistent with the rule of fairness referred to as the rule in Browne v Dunn.
[46] Park (A Pseudonym) v The King [2022] SASCA 132 [72] to [77].
About 12 months after R v A, GP was delivered, a differently constituted Court of Criminal Appeal considered related issues in R v MAS.[47] In that case the Court examined a separate consideration direction given by the trial judge which had the effect of prohibiting the jury from taking into account a doubt they experienced on one count on their consideration of another. In summing up the trial Judge also directed the jury to completely disregard any refence by the prosecutor in opening to events which were the foundation for count 3, on which the judge had directed an acquittal. That direction was designed to ensure that the jury did not rely on information given in the opening which was not in evidence when considering the case against the accused.
[47] [2013] SASCFC 122.
The difficulty with the impugned directions was that there were significant inconsistencies exposed between accounts given by the complainant to police and the account given in evidence. On count 3 the complainant gave no evidence of the offence as described in the prosecution opening at all, and the accused was acquitted by direction. Counsel for the appellant argued that the judges’ directions had the effect of prohibiting the jury from taking doubts they held on one count over to their consideration of others, including doubts arising from the witness’s failure to give evidence in accordance with the opening in respect to count 3.
In opening, the prosecution described count 3 as a sexual assault which occurred the same evening the complainant’s father (the accused) cut his hand in the kitchen. In her evidence however, the complainant described count 2, which was alleged to have occurred the night preceding count 3 as “to my memory that was the last time he ever touched me”.[48] The complainant also said that she did not think she was sexually abused after the cutting incident.
[48] [2013] SASCFC 122 at [70].
There was an inconsistency between the version of events opened on (the events the subject of count 3 alleged to have occurred after her father cut his hand) and the complainant’s evidence that her memory was that no sexual abuse occurred after the time her father cut his hand.
In that context the Court observed that:[49]
[I]t was more important here that there was stark evidence that D had failed to give any evidence of a serious and specific allegation which she had previously made and which had been prosecuted as one of the three formal charges laid against the appellant. In the normal course it would have been open to the jury to have drawn the inference from the combination of the evidence given by D in relation to the “cut hand” incident (when she stated in effect that no sexual assault followed that incident) and the opening of the prosecutor (when he stated that a sexual assault had followed that incident) that D had made a statement to the authorities inconsistent with the evidence that she gave on this topic in court.
The use of a demonstrated inconsistency between the prosecutor’s opening and a witness’ testimony to test the credit of that witness is a traditional and well-known process.
(Emphasis added)
[49] [2013] SASCFC 122 at [90].
R v MAS and R v A, GP give conflicting guidance as to whether a jury is entitled to draw an inference that the witness has made a statement outside of Court from the narrative given in an opening address. In R v MAS, the complainant’s failure to give evidence of the incident which was opened on was not the subject of any cross examination. In R v A, GP, the inconsistency was one of detail in the description of the offence in evidence when compared with description given in opening. The differences were not the subject of any cross examination.
It is well established that an inconsistency between the evidence of a witness given in court and a statement made outside of court may be used by a jury in assessing the honesty and credibility of that witness. An inconsistency in the way in which an incident is described may undermine the weight a jury is prepared to place on the witnesses sworn evidence. The question that arises here is whether I am entitled to draw an inference from the prosecutors opening on the events alleged to underpin counts 2 and 3 that ML has given an inconsistent account to that which he gave in evidence. Counsel for the accused argued that a failure to come up to proof on two of the charged acts exposes a significant deficit in the honesty and reliability of the witness ML.
In comprehensive written submissions, the prosecution argued that I may not take into account an inconsistency between an opening address and the evidence of a witness (relying on R v A, GP). They argued that the reasoning in that case was consistent with principle and R v MAS could be distinguished.
It was submitted that the use of the word demonstrated in R v MAS (passage above) is important. The prosecution argued that in order to infer that a witness has been inconsistent, the inconsistency would have need to be demonstrated, or proved, in some way apart from simply being included in an opening address. The inconsistency, they argued, could be proved by complying with the requirements of sections 28 or 29 of the Evidence Act. The reasoning for this requirement was twofold:
1.Fairness requires that a witness be provided with an opportunity to admit or deny their previous statement, and, if admitted, explain the inconsistency. This ensures that disputes are resolved by the fact finder by reference to the evidence called in the case and not otherwise.
2.There are a range of reasons why the opening by the prosecutor might not align with the evidence of a witness. One explanation is that the witness has given an account inconsistent with a statement given out of court in the hands of the prosecutor. Other reasons might be an error on the part of the prosecutor, a failure of memory, or a deliberate lie. Which one of the possibilities apply is capable of exploration using the process laid down in section 28 or 29 of the Evidence Act.
The prosecution relied on a series of authorities which stood for the proposition that the assessment of the credibility of a witness must be done only by reference to the admissible evidence in the trial.[50] Of course, what is said in an opening address is not evidence.
[50] Park (A Pseudonym) v The King [2022] SASCA 132; R v Trabolsi [2018] SASCFC 57.

The Court in R v MAS however referred to the drawing of an inference from an inconsistent opening address as a “traditional and well known process”, referring to R v Davis and Hyland in support.[51] In R v Davis and Hyland, the appellant complained that the summing up had not adequately directed the jury about the use to be made of previous inconsistent statements. The Court of Appeal referred to the need for the jury to be assisted on what use could be made of inconsistencies proved in evidence, but also between the prosecution opening which described two incidents and the sworn evidence which did not include a description of those events at all.
[51] (1995) 183 LSJS 186 at 192. In the reported version of R v MAS the Court refers to R v Davies, reported at (1995) 183 LSJS 186 at 192. The reference is incorrect. It is a reference to R v Davis and Hyland (1995) 183 LSJS 186 at 192.
One of the inconsistencies relied upon in R v MAS had not been demonstrated in any way on the evidence admitted on the trial. It was no more than an inconsistency between the opening and the complainant’s evidence, which was not established in compliance with the Evidence Act. The reference to demonstrated in the passage in R v MAS above cannot therefore be read as submitted by the prosecution.
In R v Hofer[52] the High Court considered the application of the rule of practice commonly referred to as the rule in Browne v Dunn to criminal proceedings. The majority observed that the rule is one of fairness and may be “necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue”.[53] They went on to observe that “[a]s a general rule, defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witnesses account and which will be relied upon by the defence.”[54]
[52] (2022) 95 ALJR 937.
[53] (2022) 95 ALJR 937 at [27].
[54] (2022) 95 ALJR 937 at [28].
In Hofer, as a result of a failure by defence counsel to comply with the rule in Browne v Dunn, the prosecutor cross examined the accused about whether those aspects of his evidence were matters of recent invention. The High Court commented on the undesirability of that course. The Court observed that there are many explanations for an omission to put a matter in cross examination apart from recent invention, and to impugn the accused’s credit on the basis of an assumption would be improper. For this, and other reasons, cross examination as to recent invention should be avoided.
The prosecution relied on the analysis in Hofer as parallel to the situation which arises when there is an inconsistency between the case as outlined in an opening address and the evidence called in support of the charges. They submitted that that process would also involve drawing an inference on an assumption, where several different explanations for the inconsistency might apply.
The prosecution submitted that these first principles undermine the existence of a special rule permitting a fact finder to draw an inference that a complainant has been inconsistent because of a difference between the opening address and the evidence. If the principle exists, it exists as an exception to those principles which make clear that an opening is not evidence, and a finder of fact should rarely be asked to draw inferences from the way in which counsel choses to put its case.
The prosecution further submitted that a recent amendment to the Evidence Act in section 29B changes the legislative landscape by abolishing the direction previously referred to as the Markelusi direction.^[55] The Evidence Act was amended to insert section 29B with a commencement date of 1 June 2022:
(1) In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness of reliability of the victim’s evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim’s evidence generally or in relation to other charges.
(2) Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in subsection (1) is abolished.
[55] (2001) 52 NSWLR 82.
That provision does not prohibit a jury from having regard to a doubt held on one count in their consideration of another. The terms of the provision prohibit the trial judge giving a direction that they must do so. In my view, the amendment does not change the capacity of a finder of fact to, where appropriate, take a doubt that they experience on one count into account on another. Trial judges will need to carefully craft directions to ensure a separate consideration warning does not cut across that reasoning, without contravening the prohibition in section 29B. I do not consider that the amendment changes in any relevant way the critical question about the ability of the jury to take into account inconsistencies between an opening address and the evidence of a witness.
Precedent
I consider that R v A, GP and R v MAS are in conflict with one another, and they cannot be distinguished. I consider the reasoning in each case is part of the ratio decidendi of the case. I have reached the conclusion that I am bound by the principles as set out in R v MAS, which refers to R v Davis and Hyland, an authority which pre-dates R v A, GP and is not expressly over-ruled by it.[56] In doing this, I acknowledge the force of the prosecution submissions that the principle referred to as “traditional and well known” is inconsistent with a number of other principles which govern the way in which the evidence of a witness may be undermined. While I have not been able to trace the origin of the principle, its existence appears to be assumed by a number of cases which pre-date R v A, GP.
[56] Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200 at 207; Public Service Association of SA Inc v Industrial Relations Commission of SA and Another (2011) 109 SASR 223.
As the finder of fact therefore, I am entitled to have regard to inconsistencies between the opening and the witnesses evidence, insofar as he failed to give evidence at all in support of the allegations outlines as the basis for counts 2 and 3. I am also entitled, in determining what weight I give those inconsistencies, to have regard to the fact that they were not put to the witness ML, and he was not given an opportunity to comment upon, or give an explanation for, those inconsistencies.
Forensic Disadvantage
Counsel for Mr Smith submitted that there were a number of specific grounds on which I should give myself a direction that the accused has suffered significant forensic disadvantage, due to the time that has elapsed between the events alleged and the resulting trial.[57] It was submitted that evidence including forensic analysis and contemporary photos of the unit could have been obtained if a prompt complaint had been made. Items of forensic evidence or the opportunity to immediately examine the scene have not disappeared due to the passage of time, but due to the fact an immediate complaint was not made. I do not consider those matters fall within the parameters of section 34CB of the Evidence Act
[57] Evidence Act 1929 (SA) s 34CB.
I do not consider all of the matters put have given rise to a significant forensic disadvantage suffered by Mr Smith and Ms Ashton due to the passage of time. I am satisfied that the death of ML’s mother is a matter which justifies a direction as does the absence of records of Mr Smith’s work at Dial-a-Dino’s Pizza. I have taken those matters into account in scrutinising the evidence of ML.
Analysis
Counsel for Mr Smith, with whom counsel for Ms Ashton agreed in large part, placed a great deal of emphasis on the admitted lie told by the complainant when he was 14 years old when he made a false complaint to police. It was submitted that the matter was especially relevant as the complaint was made six months after the offences before this Court are alleged to have been committed. He described it as an ‘insurmountable’ hurdle for the prosecution.
The fact that a witness has made a false report of a sexual offence to the police may raise concern about a witnesses’ honesty and reliability. However, in this matter I do not place a great deal of weight on the false report. ML was 14 years of age at the time he behaved in the way he has now admitted, and he is now 37 years of age. His life circumstances have changed considerably. I consider that ML’s explanation for the false report is plausible, and in hindsight, considering the nature of the complaint, could very well have been a cry for help on the matters that he felt unable to disclose. I have not placed much weight on that proven lie told 23 years ago when assessing ML’s credibility now.
Both counsel highlighted various inconsistencies between ML’s evidence and statements he made outside of Court. One inconsistency related to whether he was paid $150 or $200 after the first sexual assault. I do not consider that inconsistency to be of much moment. ML was able to describe in detail the headphones that he purchased as a result of the payment made after the first occasion. He could recall the specific brand and where he purchased them from. His narrative was detailed and had the hallmarks of a report from real memory.
It was further submitted that there was evidence that ML had lied about his mother reporting the matter to police. I do not consider that the evidence established that no report to the police was made. No evidence was led about the nature of the police records searched, or whether records of that type would be expected to be retained over time. It is not possible for me to draw any firm conclusions about the nature of any contact with the police at the time of these offences. I am unable to conclude that ML told a lie in this respect. I cannot determine what ML’s mother was told or how she acted in 1999 or 2000 when she was aware of the relationship between ML and Mr Smith.
There was a significant inconsistency established between ML’s memory that he ceased all contact with Mr Smith before December 31, 1999 and the business records of the radio station which support the conclusion that they were in attendance together at Triple Y during January 2000, including working a radio show that was broadcast on New Year Eve. I consider that this error undermines ML’s reliability, as I infer that New Years Eve 1999 is likely, in usual circumstances, to be something that stands out in a person’s memory.
Counsel for Mr Smith and Ms Ashton criticised the fact that ML was unable to recall anything much about Ms Ashton’s physical appearance, which counsel submitted was remarkable in light of the fact she was likely to be in the later months of her pregnancy, the evidence establishing that she gave birth to a baby on 8 February 2000.[58] I do not consider that I can draw any conclusion in particular about how Ms Ashton must have appeared at that stage of her pregnancy, contrary to the submission made on behalf of Mr Smith. Similarly, I draw no conclusion about whether her pregnancy would render her more or less likely to engage in the sexual conduct alleged.
[58] P16.
Counsel for Ms Ashton submitted that evidence of the identification of the person engaged in the sexual acts alleged as Ms Ashton was thin. He pointed to the low levels of light at the time of the offences alleged, and the dearth of evidence led about her physical appearance and the basis on which ML concluded it was Ms Ashton (who he did meet at the home during the day on occasion). In all the circumstances, including that Ms Ashton was Mr Smith’s partner at the time, ML had met her at the unit before and described the woman as pregnant, I do consider that there is sufficient evidence to prove the identity of the woman described by ML as Ms Ashton.
However, the fact that ML could recall almost nothing about her description, in the circumstances, is relevant to his reliability, and the strength of his memory of the relevant events.
Counsel for both accused submitted that I should find that ML had told deliberate lies in his evidence to bolster the case against the accused. This included a submission that he had told lies about his knowledge of the location of the unit the accused both lived in and that he dishonestly attempted to bolster the case by recruiting his former wife Ms SO as a witness. It was suggested that some delays in ML’s provision of information to police demonstrated a lack of co-operation. ML explained some of the delays in his responses to police enquiries as being caused by the fact that the investigation occurred at the height of the covid pandemic and he worked as a Registered Nurse, providing covid testing services.
I did not consider the evidence on these topics justified a finding that ML had told deliberate lies or had demonstrated a lack of co-operation.
I turn to my observations of ML as a witness. ML is now an adult man who is married and has children of his own. He was an impressive witness. His answers were considered and thoughtful. He was cautious about not overstating the extent of his memory. His capacity to reflect on his emotional responses to what had happened to him has a ring of truth and reflected, in my assessment the reporting of events that he had experienced.
ML did not seek to minimise his own agency and decision making. He demonstrated that he had insight into why he behaved in the way that he did back in 1999, as a 13-year-old.
I am satisfied that ML was trying to tell the truth in his report of the allegations. I reject the submission that he told deliberate lies in the course of giving his evidence.
However, I do consider that his account revealed a number of inconsistencies and uncertainties which undermine the reliability of his account. This is especially important when the accused are each charged with particularised acts alleged to have been committed over a short time frame.
ML was inconsistent about the events surrounding the two evenings on which he alleged abuse occurred, and the response of his mother to him coming home late. He had given quite a specific account to the police of her reaction each time. At trial he was unable to recall how his mother responded on each charged occasion.
As discussed above, I have also taken into account that ML failed to give evidence of two distinct sexual acts, count 2 which was alleged to have been an act of vaginal sexual intercourse which occurred on the first occasion in the lounge room, and count 3 which was alleged to have been an act of fellatio performed by Mr Smith on the second occasion in the bedroom.
These infirmities in the reliability of the evidence given by ML, along with the inconsistencies in his evidence about the timing of the acts of abuse and the end of the relationship between he and Mr Smith are significant.
In the circumstances, while I am satisfied about ML’s honesty, I cannot be satisfied beyond a reasonable doubt about the reliability of his evidence as to the specific acts described on each occasion charged. I remind myself that it is necessary that I am satisfied that the act particularised occurred on the occasion charged.
Conclusion
I find that the elements of the offence charged in count 1, particularised as an act of fellatio performed by Mr Smith on ML has not been proved to the requisite standard. I find each accused not guilty on count 1.
I find that the elements of the offence charged in count 4, particularised as an act of vaginal sexual intercourse with Ms Ashton has not been proved to the requisite standard. I find each accused not guilty on count 4.