R v T, S - [2017] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, S
[2017] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
9 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - GENERALLY
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - PRIOR INCONSISTENT STATEMENTS
Appeal against conviction.
The appellant was convicted by a jury in the District Court of two counts of unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant is the appellant’s daughter. She was 25 years old at the time of giving her evidence but was only eight or nine years old at the time of the offending.
The prosecution called the complainant, her mother, and a school friend, TC, to give evidence. The appellant and a character witness gave evidence for the defence.
The appellant appeals against his convictions on the grounds that the Judge misdirected the jury as to the standard of proof, wrongly admitted evidence of initial complaint pursuant to s 34M of the Evidence Act 1929 (SA) (Evidence Act) and inadequately directed the jury as to the use to be made of prior inconsistent statements, the forensic disadvantage he suffered due to the delay in the making of the complaint as required by s 34CB of the Evidence Act, and the use of the evidence of initial complaint. The appellant complains that a miscarriage of justice has occurred in that evidence of prior inconsistent statements made by the witness TC, which was not adduced at trial because counsel did not know of its existence, could significantly have affected the jury’s deliberations had it in fact been adduced. Lastly, the appellant argues the verdicts are unreasonable and cannot be supported by the evidence.
Held, allowing the appeal:
1.       (per Kelly and Nicholson JJ, per Hinton J): the Judge’s directions to the jury did not undermine the burden of proof and did not invite sequential reasoning in the manner complained of. The jury would not have been left with the impression that a verdict of not guilty would only follow if the appellant persuaded the jury as to his version of events or they were uncertain as to where the truth lay.
2. (per Kelly and Nicholson JJ, Hinton J dissenting): the Judge’s directions to the jury as to the appellant’s forensic disadvantage were in accordance with the requirements of s 34CB of the Evidence Act.
3. (per Hinton J, Kelly and Nicholson JJ agreeing): the evidence of TC was admissible as initial complaint evidence pursuant to s 34M(3) of the Evidence Act. It was open to the jury to conclude that TC’s evidence related to the same conversation as that to which the complainant referred. It was also open to the jury to conclude that the conversation was referrable to the same type of conduct as that subject of the charges.
4. (per Hinton J, Kelly and Nicholson JJ agreeing): the Judge’s directions to the jury as to the use to be made of the initial complaint evidence of TC were in accordance with the requirements of s 34M(4) of the Evidence Act.
5.       (per Hinton J, Kelly and Nicholson JJ agreeing): the Judge did not err in the directions to the jury as to prior inconsistent statements. The complainant’s inconsistent statements in this case were capable of having an important bearing on the truthfulness and reliability of the complainant. The jury was reminded of the inconsistencies and reminded that it was for the jury to assess the significance of each inconsistency found proven.
6.       (per Hinton J, Kelly and Nicholson JJ agreeing): there has been a miscarriage of justice in light of the new evidence, by reason of counsel not knowing and not being made aware of the prior inconsistent statements made by TC. In an interview TC gave to an investigator in 2014 she states that the complainant never told her that she had been sexually abused and suggests the statement she gave to the police is wrong. If the June 2014 interview was available to defence counsel, it is a significant possibility that the jury, acting reasonably, would have acquitted the appellant.
7.       (per Hinton J, Kelly and Nicholson JJ agreeing): the verdicts of the jury were not unreasonable or insupportable having regard to the whole of the evidence. This is a case where the advantage of the jury in seeing and hearing the protagonists is capable of resolving any doubt as to the complainant’s credibility and reliability.
8.       (per Hinton J, Kelly and Nicholson JJ agreeing): the appeal is allowed and the matter is remitted to the District Court for a retrial.
Evidence Act 1929 (SA) s 13, s 34CB, s 34M; Criminal Law Consolidation Act 1935 (SA) s 49, referred to.
R v Lavery (2013) 116 SASR 242; The Queen v Calides (1983) 34 SASR 355; R v Cassebohm (2011) 109 SASR 465; R v Place (2015) 124 SASR 467; TKWJ v The Queen (2002) 212 CLR 124; R v Reci (1997) 70 SASR 78, applied.
W, PK [2016] SASCFC 5, distinguished.
Mickelberg v The Queen (1989) 167 CLR 259; Libke v The Queen (2007) 230 CLR 559; R v Usher (2014) 119 SASR 22, discussed.
R v Molloy (2008) 102 SASR 452; Liberato v The Queen (1985) 159 CLR 507; R v N, RC (2012) 112 SASR 399; The Queen v GW (2016) 258 CLR 108; R v Landmeter (2015) 121 SASR 522; R v Rendell (Unreported, Court of Criminal Appeal, South Australia, Prior, Duggan and Debelle JJ, 29 May 1996); R v Scott (1996) 131 FLR 137; Gallagher v The Queen (1986) 160 CLR 392; The Queen v Nguyen (2010) 242 CLR 491; Prater v Rowbottom (Unreported, Supreme Court of South Australia, White J, 12 March 1991); R v Johnson [2015] SASCFC 170, considered.

R v T, S
[2017] SASCFC 67
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY AND NICHOLSON JJ.

We have had the benefit of reading the reasons of Hinton J and agree that ground 7, being the ground relating to fresh evidence, has been made out. We also agree for the reasons given by Hinton J that appeal grounds 4, 5, 6 and 8 are not made out. However, unlike and with respect to Hinton J, we would not allow the appeal on ground 2. We also wish to make some further observations with respect to grounds 1 and 3.
Ground 1
As to ground 1, being the ground relating to the directions as to the burden of proof, we agree with Hinton J that the Judge’s directions did not invite sequential reasoning in the manner complained of and that the jury would not have understood the Judge to have done so.
As far as the appellant’s complaint relating to the so called Calides direction is concerned, we would prefer to rest with the remarks of Nicholson J on this topic in R v Lavery.[1]
[1] R v Lavery (2013) 116 SASR 242 at [38]-[40] (Nicholson J with whom Kelly and Peek JJ agreed).
The Calides direction, in the terms advocated by Wells J, is as follows:
As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, [in cases where there are two versions of events] there are really, for all practical purposes, three possibilities: the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is a third possibility, which must never be overlooked, and that is that the jury, after full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation then, of course, the verdict must also be not guilty.
A direction in this form appears to be a creature almost peculiar to the jurisprudence of this State. I have been unable to locate any reported decision interstate that has either used this direction or affirmed its use by a trial judge apart from in the Northern Territory Magistrates Court. Nevertheless, it has, perhaps somewhat routinely, been used by trial judges in this State for many years. A form of the direction is in the benchbook available to trial judges in this State. As I have said, paragraph 90 of the summing up does not precisely replicate, but it does contain all of the elements of the direction suggested by Wells J and as provided for in the benchbook.
Paragraph 90 when read carefully (or in the case of a jury carefully listened to and remembered) does logically and correctly cover the field of possible approaches to the evidence. It is not an incorrect description of the jury’s task. However, I am troubled as to the extent to which such a formulation will positively assist a jury and I am concerned that, if used uncritically, it might on occasion be productive of confusion in the minds of some jury members.
(i) The Calides direction, as used in this State, often comes near the very end of the summing up and often as the last substantive direction heard by the jury. As such, it presents as a summary of or a final “take home message” about the onus and standard of proof.
(ii) It is often separated by numerous other directions of law and the judge’s discussion of the evidence and the addresses of counsel, from the earlier given more specific directions about onus and standard of proof. This can have the effect of emphasising the “take home message” nature of the Calides direction.
(iii) To the extent that it presents as a summary of earlier directions or poses as an alternative, but similarly correct, approach to the onus and standard of proof, it uses language that often will be different and unfamiliar. To this point a jury ordinarily will (or should) have been directed in terms of the prosecution’s obligation to prove each element of an offence beyond reasonable doubt; the jury may have been introduced to the issue of whether a defence contention might be seen as being a reasonable possibility, by way of the antonym to proof beyond reasonable doubt. By the end of the summing up, a jury should have in mind two mutually exclusive alternatives: has the prosecution proved guilt beyond reasonable doubt or has it failed to prove guilt beyond reasonable doubt. However, where the Calides formulation is employed at the end of the summing up, the jury is introduced to and left with three possibilities in language that often will not mirror earlier directions.
(iv) One of the three possibilities or “situations” introduces what often will be a new notion of being “persuaded by [the appellant’s] evidence”. Taken in isolation this risks a juror asking themselves an entirely inappropriate question along the lines — given the two diametrically opposed versions in the evidence, of whose version am I persuaded? Of course, this second “situation” is not to be taken in isolation and when understood in its full context (for example, certainly paragraph 90 but also paragraphs 88 and 89 of the summing up in this case) it ought not provoke such a question. However, this masks an assumption that each juror will be able to understand and retain an understanding of the complex interrelationship between the three “situations” orally described. The appellant, here, submits that this risk, inherent in the use of the word “persuade” with reference to the appellant’s evidence, is exacerbated by the lack of a Liberato type direction in clear terms and given the structure of the judge’s analysis of the evidence (as earlier discussed).
(v) Of course an accused never has to go so far as causing the jury to be “persuaded” or “perfectly satisfied” of their account. Ordinarily, a reasonable possibility that the accused’s account is correct will be sufficient to defeat the charge. If this second Calides “possibility” or “situation” were to be couched in terms of “reasonable possibility” there would be no need to proceed with the third possibility or situation. It would become otiose. Whilst the Calides tri-partite classification is literally or logically apposite, the question arises whether its purpose can be better or more safely achieved in other ways.
(vi) The third possibility or “situation” also may involve new and unfamiliar language in this context of onus and standard of proof. Often it will be the first time in the summing up that the jury will have been introduced, expressly, to the question of deciding “where the truth lies” or “who is telling the truth”. Again, this might be seen as having the potential to provoke a similar question as in (iv) above. Again, the appellant argues that this risk is exacerbated by the lack of a Liberato type direction, given the structure of the judge’s analysis of the evidence.
In my view, the giving of a Calides direction should be cautiously entered upon and only after carefully crafting it to fit with the summing up as a whole including, in particular, other directions given concerning onus and standard of proof. The note in the benchbook version, if attended to will operate to confine its use significantly. It should not, as sometimes occurs, simply be uncritically tacked on at the end of a summing up as some sort of final “fail safe” explanation of the jury’s task.
[footnotes omitted]
However, and as Nicholson J also concluded in Lavery, the directions given in the present case dealing with the burden of proof, including the Calides formulation (most of which directions have been set out in Hinton J’s judgment), were comprehensive, correctly formulated and made clear to the jury the proper approach it was obliged to adopt. Indeed, the Judge’s directions in this respect were stronger than those in Lavery.
As explained in Lavery,[2]
Ultimately, the judge must make it clear that nothing short of proof beyond reasonable doubt will do.[3] This calls for a judgment to be arrived at by looking at the summing up as a whole and counsels’ addresses.[4]
In the present case, at no time was the jury expressly or impliedly invited to choose between the two competing versions on the evidence; the burden of the summing up was consistently to the contrary. The critical issue and relevant factual enquiry before the jury was of a very confined nature. It was consistently made clear to the jury throughout the summing up that at all times the prosecution bore an onus to prove its case beyond reasonable doubt, that the prosecution case was dependent on the jury accepting the complainant’s evidence, with respect to the occurrence of each alleged sexual act under consideration, as being truthful and reliable, and that the appellant carried no onus to prove anything.
[2]    R v Lavery (2013) 116 SASR 242 at [50].
[3]    R v Smith [2008] SASC 135 at [13]; R v Molloy (2008) 102 SASR 452 at [4].
[4]    Murray v The Queen (2002) 211 CLR 193 at [72]; R v Molloy (2008) 102 SASR 452 at [13], [58].
On the facts of this case, we have reached the same conclusions as in Lavery.[5] The jury ought not have retired with the misapprehension that a positive rejection of the appellant’s evidence, on its own, would be sufficient to establish guilt. The use of the word “persuade” in the Calides formulation, in connection with the appellant’s evidence, when considered in the context of the Calides direction and the summing up as a whole, ought not have caused the jury to think that the appellant bore an onus to prove his evidence was true.[6]
[5] R v Lavery (2013) 116 SASR 242 at [53].
[6] The use of the word “persuade” in the context of an accused’s evidence can be reflective of error, eg. Prater v Rowbottom (Unreported, Supreme Court of South Australia, White J, 12 March 1991) but this will not necessarily be so.
For these reasons, we agree that appeal ground 1 has not been made out.
Ground 2
As to ground 2, concerning the directions the trial Judge gave in accordance with the requirement of s 34CB of the Evidence Act 1929 (SA) (the Evidence Act), we respectfully disagree with Hinton J that the directions of the trial Judge were inadequate.
In our view the comparison of the direction which was given by the trial Judge in this case with the direction given in R v W, PK[7] is misplaced. However, it does serve to illustrate the importance of context when considering the adequacy of a trial judge’s directions to a jury.
[7] [2016] SASCFC 5.
Apart from the need which arose in each case to give a direction pursuant to s 34CB, the two cases are not comparable. In W, PK the appellant was charged with conduct which, together with certain uncharged allegations, occurred over a seven year period more than 30 years prior to trial. The appellant was charged with one count of persistent sexual exploitation of a child under the age of 17; there were four incidents which comprised the conduct of this charged offence. In addition, a further seven incidents were alleged as uncharged acts which were said to have occurred prior to the period of the charged offence. The trial itself went for over a week with a weekend intervening.
Two important witnesses on both the prosecution and defence case in W, PK had died before trial. The appellant’s cousin, L, was potentially an eyewitness to one of the offences said to have occurred in a family swimming pool. He was an independent witness, potentially, to the only one of the specific alleged incidents which was not committed when the appellant and the complainant were alone. The fact of his death denied the appellant the possibility of testimony from an independent witness.
The other witness was the complainant’s mother to whom the complainant said she made a complaint in addition to a friend named VL. The complainant’s testimony about the complaint to her mother and to VL was fundamentally inconsistent with the evidence of VL who was available and called at trial. The death of the complainant’s mother denied the appellant the possibility of establishing that fundamental inconsistency through an independent witness. As this Court observed in the judgment, the testimony on that issue alone had the mother still been alive was likely to have been accorded very substantial weight in resolving the issue of the complainant’s credibility and, thus, the ultimate outcome of the trial.
The direction in W, PK was held to be inadequate because the trial Judge failed to even mention the absence of those witnesses in any context, let alone the context of the direction required under s 34CB of the Evidence Act.
The similarity in directions given by trial judges pursuant to s 34CB is not surprising given that all judges are able to follow with modifications, as necessary, a template provided to all courts. It is evident that that template was used in both matters, as is often the case. Thus far there has been no suggestion that the template itself is an inappropriate basis for a direction given under s 34CB.
The circumstances of this trial and the evidence presented raise different considerations in assessing the adequacy of the directions. At the conclusion of the evidence, which took less than a day and a half, the trial Judge canvassed with counsel the need for the direction under s 34CB of the Evidence Act. The following exchange occurred:[8]
[8]    Transcript of Proceedings, R v T, S (District Court of South Australia, DCCRM-13-1897, Tracey DCJ, 16 March 2016) 186.
MR ALLEN:Given that the allegations relate to a period of time that is significantly earlier than that, then I wouldn’t argue strenuously against a direction in that regard.
HER HONOUR:     Ms Detmold, is that something that you’ve thought of?
MS DETMOLD:    It is one of those difficult points because I can see an argument both ways for that. In one sense, [the appellant] is forensically disadvantaged because he hasn’t had the opportunity to deal with these allegations, then again it is not entirely unusual in allegations of this sort that that happens. So I think it is probably -
HER HONOUR:     It is a 14 year gap.
MS DETMOLD:    Yes, I think it is probably a wise concept to have the forensic -
HER HONOUR:     I would have thought so.
MS DETMOLD:    However, it is one of those cases that there are aspects of forensics that obviously wouldn’t be of any use.
HER HONOUR:     No, I think it can be confined perhaps to -
MS DETMOLD:    To the fact it has been such a long time it turns one’s memory back.
HER HONOUR:     I might address what I’m going to say about that with you both tomorrow.
MR ALLEN:It did occur to me that there may be a disadvantage. It is a little clouded in the sense that the evidence is there were regular contact visits in any event but it might have denied the accused the possibility very soon afterwards of being able to account for things such as what the bedding looked like and various other matters. That is one of the features that I can see that arose, not necessarily the timing. But it is a significant passage of time.

Neither counsel sought to raise the topic again and the next morning the Judge summed up which included the direction that is set out in the judgment of Hinton J.
The Judge’s summing up to the jury was less than 48 hours after the complainant had left the witness box. The allegation made by the complainant encompassed one single episode during an overnight stay with the appellant. The evidence was neither long nor complicated. The issue up front and centre at the trial was the credibility and reliability of the complainant. The complainant was cross-examined about her claimed lack of memory and counsel for the appellant made much of the complainant’s lack of memory during her address to the jury. At times, counsel for the appellant suggested that the changes in the complainant’s account due to faulty memory was telling against her credibility and reliability as a witness generally.
Thus, the issue of the complainant’s claimed loss of memory was a central issue at the trial.
It is significant that in the exchange with the trial Judge at the conclusion of the evidence neither counsel was able to proffer any particular feature other than the inability of the appellant to account for features, such as the bedding in the house which he was living in at the relevant time. In discharging the responsibility pursuant to s 34CB, we do not agree that it was necessary for the Judge to detail every example of the complainant’s professed inability to recall matters.
What she was required to do, and in our view did, was to warn the jury that the complainant’s claimed inability to remember matters in detail had disadvantaged the appellant because it meant that he was unable to test the complainant’s account in details that might otherwise have been possible if she had made a fresh complaint. This the trial Judge did. She went further and explained some other ways in which the appellant had been disadvantaged.
This was a very short trial and the evidence would have been fresh in the jury’s mind. There was no need for the trial Judge in the circumstances of this case to go into any further detail than she did.
Furthermore, in the context of other redirections, the trial Judge repeated the direction as to the forensic disadvantage suffered by the appellant by reason of the complainant’s inability to recall many matters. It was the last direction the jury received before they retired. We would dismiss this ground of appeal.
Ground 3
The approach we have taken with respect to appeal ground 2 means that, unlike Hinton J, we should specifically address appeal ground 3. Under this ground the appellant contends that there were a number of features of the complainant’s evidence that rendered it not credible and unreliable. Accordingly, the appellant contends that the Judge was required to give the jury a specific warning stressing that the complainant’s evidence should be scrutinised with care along the lines of the direction identified in R v Johnson.[9]
[9] [2015] SASCFC 170 at [66].
The Judge in the summing up reiterated a submission of this character made by the prosecutor during his closing address. However, the appellant contends that such a reference, even if with approval, is not sufficient and that a direction carrying the weight of the Judge’s authority was required.
Given that the appeal is to be allowed on the basis of appeal ground 7, it is not necessary to form a view whether the Judge erred in failing to give such a direction in this case. In any event, upon any retrial, whether a direction might be called for will, of course, depend on the way in which the evidence unfolds at the retrial.
Conclusion
For these reasons, we too would allow the appeal on the basis of appeal ground 7, set aside the conviction and order a retrial.
HINTON J.
Introduction
The appellant was convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He appeals against his convictions contending that directions given as to the standard of proof, the use to be made of prior inconsistent statements, the forensic disadvantage he suffered due to the delay in the making of the complaint, and as to the use of evidence of initial complaint were inadequate. Further, he contends that a miscarriage of justice has occurred in that evidence of prior inconsistent statements made by the witness to whom the complainant first complained, which was not adduced at trial because counsel did not know of its existence, could significantly have affected the jury’s deliberations had it in fact been adduced. Lastly, he argues the verdicts are unreasonable and cannot be supported by the evidence.
The appellant was granted permission to appeal on all grounds save ground five which attacked the admission of the evidence of initial complaint under s 34M of the Evidence Act 1929 (SA) (Evidence Act). The question of permission in respect of ground five was referred to this Court to be heard with the substantive appeal.
I would refuse permission to appeal on ground five but otherwise allow the appeal. My reasons follow.
The trial
a. The prosecution case
The prosecution called three witnesses - the complainant, her friend TC, and CG, the complainant’s mother.
The complainant is the daughter of the appellant. She was 25 years old at the time of giving her evidence but only eight or nine years old at the time of the offending.
The complainant told the jury that her parents separated when she was seven years old. She then moved with her mother to live in Goolwa. At about that same time the complainant transferred schools, taking up a place at Goolwa Primary School. Thereafter she would stay with her father from time to time on weekends or during school holidays.
The offending subject of the charges occurred whilst the complainant was attending Goolwa Primary School and prior to her move at age 10 to Mount Compass Area School. She could not tell the jury what day of the week it was on which the offending occurred, but remembered that it was during the summer months. She told the jury that she was watching a documentary with her father about space when he begged her to remove her clothes and lie on his bed with him for a massage. She did not wish to disappoint him, so she did as he asked. She said he appeared drunk and she told the jury that her father often drank red wine.
Once on the bed, the appellant proceeded to give the complainant, who lay on her stomach, a back massage. Subsequently, she laid on her back and her father rubbed her feet. It was after this that the appellant performed cunnilingus upon her for, she guessed, about 15 minutes. She said she was scared and closed her eyes. She said nothing to her father. He was wearing a t-shirt and nothing more. He was positioned toward the end of the bed. She could not say whether he was standing on the floor.
The complainant told the jury that sometime later she came to be on her left side still lying on the bed. Her father positioned himself behind her. From this position she said he tried to penetrate her vagina with his penis four or five times. She said he managed to penetrate her labia minora but no more. She could not recall him saying anything at this time. She was afraid and knew that what he was doing was wrong. This lasted for about the same amount of time as had cunnilingus.
The complainant said she did not know how long the acts of penetration lasted. She could not recall how things came to an end, but she did recall getting up and going to the bathroom, leaving her father sitting on the bed. She felt disgusted and scared. She began to shower. Her father joined her in the shower. Afterwards she went to the toilet a number of times and then she went to sleep in his bed. He told her not to tell anyone.
The complainant told the jury that after this particular night she continued to visit and stay with her father up until she was about 14 years of age. She said that she had had no contact with the appellant since that time.
At age 14 or 15 the complainant met TC whilst attending Victor Harbor High School. They became friends. TC was the first person that the complainant told about what her father had done. The complainant told TC that her father had molested her when she was nine, she said that “he tried to stick it in”. She could not recall whether she said anything else. The complainant said TC said something in reply but she could not recall what save that it sounded sympathetic. The conversation did not last long. She said she did not tell her mother because she was afraid of upsetting her.
In cross-examination the complainant agreed that whilst at Mount Compass Area School she became good friends with another girl, KL. The complainant and KL spent a lot of time together when out of school. The complainant agreed that her father did not like KL. The complainant agreed that there was a time, when she was 14 years old, when she and KL were caught shoplifting. She could not recall the appellant coming to her mother’s home and saying that had she not been with KL she would never have offended, but she did concede that she refused to talk to her father on the telephone when he called after the incident.
The complainant recalled receiving sex education lessons whilst at Mount Compass Area School which included being advised that there were people to talk to if things had happened. She said that nonetheless she did not feel that she could talk to people and denied that she did not do so because nothing had happened.
The complainant agreed that during the three to four years of her friendship with KL there were occasions when she would stay overnight at KL’s home and occasions when KL would stay overnight with the complainant at her father’s. She had no recollection of storming out late one night when staying at KL’s for some reason and then proceeding to ring her mother to come pick her up only to be told that she was in no position to do so and for arrangements then to be made for a friend, CC, to do so. However, the complainant conceded it was possible. In fact she conceded that there was an occasion when she left KL’s after they had had a fight, but denied that this led to them never talking again. She denied that anything more than a fight had occurred and denied shutting down in terms of communicativeness with her family soon thereafter. She also denied that the real reason she stopped seeing her father was because of what happened at KL’s house.
The complainant was cross-examined about the disclosure she made to TC. She could not recall what led up to the conversation. It could have arisen out of the blue, she said. The complainant conceded it may have occurred in TC’s bedroom and not at school. She denied that she did not tell TC what actually happened, denied that she did not say to TC that he tried to stick it in, denied that she did not tell TC that her father “gave her oral”, and denied that she did not say that it was her father who had molested her.
Counsel for the appellant then suggested that the complainant had told TC that it was her mother’s then boyfriend that had interfered with her and not her father. The complainant denied ever saying such a thing to TC.
In bringing cross-examination to a close counsel for the appellant suggested to the complainant that she had indeed been molested but by someone other than her father and that it had occurred at KL’s on the night she stormed out. The complainant denied this.
TC told the jury that she was 25 years of age. She said she undertook years 8-11 of her secondary schooling at Victor Harbor High School where she met the complainant when she was in year 10 and about 15 years old. They became friends and remained so until 2009 when they lost contact.
TC recalled one day at school when she and the complainant were in year 10. It was not long after they had met and had become best friends. The complainant “talked about being touched”. The conversation occurred near the senior school toilets. TC said the complainant was “very upset, very teary” and that she tried to get more information from her but the subject was changed immediately. The complainant used the word “touched” but did not identify who had done so nor when. No-one else was party to the conversation.
In cross-examination TC was asked about another conversation she had had with the complainant in which the complainant had revealed that she did not like her mother’s boyfriend and was scared of him. TC said that at the time the complainant said these things she also mentioned being touched.
The complainant’s mother, CG, told the jury that the complainant was born in 1990. She confirmed that the complainant attended Goolwa Primary School, Mount Compass Area School and Victor Harbor High School. She confirmed that the complainant would stay with her father fortnightly for the weekend and would spend one week out of two weeks with him during school holidays. This stopped at some point when the complainant was in year 9 or 10.
CG recalled the complainant being friends with KL during the time that the complainant attended Mount Compass Area School and recalled the appellant indicating that he considered KL a bad influence. CG also recalled a time when the complainant was to stay over at KL’s house but abruptly left. The complainant rang her mother and was quite upset. Her mother was not home at the time. CG could not recall whether this telephone call had occurred before or after the complainant had returned home. The complainant would not tell her mother what had happened.
CG also gave evidence of an incident that occurred involving the complainant and a former boyfriend of CG’s. CG described the incident as an angry outburst. She called the authorities and had her then boyfriend removed. She did not link the incident to any inappropriate relationship between her boyfriend and the complainant and had no knowledge of any such relationship.
b. The defence case
The appellant gave evidence. He told the jury that he separated from his wife in 1997. He moved into a unit. Initially his unit was on the ground floor of the apartment block but later he moved into a larger unit on the third floor in which the complainant had her own bed. The complainant would stay with him at least every two weeks. Consistent with the complainant’s evidence the appellant told of the complainant having friends stay over from time to time.
The appellant explained why he considered KL a bad influence on the complainant. He said that he and KL did not like each other and he had asked his ex-wife to reduce the contact between the complainant and KL.
He told the jury of a particular night when his ex-wife, CG, called him. It was a night when the complainant was staying over at KL’s. He was told that the complainant was upset and had left KL’s and gone to the bus stop. He was asked to go and pick the complainant up. As he was about to do so he received a second call from his ex-wife informing him that she had arranged for a friend to get the complainant. The appellant said he never spoke to the complainant about this incident as it was after she had stopped seeing him.
The appellant also told the jury about the shop-lifting incident. His ex-wife told him what had occurred. He was asked to come over and speak to his daughter about it. He did so. He told the complainant he was disappointed. She was embarrassed. He said to her that he thought it was KL who had led her to offending. At that the complainant started to cry, became angry and rushed into her bedroom. The complainant told her father that she never wanted to speak to him.
After this incident the complainant never stayed with her father again. They did remain in communication until one night when during the course of a telephone call the appellant told his daughter that KL “is the most disgusting person I ever seen”. Since then they have not spoken.
The appellant denied performing the act of cunnilingus with which the complainant had accused him and denied penetrating her with his penis. He admitted having given his daughter a back massage once as she lay on her bed in his unit, and had quite regularly given her a foot massage, particularly after they had been for a long walk. He denied ever begging her to take off her clothes. He said that they were only once in the shower together and that was in order that he could wash her hair. On that occasion he was not undressed and she kept her back to him at all times because she was shy. It occurred when he lived in the unit on the ground floor.
In cross-examination the appellant said he could not recall when his daughter last stayed with him. It was a long time ago. He put the sudden stop down to KL having “messed up her mind”. He added that as parents they had no trouble with the complainant until she became friends with KL. He rejected the notion that the cessation in contact between him and the complainant was because of anything he did other than his comments about KL.
The appellant agreed that there were occasions when he had watched science documentaries about space with his daughter. He recalled watching a documentary called, “Voyager”. He conceded that they did so lying on his bed. He denied however that he begged her to take her clothes off and denied massaging her back and feet on this occasion. He denied performing cunnilingus upon his daughter and denied penetrating her with his penis. When the documentary finished the complainant returned to her bed where she slept.
There were occasions when the complainant did sleep in her father’s bed. In fact, when he was living in the unit on the ground floor this occurred all the time because there was no room for a second bed. When he moved to the third floor, however, it occurred only when she had fallen asleep on his bed as he worked.
The appellant agreed that he drank red wine and that on occasion he would have had a drink in the presence of his daughter. He denied that he ever got drunk when he had to look after her. He said that once he moved up to the third floor of the block of units in which he lived he never got drunk because the move coincided with the improvement in his circumstances.
The appellant said that he did not shower with the complainant naked. That he did not do so had nothing to do with the fact that the shower was small in size.
The only other witness called by the defence was AC, a neighbour of the appellant in Mount Compass. AC knew the appellant and his daughter. The complainant would often come to her home to see her dog on those occasions when she was staying with her father. She described the complainant as happy to be going home to her father’s. She described the appellant as an indulgent father and a kind person. She gave evidence of his general standing in the community.
c. The forensic contest
From the brief summary of the respective cases provided above it may be observed that this was a case of oath against oath. There was no evidence independent of the complainant capable of proving the offences. Consequently, proof of the appellant’s guilt rested upon the complainant being accepted as truthful and reliable such that her version of what occurred may be accepted beyond reasonable doubt.
CG’s evidence was led to support the truthfulness and reliability of the complainant in that it confirmed her accuracy as to her age at the time of the offending, the school she attended at that time, the schools she subsequently attended and when, the location of her father’s unit and the opportunity he had to offend against her.
CG’s evidence was not disputed. The forensic contest was confined to the truthfulness of the complainant as to what occurred in her father’s unit on one night some 17 or 18 years ago when she was eight or nine years old.
TC’s evidence was led to bolster the complainant’s truthfulness with respect to the conduct subject of the charges. In view of the confined forensic contest, it was important to the prosecution case as it was the only evidence independent of the complainant that had a bearing on the truthfulness and reliability of the complainant.

The defence case had three aspects; first, the complainant’s allegations were denied. Second, the defence floated the possibility of the complainant having been abused by another the identity of whom she transposed to her father. Third, the appellant’s character was such that he was unlikely to have committed the offences.
The directions given on the burden of proof (ground one)
a. The structure and content of the summing up
Early in her summing up the trial Judge correctly instructed the jury that the appellant enjoyed the presumption of innocence and that the burden of proving his guilt rested upon the prosecution. The Judge reinforced this instruction saying:
The accused does not have to prove anything at all. It is the prosecution that has to prove the charges and prove them beyond reasonable doubt. ‘Reasonable doubt’ is simply a doubt which you, as reasonable jurors, are prepared to entertain. It requires no other explanation than that and I will say it again: reasonable doubt is simply a doubt which you, as reasonable jurors, are prepared to entertain.
Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt or to show that an accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. In my summing up I will refer to the need for matters to be proved or established. You must understand that, where I use those expressions, I mean proved beyond reasonable doubt. Your obligation here is to confine your deliberations to the evidence put before you in this court and to render true and honest verdicts in accordance with the evidence that has been placed before you.
These directions were given against the backdrop of the prosecutor clearly stating in both his opening and closing addresses that the burden of proof was borne by the prosecution and that before the jury could convict they had to be satisfied that the charges had been proven beyond reasonable doubt.
The summing up then turned to the issue of assessing witnesses. As is customary the Judge raised with the jury factors that they might consider in assessing the evidence given by the witnesses in the course of determining whether that evidence was truthful and reliable. The Judge then said:
You are not required to be satisfied of an accused’s version of events. The burden of proof lies with prosecution (sic). Part of the relevance of the version of events put forward by an accused is to consider whether it assists in casting a reasonable doubt on the prosecution case. The factors that I have mentioned so far are only guides for your assistance. What is important above all else in deciding the case is that you bring your commonsense and your experience of the world when deciding how far each of the witnesses is truthful and reliable.
The Judge then proceeded to remind the jury of the direction she gave during the trial and immediately before the complainant gave evidence as to the special arrangements made for the complainant’s evidence (the complainant gave evidence from a remote location by CCTV with the support of a court companion) and that those arrangements were not to influence the weight to be given to the complainant’s evidence. So doing the Judge discharged the obligation imposed by s 13(7) of the Evidence Act.
The Judge then turned to deal with the fact that the appellant had given evidence. She said:
I also remind you that the accused gave evidence on oath. He was not obliged to do so. He could have remained silent in answer to the charges, leaving the prosecution to satisfy you of all of the elements of the charges against him. He took the witness box like other witnesses and exposed himself to cross-examination. He is entitled, therefore, to have his evidence assessed, scrutinised and evaluated by you in the same way as all other witnesses in this case.
In this case, if you accept the evidence of the accused completely, or even if you think it is a reasonable possibility that he did not commit the charged offences, then you will acquit him. However, if you reject his evidence, then that is not the end of the matter. In order to find him guilty of both or either of the charges, you must be satisfied beyond reasonable doubt on the evidence presented by the prosecution of his guilt in relation to the charge that you have under your consideration.
The structure of the summing up then proceeded as follows – the Judge addressed the use to be made of the evidence of good character adduced as part of the defence case, possible prior inconsistent statements and the use that could be made of such statements, the evidence of initial complaint and the use that may be made of it, the elements of the offence of unlawful sexual intercourse, the use that may be made of a finding of guilt on one count in considering the other count, then summarised the evidence including the accused’s evidence, before referring to some of the arguments made by counsel during the course of their addresses. The Judge then gave the jury what is locally known as a Calides[10] direction. She said:
Ladies and gentlemen, that brings me to one final direction that I need to give you in relation to the law. In this case you have two opposing bodies of evidence. They are in direct opposition to each other. On the one hand, you have the evidence of [the complainant] that her father committed these offences against her and, on the other, the accused who denies any wrongdoing whatsoever. These two versions cannot stand together. It is your task to consider all of the arguments made to you by each side, bearing on the evaluation you make of the evidence.
At the end of your deliberations, you might be left in any one of three situations. You may be satisfied beyond reasonable doubt of the prosecution evidence, in which case, your verdict will be guilty. Alternatively, you might be persuaded by the accused’s evidence, in which case, your verdict will be not guilty. A further possibility is that after full and careful consideration you will be unable to decide where the truth lies or who is telling the truth. In that event, the prosecution will have fallen short of proving its case beyond reasonable doubt and, again, your verdict would be not guilty.
[10] The Queen v Calides (1983) 34 SASR 355.
Thereafter in bringing her summing up to a close the Judge reminded the jury of the onus and standard of proof, not to be deflected by sympathy or emotion, reminded the jury that she had not referred to all of the evidence and that they were to have regard to whatever in the evidence they considered of importance to their deliberations, and reminded the jury to bear in mind the addresses of counsel. The Judge then repeated:
If, at the end of the case, you are of the opinion that the accused is innocent of the charges, you must find him not guilty of those charges. Equally, if, on the whole of the material before you, there remains a reasonable doubt as to the guilt of the accused, or if you are genuinely uncertain as to where the truth lies, the verdict must be not guilty.
The Judge then referred to the need to appoint a foreperson, the role of the foreperson and that any assistance from the Judge could be had by sending her a note.
b. The appellant’s arguments
The appellant complains that the Judge’s directions have fatally undermined the burden of proof in two respects. First, he contends that the Judge’s reference to the function of the version of events put forward by the appellant as including its capacity to cast a reasonable doubt on the prosecution case (quoted at [72] above) proceeds from an assumption that the prosecution case has the capacity to prove the offences charged subject to the capacity of the appellant’s evidence to generate a reasonable doubt. The complaint is that the jury would have been moved to reason sequentially commencing with an assessment of the prosecution case and whether it tends to prove the charges in isolation of any consideration of the appellant’s evidence, then moved to consider whether the appellant’s evidence created a doubt in relation to the prosecution case as accepted. To reason in this way, he contends, is erroneous. In cases where the prosecution case turns on the truthfulness and reliability of one witness, the evidence of an accused should be taken into account in determining whether that witness’ evidence may be accepted beyond reasonable doubt.
Second, the Calides direction (reproduced at [73] above) had the consequence of inviting the jury to consider the relative persuasiveness of the appellant’s evidence and the prosecution evidence thereby diverting the jury from the appropriate inquiry, being whether or not the jury was satisfied that all elements of each charge had been proven beyond reasonable doubt. Further, the direction carried with it the suggestion that the appellant bears the burden of persuading the jury of the truth of his version of events.
c. Consideration
The Judge was correct in her directions that the jury was not required to be satisfied of the appellant’s version of events and obviously did not err in repeating that the burden of proof rests upon the prosecution. The Judge’s statement that “[p]art of the relevance of the version of events put forward by an accused is to consider whether it assists in casting a reasonable doubt on the prosecution case” is not in itself wrong. Here context must be borne in mind. As indicated this was a case of oath against oath. However, the appellant not only denied the conduct but floated an alternate hypothesis. Both his denials and the alternate hypothesis floated were relevant to the assessment of the credibility and reliability of the complainant. Any doubt the appellant’s evidence cast upon the complainant’s credibility and reliability was a doubt cast upon the prosecution case. The jury would not have understood otherwise. The invitation is in effect then to consider whether the appellant’s evidence causes the jury to doubt the complainant’s truthfulness and reliability. Bearing in mind that this invitation arises in the context of directions more generally on the assessment of witnesses, I do not think it would have been understood as encouraging the sequential process that the appellant asserts. This is particularly so bearing in mind what immediately follows:
The factors that I have mentioned so far are only guides for your assistance. What is important above all else in deciding the case is that you bring your commonsense and your experience of the world when deciding how far each of the witnesses is truthful and reliable.
In my view the direction did not invite sequential reasoning and the jury would not have understood it as doing so. In my view the jury would have understood that they were to consider the appellant’s version of events, meaning his denial and the alternate hypothesis, in the course of assessing the evidence for the prosecution and whether it was truthful and reliable such that the jury could be satisfied that the charges were proved beyond reasonable doubt.
I turn to the Calides direction. In The Queen v Calides Wells J was concerned to reinforce that, in cases where the prosecution case is dependent upon the credibility and reliability of the complainant whose evidence is diametrically opposed to that of the accused such that both cannot be telling the truth, juries must understand that the correct application of the burden and standard of proof will yield one of three possible outcomes:[11]
… the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty.
[11] (1983) 34 SASR 355 at 358-359.
Lying beneath the surface of Well J’s concern is the understanding that in cases of oath against oath directions on the burden and standard of proof must ensure that the jury resists any temptation to resolve the case according to which of the opposing bodies of evidence it prefers.
In R v Lavery Nicholson J observed that:[12]
… By the end of the summing up, a jury should have in mind two mutually exclusive alternatives: has the prosecution proved guilt beyond reasonable doubt or has it failed to prove guilt beyond reasonable doubt.
[12] R v Lavery (2013) 116 SASR 242 at [39].
I agree. That said, the complexity of applying the burden and standard of proof to the reasoning process that needs be undertaken before the jury can arrive at a verdict should not be overlooked. The process may be stepped through as follows:
In a case of oath against oath the jury should understand that:
a.   It may only find the accused guilty of the offence charged if it is satisfied that the prosecution has proven the accused’s guilt beyond reasonable doubt.
b.   To prove the accused’s guilt beyond reasonable doubt the prosecution must prove that each element of each offence charged occurred beyond reasonable doubt which means, in effect, that the evidence of the complainant as to the elements of the offences charged must be accepted as truthful and reliable such that the jury is satisfied beyond reasonable doubt that all elements of the offences charged occurred as the complainant has said.
c.   In determining whether the jury is so satisfied it must understand that:
i.It must take into account all of the evidence, including the evidence of the accused.
ii.It is to assess the evidence of the accused in the same way as it assesses the evidence of all other witnesses.
iii.If upon assessing the accused’s evidence the jury is satisfied that the accused’s version is reasonably possible then it follows that it cannot be satisfied that the evidence of the complainant is truthful and reliable such that it can be satisfied beyond reasonable doubt that all elements of the offences charged occurred as the complainant has said and must acquit.
iv.If upon assessing the accused’s evidence the jury is satisfied that the accused’s version is not reasonably possible, that does not mean that the complainant’s version is to be accepted automatically as truthful and reliable such that the jury is satisfied beyond reasonable doubt that all elements of the offences charged occurred as the complainant has said. The jury must go on to determine whether the evidence of the complainant as to the elements of the offences charged is truthful and reliable such that the jury is satisfied beyond reasonable doubt that all elements of the offences charged indeed occurred as the complainant has said.
v. The jury should understand that it is possible that they might conclude that the accused’s version is not reasonably possible and might also conclude that the complainant’s version cannot be accepted beyond reasonable doubt, in which case they will acquit the accused.
vi. In undertaking the task of determining whether the evidence of the complainant is truthful and reliable such that the jury is satisfied beyond reasonable doubt that all elements of the offences charged occurred as the complainant has said, the jury might be reminded to do so having regard to all of the evidence including that of the accused and that it does not follow that just because the accused’s version of events has been rejected as not amounting to a reasonable possibility that all of his or her evidence is to be rejected. It may be possible that some portion of it might still be relevant to the assessment of the truthfulness and reliability of the complainant’s evidence.
To step through the process reveals the underlying complexity. The Calides direction is but a component of the process. There is much to be said for incorporating the intent of the Calides direction into the directions given as to the burden and standard of proof rather than leaving it as a standalone direction, given toward the end of a summing up.
I return to the Calides direction given in this case. I preface my remarks by quoting from Wells J in Calides for the different purpose of outlining the approach that this Court should take in analysing arguments such as that raised by the appellant under this ground of appeal. Wells J said:[13]
… It seems to me that the line of cases on summings up, dating from the very beginning of this century, all speak with one voice, and that is that one must have regard to the overall impression that would have been created on the minds of the jury if one is fairly to judge a summing up. It is quite wrong to extract portions of it, adversely criticise them, and then blandly claim that they have destroyed the whole structure of an otherwise perfectly competent summing up. But such questions always raise matters of fact and degree, and general impression; and, unfortunately, it seems to me, that where a judge proceeds to discuss, for the benefit of the jury, the central factual issues upon which their decision is almost certain to rest, it is essential that he should ensure that anything that he says directly about onus of proof, or that is capable of affecting his directions on onus of proof, should be carefully and clearly stated in a manner free from error.
[13] The Queen v Calides (1983) 34 SASR 355 at 357.
I also bear in mind what fell from Kelly J in R v Molloy:[14]
[14] (2008) 102 SASR 452 at [56]-[58].
This Court’s decision in R v Woods was also relied on by the appellant. Although that decision was handed down after submissions were made on this appeal, the court received written submissions from both the appellant and the respondent with respect to the effect of that decision. In Woods the court by majority (Gray and Sulan JJ, David J in dissent) accepted a submission that the trial judge’s directions taken as a whole in that case had the effect of inviting the jury to either accept the prosecution version of events or the appellant’s version. It was held that those directions in conjunction with other defects found in the summing up constituted a misdirection as to the onus of proof and a retrial was ordered.
One matter which emerges from the decided cases is that it is sometimes a matter of very fine degree as to whether a particular turn of phrase, or perhaps infelicitous expression either in isolation or in combination, has the effect of confusing or misleading a jury to the point where it amounts to a material misdirection.
In the light of what appears to be an emerging trend to subject the summings up of trial judges to minute analysis line by line, passage by passage, it is instructive to reflect on the following passage in the judgment of Kirby J in Murray (at 216). Although his Honour was in dissent in that case, the following passage from the judgment is a helpful reminder for an appellate court:
72 … However, it is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1) The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal; and
(2) The entirety of the communication. Particular passages in the instructions must be read and understood in the light of –
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge’s instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context. But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context.
(citations omitted).

The appellant’s argument latches on to the use of the word “persuaded”. He contends that the “take home message” was that a verdict of not guilty would only follow if the appellant persuaded the jury as to his version of events or they were uncertain as to where the truth lay.
The Calides direction in the form given here and in particular the use of the word persuade has been the subject of criticism by this Court.[15] I accept that use of the word “persuade” suggests a level of satisfaction higher than that of accepting something as a reasonable possibility. However the second paragraph of the impugned direction refers to three possible conclusions. The second statement of conclusion – that which is attacked – is logically correct. The fact is the appellant did enter the witness box and may, despite bearing no onus, have been persuasive with the result that he should be acquitted. That second statement of conclusion does not say that the outcome, namely, a verdict of not guilty, can only follow if after considering all of the evidence the jury is persuaded by the appellant’s version. Nor does it state that it is for the appellant to persuade the jury of the acceptability of his version of events. That said, there is force in the view that it poses a “needless distraction to a careful consideration” of whether guilt has been proven beyond reasonable doubt.[16]
[15] R v Lavery (2013) 116 SASR 242 at [9] (Peek J), at [39] (Nicholson J, Kelly and Peek JJ agreeing).
[16] R v Lavery (2013) 116 SASR 242 at [10] (Peek J).
That does not dispose of the matter. The appellant’s argument may be recast as follows; absent mention of a fourth statement of conclusion, namely, if the jury considered the appellant’s version of events amounted to a reasonable possibility they must acquit, the jury would have confined itself to a consideration of which of the three outcomes identified it was satisfied. If there is a perceptible risk that the jury so confined itself then there is a perceptible risk that the burden and standard of proof were erroneously applied.
The directions given early in the Judge’s summing up as to the burden and standard of proof were strong and unequivocal.[17] Those directions were reinforced by the directions given in relation to the appellant’s decision to give evidence. At that point in the summing up the Judge said:
In this case, if you accept the evidence of the accused completely, or even if you think it is a reasonable possibility that he did not commit the charged offences, then you will acquit him. However, if you reject his evidence, then that is not the end of the matter. In order to find him guilty of both or either of the charges, you must be satisfied beyond reasonable doubt on the evidence presented by the prosecution of his guilt in relation to the charge that you have under your consideration.
[17] Reproduced at [68] above.
This direction meets the requirements of Brennan J in Liberato v The Queen.[18] It also contains the fourth statement of conclusion missing from the Judge’s Calides direction. Thus it is not the case that the jury were not told what the outcome would be if they considered the appellant’s version as giving rise to a reasonable possibility.
[18] (1985) 159 CLR 507 at 515.
Following very closely after the Calides direction the Judge said to the jury:
Remember the accused does not have to prove a thing. The onus of proving the case rests with the prosecution.
At the end of the day, it is a matter for you as to whether the prosecution has proved beyond reasonable doubt the accused acted as has been alleged.
This direction, again clear and strong, would in my view have eroded any impression that a finding of not guilty turned upon the appellant persuading the jury that his version of events was the truth. That was reinforced by the Judge when, in bringing the summing up to a close, she said:
If, at the end of the case, you are of the opinion that the accused is innocent of the charges, you must find him not guilty of those charges. Equally, if, on the whole of the material before you, there remains a reasonable doubt as to the guilt of the accused, or if you are genuinely uncertain as to where the truth lies, the verdict must be not guilty.
Having regard to the summing up as a whole and to the strength of the directions given and repeated regarding the burden and standard of proof, I do not think the jury would have been left with the impression that a verdict of not guilty would only follow if the appellant persuaded the jury as to his version of events or they were uncertain as to where the truth lay.
It must be remembered that a reasonable possibility consistent with innocence and proof of guilt beyond reasonable doubt are mutually exclusive. That suggests that a strong direction as to the burden and standard of proof, as was given here and repeated, coupled with a direction that all evidence relevant to the charge including the accused’s evidence must be taken into account, as was given here, will have the consequence that the jury, who must be assumed to follow directions,[19] will acquit if the accused’s evidence causes them to doubt the truthfulness and reliability of the complainant. Accepting this, the fourth statement of conclusion is but a variant of the third.
[19] Gammage v The Queen (1969) 122 CLR 444 at 463 (Windeyer J); Gilbert v The Queen (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J); Dupas v The Queen (2010) 241 CLR 237 at [28] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Lastly, the appellant purports to derive support for his submissions from the nature of the question asked by the jury after it had been deliberating for approximately two hours. The question was; “we have a question regarding majority. We are currently split. We recall that you said that if we can’t decide, it will be ‘Not Guilty’. Is this an instruction to the jury as a whole?” In my view the question seeks assistance with what as a matter of law amounts to a majority for the purposes of a majority verdict. True it is that the question suggests a transposition of the Calides direction given, but it does not indicate any misunderstanding otherwise.
I would dismiss the first ground of appeal.
The directions concerning forensic disadvantage (ground two)
This ground of appeal targets the direction given by the Judge in compliance with s 34CB of the Evidence Act. That section provides:
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.
There are a number of observations to be made regarding the operation of s 34CB; first, s 34CB(1) makes clear that what follows is a rule of evidence substituted for that developed by the common law. Consequently it is the language of the statute which determines the manner in which the evidential issue under consideration is to be treated.[20] Second, the section is two staged in its operation. The first stage requires that the trial judge consider whether in his or her opinion the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant. If the trial judge does form such opinion then the duty contained in s 34CB(2) is enlivened and the judge must give the appropriate direction. If the trial judge concludes to the contrary, the duty is not enlivened and no direction in conformity with s 34CB need be given.
[20] Papakosmas v The Queen (1999) 196 CLR 297 at [10] (Gleeson CJ and Hayne J, Gaudron and Kirby JJ agreeing), at [88] (McHugh J).
Returning to the first stage, the relevant disadvantage must be the product of the passing of time between the alleged offending and the trial (the disadvantage is intentionally not framed in terms of the complainant’s delay in complaining so as to avoid any suggestion of blame). Further, it is a ‘forensic’ disadvantage. That is, it is one pertaining to the matter in court, to the forensic contest. It requires disadvantage in the ability of the accused to present a defence or test the prosecution case. The words, “has resulted in”, indicate that the forensic disadvantage must be one sustained and not assumed. Here the observations of Doyle CJ in R v Cassebohm are important:[21]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
[21] (2011) 109 SASR 465 at [30] (White and Peek JJ agreeing).
Next, the disadvantage must be significant. This requires a consideration of the nature of the asserted disadvantage and the degree to which it compromises the defendant’s ability to marshal and present his or her defence or test the prosecution case.
Turning to the second stage, if the judge holds the relevant opinion the nature of the disadvantage must be explained to the jury in terms specific to the circumstances of the particular case. As Doyle CJ also said in R v Cassebohm:[22]
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[22] (2011) 109 SASR 465 at [32].
It must be emphasised that the duty is to explain to the jury the nature of the forensic disadvantage being the significant forensic disadvantage that in the opinion of the judge has arisen because of the period of time that has elapsed between the alleged offending and the trial. Thus the direction given is tailored and specific.
Lastly, the jury must be directed to take the disadvantage into account in scrutinising the evidence, but not ‘warned’ of the dangers of not doing so and any direction given must not include the phrase “dangerous or unsafe to convict”.
It is trite to observe that s 34CB of the Evidence Act focuses upon the accused and the significant forensic disadvantage he or she has sustained. It is that disadvantage that must be explained to the jury and that disadvantage which the jury is to be directed to take into account when scrutinising the evidence. In cases of oath against oath where a significant forensic disadvantage has arisen, without the benefit of directions from the judge, a jury may not realise the impact of the disadvantage in two primary respects; first, as s 34CB makes plain, the impact upon the accused. Second, the flow on impact upon the fact finding task that the jury is to undertake. As to the former, the disadvantage will ordinarily lie in the inability to adequately test allegations or adequately marshal a defence in some particular respect compared with the position if the trial had taken place at a time more contemporaneous with the commission of the offence. As to the latter, the consequence for the jury is that they are being asked to determine whether guilt has been proven beyond reasonable doubt on the strength of evidence that has not been tested as it otherwise might have been, or possibly answered by the calling of other evidence. It is the fact that the jury is asked to determine guilt on the strength of evidence that has not been tested as it otherwise might have been, or possibly answered by the calling of other evidence, that in the past was considered to merit a warning issued in terms of it being dangerous to convict on such evidence unless, having scrutinised it carefully, and heeding the warning, the jury was satisfied of guilt beyond reasonable doubt. Section 34CB(3) forbids the use of the phrase, “dangerous or unsafe to convict”, but it does not relieve a trial judge of the responsibility of bringing to the jury’s attention the effect of the disadvantage on the fact finding task that it is required to undertake. Hence in R v W, PK Kourakis CJ concluded what he proposed as a suitable direction in that case with the following:[23]
Ladies and gentlemen, we cannot know what L and the accused’s mother would have said if called to testify. You are not to speculate about what they might or might not have said. However, in considering whether or not you accept S’s testimony and whether the offence has been proved beyond reasonable doubt, you should consider whether you can be so satisfied in the absence of any evidence from the accused’s mother or L.
[23] [2016] SASCFC 5 at [47].
It should also be borne in mind that often in cases of oath against oath where, due to the passage of time the accused suffers a forensic disadvantage, the defence will take the form of a blanket denial. That denial provides a jury with little to work with in assessing truthfulness and reliability and yet that is all in the circumstances that an accused can offer. By contrast, the complainant starts from a position of providing some detail and will often be said to gain some credit for coming to court and telling the jury of things intimate, embarrassing, perhaps shocking, of which the detail given as to the abusive conduct suggests is unlikely to be false. Further when the jury is instructed in assessing the witnesses’ evidence to consider not just what is said, but how it is said, to consider whether the evidence has the ring of truth about it, and to consider how the evidence fits in with other evidence, such as age, addresses and school attendance, the complainant has a forensic advantage over the accused who cannot test the surrounding circumstances due to the absence of memory and whose answer is that it did not happen. In addition to the inability to test the prosecution case and the likely non-appreciation of the consequence for the fact finding task, a jury would not appreciate the constraining effect that the lapse of time and its consequences can have on the capacity to assemble and mount a positive defence case. The importance to a fair trial of a direction under s 34CB of the Evidence Act where a court forms the opinion that an accused has suffered a significant forensic disadvantage becomes obvious.
In this case the Judge directed the jury as follows:
Ladies and gentlemen, as you may be aware, there has been a period of 14 years between the alleged offending and this trial. That delay has resulted in a forensic disadvantage to the accused. By ‘forensic disadvantage’ I mean that there are difficulties for the accused in challenging and responding to allegations so long in the past. The forensic disadvantage in this case includes [the complainant] being unable to remember some matters in detail. That factor has disadvantaged the accused because there is an inability to test her account in details that might otherwise be done if the complaint had been fresh.
From the accused’s perspective, the delay has also disadvantaged him in a number of other ways. If the complaint had been prompt, he would have been in a better position to remember back to the relevant time and remember what, if anything, happened. If there had been a prompt complaint, then again he may have been in a position to remember who he was with on the day or recalled details of things such as the bed coverings that he had at the particular time, although, as I have already directed you and as you must remember, the accused does not have to prove anything.
If there had been a prompt complaint, there would have been an opportunity for the accused to interview potential witnesses, or perhaps for [the complainant] to have had a medical examination, or for other forensic investigations to be undertaken.
You must take such disadvantages into account in assessing whether the prosecution has proved beyond reasonable doubt both or either of the charges against the accused.
At the conclusion of the summing up, at the request of counsel, the jury was brought back into court and the Judge repeated the direction outlined above. The Judge added:
It is important to understand that a delay in making a complaint does not necessarily mean that the allegations made by [the complainant] are false.
In my opinion the direction given in this case did not adequately discharge the duty imposed by s 34CB(2) of the Evidence Act.
The first paragraph of the direction identifies the significant forensic disadvantage to the appellant as including the inability to test the complainant’s account “in details that might otherwise be done if the complaint had been fresh.” Section 34CB(3)(a) requires that the direction be specific to the circumstances of the particular case. The first paragraph of the direction given in this case never moves beyond the general. What were the matters of which the complainant had no memory that the appellant could not consequently test?
In my view the Judge was required by s 34CB to provide the jury with sufficient and particular examples of the complainant’s professed inability to remember matters and then, with reference to those matters, explain the nature of the forensic disadvantage. So, for example, the absence of memory of contextual detail – day, month, year, events of the day in question – meant that the appellant could not explore fully with the complainant the context in which the offending was alleged to have occurred. That disadvantaged the appellant in that the context in which offending is alleged to have occurred is something to which a jury may have regard in assessing the likelihood of the event occurring. Of course the jury is not to be invited to speculate as to the impact on its assessment of the credibility and reliability of the complainant that the inability to test the contextual circumstances has had, but should be directed that in considering whether or not to accept the complainant’s testimony and whether the offence has been proved beyond reasonable doubt, it may consider whether it can be so satisfied in the absence of such evidence and it being tested. Not every example of an inability to recall something need be referred to, but enough must be specified such that the court can be satisfied that the nature and extent of the disadvantage is understood and how it may be taken into account is also understood.

In R v Scott Doyle CJ appears to have been of a like opinion (i.e. that there is no practical difference in the mode of statement of the test).[47] In R v Reci,[48] however, Doyle CJ proceeded on the basis that the test was as stated by Mason and Deane JJ in Gallagher v The Queen[49] (i.e. a miscarriage of justice has occurred if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence was before it) as that approach attracted the support of a majority in Gallagher and in Mickelberg:[50]
… albeit without, in the case of Toohey J and Gaudron J, deciding whether there was a real difference in Gallagher between Brennan J on the one hand and Gibbs CJ, Mason and Deane JJ (and I would add Dawson J) on the other hand.
(citations omitted).
[47] (1996) 131 FLR 137 at 154-155.
[48] (1997) 70 SASR 78.
[49] (1986) 160 CLR 392.
[50] R v Reci (1997) 70 SASR 78 at 94-95 (Doyle CJ, Cox and Lander JJ agreeing).
I adopt this approach.
It is obvious that had the transcript of interview and its related recording been available at trial it could have been deployed to destroy or at least significantly undermine the evidence that any complaint was made to TC and the content of the complaint with the result that the complainant’s credit would no longer be bolstered by an initial complaint.
That is, armed with the transcript of the June 2014 interview defence counsel could have put to TC that the complainant never told her that she had been sexually abused and never told her that she had been sexually abused by her father. It could also have been put to TC that there was a conversation in which the complainant mentioned to TC her fear of her mother’s boyfriend in a context that had nothing to do with her father but which made TC think she had been sexually abused by the boyfriend. It could have been put that in that conversation the complainant did not use the word “touched” but that TC assumed she had been touched. It could have been put that the complainant never used the word touched. If TC denied any of these propositions her prior inconsistent statements could be proven undermining her credibility and with it the weight to be attached to the complainant’s evidence as to initial complaint. If TC agreed that she made the out of court statements but attempted to explain them away, that would also impact significantly upon her credibility and the weight to be attached to the complainant’s evidence as to initial complaint. If TC agreed that she made the out of court statements and that the evidence she gave in-chief was wrong, then her recantation and correction, if accepted by the jury, would mean there was evidence contradicting the complainant’s testimony that she did complain to TC.
It is to be remembered here that the defence case included floating the possibility of the complainant transposing her father for the true identity of her abuser. That hypothesis was dealt a blow when TC gave evidence of there having occurred two conversations with the complainant in which the latter mentioned she had been touched, but only one of which was had in a context of expressing fear of CG’s boyfriend. If TC were to commit to what she said in the interview that hypothesis is somewhat strengthened.
In a case of oath against oath involving a sexual offence and evidence of initial complaint such as this, the bolstering effect of evidence of initial complaint upon the credibility of the complainant is often significant. It introduces a degree of independent validation of disputed evidence where a jury can be trusted to search the evidence for any and all indications as to where the truth lies. In this case where the evidence of the complainant was of events that occurred one day, seemingly out of the blue, some 17 or 18 years ago, and where for the next four or five years she happily returned to stay with her father regularly, it cannot be said that the evidence of initial complaint could not have been significant in the jury’s deliberations. Further, understandably the complainant’s evidence suffered from a lack of detail due to the effect of time upon memory. It is likely that she would have been forgiven such lapse in memory because of the detail she could give, where the appellant’s defence was largely a denial. The contribution to such forgiveness that the evidence of initial complaint would have made should also not be overlooked. If the interview with TC on 18 June 2014 was available to defence counsel and deployed as realistically postulated above, the evidence of initial complaint could have been significantly undermined if not its effect as independent validation destroyed. In either instance, in my view, it is a significant possibility that the jury, acting reasonably, would have acquitted the appellant.
In my view the seventh ground of appeal is made out.
Unreasonable and cannot be supported by the evidence (ground eight)
In The Queen v Nguyen Hayne, Heydon, Crennan, Kiefel and Bell JJ said:[51]
[51] (2010) 242 CLR 491 at [33]. See also SKA v The Queen (2011) 243 CLR 400 at 405-406 (French CJ, Gummow and Kiefel JJ).
The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.
[T]he 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.
As the plurality in M went on to point out:
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.
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.
(footnotes omitted).
In Libke v The Queen Hayne J, with whom Gleeson CJ and Heydon J agreed, said that the question for an appellate court in determining whether it was open to a jury to be satisfied of guilt beyond reasonable doubt involves consideration of whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[52] Hayne J said:[53]
It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[52] (2007) 230 CLR 559 at 596-597.
[53] Libke v The Queen (2007) 230 CLR 559 at [113].
Here there is material that might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard, but it cannot be said that the jury must have entertained a reasonable doubt. The complainant’s imperfect memory is understandable. That she should remember the acts perpetrated against her and things that happened immediately before and after, however, is not remarkable. Further, that the complainant would describe cunnilingus as lasting approximately 15 minutes and her father’s penetration of her approximately the same period of time does not cause me to think that a jury must doubt that it occurred. I accept that it may be considered unlikely that the conduct described occurred for as long as was described in actuality, but those times as given were in the nature of an impression and as an impression it is not difficult to think that what occurred may have seemed to last for the length of time nominated. The complainant’s description of her father begging her to remove her clothes can be similarly viewed. As for the two inconsistencies to which reference has been made above, the complainant gave her explanation. I admit to some concern regarding her evolving memory, not so much with respect to whether her father was wearing a t-shirt, but as to his position in penetrating her. At trial that inconsistency and its significance was obvious and yet it did not cause the jury to think that the complainant was not credible and reliable. That suggests that the advantage of the jury in seeing and hearing the complainant, and, indeed, the appellant (bearing in mind the good character evidence given) was significant in this case. I conclude that whether this issue gives rise to a reasonable doubt can only be resolved by seeing and hearing the complainant.
It was put that as part of any independent assessment this Court should take into account the significant forensic disadvantage occasioned the appellant by the lapse of time between the offending and trial. I agree that the appellant has suffered a significant forensic disadvantage. I do not think it is, however, as extensive as the appellant contends. For example, the complainant gave evidence that she thought that immediately before the offending occurred she watched a space documentary with her father. She could not remember the name of the documentary. In cross-examination on this issue the appellant said that he had seen parts of a series on SBS called, “Voyager”, went to the SBS shop and bought the tape of the series. He said he watched this tape with his daughter. Cross-examination then proceeded on the basis that this was the occasion on which the offending occurred. On appeal the appellant argued that the complainant’s inability to remember the title of the space documentary she watched was an example of the forensic disadvantage he suffered. If she could identify it, he could have investigated whether the title had been released. However, the appellant’s evidence implied that the only documentary she could have been referring to was “Voyager”. “Yes, she watched – I’ll tell you exactly. We watched a documentary called Voyager”, he said. Cross-examination then proceeded upon the basis that it was “Voyager” that the appellant and his daughter had watched on the day of the offending. The appellant never contended that it could not have been “Voyager”. Rather his evidence was to the contrary – it could only have been “Voyager”. The complainant was never asked whether the title of the documentary she watched was “Voyager”. The evidence was left in a state consistent with the appellant’s case in that it was reasonably possible that the complainant was watching “Voyager” as he said.
A second example is the contention that the appellant was forensically disadvantaged by the complainant’s inability to recall the content of sex education classes she attended in primary school. In cross-examination the complainant agreed that whilst at Mount Compass Area School she attended sex education classes. She could recall that they were told about sex, sexually transmitted diseases and menstruation. She did not recall being told about inappropriate relationships or about saying no to people with whom she did not wish to have a sexual relationship. She did recall that she was told that there were people she could talk to about things that may have happened to her, but she said, “I didn’t feel that way”, despite being encouraged in class. She denied that she didn’t feel that way because nothing had happened. Again the advantage of seeing and hearing the witness in this regard would have been important to determining whether her explanation be accepted.
Further, it cannot be said that a significant forensic disadvantage has arisen concerning the complainant’s inability to recall the content of sex education classes she attended as a child. Defence counsel’s intention was to create some doubt as to the credibility of the complainant because she did not complain despite having the benefit of sex education classes that included being advised that there were people who could assist and to whom a complaint could be made. The complainant’s memory as to the content of the classes was sufficient for defence counsel to achieve the intended purpose. As I have said what a jury would make of the explanation turned very much on the advantage the jury has over this Court.
I am wary of the contention that a forensic disadvantage has been occasioned the appellant with respect to the evidence concerning the complainant’s relationship with KL because of the lapse of time between allegation and trial. KL was not called to give evidence. She too would have been around 25 years of age at the time of the trial. On the prosecution case, no reason arose for the prosecution to locate and call KL. Bearing in mind that one aspect of the defence case was that the complainant was abused as she said but at KL’s house by someone other than her father, what KL or anyone else who was present could tell the jury was very much a part of the defence case. However, no evidence was called by the appellant to establish that KL was unavailable to give evidence or, for that matter, anyone else who was at KL’s home on the night in question. It should not be assumed that KL was hostile to the appellant or could not assist. No significant forensic disadvantage arises where an accused raises the merest possibility of an alternate factual scenario that accounts for the offending conduct and exculpates the accused but determines not to call the witness or witnesses who may support that scenario or evidence as to why those witnesses are not available to give evidence.
The appellant submits that a significant shortcoming in the complainant’s evidence lies in her explanation for the fact that her relationship with her father continued after the offending for a period of four to five years and only ended proximate in time to her father’s criticism of her for being involved with KL in shoplifting. This evidence must be analysed against the backdrop of the age and maturity of the complainant at the relevant time, that is both at the time of the offending and up until she ceased going to stay with and speak to her father. It may be thought that it is not surprising, given the complainant’s age and maturity, that she took no action immediately following the offending nor that she did not do so until of an age where she felt sufficiently empowered.
The complainant knew her father did not like KL. She conceded that she was good friends with KL for about three years, that KL would stay over at her father’s unit, that on occasion she would stay at KL’s house, and that not long after commencing at Victor Harbor High School she stopped talking to KL. The complainant also conceded that this might have occurred after she had left KL’s house abruptly one night when she was meant to stay over. She also conceded that it was possible that she had left KL’s late that night and that her mother’s friend had picked her up. She remembered that she and KL had fought, but denied that anything more serious had occurred than that “she pissed me off”. The suggestion was then put to her that the conduct she had accused the appellant of occurred that night whilst she was at KL’s at the hands of someone else. She denied this and denied that it was the reason she left abruptly in tears. Cross-examination then turned to the complainant’s behaviour after this event, how it changed, and how she would not tell her mother what had occurred.
The complainant conceded that the night she left KL’s house abruptly was in or around 2006. Up until that time, despite her father having done as she had said quite some time before, she had continued to stay with him. It was after the shoplifting incident that the complainant ceased to go to her father’s to stay.
Defence counsel cross-examined the complainant:
Q:The real reason that you stopped seeing your dad was the argument with [KL] and what happened at [KL’s] house, isn’t it.
A:No, it’s not.
Q:Because you didn’t see your dad after the incident with [KL].
A:The shoplifting, yes.
Q:That was when you drew a line and said ‘I don’t want to see my dad any more’.
A:I felt that way before but that is when I took that opportunity.
Q;You had had other opportunities.
A:No, I haven’t.
Q:You could have said to your mum ‘I don’t want to go to dad’s any more’.
A:I didn’t have a good excuse to not see him any more.
Q:Why would you need an excuse,
A:Because I didn’t want to tell her about the incident.
Q:You didn’t need an excuse to say ‘I don’t want to go there’ did you.
A:Yes, I did.
Q:No, you didn’t. You could have said ‘I don’t want to go there any more’.
A:She would know why.
Q:You didn’t even tell her why at any time you didn’t want to go there.
A:I don’t know, I’m not sure.
Q:You didn’t tell your mum anything.
A:I just said, ‘I don’t want to talk to him any more’.
Q:‘Talk to him anymore’, is that correct.
A:Yes.
I bear in mind that the defence case floated the competing hypothesis that the complainant was abused but by someone at KL’s, a suggestion that the complainant denied.
The picture portrayed of the complainant’s life at around the time of the shoplifting incident and during the time that she was KL’s best friend, suggested that it was emotionally complex. The answers given in the passage quoted immediately above could be viewed as an attempt by the complainant some years later to rationalise what she thought and why and why she then acted as she did. How her attempt to explain her conduct resonated depended in no small part upon how she came across.
The appellant also asserts that the difference between the evidence of the complainant and TC regarding the content of the complaint made to TC is another factor suggesting that the evidence cannot support the verdict. However, as I have indicated the two are not irreconcilable. As much is indicated by the defence case which implicitly accepted that the complaint was made, and that it was made about sexual abuse incorporating conduct such as the complainant described, but was made in relation to someone other than the appellant, a contention denied by the complainant.
There was some suggestion that a further reason to doubt the reliability of the complainant lay in the fact that she could not recall how wide the shower was in the appellant’s unit, but conceded it was fairly small and that it was “a tight squeeze in there”. This evidence does not cause me to necessarily doubt the complainant’s evidence. Like the jury I have had the benefit of photographs tendered that featured the shower as it was. In my view it cannot be said that it was not open to conclude that an eight or nine year old girl could not fit into the shower featured with her father.

I have had regard to appellant’s evidence and to the evidence of his good character. My impression of the appellant is of a witness who was trying to assist the jury in resolving why the complainant would make the allegations, false as far as he was concerned, that she did. Without seeing and hearing him I cannot give weight to the things he said that might cause one to doubt the credibility and reliability of his daughter nor to his denials.
As I have said, this was a case of oath against oath. In my view it is one where the advantage of the jury in seeing and hearing the protagonists is capable of resolving any doubt as to the complainant’s credibility and reliability. I am not satisfied then that it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.
I make plain that where I have referred to the advantage of a jury in seeing and hearing the complainant, it is my assessment that the particular issue under consideration can only be resolved (in terms of my concluding that the jury must have entertained a reasonable doubt) by seeing and hearing the complainant. I also make plain that I whilst I have considered the complaints made regarding the inadequacies of the complainant’s evidence in isolation, I have also considered those complaints and inadequacies, in the context of the evidence as a whole, in combination. In my view it cannot be concluded that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
I would dismiss the eighth ground of appeal.
The proviso
I have indicated that grounds two and seven are made out. The nature of each of those grounds is such that there is no room for the operation of the proviso.
Conclusion
Accordingly, I would order:
1.Permission to appeal on ground five is refused.
2.The appeal is allowed.
3.The convictions on both counts are set aside and the matter is remitted to the District Court for re-trial.