R v Thomas - [2015] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMAS
[2015] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Stanley and The Honourable Justice Lovell)
28 April 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
Appeal against convictions. Appellant convicted of one count of indecent assault and six counts of unlawful sexual intercourse after trial by jury.
Appellant complained that the trial Judge failed to give a lies direction - failed to adequately direct on the forensic disadvantage suffered by the appellant - failed to adequately direct as to the use that could be made of the evidence of uncharged acts - failed to adequately direct on the use that could be made of the complaint evidence - failed to adequately direct as to significance of the appellant giving evidence on oath.
Held: per Lovell J (Sulan and Stanley JJ agreeing). Appeal dismissed.
Evidence Act 1929 (SA) s 34CB, referred to.
Dhanhoa v The Queen (2003) 217 CLR 1; R v Copeland (1997) 194 LSJS 1; R v Ong (2001) 80 SASR 537; R v Cassebohm (2011) 109 SASR 465; R v Daniel [2010] SASCFC 62, applied.
R v Sheppard [2010] QCA 342; AE v The Queen [2011] VSCA 168, not followed.
R v Calides (1983) 34 SASR 355; Liberato v The Queen (1985) 159 CLR 507; R v Leak [1969] SASR 172; R v Brady [2014] SASCFC 7, discussed.
Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; R v Hirst (2013) 116 SASR 300; R v Fouyaxis (2007) 99 SASR 233; R v Pelly [2015] SASCFC 25; R v Baring; R v Leonard (2005) 92 SASR 117; R v Bonython-Wright (2013) 117 SASR 410; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v THOMAS
[2015] SASCFC 55
Court of Criminal Appeal: Sulan, Stanley and Lovell JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Lovell J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J.
Overview
The appellant was a trusted friend of the complainant’s family. The complainant alleged that over a period of years the appellant sexually abused him. The offending allegedly commenced around January 1986, when the complainant was about six years old, and continued through to April 1992 when the complainant was 13 years of age. The sexual abuse included acts of indecent assault, fellatio and one act of digital anal penetration. At trial the appellant denied, on oath, all of the offending. The jury, after a trial lasting three days, convicted the appellant of all charges. He has appealed the convictions.
Background
The appellant met the complainant’s father, T, in 1972 whilst working as a meat inspector at an abattoir in Mount Gambier. This friendship developed and the appellant was considered a close family friend of T and his wife C. When their first son was born, the appellant was named as his godfather.
T’s family resided in Mount Gambier and the appellant in Adelaide, however the appellant spent considerable time with the family over the years. In particular, the appellant would often travel to Mount Gambier during the Easter holidays and at Christmas. Moreover, T’s family would stay with the appellant in his unit at Semaphore Park when they visited Adelaide.
The complainant, H, is the youngest son in the family. H and his two older siblings considered the appellant an uncle and a trusted friend.
The appellant was charged with and eventually convicted of one count of indecent assault, two counts of unlawful sexual intercourse with a person under 12 years old and four counts of unlawful sexual intercourse for offending that occurred between 1986 and 1993 against H.
Count 1 (indecent assault) occurred when H was six years old in the appellant’s home. H alleged that the appellant touched H’s genitals while H was sitting on a bathtub bathing his injured foot.
Counts 2 and 3 (unlawful sexual intercourse) related to incidents of fellatio that H alleged were committed by the appellant in Mount Gambier at Christmas in 1989 when H was 10 years old. H alleged that the appellant told him to pull back the foreskin on his uncircumcised penis. He then fellated him on two occasions. H was admitted to hospital just before Christmas in 1989.
Counts 4 and 5 were two separate incidents occurring within a short time of each other. H, who was approximately 12 years old at the time, alleged that the appellant had taken him to a basketball tryout, after which the appellant committed fellatio on him in his car. Count 5 consisted of the appellant allegedly committing fellatio against H on the way home from visiting a horse farm.
Counts 6 and 7 were allegedly committed at H’s home in Mount Gambier when he was approximately 13 years old. H alleged the appellant committed an act of fellatio and then an act of digital penetration of his anus.
A number of uncharged acts were also alleged. The appellant was alleged to have fondled the complainant’s penis whilst giving him a piggyback shortly prior to the Count 1 offending. He was also alleged to have fellated the complainant on two occasions when at Warrnambool in Victoria. They were the only specific uncharged acts alleged. There was other vague evidence that suggested the abuse occurred more often than mentioned above.
The jury convicted the appellant of all seven counts on 24 October 2014.
The appellant now appeals to this Court against his convictions on the basis that the trial Judge erred:
1in his directions to the jury as to the significance of delay and the forensic disadvantage suffered by the appellant;
2in failing to give a “lies direction” to the jury;
3in failing to adequately direct the jury in relation to the significance of the appellant having given evidence on oath;
4in his directions to the jury in relation to the evidence of the initial complaint; and
5in failing to adequately direct the jury as to the permissible and impermissible use of evidence of discreditable conduct.
The appellant also appealed on the basis that the verdict was unreasonable, unsatisfactory and against the weight of the evidence.
Evidence
The prosecution case largely relied on the evidence of the complainant in addition to hospital records and the agreed evidence of a doctor. H’s mother, C, also gave evidence. H’s evidence alone, if accepted by the jury as reliable and credible was sufficient to prove each count.
Two incidents related by H received support from his mother C and there were two other issues where C’s evidence, independent of H, contradicted that of the appellant.
Count 1 allegedly occurred after a family walk. During the walk H stubbed his toe. He gave evidence that the appellant gave him a piggyback. Whilst giving him a piggyback the appellant manipulated H’s genitals.[1] This was an uncharged act. Count 1 allegedly occurred in the bathroom when the family arrived home after the walk and H’s toe was being treated. C gave evidence supporting the fact that the appellant had given H a piggyback on that day.
[1] T 38.
The appellant denied ever giving H a piggyback.
C also gave relevant evidence in support of Counts 2 and 3. H said that they occurred just before Christmas 1989. He said that the appellant was present in Mount Gambier at that time. C gave evidence supporting H’s evidence about the presence of the appellant in Mount Gambier at the relevant time.[2] H said that the appellant had told him to pull the foreskin of his penis back and “leave it alone”. The appellant allegedly fellated H twice. His foreskin was rolled back during those acts. H was admitted to hospital around Christmas time 1989 due to swelling of his penis. He said his penis was injured as a result of complying with the appellant’s request.
[2] T 133.
The medical evidence was equivocal. It confirmed the nature of the problem but could shed no light on its cause.
The appellant gave evidence on oath denying the offences. In relation to Counts 2 and 3 the appellant gave evidence that, at the time the offending allegedly took place, he was not in Mount Gambier. He gave evidence that he was in Adelaide and did not come to Mount Gambier until after the New Year. When he did he came with a friend of his named Pam. Pam died in 2004. He denied that H’s admission to hospital (which was proved by other documents) was caused by any of his suggestions or actions.
Thus the appellant gave evidence that, in relation to Counts 2 and 3, he had an alibi as he was not in Mount Gambier at the relevant time. As mentioned C’s evidence contradicted the appellant’s evidence.
Independent of H there was evidence of a telephone call that occurred between the appellant and C. This occurred after the offending had ceased but while H was staying with the appellant at Semaphore. H was 16 years of age at the time and studying at TAFE. For a short time he stayed at Semaphore with his girlfriend Ms Stockwell and the appellant.
H’s mother said that she received a telephone call from the appellant. He was angry and complained that H’s girlfriend should not have been there as H “shouldn’t have any distractions”.[3]
[3] T 135.
The appellant gave evidence that no such call was made.[4] Whilst it formed part of the prosecution’s submissions nothing turns on this evidence.
[4] T 201.
Further the prosecution led from C an alleged admission made by the appellant. This related to a telephone call that C made to the appellant after H had told her of the abuse allegations in 2004. C said she rang the appellant and asked him “if he had ever touched our boys”. She said the line went quiet and then the appellant said “H asked me to once”.[5] She said the friendship was finished and she hung up the telephone.
[5] T 136.
A “bit later” the appellant rang back and asked if she was calling the police. She said no and hung up again. About 6:30 the next morning she received a call from the appellant. He said “Your son’s on drugs”. She hung up.[6]
[6] T 137.
The appellant admitted receiving a call from C. He agreed she asked him if he had been “abusing my kids”. He said he replied “no”.[7] He denied saying “H asked me to once”.
[7] T 204.
The appellant agreed that he rang back but denied asking C whether she was going to the police. He said he wanted to know what the accusation was. He denied making a call the next morning.
This was described by the trial Judge as an implied or partial admission. What specifically he was allegedly admitting was never clarified. As the trial Judge said it could demonstrate “sexual impropriety”. It could certainly have been interpreted as the appellant having a sexual interest in H, which he denied.
Ground 2
This was the main ground argued on appeal. It is appropriate to deal with it first. The appellant also argued that his submissions on Grounds 1 and 3 were relevant to the question of whether a “lies direction” was necessary. I deal with those grounds separately but have taken the appellant’s submission into account when assessing this ground.
It was submitted that given the manner in which the prosecution presented its case the trial Judge ought to have given a direction on those lies from which a consciousness of guilt may be inferred (an Edwards[8] direction) or a direction on lies which went only to the credibility of the accused (a Zoneff [9] direction). The trial Judge did not give, and was not asked by either counsel to give, any directions on the question of “lies” allegedly told by the appellant.
[8] (1993) 178 CLR 193.
[9] (2000) 200 CLR 234.
The need for a “lies direction”
Guilt may be inferred from an accused’s conduct. Reliance can be placed by the prosecution upon post-offence conduct. A common example of an implied admission is an alleged lie told by an accused. Other conduct, such as flight from the scene of the crime, can also be, in certain circumstances, an implied admission. Such evidence can be led to permit a jury to draw an inference of the accused’s consciousness of guilt.
Where it is open to a jury to rationally draw an inference of a consciousness of guilt on the part of the accused, the jury should be directed that such an inference cannot be drawn unless all other reasonable explanations for the conduct inconsistent with a consciousness of guilt have been excluded.[10] The critical issue in determining the necessity for and scope of a direction to the jury concerning the use of implied admissions is the risk of misunderstanding on the part of the jury.[11]
[10] R v Hirst (2013) 116 SASR 300.
[11] Zoneff v The Queen (2000) 200 CLR 234 [16]-[17].
The prosecution relied on “lies” told by the appellant. Further, in this case the prosecution relied not just on the denial by the accused that he had a conversation with C as alleged (a lie), but also on the content of the conversation as alleged by C as being an admission. It was submitted to the jury that he had lied to “distance himself from the admission”.
In determining the question of whether a “lies direction” is necessary at all regard must be had to the whole of the evidence and the issues as they developed at trial. The circumstances in which a “lies direction” may become necessary were discussed in R v Fouyaxis[12] and more recently in R v Pelly.[13]
[12] (2007) 99 SASR 233.
[13] [2015] SASCFC 25.
It is not necessary for a trial judge to give a direction on lies either of the kind referred to in Edwards or of that referred to in Zoneff every time it is suggested in cross-examination or argument that an accused has told lies.[14] Much depends on the context of the suggested lies and how the trial has been conducted.
[14] Dhanhoa v The Queen (2003) 217 CLR 1.
To give an Edwards-type direction a trial judge would have to decide which of an accused’s answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. In some cases such a direction could have the effect of raising an issue or issues upon which the parties were not joined and of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of an accused.[15] Rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.[16]
[15] Zoneff v The Queen (2000) 200 CLR 234 [20].
[16] Zoneff v The Queen (2000) 200 CLR 234 [15].
A Zoneff-type direction should be considered where there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that an accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
Where emphasis is placed by a prosecutor on lies, even if the language is ambiguous, a trial judge should raise with counsel and in particular the prosecutor, what use is sought to be made of such lies.[17]
[17] R v Fouyaxis (2007) 99 SASR 233 [40].
The trial Judge raised with counsel at the end of the evidence the question of jury directions. A number of directions were sought. There was no discussion about the use to be made of the lies by the prosecution. No direction on lies, either of the Edwards-type or Zoneff-type was sought by either counsel. The trial Judge gave no direction at all on the question of the use to be made of the lies.
At the end of the summing-up the trial Judge questioned counsel as to whether there was any error of law or fact which “needed correction” or whether he had “left anything out”. A number of redirections were sought. A “lies direction” was not one of them. No direction was sought about the use to be made of the “admission”.
What emphasis did the prosecution give to the question of lies?
The appellant gave evidence on oath. During cross-examination the prosecutor suggested to the appellant on occasions that he was lying. No criticism was or could be made of the prosecutor for the suggestion, which in the context of the case, was appropriate. On other occasions it was suggested to the appellant that if he was correct then the witness must be lying (I deal with that form of question later in these reasons).
In relation to the issue of whether the appellant gave H a piggyback the following exchange took place in cross-examination:[18]
[18] T 220, lines 4-24.
QYou have been asked a question by your lawyer about whether, on that occasion, you gave a piggyback to H. Do you remember that question.
AThat's correct.
QYour answer to that was “No”. In fact when asked whether you had given him a piggyback ever you said “Never”.
AThat's right.
QYou heard H give his evidence and you remember that he said you did give him a piggyback.
AYes.
QYou also heard C, she said that on that occasion you did give him a piggyback, do you remember that.
AYes, she did, yes.
QSo is it your evidence that that is simply not true.
AThat's correct.
QThat C must either be mistaken or she's lying.
AShe's mistaken.
QBecause your evidence is “not then, not ever”.
AThat's correct.
In relation to the question of alibi (Counts 2 and 3) the following exchange took place:[19]
QI'm suggesting that you are saying that you spent your Christmas in Adelaide with Pam and that is a lie.
ANo.
QThat you were making up a lie about that because, in fact, you spent your Christmas with the S’s.
ANo, I didn't.
QI suggest you're trying to distance yourself from the two incidents that happened to H on the days before Christmas 1989; do you disagree with that. (My emphasis).
AI do.
[19] T 233, lines 2-11.
The prosecutor came back to the topic:[20]
[20] T 235 line 24 to T 236 line 30.
QC says that you were in Mount Gambier on those days; you heard that, didn't you.
AYes.
QAnd H said that you were in Mount Gambier on those days.
AYes.
QBut you say that that is completely incorrect.
AThat's exactly right, it's completely incorrect.
QC also said that she had absolutely no knowledge of a conversation with you on 1 January 1990 about H's operation; do you remember her saying that.
ANo, I don't.
QYou remember that your lawyer put to C that she had a conversation with you, telling you about his operation.
AOh, that's right, he did, yes.
QYou remember that occasion.
AYes, it was when I arrived in Mount Gambier.
QAnd you remember that C said there simply wasn't a conversation to that effect.
AThere was.
QBecause she said you had been there in the week before that.
ANo. I would have known if H had been taken to hospital because she also stated she stayed home with the kids while T took him to hospital and when T went back in the morning to pick him up and bring him home and I would remember if I had been there either going with T to the hospital or being home with C.
QC was lying about that, was she.
AShe mightn't have been lying but she wasn't remembering, she was just saying that I was there but I wasn't there.
QShe was sure you were there in the week before Christmas.
AWell, I'm sure I wasn't there.
QI suggest that there was no conversation on 1 January between you and C about H's operation; do you disagree with that.
AYes, I do.
QAnd you knew very well about H's operation because you had, in fact, been staying at the S’s house before Christmas.
ANo, I wasn't.

On the issue of a telephone call about H’s girlfriend staying at Semaphore the following exchange occurred in cross-examination:[21]
[21] T 249 line 34 to T 250 line 27.
QYou say she was wrong about receiving a phone call from you angry that H's girlfriend Melena was staying with him at your place.
AThat's wrong.
QYou never received a phone call to that effect.
ANo.
QShe was wrong about that.
AShe was wrong about that.
QShe was lying about that.
AShe was.
QShe was or she wasn't.
AShe was.
QSee C was quite sure of the detail of that phone call, wasn't she.
OBJECTION: MR GRIFFIN OBJECTS
MR GRIFFIN: I object to commentary about the other witness's evidence.
QUESTION WITHDRAWN
XXN
QC said that you didn't want Melena there because H was there for his studies. Do you remember she gave that evidence.
AYes, she did.
QAnd that is a lie, is it.
OBJECTION: MR GRIFFIN OBJECTS
MR GRIFFIN: To characterise something as a lie, a deliberate untruth, it might be something he disagrees with but to characterise in that way is unfair.
OBJECTION UPHELD
XXN
QThat conversation never happened; is that your evidence.
AThat's my evidence.
Finally, on the question of the alleged admission the appellant was asked:[22]
[22] T 250 line 28 to T 251 line 25.
QWhen C told us that she called you and asked whether you have ever touched “my boys” and you said “H asked me to once”, are you saying that that just didn't happen.
AThat never happened.
QYou also disagree you rang back and asked if she was going to call the police.
AExactly right.
QYou never said those words.
AI never said those words.
QAnd the next morning you rang and you said “Your son's on drugs”.
ANo, I never.
QYou didn't do that.
AI did not do that.
QDid you call back.
AOnly in the evening to find out why they made an accusation like that.
QBut the following morning did you make a phone call to the S’s.
ANo.
QYou're sure about that.
AYes.
QYou certainly didn't say anything about “Your son's on drugs”.
ANo.
QSo the content of those conversations just never happened.
ANever happened.
QI suggest that they did. I suggest that the content of those three phone calls is as I have just put to you. Do you disagree with that.
AI disagree with that.
QI suggest you were lying in order to distance yourself from that admission about touching H. (My underlining).
AI'm not lying about it.
Prosecutor’s Address
The prosecutor addressed the jury on the question of the appellant’s evidence. The prosecutor pointed out to the jury that the appellant “distanced himself” from the offending, the places where the offending took place and from the complainant himself.
During the address the prosecutor referred to C’s evidence.
He said:[23]
Finally, I’m going to talk a little bit about the accused’s evidence. I’m not going to go into any great detail because you heard it yesterday afternoon and you have heard it this morning and no doubt it is at the forefront of your mind. You will make of it what you will. My ultimate submission is that the accused was telling you lies. In my submission, his evidence can be contrasted with the evidence that the complainant and also other witnesses in this trial gave, who have been only inaccurate in some small details relating to peripheral issues but on the details that matter, they have been completely honest and doing their best to tell you the truth.
In my submission, the accused, in his evidence, did nothing but try to distance himself from the offending. Firstly, I say that he distanced himself from touching the complainant… he distanced himself from the places from where the offending is alleged to have occurred… he distanced himself from the family room… (my emphasis).
[23] T 268 lines 8-22 and T 269.
He further said:[24]
I suggest it makes sense that, in fact, he was in Mount Gambier before Christmas. We know that he would be there at other Christmases and that he would travel there to see his family. A lot of his family were in Mount Gambier. I suggest it makes perfect sense that he spent Christmas in Mount Gambier that year. H said so, C said so.
Now, just on this issue of C: the accused, in my submission, was faced with a difficulty that in her evidence she supported, to a large extent, the evidence given by H. Most significant of all these was what I say is an admission that “H made me once” when asked if he had touched the boys.
Now, the accused, of course, says that this is wrong. But then, if she's wrong about that, is she also wrong about the subsequent calls regarding the police and a third call in which she says that the accused rang the following day and said “H is on drugs”? Was she making those things up?
Then, if she's wrong or making those things up, is she also wrong about the phone call from the accused talking about Melena and the accused being angry that Melena was staying at the accused's unit in Semaphore?
If she's wrong about that as well, is she also wrong that the accused stayed at the S’s house before Christmas in 1989? Was she lying about all these things that support H's evidence?
I suggest it is the accused who is wrong, not C. He is lying to you to distance himself from the admission, from the calls and from the Christmas where we know that H ended up in hospital because of a swollen penis. (my emphasis).
[24] T 270 line 14 to T 271 line 8.
On appeal the appellant did not criticise the address by the prosecutor. It was accepted that it was open to him to make the criticisms he did. The appellant pointed to the emphasis given by the prosecutor to the lies (including the admission) and submitted that a “lies direction” was necessary in the circumstances of the case.
Was a “lies direction” necessary in this case?
The prosecutor, as he was entitled to do, commented on what he alleged were the lies told by the appellant. However it formed only a minor part of his address. The bulk of the address to the jury concerned the credibility and reliability of H. When he turned to the evidence of the appellant it was to contrast it with the evidence of the complainant. At no time did the prosecutor use the expression “lies told out of a consciousness of guilt”. The submission of the prosecutor was that the evidence of the appellant on the relevant facts was a lie. It was an attempt to distance himself from the allegations. The prosecution case necessarily involved the suggestion that the appellant generally lied.
The appellant submitted that by using the expression “trying to distance himself” from the allegations the prosecutor was suggesting to the jury that the appellant lied out of a consciousness of guilt. To support that submission the appellant relied on two interstate authorities.[25] In both cases it was accepted that such an expression, on the facts of those cases, did suggest to the jury that the accused lied out of a consciousness of guilt. As such it was held that in those circumstances an Edwards-style direction was necessary. Much depends on the context, facts and issues at the trial. The use of such an expression may not, in every case, lead to that inference.
[25] R v Sheppard [2010] QCA 342; AE v The Queen [2011] VSCA 168.
The prosecutor in this case was, in effect, putting no more to the jury than that they should not believe the evidence of the accused when he denied the offences.
As mentioned, counsel did not raise the question of a “lies direction” at any time during the trial. It may be that this occurred for the reasons referred to in Dhanhoa v The Queen[26] where McHugh and Gummow JJ said:
…to have given a direction about lies – to have given an Edwards direction – might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.[27]
[26] (2003) 217 CLR 1.
[27] (2003) 217 CLR 19 [64].
The appellant’s position at trial was that there were a number of significant problems and inconsistencies with the evidence given by H. Much time was spent by Senior Counsel for the appellant during the course of his address putting to the jury what he suggested were the problems with H’s evidence. Such a course was clearly open to counsel as an appropriate way to approach the case.
Further, at trial his evidence was that he had not told lies and also that no such admission, express or implied, was made. Senior Counsel for the appellant at trial put submissions to the jury as to why they should not accept C’s evidence about that topic. He advanced a number of reasons to the jury as to why they should reject that evidence. Those submissions were clearly available on the evidence. No criticism could be made of counsel for adopting that position. For counsel to have sought a “lies direction”, particularly an Edwards-type direction, may have been counter-productive for the reasons expressed by the High Court in Dhanhoa v The Queen.[28] To focus the attention of the jury as to why the appellant may have lied and reasons why he may have lied could have undermined the thrust of the defence case, namely the unreliability of the complainant. The question of whether the response alleged to have been made by the appellant in the final telephone calls to C was an express or implied admission was not dealt with. To draw attention to that issue would most likely have been counter-productive to the appellant’s case.
[28] (2003) 217 CLR 1.
The central issue in the case was the dispute between H and the appellant. The nature of the dispute was such that either the complainant or the appellant was lying. C’s evidence supported the complainant on some issues: that did not change the issues between H and the appellant. The issue before the jury was whether the complainant’s version of events should be accepted, and if so, whether his evidence along with the other evidence in the case proved the appellant’s guilt on the charges beyond a reasonable doubt.
It was accepted by counsel for the respondent at the hearing of the appeal that the failure to ask for a “lies direction” was not the result of a deliberate forensic decision by counsel at trial. Thus the failure to raise it was either an oversight or, in the context of the trial, the question of lies played, in the mind of counsel and the trial Judge, an insignificant role in the presentation of the case.
Significant weight should be given to the fact that an experienced trial Judge and experienced counsel did not discuss or see the need for any “lies direction”. I accept however such a position cannot be a total bar to the success of the ground of appeal.
The trial Judge correctly directed the jury on the onus of proof. He did so on a number of occasions. Indeed the last direction given by the trial Judge before the jury retired was a reminder to them that they could only find the accused guilty of an individual count if they were satisfied beyond reasonable doubt of the prosecution case in respect of that count. The trial Judge explicitly directed the jury that their task was not to decide who to believe. He reminded the jury that the essential question to be determined was whether they were satisfied beyond reasonable doubt of the evidence of the complainant in respect of each individual count. The trial Judge also told the jury that they could only convict on a particular count if, “after having given the evidence of the complainant very careful scrutiny, you are satisfied beyond reasonable doubt that the accused is guilty of that charge”.
There is no requirement as a matter of law that a “lies direction” be given.[29] The question is whether the failure to give a “lies direction” has resulted in a miscarriage of justice because there is a material risk that the jury reached its verdict by finding that the appellant had falsely denied these matters and that he told lies out of a consciousness of guilt.[30] It is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial Judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied in his evidence.
[29] R v Baring; R v Leonard (2005) 92 SASR 117.
[30] R v Bonython-Wright (2013) 117 SASR 410.
I have taken into account the submissions of the appellant in relation to the other grounds of appeal when considering Ground 2.
The appellant must establish that it is a reasonable possibility that the failure to direct the jury “may have affected the verdict”.[31]
[31] Dhanhoa v The Queen (2003) 217 CLR 1.
In my opinion the appellant has not done so. I would dismiss this ground of appeal.
Ground 1
It was accepted that the trial Judge found that the appellant suffered a forensic disadvantage as a result of the delay. The appellant submitted that the trial Judge failed to give the necessary directions as required by section 34CB of the Evidence Act 1929 (SA).
It was submitted that the trial Judge did not adequately direct the jury that, as a result of delay, the appellant was denied potential forensic weapons to test the complainant’s evidence. It was also submitted that the trial Judge failed to identify the forensic disadvantage in relation to each of the counts and further that he failed to sufficiently instruct the jury as to the real forensic disadvantage suffered by the appellant and how that must be brought to bear in their scrutiny of the complainant’s evidence.
If a judge finds that an accused person suffers a significant forensic disadvantage attributable to the passage of time he or she must then give appropriate directions. 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 of the case.[32]
[32] R v Cassebohm (2011) 109 SASR 465.
The trial Judge gave directions about the effect of delay and described the forensic difficulties facing the appellant when he gave evidence. The trial Judge pointed out that the appellant would be unable to be precise about events and dates from so long ago. He directed the jury, for example, that the appellant was unable to produce his 1989 diary or other diaries that could assist. Further, the trial Judge reminded the jury that the witness Pam may have been able to give evidence in court supporting the appellant’s version of events as at Christmas 1989. He pointed out that other witnesses and documents may have been available to the appellant if a complaint had been made earlier.
Further, the trial Judge reminded the jury they could only convict on a particular count if, after having given the evidence of the complainant very careful scrutiny, they were satisfied beyond reasonable doubt that he was guilty of that charge. The trial Judge also reminded the jury of his directions when summarising the address of defence counsel.
The trial Judge did not direct the jury in relation to the diminution of the appellant’s ability to effectively cross-examine the complainant in a way that effectively cast doubt on H’s credibility and/or reliability.[33] Such a direction is not required in every case.
[33] R v Maiolo(No 2) [2013] SASCFC 36.
However, when considering his summing-up as a whole, in my view the trial Judge has explained to the jury the nature of the forensic disadvantage and has tied his directions appropriately to the circumstances of this case. I would dismiss this ground of appeal.
Ground 3
The appellant submitted that the trial Judge erred in failing to adequately direct the jury in relation to the significance of the appellant having given evidence on oath. As the argument developed this ground was said to be relevant in relation to Grounds 1, 2 and 5. Particulars of this ground included that the trial Judge erred in failing to adequately direct the jury as to the application of the burden of proof to his evidence. In addition, the trial Judge was said to have erred in failing to adequately direct the jury as to the significant forensic disadvantage he suffered due to the lack of specificity in the complainant’s allegations, and in particular, the alleged discreditable conduct.
The trial Judge, when directing the jury, told them that the evidence of the appellant was to be “treated in the same way as you treat that of any other witness”. No complaint in my view could be made of the direction. The purpose of such a direction is to ensure that the jury do not discount the evidence of an accused simply because he is the accused or for some other inappropriate reason.[34]
[34] R v Copeland (1997) 194 LSJS 1; R v Ong (2001) 80 SASR 537.
In a case where the prosecution relies substantially or wholly on a complainant’s version of events, which is denied on oath by an accused, a trial judge is required to ensure that the jury is directed clearly on how they are to approach their task. As Sulan J said in R v Daniel:[35]
It is very easy for a jury to be given the impression that there is an onus on an accused to satisfy them that his version of events is to be preferred and, if they are not so satisfied, it therefore follows that the case has been proved against him.
[35] R v Daniel [2010] SASCFC 62 [20].
It is important for the Court to have regard to the overall impression that the whole summing-up would have created in the minds of the jury.[36]
[36] R v Daniel [2010] SASCFC 62 [25].
I have already mentioned some of the directions the trial Judge gave on the burden of proof. He also directed the jury that the essential question was not who do you believe but whether they were “satisfied beyond reasonable doubt of the evidence” of the complainant in respect of each individual charge they were considering. He later reminded them that if they believed the appellant they must acquit but ultimately the question was whether they were satisfied beyond reasonable doubt in respect of the evidence of the complainant.
No direction in line with the decision of R v Calides[37] was sought by counsel.
[37] (1983) 34 SASR 355. See also Liberato v The Queen (1985) 159 CLR 507.
When the summing-up is looked at in its entirety the trial Judge adequately directed the jury on the question of the significance of the appellant giving evidence on oath.
I would dismiss this ground of appeal.
Ground 4
The appellant submitted that the trial Judge erred in his directions to the jury in relation to the evidence of the initial complaint. In particular, it was submitted that the trial Judge failed to direct the jury that they ought not to have regard to the evidence unless they were satisfied that it related to a particular count or uncharged allegation and then only in relation to that uncharged allegation.
The question of initial complaint evidence was raised with the trial Judge before the jury was empanelled. The question of the admissibility of evidence of the initial complaint was not argued by counsel.
The trial Judge was told there was agreement between counsel that the evidence of B, a former girlfriend of the complainant, would be led “in terms of a fairly narrow compass”. There was a clear forensic advantage to the appellant in the initial complaint evidence being led in the way suggested by counsel. The evidence given by B would contradict the complainant’s evidence about the reason for his admission to hospital at Christmas in 1989.
The initial complaint evidence to be led was not specific and not related to any specific count. That was known before the evidence was led. No point was taken by defence counsel pre-trial about the admissibility of the initial complaint evidence on that basis. The alleged inconsistency with the complainant’s evidence was contained in discussions the complainant had with his girlfriend about their sexual difficulties. To elicit the inconsistency in context, evidence of his initial complaint was always going to be adduced. Whilst B’s evidence of discussions she had with H contained a little more detail the problem relating the evidence to specific counts remained. B’s evidence largely related to the inconsistency mentioned.

The fact that the initial complaint evidence was agreed does not of course mean the trial Judge should not deal with that appropriately in his directions to the jury. However, given the nature of the evidence, it could not be specifically related to one count and was general evidence relating to the allegations of abuse. The trial Judge could deal with that in no other way than he did.
The trial Judge gave the standard direction in relation to how a jury could use the evidence of the initial complaint. Specifically he reminded the jury that they should look to see whether the making of the initial complaint demonstrated consistency of conduct on the part of the complainant. He specifically told the jury to look at the evidence of the initial complaint to B and as to whether it was consistent or inconsistent with the evidence that he gave about those matters.
In my view, the trial Judge dealt with the initial complaint evidence appropriately in the context of this case and I would dismiss this ground of appeal.
Ground 5
The appellant submitted that the trial Judge erred in failing to adequately direct the jury as to the permissible and impermissible use of evidence of discreditable conduct. Prior to addresses occurring, the trial Judge raised with counsel the question of directions that he should give in his summing-up. The question of uncharged acts and the directions to be given was discussed. The trial Judge indicated in general terms how he would direct the jury on this topic.
When directing the jury on the question of uncharged acts it was conceded by the prosecution on the appeal that the trial Judge made an error in his description of the acts. The trial Judge referred to the act as “the touching of the genitals during the piggyback ride; the fellatio said to have taken place at Warrnambool; and other acts of fellatio over a period of years”. There was no direct evidence of any “other acts of fellatio over a period of years”. The complainant gave some vague evidence that would suggest other abuse occurred.
The trial Judge directed the jury as to the use that could be made of the uncharged acts. He told them that it was potentially helpful in evaluating the complainant’s evidence as it provided a context in which it was said that the other charged incidents occurred. He further directed the jury that they should consider the evidence of the uncharged acts along with the evidence going to the charges in determining what weight they were prepared to place on his evidence. He further pointed out that it may assist the defence in showing inconsistency thereby raising doubt about the charges.
The trial Judge told the jury that they could not act on any uncharged incident unless they were satisfied beyond reasonable doubt that the specific incident had occurred. Even though the trial Judge referred to “other acts of fellatio” there was in fact no evidence and therefore the jury could not possibly have been satisfied beyond reasonable doubt of those matters. There was no risk, in my view, of them misusing the trial Judge’s misstatement. No correction was sought by counsel at the end of the summing-up.
Directions were also given as to the impermissible uses of that evidence. The trial Judge specifically reminded the jury that the fact that allegations were made about uncharged acts did not in any way absolve them from the task of determining whether the charged incidents themselves were proved. He reminded them that it was the evidence presented in proof of the charges themselves which was the critical evidence in the trial. The trial Judge warned against “propensity reasoning”.
As mentioned, the question of directions to be given on uncharged acts was discussed with counsel. The trial Judge directed the jury as he had indicated to counsel he would. No redirection was sought.
In my view, none of the complaints made by the appellant are made out under this ground and I would dismiss this ground of appeal.
Ground 6
This ground was not pursued on appeal. I dismiss this ground of appeal.
Form of questioning
During the course of cross-examination a number of questions were put to the appellant asking him whether, when C gave contradictory evidence, she was lying or mistaken. The appellant was being asked to give an opinion on the veracity of a prosecution witness.
Although no point was taken about the form of the question on the appeal the matter was raised during argument.
Such questions are objectionable and should not be asked. In some cases such questioning could lead to a miscarriage of justice.[38] It was not suggested that the form of the questions on the facts of this case could lead to a miscarriage of justice. It is perfectly proper for a prosecutor to put questions to an accused clarifying the areas of disagreement. However, a witness should not be asked whether what another witness has said is due to invention, malice, mistake or other cause.
[38] R v Brady [2014] SASCFC 7 [30].
As was stated in R v Leak:[39]
In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witnesses mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what affect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross examiner to drive any witness, least of all the accused, into saying that in any other witness, least of all a detective, is a lie.
Counsel should not ask questions that contravenes this principle.
[39] R v Leak [1969] SASR 172, 173.
Conclusion
In my view all grounds of appeal should be dismissed.