R v T, T - [2004] SASC 434

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, T
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Vanstone)
23 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction of sexual offences - whether trial judge adequately responded to communication from jury - effect of trial judge failing to advise witnesses of right to apply for exemption under s 21 Evidence Act 1921 - whether unsafe and unsatisfactory - appeal dismissed.
Criminal Law Consolidation Act 1935 ss 246, 353,; Evidence Act 1929 s 21,; Family Relationships Act 1975 ss 11, 21, referred to.
Berry v The Queen [1992] 2 AC 364; Black v The Queen (1993) 179 CLR 44; Stanton v The Queen (2003) 198 ALR 41; R v YL [2004] ACTSC 115; M v R (1994) 181 CLR 487, discussed.
R v Arthur (1966) 84 WN(Pt 1)(NSW) 121; R v Gorman [1987] 1 SLR 545; R v Yuill (1994) 34 NSWLR 179; R v Masters (1992) 26 NSWLR 450; R v Markuleski (2001) 52 NSWLR 82; Jones v The Queen (1997) 191 CLR 439; Mears v The Queen [1993] 1 WLR 818; Riddle v The Queen (1911) 12 CLR 622; Trzesinski v Daire (1986) 44 SASR 43; In re Fagan (1979-80) 23 SASR 454; R v Neddy Monkey [1861] 1 W & W (L) 40; R v Cobby (1883) 4 LR(NSW) 355; R v C (1993) 60 SASR 467; R v Kinglake (1870) 11 Cox CC 499; R v Pitt [1983] QB 25, considered.

R v T, T
[2004] SASC 434
Court of Criminal Appeal: Perry, Gray and Vanstone JJ

PERRY J. In my opinion, the appeal should be dismissed. I agree with the reasons of Vanstone J. I have nothing to add.
GRAY J:
Background
This is an appeal against conviction.
On 30 July 2004 following a trial in the District Court, the appellant was found guilty by unanimous jury verdict of two counts of unlawful sexual intercourse with a person under 12 years, two counts of indecent assault and one count of gross indecency.
The offending the subject of the unlawful sexual intercourse charges was said to have taken place between 1 January 1998 and 20 January 1999 at Kilburn. The complainant C, the appellant’s daughter, was six at the commencement of that period. C was also the complainant in relation to the indecent assault charges and the gross indecency charge, all of which were said to have taken place between 1 January 2003 and 31 December 2003 at Mount Gambier.
At trial, the prosecution primarily relied on the evidence of C and C’s mother and the appellant’s partner, D. The appellant did not give or call evidence.
The Prosecution Case
On the prosecution case it was alleged that some time between 1 January 1998 and 20 January 1999 C was outside the family’s Kilburn house when the appellant called her inside. He told C to go into his room and she sat on the end of the bed. The appellant moved in between her legs, pulled out his penis, put it in her mouth and told her to suck on it. This constituted the first count of unlawful sexual intercourse.
It was the prosecution case that immediately after the conduct constituting the first count, the appellant instructed C to lie on the bed. He pulled down her pants and inserted his penis into her vagina. C gave evidence that the appellant’s penis went inside the lips of her vagina but not “all the way into the hole”. This constituted the second count of unlawful sexual intercourse.
The conduct, the subject of counts three, four and five, took place between 1 January 2003 and 31 December 2003 when the family was living at Mount Gambier. It was the prosecution case that one evening when C was eleven years of age, she awoke to find the appellant rubbing her vagina. The appellant was on top of her. C’s two sisters were asleep in the same bedroom. C was wearing jeans and a t-shirt. It was the prosecution case that the appellant then proceeded to suck the complainant’s breast. In relation to count 5, it was the prosecution case that on the day before her sister was born, the accused came into C’s bedroom, pulled his penis from his boxer shorts and shook it in her face. C said the appellant’s penis was straight and horizontal. It was the prosecution case that after the appellant had left the bedroom, C ran to D and told her what had happened.
In support of C’s evidence, the prosecution relied upon the evidence of D. This evidence included details of a conversation between D and the appellant wherein the appellant asked “Is it for C?” when she had purchased underwear for herself. D also gave evidence that the appellant told her “I did it to C” when D and the appellant were having intercourse. The prosecution further relied upon a bundle of letters which the accused wrote to D whilst in custody on remand.
The Defence Case
At trial, counsel for the appellant put to the jury that given the age and personal circumstances of the complainant, they could not be satisfied of the truth of her allegations beyond reasonable doubt. Counsel drew attention to inconsistencies within the complainant’s evidence at trial as well as between that evidence and her out of court statements. These inconsistencies will be discussed in detail later in these reasons.
Counsel for the appellant at trial also challenged the credibility of D’s evidence, questioning, amongst other things, her failure to alert the authorities to the alleged sexual abuse of her daughter which she had been aware of since 1993.
No complaint was made about the terms of the learned trial judge’s summing up. It was said, however, that the summing up, without further advice or direction was insufficient to address the jury concerns.

Jury Concerns

Central to the present appeal was an interchange between the judge and jury after the jury had retired to consider their verdict. Having retired for about four and a half hours the jury passed a note to the judge which read:
We are unable to reach a majority vote and it appears that at this point we will not be able to do so.
The problem area is with regard to the perceived credibility of both [C] and [D] as witnesses which colours consideration on all evidence given by them.
This applies to all counts.
The judge did not read the entirety of this note in open court. However, he fully revealed its contents to counsel in chambers. Counsel for the prosecution sought a Black direction, which the judge declined to give.
The jury were then brought into court and the judge referred to the note and addressed the jury. The following exchange occurred:
His Honour:       . . .     I have a note from you, ladies and gentlemen, which reads ‘We are unable to reach a majority vote and it appears that at this point we will not be able to do so.’
I want to spend just a moment exploring with you whether there is a possibility that further time will overcome the problem. My interpretation of what I have just read is that you are deadlocked but not hopelessly deadlocked. While there remains a chance with further time that you could reach a majority verdict I would want to give you that time.
Foreperson:                I believe that as things stand at the moment we are deadlocked, and on that point of issue that has been mentioned to you in the note, we seem to be firmly deadlocked along those lines.
His Honour:               I will come back to your comment ‘at this stage’. Will it give rise to the possibility that further time might resolve the matter? It is a question, as I say, of are you deadlocked or are you hopelessly deadlocked? If you are just deadlocked -
Foreperson:        We are deadlocked and we are seeking instructions.
His Honour:               If you are deadlocked, then further time might -
ForepersonWe are not saying we are hopelessly deadlocked, but with directions as to point of law and any other advice that you can give us, then we will be prepared to continue to try and resolve the issue.
His Honour:               Of course I can’t give you further assistance on the facts. That, essentially, is your responsibility. If there are discrete questions of law, then you might consider, with your colleagues, identifying what those questions are in writing, but it may be that the real sticking point is the facts rather than the law. It is for you to decide, it is for you to say.
Would you care to retire for a moment to discuss what I put to you ladies and gentlemen.
When asked whether they wanted to comment on the above direction, both counsel replied “No”. The jury retired for a further three hours and did not return to court. They then returned unanimous guilty verdicts on all five counts.
Grounds of Appeal
The following grounds of appeal were advanced:
-Having received the note concerning the “deadlock”, the trial judge erred in failing to re-direct the jury about the requirement to be satisfied about C’s evidence beyond a reasonable doubt and if they weren’t that it was their duty to acquit.
-The trial judge erred in not acceding to the prosecutor’s request in chambers to give a Black direction when a note was received from the jury indicating they were deadlocked and the issue was the credibility of the complainant and the complainant’s mother.
-A miscarriage of justice has occurred / verdicts are unreasonable / unsafe / dangerous in the administration of justice to convict having regard to:
.       The failure of C to complain about the act of fellatio, count 1, when interviewed by police on 3 December 2003;
.       The dilution of C’s evidence at trial in respect of counts 2 and 3 as distinct from what she told the police on 3 December 2003;
.       The medical evidence admitted demonstrated that there was no physical evidence to support C’s claims.
-The trial judge failed to have due regard to his obligations under section 21 of the Evidence Act to satisfy himself that C and D had a right to refuse to give evidence against the accused.
Consideration of Issues on Appeal
Duty of the Trial Judge to Assist Jury
A trial judge has an obligation to assist a jury whenever practicable on issues of fact and law. That duty carries with it the obligation on the trial judge to take reasonable steps to ascertain the cause of the jury’s concern. An issue for consideration in this appeal is whether the trial judge, in his manner of dealing with a jury concern, fulfilled this obligation.
In Berry v The Queen[1] Lord Lowry, speaking for the members of the Privy Council, observed that a jury is entitled to receive the judge’s help on the facts as well as the law, and that the failure to ascertain a problem which had brought the jury back into court after their retirement may, in certain circumstances, constitute material irregularity.
[1] [1992] 2 AC 364
In Berry, in response to a request by the jury for assistance, the trial judge gave a brief and accurate summary of the facts but did not take steps to find out the particular problem which had brought the jury back into court. [2]
Having ascertained that the problem related not to the law but to the evidence, [the trial judge] said:
“All right, well I have told you that the facts are for you; you have seen all the witnesses in the case, you have heard them and it is for you to assess their evidence and to decide which of them you believe, if any, which of them you disbelieve, if any.”
Because the precise nature of the jury’s request for assistance was never identified, it was impossible to tell whether anything said by the judge resolved the problem or not. [3] Further, it could not be ruled out that some misconception or irrelevance played a part in the jury’s reasoning. Lord Lowry observed:[4]
The judge then gave a brief and accurate summary of the factual contest, adverted again to the burden of proof and reminded the jury that they were the sole judges of the facts. But he did not find out what was the problem which had brought the jury back into court and it is therefore impossible to tell whether anything said by the judge resolved the problem or not, because no one knows what the problem was. Their Lordships have already met this difficulty in some other recent cases. The jury has sought assistance and, once it appears that the problem is one of fact, the judge has not inquired further but has merely given general guidance, as in the present case. The jury are entitled at any stage to the judge’s help on the facts as well as on the law. To withhold that assistance constitutes an irregularity which may be material depending on the circumstances, since, if the jury return a guilty verdict, one cannot tell whether some misconception or irrelevance has played a part. If the judge fears that the foreman may unwittingly say something harmful, he should obtain the query from him in writing, read it, let counsel see it and then give openly such direction as he sees fit. If he has decided not to read out the query as it was written, he must ensure that it becomes part of the record. Failure to clear up a problem which is or may be legal will usually be fatal, unless the facts admit of only one answer, because it will mean that the jury may not have understood their legal duty. The effect of failure to resolve a factual problem will vary with the circumstances, but their Lordships need not decide how in this case they would have viewed such failure, seen in isolation.
[2] [1992] 2 AC 364 at 382
[3] [1992] 2 AC 364 at 383
[4] [1992] 2 AC 364 at 383
The Privy Council affirmed Lord Lowry’s observations in Berry in Mears v The Queen.[5] In Mears the defendant was charged with murder. The prosecution case relied upon the evidence of a woman with whom the accused cohabited. The prosecution case was that the accused had told the woman that he had killed the victim in a particular way. The defendant denied killing the victim and pathological evidence was called that suggested that the victim died in circumstances different from that described by the woman in whom the defendant confided in.
[5] Mears v The Queen [1993] 1 WLR 818
After retiring, the jury returned to court and informed the judge that they had a problem relating to the evidence. The trial judge did not ascertain the problem the jury were experiencing but rather restated the evidence. The defendant was convicted. The conviction was appealed. On appeal, Their Lordships Templeman, Land, Oliver, Goff and Woolf referred to and affirmed Lord Lowry’s comments in Berry and observed:[6]
The failure to ascertain what it was about the evidence which was puzzling the jury and the reiteration thereafter of some of the questionable parts of the summing up proper are sufficient to convince their Lordships that this conviction cannot be allowed to stand.
[6] Mears v The Queen [1993] 1 WLR 818 at 823
In the present case, the jury’s request for assistance identified the general nature of its concern:
The problem area is with regard to the perceived credibility of both [C] and [D] as witnesses which colours consideration on all evidence given by them.
The note expressed the jury’s concerns in relation to the credibility of the two key Crown witnesses, namely C and D, across all counts. However, the note did not articulate with any particularity the nature of the assistance which the jury was seeking from the trial judge. In other words, the note identified that the jury was having difficulties, but did not identify the particular area or areas in which they were in need of assistance.
A number of possible areas of concern come to mind. The jury may have been seeking confirmation that if they lacked confidence in part of the Crown evidence they should acquit the accused. They may have not properly understood the implications of the problem area or had concerns about the standard and burden of proof. They may have been indicating a need for assistance concerning the method of evaluation of C’s and D’s evidence, and whether that evaluation should include considerations of credit. The jury may have been seeking confirmation on how to appropriately deal with inconsistent statements or the significance of the delay in complaints in relation to the first and second counts. Perhaps the jury was seeking assistance in how to treat views of lack of credibility on certain counts in relation to other counts. These are but examples of the concerns the jury may have had. To try and test the matter in this way necessarily involves speculation.
It is evident from the interchange between the judge and the foreperson that the judge did not fully understand what it was that was concerning the jury. However, the judge specifically informed the jury that he could not assist them on issues of fact. The jury was told that this was their responsibility. The judge apparently was only prepared to assist the jury on discrete questions of law.
As observed in Berry, the jury is entitled to assistance on issues of fact as well as law. That entitlement is matched by the trial judge’s corresponding duty to provide such advice or assistance that it is reasonable to provide. When a request for assistance gives rise to possible considerations of both fact and law, a trial judge ought to take steps to determine the precise areas in which the jury are in need of assistance. Without taking such steps, it is not possible to remove the risk that the jury may reason in an impermissible way or misunderstand their role and their obligations.
The trial judge gave the jury an opportunity to identify in writing what discrete questions of law they required assistance with. However, it is unclear what the jury may have taken this invitation to mean. The jury were left to apply a legal distinction to their concerns and determine whether the “sticking point” was one of fact, in which case they could not seek assistance from the trial judge, or one of law. It is possible that this very interchange deterred the jury from seeking assistance on a topic of crucial importance to the trial and on which assistance ought to have been provided. No steps were taken to ascertain the particular area in which the jury were in need of assistance. Ultimately no advice or assistance was provided. With respect, the approach of the judge was incorrect. This omission of the judge was an irregularity. The judge failed to discharge his duty to the jury. The jury did not receive the assistance to which they were entitled. At the very least they were entitled to have the judge consider and if possible understand their concern. However their concern may have been characterised, the judge was obliged to take reasonable steps to identify the problem or concerns and provide such assistance and advice that may be available whether the concern was one of law, fact, or mixed law and fact.
Disclosure of the contents of the note in open court
Counsel for the appellant submitted that the note containing the question from the jury described above ought to have been read in full in open court. It was said that disclosing the full contents of the note in Chambers and only part of its contents in open court was objectionable.
There is no reason why this jury question ought not to have been read in open court in its entirety. However, the decision to disclose the full text of the note in Chambers was within the proper exercise of discretion of the trial judge. The full text of the note was available to counsel and to the accused through counsel. Nothing in the present appeal turns on this point.
Black Direction
Counsel for the appellant submitted that given the position the jury had reached at the time of passing the judge the note referred to above, the trial judge ought to have given a Black direction. In Black v The Queen[7] the High Court considered the appropriate direction to be given when the jury indicates to the trial judge that they are unable to reach a verdict or are “deadlocked”. The High Court held that such a direction must be in terms that do not impose pressure upon individual jurors to join in the view taken by a majority. It is paramount that a direction encouraging further deliberation does not go so far as to violate the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them. Mason CJ, Brennan, Dawson and McHugh JJ suggested a direction along the following lines would be appropriate:[8]
Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one. Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.
It was observed that the jury should be reminded that each juror should listen to each other’s views, weigh them objectively and that an individual juror can change his or her mind as a consequence.
[7] Black v The Queen (1979) 179 CLR 44
[8] Black v The Queen (1979) CLR 44 at 51-52

These observations were affirmed by the High Court in Stanton v The Queen:[9]
As the direction recommended in Black acknowledges, when the jury were considering the charge of wilful murder, it was proper for individual jurors to attach weight to the opinions of others, and if persuaded by those opinions, to modify or alter their own views in response. But if, after full deliberation, and interchange of views, some were of the opinion that the prosecution had established its case beyond reasonable doubt …, and others were of the opinion that the prosecution had not established its case beyond reasonable doubt …, then there was a state of disagreement. They might seek to resolve that disagreement by further discussion, which could lead some to change their opinions. But so long as they adhered to those opinions, they would be unable to agree on a verdict on the charge in the indictment.
[9] Stanton v The Queen (2003) 198 ALR 41 at 47
Counsel for the respondent submitted that the Black direction is entirely discretionary. It was contended that given the jury had only been deliberating for four and a half hours and the foreperson said they were not “hopelessly deadlocked”, it was entirely appropriate not to give a Black direction.
The decision not to give a Black direction was within the trial judge’s discretion. Nothing the trial judge said would suggest that any minority juror would have regarded themselves as being under any pressure to reach a verdict. The jury’s note to the trial judge appeared to be concerned primarily with the request for assistance on issues of credibility rather than the expression of a situation of irreconcilable difference of opinion or “deadlock” within the jury. This is indicated by the foreperson’s interchange with the trial judge:
We are not saying we are hopelessly deadlocked, but with directions as to point of law and any other advice that you can give us, then we will be prepared to continue to try and resolve the issue.
In the circumstances the trial judge’s decision not to give a Black direction did not constitute a material error.
Witness Compellability
Common Law Position
It has been long undisputed that at common law a spouse was incompetent to give evidence at a criminal trial against his or her spouse. The rationale behind this position has been said to be based on the doctrine of unity of husband and wife coupled with the privilege against self-incrimination, the danger of perjury and the repugnance likely to be felt by the public seeing one spouse testifying against the other. As the law progressed to recognise women, and wives, as competent witnesses the question became whether a spouse was a compellable witness.
The basis for the common law rule that one spouse could not be a witness for or against the other was that husband and wife were considered as one and the same person in law.[10] In more modern times, the rationale behind providing for some degree of non-compellability of a spouse of an accused as a witness for the prosecution is said to be to preserve the marital relationship. It is thought that the community has an interest in the preservation of stable marital relationships - giving evidence against the other spouse could be a cause of serious harm to that relationship. Such harm may manifest itself in psychological, emotional, social or economic forms.
The Statutory Scheme
[10] In Riddle v R (1911) 12 CLR 622 the High Court concluded that it was very doubtful that at common law a wife in such a case was compellable and the better view was that they were not compellable.
In 1983 the Legislature amended the Evidence Act 1929 (SA) which addressed the balance between the common law position of a degree of non-compellability of spouses to give evidence with the right of all persons to give evidence in criminal trials and the community interest in such evidence being adduced. During the second reading speech of the Bill enacting what is now section 21 of the Evidence Act the following remarks were made:[11]
It is an unjustifiable restriction on the civil liberty of a spouse to prevent him or her from giving evidence in a court of law where he or she is willing to do so solely on the basis of his or her marital relationship with the accused.
…
[Under the proposed section 21] [s]pouses are compellable in all cases for all the parties, but the court has the power to exempt a spouse from giving evidence for the prosecution having regard to matters listed in the legislation. …. The measure applies not only to spouses but also to other categories of relative collectively referred to as close relative, including parent and child as well as spouse. The term ‘spouse’ includes a putative spouse within the meaning assigned to that expression in the Family Relationships Act.
…
Where a close relative is a prospective witness for the prosecution in any proceedings, he or she may apply for an exemption. An exemption may be granted where the court considers that, if the close relative were to give evidence against the accused, there would be risk of serious harm to the relationships or the prospective witness and that, considering the nature of the offence and the importance of the evidence, there is insufficient justification for exposing the prospective witness to the risk of such harm.
[11] South Australia, Parliamentary Debates, Legislative Council, 4 May 1983, 1126, (Hon CJ Sumner, Attorney-General)
In 1983 the Legislature recognised the need to make provision for circumstances where the close relative of an accused, for example a young child, may not be able to fully appreciate their right to apply to be exempt from giving evidence against an accused. As a result, section 21 was amended to provide for what is now subsection (3a). In the second reading speech adding subsection (3a) to section 21 of the Evidence Act the following comments were made:[12]
Section 21 provides that a close relative of a person charged with an offence is competent and compellable to give evidence for the prosecution in any proceedings in relation to the charge, but the prospective witness can apply to the court for an exemption from the obligation to give evidence. The court can exempt the prospective witness if it appears to the court that there is a substantial risk that the giving of the evidence would seriously harm the relationship between the prospective witness and there is insufficient justification for exposing the prospective witness to the risk.
The Supreme Court Judges in their 1991 Annual Report adumbrated that the procedure is inappropriate where the close relative is a young child or mentally impaired. The Judges recommended that the section be amended to give the court a discretion to dispense with the section’s requirements, wholly or in part, where by reason of the prospective witness’s immaturity or impaired mental condition, the court considers it proper to do so. The section is amended as recommended by the Judges. Where a prospective witness is too immature or mentally impaired to understand the making of an application for exemption, the court should be able to assess itself the matter without the need for the prospective witness having to make an application.
[12] South Australia, Parliamentary Debates, House of Assembly, 25 March 1993, 2662-2663, (Hon GJ Crafter, Minister of Housing, Urban Development and Local Government Relations).
In 1995 the Legislature further amended section 21 to ensure that all close relatives of the accused who were prospective witnesses for the prosecution were aware of their right to apply for an exemption under the section. It was thought that this was an important safeguard to the rights of close relatives of the accused:[13]
Section 21 of the Evidence Act entitles a close relative (that is, a spouse, parent or child) of a person charged with an offence to apply to the trial Court for an order exempting him or her from any obligation to give evidence against the accused. The matters that the Court should take into account in determining such an application are set out in sub-section (3) and sub-section (5) requires that the prospective witness be made aware of the right to apply for an exemption. This practically obliges the trial Judge to ensure that the prospective witness has a general understanding of the sub-section (3) criteria.
This causes difficulties where the prospective witness is a child who is too young to understand the explanation or is mentally impaired. Sub-section (3a) provides that the Court can exempt a prospective witness who is a child, or who is mentally impaired, even though no application for exemption is made but the way the provisions are drafted the Court must still explain the sub-section (3) criteria. While the section’s requirements can be construed as adaptable to the intelligence of the prospective witness there may be uncertainty about the adequacy of the Judge’s explanation and whether, therefore, there has been a miscarriage of justice. The Supreme Court Judges have suggested that sub-section (5) be amended to provide that the obligation to make the prospective witness aware of his or her right to apply for an exemption not apply in the case of a close relative who, in the Judge’s opinion, is unlikely by reason of age or mental impairment to understand the explanation of the section’s provisions.
[13] South Australia, Parliamentary Debates, House of Assembly, 11 April 1995, 2281 (Hon SJ Baker, Deputy Premier)
Section 21 of the Evidence Act now provides:
21.(1)     A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2)     Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3)     Where it appears to a court to which an application is made under subsection (2)—
(a)that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b)that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk, the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)   If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4)     Where a court is constituted of a judge and jury—
(a)an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b)the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)     The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a)is aware of his or her right to apply for an exemption under this section; or
(b)is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)     This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7)     In this section –
"close relative" of an accused person means a spouse, parent or child;
"spouse" includes a putative spouse within the meaning of the Family Relationships Act 1975.
Meaning of “Close Relative”
For the purposes of the present appeal it is necessary to examine the scope of the term “close relative” under section 21. The section clearly applies to a child of the accused, as indicated by subsection (7). Thus, the complainant and daughter of the accused in the present case was entitled to have been made aware by the trial judge of her right to apply for an exemption to give evidence against her father, the accused. The trial judge failed to fulfil his obligations under section 21(5) of the Evidence Act.
It is clear by subsection (7) that section 21 of the Evidence Act applies to the “spouse” of the accused. This has been supported by the authorities and is consistent with the common law position. However, the statutory provision does not result in an automatic or presumptive exemption of spouses as witnesses. It merely provides the spouse with a right to apply for an exemption.
In Trzesinski v Daire[14] Prior J observed that pursuant to section 21 of the Evidence Act the spouse of an accused is both competent and compellable to give evidence for the prosecution, subject to qualifications in section 21. It was further observed that the spousal witness should not be allowed separate representation. Prior J held that a trial judge or magistrate should explain to the prospective spousal witness the right to apply for an exemption from giving evidence and should make all inquiries necessary himself under section 21 without assistance from counsel. Prior J observed that a trial Judge is to satisfy himself that the prospective witness is aware of his or her right to apply for an exemption under section 21(5). The responsibility of explaining this right does not rest with counsel, but with the judicial officer.
[14] (1986) 44 SASR 43
It was observed in Trzesinski v Daire that when the Court is considering the application for the exemption, a relevant consideration is whether, if the spouse were to give evidence or any particular kind of evidence, there would be a substantial risk of serious harm to the relationship between the prospective witness and the accused. It was said that the court must then consider:[15]
. . . whether there is insufficient justification for exposing the prospective witness to that substantial risk of serious harm, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give.
[15] (1986) 44 SASR 43 at 47
While the application of section 21 to children and de jure spouses of the accused may be clear, the application of the section to de facto spouses is more problematic.
For the purposes of section 21 of the Evidence Act “spouse” is to include a “putative spouse” within the meaning of the Family Relationships Act 1975 (SA). Under section 11 of the Family Relationships Act, “putative spouse” is defined as follows:
11.(1)     A person is, on a certain date, the putative spouse of another if he is, on that date, cohabiting with that person as the husband or wife de facto of that other person and—
(a)     he—
(i)has so cohabited with that other person continuously for the period of five years immediately preceding that date;
or
(ii)has during the period of six years immediately preceding that date so cohabited with that other person for periods aggregating not less than five years;
or
(b)a child, of which he and that other person are the parents, has been born (whether or not the child is still living at the date referred to above).
(2)     A person whose pecuniary interests, or whose rights or obligations at law or in equity, are affected according to whether—
(a)     he was, on a certain date, the putative spouse of another;
or
(b)two other persons were, on a certain date, putative spouses one of the other,
may apply to the Court for a declaration under this section, and if it is proved to the satisfaction of the Court that the persons in relation to whom the declaration is sought were, on the date in question, putative spouses one of the other, the Court may make a declaration accordingly.
(3)     Subject to the provisions of any other Act, a person shall not be recognized under the law of this State as the putative spouse of another unless a declaration of the relationship has been made under this section.
In the absence of a child, when deciding whether persons can be described as putative or de facto spouses the court looks to the extent to which the usual indicia of a legal marriage exist in the circumstances of their cohabitation.[16] In In re Fagan Jacobs J made the following observations about the requirement that putative spouses “cohabitate”:[17]
The cohabitation of two people as husband and wife means that they are living together as husband and wife, the wife rendering wifely services to her husband and the husband rendering husbandlike services to his wife. They must be living together, not merely as two people living in one house, but as husband and wife. … It does not necessarily imply that they are always living together under the same roof, and there may be states of cohabitation where they see as much of each other as they can, and yet are not separated because there has not been any real suspension of their ordinary conjugal relation.
[16] See In re Fagan, (1979-1980) 23 SASR 454
[17] In re Fagan (1979-1980) 23 SASR 454 at 464
It is not entirely clear whether a person can be a putative spouse for the purposes of section 21 unless a declaration to that effect has first been made in proceedings under the Family Relationships Act pursuant to section 11(3) of that Act. There appears to be no authority on this point. However, as section 21(7) merely refers to “spouse” to include putative spouse as defined in the Family Relationships Act, it could be inferred that provided the conditions outlined in section 11(2) of the Family Relationships Act are adhered to, the person will be considered a “spouse” for the purposes of section 21 of the Evidence Act.
Aboriginal Spouses
Particularly problematic, and of relevance to the present appeal, is the application of section 21 of the Evidence Act to persons married in accordance with Aboriginal laws, traditions and customs.
In early Australian common law, the colonial courts were faced with having to determine whether traditional Aboriginal marriages were recognisable as marriages under Australian law.[18] Unsurprisingly, the colonial Courts expressed doubts about the recognition of Aboriginal traditions and customary law under English-Australian common law.[19] For example, in 1861 in the matter of R v Neddy Monkey,[20] Justice Barry stated that the Court could not, without evidence of their marriage ceremonies, assume the fact of Aboriginal marriage. In 1883 the New South Wales Court was asked to determine whether an Aboriginal woman who claimed to be the wife under Aboriginal law of an accused was a compellable witness against him. In R v Cobby[21] Chief Justice Martin stated:
We may recognise a marriage in a civilised country, but we can hardly do the same in the case of the marriage of these aborigines [sic], who have no laws of which we can take cognisance. We cannot recognise the customs of these aborigines [sic] so as to aid us in the determination as to whether the relationships exists of husband and wife.
[18] The Law Reform Commission, The Recognition of Aboriginal Customary Laws, (Law Reform Commission of Australia, 1986) Report No 31, 175
[19] The Law Reform Commission, The Recognition of Aboriginal Customary Laws, (Law Reform Commission of Australia, 1986) Report No 31, 175
[20] (1861) 1 W & W (L) 40
[21] (1883) 4 LR (NSW) 355 at 356

Thankfully, community and judicial attitudes towards the recognition and respect for Aboriginal customs and traditions have changed, but the common law position on the recognition of Aboriginal marriages for the purpose of compellability of spouses as witnesses in criminal trials remains largely unchanged. It has generally been held by the Courts that an Aboriginal woman remains a competent and compellable witness even though she might assert that by the laws of her culture she is the accused’s wife.[22]
[22] The Law Reform Commission, The Recognition of Aboriginal Customary Laws, (Law Reform Commission of Australia, 1986) Report No 31, 175
However, Aboriginal spouses may fall within the scope of the statutory provisions now governing the compellability of spouses as witnesses in so far as they meet the criteria prescribed in the Family Relationships Act and fall within the category of a “putative spouse”. While the definition of putative spouse contained in the Family Relationships Act may not address the cultural and social differences between Aboriginal and Anglo-Australian marriages, it offers some protection to Aboriginal couples who parent a child together or who can establish cohabitation for more than five years.[23] In other words, traditionally married Aboriginal people are compellable witnesses against each other unless they can rely on legislative provisions covering de facto relationships.
[23] Harris, ‘Spousal Competence and Compellability in Criminal Trials in the 21^st Century’, (2003) Queensland University of Technology Law & Justice Journal 23
There are authorities to support the proposition that a failure to comply with section 21(5) constitutes an appealable error. For example, in R v C[24] the appellant was charged with five counts of incest with his daughter. The complainant gave evidence and was cross-examined. The trial judge failed to explain to the complainant that under section 21 of the Evidence Act she had a right to apply to be exempted from giving evidence. On appeal, it was held by King CJ, with whom Mohr and Duggan JJ agreed, that the trial judge’s failure to discharge his statutory obligation to satisfy himself that the complainant was aware of her right to apply to be exempted from giving evidence as required by section 21(5) of the Evidence Act was an irregularity of which an accused can take advantage on appeal. King CJ observed:[25]
The right of a close relative to apply for exemption under s 21 is more nearly analogous to the marital privilege in Riddle v The King than the privilege against self-incrimination in R v Kingslake. Riddle v The King establishes that failure to observe a protection to a witness analogous to the protection afforded by s 21, is an irregularity of which an accused person can take advantage. R v Pitt is authority for the proposition that failure to make a witness aware of the protection afforded by the law, is also such an irregularity.
[24] R v C (1993) 60 SASR 467 King CJ, Mohr and Duggan JJ
[25] R v C (1993) 60 SASR 467 at 476 King CJ, Mohr and Duggan JJ
King CJ suggested that had an application for exemption been made by the complainant relevant considerations would include the degree of any risk of harm to the witness or the relationship with the witness and the accused and the court’s assessment of whether the nature and gravity of the alleged offence and the importance of the proceedings would outweigh the other relevant considerations.
However, King CJ also commented that the trial judge’s failure to alert the complainant to her right did not destroy her competency as a witness. Thus, if this were the only ground of appeal, the court would need to consider applying the proviso.
The Australian Capital Territory Courts have recently considered the issue of compellability of children of the accused as witnesses for the prosecution. In R v YL[26] the accused was charged with two counts of assaulting her six year old stepson. The alleged assault was discovered when the boy arrived at school with marks around his neck. The prosecution case relied upon the boy’s evidence. Counsel for the accused challenged the child’s competence to give sworn evidence. At the voir dire, a child psychiatrist was called to give evidence about the impact giving evidence against his step-mother would have on the child. The psychiatrist concluded that the child could suffer very substantial stress in giving evidence and that in the event that the step-mother was found guilty there would be a risk of significant harm to the child. When determining whether the child was a compellable witness or ought to be exempt from giving evidence, Crispin J referred to section 18 of the Evidence Act 1995 (Cth) which is in comparable terms to section 21 of the Evidence Act 1929 (SA) and observed:[27]
At face value, these provisions seem to provide a sound legislative basis for the resolution of issues of this kind. They permit courts to balance the public interest in ensuring the admission of relevant evidence and the effective conduct of criminal prosecutions against the public interest in ensuring that witnesses who might otherwise be compelled to give evidence against their own spouse or child do not suffer undue harm, either by the psychological impact of doing so or by the damage that may be caused to the relationships within families. There are, no doubt, many cases in which the gravity of the alleged offences and the potential importance of the evidence would readily lead a court to conclude that compulsion was required even if some harm were to be suffered as a consequence. However, there are other cases in which the balance might be tipped just as strongly in favour of protecting a distraught child or some other emotionally vulnerable witness and yet other cases, in which the competing considerations may be finely balanced. In each such case the Court is ultimately required to make a judgment in the light of the circumstances revealed by the evidence after hearing argument on behalf of both the Crown and the witness.
[26] R v YL [2004] ACTSC 115 Crispin J
[27] R v YL [2004] ACTSC 115 Crispin J at [15]
Conclusion on Witness Compellability
In the present case the trial judge failed to meet his obligations under section 21(5) of the Evidence Act. Neither C nor D were informed of their right to apply for an exemption from giving evidence.
As a child of the accused, C clearly fell within the category of close relative of the accused. D, although not a de jure spouse, described herself as the accused’s spouse. Prior to the accused being in custody, the two had been in a de facto relationship for over 10 years and had parented six children together. D appears to fall within the category of putative spouse pursuant to section 11 of the Family Relationships Act, and would therefore be a “spouse” within the meaning of section 21 of the Evidence Act. Further, as both the accused and D are Aboriginal, it may be arguable that their Aboriginal marriage renders their relationship as within the definition of “spouse” for the purposes of section 21. However, as no evidence was led on this point it is not possible to determine this question in the present case.
The statutory scheme of section 21 of the Evidence Act is clearly intended to provide close relatives of an accused with some protection from the substantial risk of harm which may arise from giving evidence against the accused. This right must be balanced against the gravity and circumstances of the offending and the community interest in the evidence to be given by the prospective witness. The successful exercise of the right of close relatives to apply for an exemption from giving evidence is reliant upon the trial judge informing the prospective witness of their right. Here the trial judge failed to take any steps to inform C or D of this right.
Unsafe and Unsatisfactory Verdicts
C provided an audio- recorded interview with the police on 3 December 2003. The appellant was arrested on the same day. C provided a second signed statement to the police on 7 July 2004. There were material inconsistencies between this second statement, C’s interview and her evidence at trial. Further, there were inconsistencies in the evidence given by D, C and C’s out of court statements.
Counsel for the appellant also identified a number of inconsistencies within C’s trial evidence including:
-C agreed that she had not told the police on 3 December 2003 about the conduct giving rise to count 1. She said this was because she was not asked whether the appellant “put his penis in her mouth”. C included the act of fellatio in her statement of 7 July 2004 and stated that she had noted it down in 2003.
-In relation to count 2, penile vaginal intercourse, C, when asked “how far did it go inside” said “not that far … nearly all the way to the hole”. C denied saying in her statement of 3 December 2003 that “he put his penis up my vagina”.
-In relation to count 3, at trial C said that the appellant rubbed her vagina while her jeans were still on. In her statement of 3 December 2003 C stated that the appellant “stuck his finger into my um, into the hole, where um my, where the wee comes out”. She denied saying this at trial, saying “that’s all wrong”.
-With respect to count 5, the appellant exposing his penis, at trial C gave evidence that she was alone in the room when this offending occurred and that it occurred prior to the birth of her sister on 12 November 2003. In her December 2003 statement C said that the appellant did not say anything to her at the time he exposed his penis, explaining that “otherwise my little sister would have turned around and she would have seen it”.
The inconsistencies in C’s evidence and that of her mother, D, were drawn to the attention of the jury by the accused’s counsel during his closing address. The inconsistencies were also the subject of specific directions by the trial judge. For example, in relation to C’s credibility the trial judge directed the jury as follows:
The defence case in a nutshell is that, given her age and other factors as well, you should not be satisfied of the truth of [C’s] allegations beyond reasonable doubt. The defence points to inconsistencies in [C’s] evidence and three in particular. The first is [C’s] failure to make any mention of the fellatio alleged in count 1 to Constable Hill in December 2003. The second is her statement to Constable Hill in relation to the rubbing of the vagina alleged in count 3, that the accused stuck his finger up and started rotating it around. The third is the discrepancy between [C’s] evidence and her statement to police about when the conduct alleged in count 5 was alleged to have occurred.
…
Whilst emphasising that there is no onus on the accused in this respect, the defence invites you to entertain, at least as a possibility, that [C] and her mother have concocted their story in the hope of preventing the two children from living with their father at Meningie - …
…
I now need to give you a direction about statements that [C] made to the police officer Senior Constable Caroline Hill which were inconsistent or may have been inconsistent with her sworn testimony to you in this court….
…
…The prior inconsistent statements of a witness in a criminal trial are not put before you for the truth of the fact which they purport to assert. Rather, they are put before you to enable you to assess whether you can accept the sworn evidence of that witness in court. The basic principle is that a case must be decided upon the evidence given on oath and subject to cross examination in court. Prior inconsistent statements go only to the reliability or credibility of evidence given from the witness box in court. If a witness gives sworn evidence that is significantly different from statements made on earlier occasions, a jury must exercise considerable caution before accepting the sworn evidence of the witness. It will be for you to assess the significances of each inconsistency that you find proven. Does it touch upon an important issue in the case or is it peripheral or incidental? If it does touch upon an important issue, is there an explanation, an acceptable explanation, consistent with the witness’s sworn evidence being believable and reliable? Obviously enough, the more significant the inconsistencies the greater the risk that the sworn evidence will be unreliable.
The issue of credibility of witnesses is a jury question. It was properly put before the jury for their consideration and accompanied by a specific direction by the trial judge.
Issues of credibility are considerations that the jury, as the tribunal of fact, has the responsibility of determining. Unlike the appellate court, the jury had the advantage of seeing and hearing the witnesses. The need for an appellate court to consider this advantage was emphasised by Mason CJ, Deane, Dawson and Toohey JJ in M v R where it was observed:[28]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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.
[28] (1994) 181 CLR 487 at 493-494 per Mason CJ, Deane, Dawson and Toohey JJ
When determining whether a verdict is unreasonable or cannot be supported by the evidence, an appellate court must conduct its own assessment of the evidence and determine whether on the whole of the evidence the verdict reached was open to the jury. As observed in M, where the jury’s advantage in seeing and hearing the witnesses has the capacity to resolve a doubt entertained by an appellate court, it is open for the appellate court to conclude that no miscarriage of justice has occurred.
In the present case, the jury would not have been reasoning impermissibly if it resolved that the suggested inconsistencies or shortcomings of C’s evidence were explicable by reference to her age or some other circumstance. Their advantage in seeing and hearing C give evidence could have reasonably contributed to this conclusion.
The trial judge’s directions as to credibility and inconsistent statements were unexceptional. But for the jury’s note, there is nothing to suggest that the jury might have resolved the ultimate issue of C’s credibility in an impermissible manner and that the verdict obtained was unsafe or unsatisfactory. However, the jury’s unanswered note causes particular difficulty. Without knowing the particular reason for their concern, it is not possible to be confident that the jury had “taken on board” all relevant aspects of the summing up. There was a need for their concern to be addressed.
Conclusion
As is was unclear as to what the jury’s particular concern was, there is a risk that the jury may have misunderstood the trial judge’s summing up. There is a consequential risk that a miscarriage of justice occurred. The jury note arose in circumstances where there was a real basis for an attack on the credibility of the evidence of C and that of her mother. Acceptance of that evidence was pivotal to a finding of guilt.
The irregularity concerning section 21 of the Evidence Act is also a matter of concern. Neither C nor her mother were advised of their rights pursuant to section 21.
In all the circumstances there exists a risk that a miscarriage of justice may have occurred. The appeal should be allowed, the convictions set aside and a retrial ordered.
VANSTONE J: The appellant was tried before a jury in the District Court sitting at Mount Gambier for two counts of unlawful sexual intercourse with a person under 12 years of age, two counts of indecent assault and a single count of gross indecency, all committed upon his daughter. He was convicted of all charges by unanimous verdicts.
He appeals against those convictions upon three grounds. Two of the grounds arise from events which took place after the jury’s initial retirement on the fourth day of the trial. Those events encompassed a written communication from the jury to the judge and his response to it in court. The third ground asserts that for these and other reasons the verdicts are unsafe and unsatisfactory. There is no complaint arising from the course of the trial to the point of the jury communication. In order to understand the significance of the jury’s question and the response to it is necessary to describe the course of the trial to that point.
The evidence in the trial was of narrow compass. It comprised that of the complainant, whom I shall call V, her mother, who was the appellant’s de facto wife and the mother of his six children, a police officer who recorded an interview with V about eight months before the trial and who proved that some of what she said was inconsistent with her court testimony, another police officer to whom the appellant had declined to answer questions and proof that a medical examination of V was normal, and neutral as to whether or not sexual abuse had occurred.
The complainant was born on 4 January 1992 and so was 12 and a half years of age at the time of the trial. Two of the offences were said to have occurred on one occasion in the period January 1998 to January 1999 at premises at Kilburn, and the other three offences were said to have occurred on two separate occasions in the year 2003 at the family’s home at Mount Gambier. The two periods were punctuated by long passages of time when the appellant lived away from the family. On the occasion of count 5, V complained to her mother of the appellant’s conduct. Subsequently the police were informed.
The mother’s evidence included her relating an admission by the appellant of having had sex with V. However in cross-examination she acknowledged that to the police she had not claimed that he had made such an admission, although she had reported that the appellant “wanted permission from me to have sex with [V]”. Finally, letters were tendered from the appellant to V’s mother, written after his arrest and from gaol, which contained some statements which could have been viewed by the jury as being incriminating.
The appellant did not give evidence or call evidence. The position taken by the defence at trial was that V’s evidence was inconsistent in important respects with her statement to police and contained allegations not made to police and was therefore unreliable. When V was cross-examined upon the inconsistencies she denied in strong terms having made the statements put to her. Plainly she had. It was suggested to V’s mother that the allegations against the appellant had been raised in an attempt to prevent the appellant making good his threat to wrest custody of his two sons from her. Not surprisingly, the addresses of counsel focussed on the inconsistencies and omissions and the way in which the jury might approach them. Particular weight was placed by defence counsel on the fact that when V was confronted by the inconsistencies she denied having said the things put. It was suggested that such significant discrepancies were inexplicable if the allegations were true and that V was not being frank with the jury.

In his summing up the judge particularised the main such matters relied upon and gave a direction which included this passage:
Prior inconsistent statements go only to the reliability or credibility of evidence given from the witness box in court. If a witness gives sworn evidence that is significantly different from statements made on earlier occasions, a jury must exercise considerable caution before accepting the sworn evidence of the witness. It will be for you to assess the significance of each inconsistency that you find proven. Does it touch upon an important issue in the case or is it peripheral or incidental? If it does touch upon an important issue, is there an explanation, an acceptable explanation, consistent with the witness’s sworn evidence being believable and reliable?
After the jury had been deliberating for about four and a half hours, a note from them was sent to the judge. Its terms were as follows:
We are unable to reach a majority vote and it appears at this point that we will not be able to do so.
The problem area is with regard to the perceived credibility of both [V] and [her mother] as witnesses which colours consideration on all of the evidence given by them.
This applies to all counts.
The judge chose to reveal the contents of the note, in full, to counsel in chambers, rather than reading it in open court. He might have considered that the note revealed too much of the jury’s reasoning process. Perhaps V and her mother were in court. Anyway, counsel for the appellant was critical of that course, arguing that the established practice is that such a note is read in open court.
It seems to be clear that it is the usual practice when a note from the jury is received by the trial judge to read its terms in open court so that it becomes part of the transcript: R v Arthur (1966) 84 WN(Pt1)(NSW) 121, 125; R v Gorman [1987] 1 WLR 545, 549ff; R v Yuill (1994) 34 NSWLR 179, 190-191. Often that is done before the jury is called in, so that counsel can provide assistance as to how the jury’s question or difficulty may be addressed. The Court of Appeal in New South Wales has suggested it is appropriate as well for the note to be marked for identification: R v Masters (1992) 26 NSWLR 450, 482.
However, there are circumstances in which it is inappropriate to follow the usual rule. For example the note may raise something of a nature personal to a juror which has no connection with the issues in the trial and no impact on its course. In that case it can be addressed by the judge without reference to counsel. Or the note might contain information which, whilst it bears on the trial, it would be inappropriate to publish, even to counsel. A clear example of that last is information as to voting figures, which might be revealed to the judge to illustrate the jury’s state of disagreement. Where a note does contain such material the preferred course seems to be to deal with the note “in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed”: Gorman at 551.
But whilst such information as voting numbers should not be disclosed at all, there are other topics which such notes might touch upon which the trial judge might also be slow to publish. In this connection it is instructive to remember that the Parliament has legislated to safeguard the confidentiality of jury deliberations. Section 246 of the Criminal Law Consolidation Act 1935 provides for offences dealing with the obtaining and publication of “protected information”. Whilst these provisions do not impinge upon the trial judge’s obligations, material which is published in open court loses the protection that the section would otherwise give it. Section 246(11) sets out what it is that is protected.
246. (11) In this section -
protected information means –
(a)particulars of statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations, other than anything said or done in open court; or
(b)information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings;
In all the circumstances a judge might hesitate before publishing in open court the full contents of a jury note such as the one in issue. Here, as I said, the judge, perhaps made cautious by these very considerations, chose to disclose the note to counsel in chambers. With the benefit of reflection I think that was an unnecessary precaution. But therefore there can be no suggestion of a miscarriage. One difficulty however with the course taken is that whatever discussions ensued between his Honour and counsel were not recorded. An alternative procedure might be to raise the matter in open court, but to paraphrase the contentious part of the note so as to stop short of revealing with any precision the jury’s position.
In any event, having spoken with counsel in chambers, the judge reconvened the court and had the jury brought in. He read onto the transcript the first sentence of the note. He then raised with the jury the question of whether more time would help. The foreperson made this statement:
We are not saying we are hopelessly deadlocked, but with directions as to point of law and any other advice that you can give us, then we will be prepared to continue and try and resolve the issue.
The judge then said that he could not give any further assistance on the facts. But he invited the jury to formulate any questions of law which they might have and provide them in writing. He invited them to retire to discuss what he had said. They did so. When asked to comment on what had been said counsel declined. Almost three hours later and without any further communication, the jury returned with their verdicts.
The appellant complains that the contents of the note and the exchange should have prompted the judge to give the jury further directions. It is suggested that in response to those communications he should have instructed the jury in accordance with the suggested direction in Black v The Queen (1993) 179 CLR 44, 51-52 and that he should have given further directions as to the inconsistent statements of V, including as to the fact that any proved inconsistency could be used by the jury to undermine her evidence generally and not only in relation to the count touched by that inconsistency. Reference was made in this regard to R v Markuleski (2001) 52 NSWLR 82. Mr Tilmouth QC, for the appellant, argued that this deficit was underlined by the fact that the judge had instructed the jury (in unexceptional terms) to consider each count separately. It was put that the inconsistencies were all the more telling here since V had denied her original statements and that the jury should have been told as much. Mr Tilmouth submitted that the withholding from the jury of the assistance it sought was an irregularity and that in this case it had caused a miscarriage. He relied on Berry v The Queen [1992] 2 AC 364 where Lord Lowry, speaking for the Privy Council, emphasised (at 383) that juries are entitled to have assistance from the trial judge on the facts as much as on the law. There the trial judge was criticised for failing to ascertain when the jury returned to court an hour into its deliberations what was the nature of the difficulty it claimed with a factual issue. The precise circumstances of that matter do not appear in the judgment as the result turned on other grounds. Accordingly the case is of limited assistance.
Here, it is not plain to me at all from the jury’s note, nor from what was said in court, that the jury had any particular problem requiring elucidation, beyond the very decision it was called upon to make. It seems to me that the judge – an experienced trial judge – understood the foreperson’s statements in that way too and that is why he told them that the facts were their responsibility. Whether that is a correct reading of the matter cannot be known for certain.
The issue then seems to me to be whether, in circumstances where the jury was told that no further assistance on the facts could be made available, there is reason to apprehend a miscarriage of justice. I consider there is not.
As I have related, there is no complaint of any misdirection on any matter at any juncture. While it is said that an additional direction as to the capacity of a proved inconsistency to undermine the entirety of the witness’s evidence should have been given, the jury’s note itself makes clear that the jury appreciated that “perceived credibility … colours consideration on all of the evidence given by [V and her mother and this] applies to all counts”. The correctness of that statement is self-evident, but it was also consistent with the judge’s earlier directions on the topic of inconsistent statements, which I have set out. Moreover there is no question of different verdicts on various counts giving rise to a suggestion that a piecemeal approach was taken.
That there was ultimate unanimity does not suggest any compromise. On the contrary it suggests that the jury were able to re-examine the contentious issue, exchange views and reach a position where they could join in all verdicts. I do not think that the failure to give a direction in terms of that suggested in Black could have given rise to a miscarriage. Whether such a direction is called for is very much a matter of discretion for the trial judge. In this matter the retirement was not prolonged. Nothing in the note or what was said by the foreperson suggested any lack of equanimity in the jury. I consider the trial judge was entirely justified in declining to give such a direction.
I turn to the complaint that the verdicts are unsafe and unsatisfactory. Counsel placed reliance on the matters just discussed, as well as upon the proved inconsistencies in V’s accounts and the omission to mention in her first statement that fellatio took place on the occasion of counts 1 and 2 at Kilburn. Her explanation for that failure was that she did not think it important. Counsel also pointed to the delay in complaining of counts 1 to 4 and to the absence of corroboration. It was suggested that the mother’s evidence, which could be viewed as supportive of V’s allegations, was unreliable.
In order to form a view on this ground it is necessary for the court to undertake its own independent assessment of the evidence and determine whether on the whole of the evidence it was open to convict: M v R (1994) 181 CLR 487, 492-3; Jones v R (1997) 191 CLR 439, 450-1.
Having undertaken that assessment, I have no misgivings about the verdicts. Evaluation of inconsistencies in these cases is very much for the tribunal of fact. In my experience there is nothing extraordinary about the demonstrated inconsistencies themselves, nor in the denial by V of having made her earlier statements. I agree that there was probably some doubt about the claimed admission to the mother; certainly doubt about its terms. But the letters written by the appellant from gaol, which were almost wholly concerned with his present predicament and his wish to forestall the forthcoming trial and in which he made references to being given one more chance, to never making a mistake again, to expecting a “hiding” from V’s mother, to having put V’s mother through “six months of hell” and to never letting her down again, can be read as an acknowledgment of having acted wrongly in relation to his daughter. In my opinion, the four grounds of appeal must fail.
During the argument a further matter was raised. Mr Tilmouth QC drew attention to the fact that there was nothing in the papers to demonstrate that the provisions of s 21 of the Evidence Act 1929, dealing with competence and compellability of witnesses, had been complied with. Section 21 casts an obligation on the judge presiding at proceedings in which a “close relative” of an accused person is called as a witness against him to satisfy himself that the prospective witness is aware of his right to apply for exemption from giving evidence. The expression “close relative” is defined to include a spouse or child. In its turn “spouse” is said to include a “putative spouse within the meaning of the Family Relationships Act 1975”.
It is clear on the evidence that V was a close relative of the appellant and that she had the right to apply for exemption from giving evidence. The trial judge should have satisfied himself that she was aware of that right. The position with respect to V’s mother is less clear. Section 11 of the Family Relationships Act relevantly provides:
11. (1) A person is, on a certain date, the putative spouse of another if he is, on that date, cohabiting with that person as the husband or wife de facto of that other person and –
(a) …
or
(b)a child, of which he and that other person are the parents, has been born (whether or not the child is still living at the date referred to above).
The mother’s evidence shows that from the date of the appellant’s arrest, being 3 December 2003, the appellant did not live with her. In those circumstances it would have been difficult for her to satisfy the requirement of co-habitation. As the matter was not canvassed with the mother before the judge, other factual matters which bear on that question and upon her attitude to giving evidence were not explored. But it is not at all plain from the provisions of the Family Relationships Act that V’s mother was a person who was in a position to have obtained a declaration under that Act to the effect that she was the putative spouse of the appellant at the time of the trial. Furthermore, s 11(3) of the Act provides:
11. (3) Subject to the provisions of any other Act, a person shall not be recognised under the law of this state as the putative spouse of another unless a declaration of the relationship has been made under this provision.
Therefore, not only was the matter of the required cohabitation a potential factual issue, but also arguably s 11(3) presented a legal impediment to recognition of the mother as the appellant’s putative spouse. That being said, I acknowledge that there may be a difference in being comprehended as a “putative spouse within the meaning of the Family Relationships Act 1975” – s 21(7) of the Evidence Act 1929 – as opposed to being “recognised under the law of this state” as such: s 11(3) of the Family Relationships Act.
We did not hear full argument on these matters. Moreover, because this matter was not raised as a ground of appeal there was no occasion for the trial judge to report to the Court of Criminal Appeal upon the subject, nor for the prosecution to put forward any factual material which could bear on advertence by the witnesses to the section. Without deciding the point I am prepared to proceed on the assumption that the mother was entitled to seek exemption under s 21 of the Evidence Act.
In R v C (1993) 60 SASR 467 this court held that failure to advise of the right to apply for exemption did not affect the competence of a 15 year old child of the accused to give evidence of his having committed incest upon her. However, it was further held that failure to observe a protection to a witness, such as is found in s 21, is an irregularity and would necessitate the convictions being set aside, subject to the application of the proviso to s 353 of the Criminal Law Consolidation Act 1935.
I have reviewed the evidence of both V and her mother in light of the considerations referred to in s 21. There is no indication at all in V’s evidence that she was other than intent on giving the evidence she gave. I take the view that even had she applied pursuant to s 21(3) to the trial judge for exemption from the obligation to give evidence, such was the nature of her allegations that the application would necessarily have failed. In relation to the mother’s evidence, there is again no indication of any unwillingness to give evidence against the appellant. It is noteworthy that the letters of the appellant, to which reference has already been made, were apparently voluntarily handed to the police investigating this matter on two separate occasions. Even if the mother experienced a sense of divided loyalties towards the appellant and her child in the task she faced, it is extremely unlikely that in a serious case of this nature any application V’s mother had made pursuant to s 21 would have been granted. Indeed it would in my view be quite contrary to the policy of the law requiring such matters as sexual crimes upon children within families to be prosecuted, that relevant evidence should be withheld to protect the relationships of the accused person.
It is unfortunate that the trial judge was not reminded of the terms of the Evidence Act provision when the two witnesses came to give evidence. However in all the circumstances I am satisfied that there was no miscarriage of justice.
I would dismiss the appeal