R v Warsap - [2010] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WARSAP
[2010] SASC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice White)
26 February 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for persistent sexual exploitation of a child – conduct the subject of a charge consisted of four occasions over a period of approximately seven months – complainant suffered from Attention Deficit Hyperactivity Disorder (ADHD).
Whether complainant’s evidence unreliable or untruthful – whether complainant’s evidence contradicted by other prosecution witnesses – consideration of prior inconsistent statements – consideration of complainant’s evidence in light of intellectual disability – whether directions made by trial Judge adequate in all the circumstances – whether s 12A of the Evidence Act 1929 applied.
Held (per Bleby J, Duggan and White JJ agreeing): Appeal dismissed – open for the jury, properly directed, to make an assessment of the complainant’s evidence – directions of trial Judge appropriate in all the circumstances.
Criminal Law Consolidation Act 1935 (SA) s 50, s 353; Evidence Act 1929 (SA) s 12A, referred to.
M v The Queen (1994) 181 CLR 487, applied.
Jones v The Queen (1997) 191 CLR 439; Libke v The Queen (2007) 230 CLR 559; R Weetra (2004) 236 LSJS 328; Dearman v Dearman (1908) 7 CLR 549; Longman v The Queen (1989) 168 CLR 79; Bromley v The Queen (1986) 161 CLR 315; R v Shueard (1972) 4 SASR 36, considered.

R v WARSAP
[2010] SASC 40
Court of Criminal Appeal: Duggan, Bleby and White JJ

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Bleby J.
BLEBY J.
Introduction
The appellant was found guilty by a jury of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The period of the alleged offending was between 11 May 2007 and 18 December 2007. The complainant was aged 15 at the time of the offending. He was aged 17 at the time of the trial. According to the complainant’s evidence the acts of sexual exploitation consisted of four occasions of the appellant allegedly masturbating the complainant’s penis, two acts of anal sexual intercourse by the appellant with the complainant and two acts of fellatio committed on the complainant by the appellant. All the acts were alleged to have occurred at the appellant’s home.
The appellant appeals against his conviction on two grounds. The first is that the conviction is either unreasonable or cannot be supported having regard to the evidence, or it would be unsafe or dangerous to allow the verdict to stand. The second ground is that the trial Judge erred in not giving a warning to the jury contemplated by s 12A of the Evidence Act 1929 (SA), and that the warning actually given was inadequate.
Section 50, Criminal Law Consolidation Act
Section 50(1) of the Criminal Law Consolidation Act provides:
50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
The prescribed age in relation to the present appellant, not being a person in a position of authority (as defined), was the age of 17 years. The complainant was under that age at the time.
Subsection (2) provides:
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
The expression “sexual offence” is defined in subsection (7) and includes each of the acts the subject of the charge.
So far as it is material subsection (4) provides:
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
…
It is to be noted that the particulars to be alleged do not require that degree of particularity that would be required if the act were charged as a separate offence, nor is it necessary to identify particular acts of sexual exploitation or the occasions on which or the places at which or the order in which the acts are alleged to have occurred. It follows that the offence may be proved without proof of particular dates or occasions on which the acts of sexual exploitation are alleged to have occurred or the order in which they occurred. It will be sufficient if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt.
The complainant’s relationship with the appellant
During his primary school years the complainant lived with his parents and two older sisters in a southern suburb of Adelaide. It was while he was living there, and when aged about 10, that he met the appellant through some neighbours. They got on well, and the complainant called him “Pete” or “Peter Plus”. The appellant visited their home on several occasions. At that time the appellant lived with his mother in an outer southern suburb.
When he was in high school the complainant, his mother and one sister moved to another southern suburb. By then his father lived elsewhere and there was little contact between the complainant and his father.
The appellant moved to his own house at Morphett Vale. During this time he continued to visit the complainant’s home. He became, in the complainant’s words, “like another dad”. They would go to a hotel together. The appellant took the complainant fishing and, on one occasion, bowling. The complainant, with the knowledge and consent of his mother, began staying overnight at the appellant’s house. The first such occasion was when he was in Year 9 at high school. At various times the appellant gave the complainant sums of money ranging between $20 and $100. On one occasion he also gave the complainant a mobile telephone.
All the offending was alleged to have occurred during the period mentioned above at the appellant’s home during the course of an overnight stay. The last overnight stay occurred some time just before Christmas 2007. There was some further contact with the appellant after that when they went fishing. The complainant said that before going fishing he had declined an invitation from the appellant to masturbate the appellant and had refused the appellant’s attempt to masturbate him. There was one further contact by way of a text message from the complainant to the appellant on 26 April 2008, in which the complainant said, “Hi Pete, how have you been? From your son”.
Three days later, on 29 April 2008, the appellant contacted the police about the alleged conduct.
The complainant’s disabilities
The complainant suffers from an intellectual disability known as Attention Deficit Hyperactivity Disorder (ADHD) and from depression. According to his mother, although he was in Year 12 at the time of giving evidence, he was in fact three years behind in his level of schooling. Dr Govan, his treating psychiatrist since January 2006, considered that, although his chronological age was 17, his mental age was between 12 and 13.
The complainant’s mother noted that since being in secondary school he has had diminished respect for people and his attitude and behaviour have deteriorated. He began not attending school and verbally abusing teachers.
Dr Govan described ADHD in the following terms:
ADHD is a condition of the brain which involves very often hyperactivity, attention deficit and a number of defects of executive function of the brain. The person with ADHD tends to be impulsive, often tends to be oppositional, can't concentrate properly. Tends to get - if it is a child - tends to get into trouble both in class and to become difficult to manage at home.
…
Executive function is the function of the brain involving self control, planning, reacting appropriately to others, feelings of other people's doings, organising oneself and so on.
Dr Govan noted that ADHD affected a person’s ability to plan. As to a sufferer’s reaction to other people, Dr Govan’s evidence was as follows:
A.They may well be impulsive and impulsively angry.
Q.You also mentioned in the course of one of your previous answers the word 'oppositional'.
A.Yes.
Q.What did you mean by that?
A.Oppositional disorder is one of the conduct disorders is basically charge characterised to the opposition to legitimate authority of parents or teachers and often involves inappropriate anger and impulsivity and so on. In other words many of the features of ADHD may occur in oppositional disorder. Modern knowledge suggests it is, in fact, the same gene which may be expressed as oppositional disorder or as ADHD or both.
Dr Govan confirmed that the complainant presented as someone with symptoms consistent with an ADHD sufferer and that he was “notably oppositional”.
A reading of the complainant’s evidence as a whole reveals a manifestation of a number of the traits of an ADHD sufferer in the giving of his evidence. He demonstrated a certain impatience with the forensic process which had involved four police interviews and four signed statements and which also included what, to him at least, appeared to be a tedious cross-examination. He gave what appeared to be literal and, to him, correct answers to poorly formulated questions. One example can be given which was at the forefront of the appellant’s attack on his credibility. The complainant had said that he had not contacted the appellant after he had spoken to police. There was extensive cross-examination about the text message mentioned above having been sent from a particular mobile phone number that, it was suggested, was the complainant’s mobile phone number. The complainant consistently denied more than once having sent the text on the basis that that was not his number. It transpired that counsel for the defence had quoted the wrong telephone number. Once the correct number was given to the complainant he agreed that he had sent the message. Furthermore, telephone records indicated that the message was sent from the complainant to the appellant on 26 April 2008. The complainant did not speak to police until 29 April 2008. It was not suggested at any time that the complainant had contacted the appellant after he spoke to police.
Dr Govan gave evidence about the likely effect of the complainant’s disability on his memory. He said:
A.One of his difficulties I think is that his upbringing would make it quite difficult for him to be quite sure of reality at times, and it would make it quite difficult for him to ascertain the difference between truth and what he imagines to be the truth. His conscious function would be - well he would find it difficult to create an identity in terms of gender identity, and he would, as you may have gathered – I believed him to have, to be very short of an acceptable masculine role model. My belief is that he might well have taken up with this person called Peter because he was looking for a masculine role model. So that because of a great deal of confusion about being himself and about how to relate to others, it would be at times difficult for him to be sure what had happened.
Q.Has he ever, that is [the complainant], presented to you as suffering from delusions or hallucinations?
A.No.
In relation to that evidence he was asked, in cross-examination, whether there may have been a difficulty between the complainant’s perception of something and the truth of something, to which Dr Govan replied:
A.I'm certain that can happen at times, yes.
Q.If you could just put that in medical parlance for me that would be helpful.
A.Sometimes he would have difficulty with reality testing.
Q.So his reality may not in fact be attached to the reality that exists?
A.At times that would be so. At other times I would think that his memory would be reasonably accurate.
There was no evidence to suggest that the complainant’s difficulties meant that he was not able to tell whether a particular event had happened. Dr Govan’s evidence did not go so far as to indicate that he was suffering from delusions, hallucinations, or a psychotic episode such that he imagined events that did not in fact occur, or that he was not capable of accurately recalling whether a particular event had occurred.
Dr Govan also agreed with the proposition that the complainant was a person “who was capable of incorrect fantasies”. However, in re-examination he was asked whether a person not suffering from the sorts of impairments that the complainant had could have incorrect fantasies, to which he replied:
A.I think most people have fantasies.
Q.Might be incorrect of course.
A.Correct.
The attacks on the complaint’s evidence
There was no evidence to corroborate the complainant’s evidence of the acts of sexual exploitation. The complainant’s evidence was the only evidence of those acts. The appellant did not give evidence.
The first act complained of by the complainant was an act of masturbation on the day before Mothers Day 2007. It took place in the lounge room of the appellant’s home while the complainant was naked and the appellant was clothed. Other details were given of what happened. He identified it as happening on the day before Mothers Day because on the following day, when returning the complainant to his home, the appellant bought some chocolate and roses for him to give to his mother for Mothers Day.
The complainant could not identify the times of the other occasions of masturbation, but he described two of them as occurring in the lounge room and one in the appellant’s bedroom, the latter when the complainant was lying on the appellant’s bed.
He described the acts of intercourse as occurring in the bedroom, and that the appellant used Vaseline as a lubricant. He described the unpleasant consequences of the first occasion and how he was told by the appellant, on the second occasion, to count to 200.
He was unable to identify precisely when the acts of fellatio occurred other than to say that the first one occurred sometime after the first act of anal intercourse.
The complainant’s evidence was that, while he enjoyed being in the company of the appellant, he did not enjoy the acts the subject of the charge and that he felt ashamed of his involvement.
Although the complainant’s last overnight stay with the appellant was in December 2007, he first mentioned the sexual activity with the appellant to his mother in April 2008, following which, in the company of the Deputy Principal of the school he was attending, he went to the police on 29 April 2008.
On the hearing of this appeal the first attack on the complainant’s reliability as a witness was based on the lack of detail in his description of the events and his inability to recall when they occurred, together with what were described by counsel as a series of “bizarre responses”. Inability to remember detail may impact upon the jury’s assessment of the reliability of the complainant. However, the elements of an offence under s 50 of the Criminal Law Consolidation Act, which I have mentioned above, need to be borne in mind when assessing whether it was open to the jury to convict the appellant of an offence under that section. Such an attack, while relevant to a charge of an individual offence, loses much of its sting in relation to an offence under s 50.
Inability to recall details of individual incidents of sexual abuse and precisely when they occurred is not uncommon where abuse has occurred on a number of occasions a matter of years before the giving of evidence of the events. That in itself is insufficient to raise compelling doubts about the complainant’s reliability. However, the complainant was still able to recall the times of day when the events occurred, a particular television program being shown at the time and some other related events.
The “bizarre responses” included the complainant’s response as to why he kept returning to the appellant’s house after experiences which he said he did not enjoy and of which he felt ashamed. His responses were not unusual. Initially, he thought that it would only happen once. Other responses were that he thought the appellant would change and because he liked the appellant’s company and his food. This was all consistent with his regarding the appellant as a father figure and role model, in the absence of any other male role model. Other responses, which might appear bizarre coming from certain witnesses, are understandable against the background of the complainant’s condition of ADHD, Dr Govan’s description of its likely effects and the apparent impatience of the complainant with the forensic process.
The second general attack on the complainant’s evidence related to alleged inconsistencies between the plaintiff’s evidence and that of his mother and between the plaintiff’s evidence and some out of court statements.
There would appear to be little substance in the alleged inconsistency between the complainant’s evidence and that of his mother. His evidence was that when he first told his mother it was to the effect that the appellant had “played with him downstairs”, and that he did not tell her about the incidents of anal intercourse and fellatio. His mother’s evidence was that he described the complaint as “Pete’s been touching me”. Those differences between them might be considered immaterial. The complainant’s mother went further and said that she had been told about the anal intercourse and the fellatio, but it is not clear from her evidence whether she was told that initially by the complainant or sometime later. It is not surprising that, when giving evidence, the complainant’s mother knew of the other events. I consider that there is no substance in that criticism.
Other criticisms related to his failure to tell the police of an incident that he described in evidence of an occasion when he told the appellant to stop what he was doing “and he attempted to hit me with the phone, for telling him ‘No’, because I wanted to go home”. When challenged about that he candidly admitted not telling the police because he “didn’t think it was relevant for the case”. Another complaint related to his failure to tell the police that the appellant had used Vaseline. Again, when asked for the reason, he said he did not think it was relevant. Yet according to his mother’s evidence, when he first spoke to her about the events he mentioned the appellant’s use of a “yellow cream” to her. Those answers appear to have been given quite candidly, and were understandable from a boy of a mental age of 12 or 13 at the time of giving evidence, and in relation to disclosures to police over a period of some 17 months beforehand.

The third major attack on the complainant’s evidence was the alleged inconsistency of an out of court statement of the complainant with that of an independent witness to whom I will refer as “H”. H was called by the prosecution. He was a friend of the appellant who was known to the complainant by his first name only.
It was an agreed fact that on Thursday 3 September 2009, which was four days before the commencement of the trial, the complainant met with the prosecutor and Detective Lipman and was asked questions about the allegations against the appellant. It was a further agreed fact that the complainant “described one occasion when [H] came to the bedroom door. He said that this was in the morning. [The appellant] and [the complainant] were on [the appellant’s] bed. He said there was no bedding on the bed. He said that both himself, that is [the complainant], and [the appellant] were naked, and that [the appellant] was wanking him when [H] came to the bedroom door”.
In his evidence before the Court the complainant said that on one occasion H came into the house in the morning and stood at the bedroom doorway and saw him and the appellant in the bed and then left. He was just lying in the bed with the appellant. They were covered by a quilt. He did not depose to any sexual activity taking place at the time.
In essence, H’s evidence was that he recalled on one occasion going to the appellant’s house when the complainant was there one morning. This was by prior arrangement with the appellant who had asked H to take him to a car yard. He came to collect the appellant who said he would have to wake the complainant up because he was still asleep. Within 10 minutes or so the complainant appeared, outside the house, and presumably dressed. He had seen the complainant and the appellant in each other’s company on other occasions, including one other occasion at the house, but had not seen anything “inappropriate” going on between them.
There were obvious differences between the complainant’s evidence on the topic, what he had previously told the prosecutor and the detective, and the evidence of H. The conflict in the oral evidence was between the complainant’s version of what occurred when H was present, involving no sexual activity, and H’s evidence as to what happened, also involving no sexual activity. The other conflict was between what the complainant said in evidence and what he told the police. The complainant said he had difficulty in remembering some aspects of what he had told the police. I will return to these conflicts when considering the first ground of appeal.
The fourth attack on the complainant’s evidence related to his mental disability, the details of which I have already recorded.
The fifth and final attack related to other behaviour of the complainant which included the sending of the SMS message previously referred to, the returning of the complainant to the house on numerous occasions over a period of approximately 7 months despite the distasteful experiences, and the circumstances of the initial complaint to his mother some 4-5 months after the course of conduct had come to an end.
The complainant’s candid explanation for going back was that, despite the acts of abuse, he enjoyed the appellant’s company. His explanation for not reporting the abuse sooner was that, not surprisingly, he felt ashamed, that it was “still my fault”, and that he did not know how to. Initially he thought it would only happen once. He particularly did not complain to his mother because he did not want to upset her. She was a person with whom he felt particularly close.
These events complained of are not surprising in the light of Dr Govan’s evidence that it was “not uncommon” in cases of this nature for there to be a delay in the complaint, his evidence that the complainant was lacking an acceptable masculine role model, and his evidence of some confusion in the complainant about being himself and how to relate to others.
It was through this series of attacks that the appellant submitted that the complainant’s evidence was quite unreliable. This formed the basis of the first ground of appeal.
Before turning to consider that ground it should also be recorded that a reading of the complainant’s evidence as a whole reveals a certain naive candour in his answers to questions. When being cross-examined as to his credit he readily admitted that he had told lies to his mother on occasions and that he had “stolen” food from the kitchen whilst denying to his mother that he had done so. It would have been quite apparent to the jury that he fully understood the difference between telling lies and telling the truth. The jury would also have been aware of the manifestation of the complainant’s condition of ADHD in the manner in which he answered a number of questions and in his impatience with the process in which he was engaged.
It should also be noted that, while there was no corroboration of the complainant’s evidence of the events giving rise to the charge, there was corroboration of many other events to which he deposed. The fact that he stayed at the appellant’s house overnight was confirmed by the evidence of H and of the complainant’s mother. The fact that the relationship between the appellant and the complainant included the giving of gifts by the appellant to the complainant in the form of money, a mobile phone and other items was supported by the evidence of his mother. The complainant’s own description of a father/son relationship was confirmed by the observations of H. The fact that the appellant bought chocolate and roses for the complainant to give to his mother on Mothers Day in 2007 was confirmed by the complainant’s mother. That bore some significance because it was related to the first act of sexual abuse deposed to by the complainant the previous night. The fact that the complainant said he had never contacted the appellant after he had spoken to the police was confirmed by the date of the text message. It was never suggested that there was any contact after that.
Ground 1 – Consideration
Section 353 of the Criminal Law Consolidation Act 1935 (SA) requires that the Court must allow the appeal “if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence …”. The test to be applied is that enunciated by Mason CJ, Deane, Dawson and Toohey JJ, with whom Gaudron J agreed, in M v The Queen:[1]
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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[Footnotes omitted]
[1] (1994) 181 CLR 487, 493-495.
That test was accepted by the majority of the Court in Jones v The Queen.[2] It was expressed by Hayne J, with whom Gleeson CJ and Haydon J agreed, in Libke v The Queen[3] as follows:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt . It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[Original emphasis; footnotes omitted]
[2] (1997) 191 CLR 439, 452, Gaudron, McHugh and Gummow JJ.
[3] [2007] HCA 30, [113], (2007) 230 CLR 559, 596-597.
As White J[4] pointed out in R v Weetra,[5] it is not sufficient merely to show that the evidence is open to criticism.
[4] With whom Doyle CJ and Besanko J agreed.
[5] [2004] SASC 33, [28], (2004) 236 LSJS 328, 332, citing R v Shueard (1972) 4 SASR 36, 39.
It must also be borne in mind that it is not merely the content of what the complainant said as it appears on the Court transcript that is relevant. As Isaacs J said in Dearman v Dearman;[6]
[W]here viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal. The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal.
Isaacs J’s reference to a Judge applies equally to a jury.
[6] (1908) 7 CLR 549, 561.
The evidence of the complainant was open to criticism for its reliability. Except in relation to the incident involving H, the criticisms went to the complainant’s reliability as to peripheral issues only. The complainant’s evidence as to the core events comprising the charge was not contradicted. Whether the various factors giving rise to the submission that the complainant’s evidence was unreliable and could not be believed were matters for the jury, properly instructed, to determine.
As I have pointed out, there were plausible explanations for many of the answers given by the complainant as to those peripheral areas which formed the basis of the appellant’s attack on his evidence. They were matters for the jury to assess and to determine whether those answers raised a reasonable doubt as to the complainant’s evidence of the events the subject of the charge.
The one piece of evidence relating more directly to one only of the eight alleged incidents the subject of the charge was not what the complainant said in evidence about the occasion when H was present. That was, that H appeared on one occasion and saw the complainant and the appellant in bed under a quilt, but that there was no sexual activity taking place. Whether H’s evidence related to the same occasion it is difficult to tell. There was at least one other occasion when he saw the complainant at the appellant’s house. However H confirmed the complainant’s evidence that, whenever it was, he saw no sexual activity taking place. The only material inconsistency in the complainant’s evidence was with what he had told the police and the prosecutor a few days before the commencement of the trial, possibly two years or more after the event. The fact that the complainant’s evidence was contradicted by H did not lead to an escapable conclusion that the complainant was lying, as distinct from raising some doubt upon the complainant’s reliability. To the extent that the contradictions did impact on the complainant’s reliability, it was a matter for the jury to consider.
I agree with the respondent’s submission that, given the rest of the complainant’s evidence, it was open for the jury to find that he was unreliable in relation to his recollection of H arriving at the house and seeing him in bed with the appellant, without that causing the jury to have a doubt as to whether the sexual abuse described by the complainant had occurred. It was open for the jury to consider why the complainant would have deliberately lied about such a matter when it was so easily capable of being investigated and checked. Once it was open for the jury to conclude that it only affected the reliability of his recollection in relation to that incident, as distinct from a deliberate untruth on his part, then it was open for the jury to determine whether his mistaken recollection of this incident necessarily impacted on his evidence as to the sexual abuse.
In my opinion it is not possible to say that the jury must have entertained a doubt about the appellant’s guilt. It was open, on the evidence, to the jury, properly directed, to be satisfied of his guilt beyond reasonable doubt. I would therefore reject this ground of appeal.
Ground 2 – Consideration
I have held that it was open to the jury, properly directed, to reach the conclusion it did as to the appellant’s guilt. It is the trial Judge’s direction which is the subject of the second ground of appeal. The actual ground alleges that the trial Judge erred in not giving the warning required by s 12A of the Evidence Act 1929 (SA), namely that it would be unsafe to convict on the uncorroborated evidence of the complainant.
Section 12A of the Evidence Act provides:
12A—Warning relating to uncorroborated evidence of child in criminal proceedings
(1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—
(a)the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b)a party asks that the warning be given.
(2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.
Section 12A of the Evidence Act came into effect on 23 November 2008. It was one of a number of amendments to the Evidence Act contained in the Statutes Amendment (Evidence and Procedure) Act 2008. One of the other amendments related to the abolition of the requirement to give a Longman warning,[7] and the substitution of that requirement by the provisions of what are now s 34CB of the Evidence Act. Another and, for this case, a significant amendment was the insertion of s 34M of the Evidence Act abolishing the common law in relation to recent complaints in sexual cases and the substitution of directions to be given if evidence concerning the making of an initial complaint of an alleged sexual offence is admitted. That amendment plainly had relevance to the directions to be given in this case.
[7] Longman v The Queen (1989) 168 CLR 79.
Towards the end of the evidentiary case, but before the evidence was completed, counsel for the appellant, for the purpose of final addresses, raised an issue with the Judge concerning “the new amendments to the Evidence Act in relation to recent compliant etc”. Counsel said he would have a discussion with the prosecutor and would return to that topic. The Judge then said:
Yes, I should also say on that topic if there are any particular directions that counsel wish me to give, bearing in mind the amendments to the Act, if you would raise those with me I would appreciate that.
[Emphasis added]
The Judge asked if there was anything else, whereupon the prosecutor said that he suspected there might be a suggestion that the Judge should contemplate “a so called Bromley direction as well”, whereupon defence counsel said, “That’s right, that was the first one I would be asking for”.
After the close of the evidence there was a discussion between counsel and the Judge about matters that should be included in the trial Judge’s directions to the jury. That included a discussion about the directions required by s 34M of the Evidence Act. There was no mention of s 12A. Prosecuting counsel then raised the question of whether a Bromley warning would be appropriate, and a discussion ensued as to the contents of such a warning based on the decision in Bromley[8] itself. Once again, no mention was made of s 12A of the Evidence Act, and the discussion turned to other directions to be given.
[8] Bromley v The Queen (1986) 161 CLR 315.
The effect of s 12A of the Evidence Act is that a trial Judge is prohibited from warning the jury that it is unsafe to convict on a child’s uncorroborated evidence unless both the conditions set out in paragraphs (a) and (b) of sub-s (1) are fulfilled. One of those is that a party asks that the warning be given. If a party does not ask, the warning must not be given in those terms. However, that is not to say that a warning of a different nature is inappropriate.
In Bromley v The Queen[9] Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, described the type of warning that might be necessary in relation to an important witness who has some mental disability. He said:[10]
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.
[9] (1986) 161 CLR 315.
[10] Ibid 319.
It is to be noted that the warning is to be appropriate to the circumstances of the case with no particular formula required; that it applies where there is a possible danger of convicting on the testimony of a witness with a mental disability unless the testimony is confirmed by other evidence; that the warning must be clear; and that there is to be an explanation to the jury as to why the evidence is potentially unreliable but only if the jury might not understand why that is so.
The warning required by Bromley may be of the type contemplated by s 12A of the Evidence Act if it is not otherwise precluded by that section, or it may be a milder warning, depending on the circumstances. It is not necessarily the same as the warning of which s 12A speaks.
There was no request by either party that the Judge give a direction under s 12A or that the warning should be in terms that it would be unsafe to convict on the complainant’s uncorroborated evidence. The very fact that counsel raised with the Judge the appropriate directions to be given under s 34M of the Evidence Act and requested a warning in accordance with the principles stated in Bromley indicated that the question had been addressed. There is a necessary inference that neither party chose to request that a warning contemplated by s 12A should be given. In those circumstances the Judge was precluded from giving such a warning. It was not for the Judge to invite such a request.

However, the question still remains whether the warning actually given by the Judge was adequate for the circumstances of the case.
The Judge gave a direction on the use of prior inconsistent statements, with particular reference to what the complainant had said about the occasion when H came to the door of the bedroom and saw him in bed. The Judge said:
[I]f a witness said something outside of court that is inconsistent with his evidence in court, you may take that inconsistency into consideration when deciding whether to accept the evidence of that person. Moreover, if a witness denies a statement or equivocates about an out of court statement which the witness is proved to have made, then that might be a factor that you take into account when assessing the honesty and reliability of that witness, and in deciding whether you accept their evidence on that topic and perhaps generally.
The Judge also summarised the evidence of Dr Govan, and having summarised the submission of defence counsel as to the unreliability of the complainant’s evidence, then said:
Your assessment of [the complainant’s] evidence is clearly central to your task. I told you about the general rules for assessing witnesses’ evidence and the issue of prior inconsistent statements. But I would like to warn you now about the special dangers that you must take into account when assessing [the complainant’s] evidence.
You must scrutinise his evidence with particular care in the light of his intellectual disability, his ADHD, depression, and oppositional disorder. You must carefully consider these issues when assessing his evidence, particularly in the light of what Dr Govan said to you in his evidence about [the complainant’s] difficulty distinguishing between the truth and what he imagines to be the truth.
I should, however, say that whilst you will no doubt find Dr Govan’s evidence of considerable assistance, the assessment of [the complainant’s] evidence is entirely a matter for you. It is open for you to convict the accused upon [the complainant’s] evidence if you are convinced of its accuracy and truth. You should not, however, do so unless you have subjected his evidence to very close and careful scrutiny and after that scrutiny you are satisfied of its truth and accuracy and you are satisfied that it is safe to convict upon it.
The Judge warned the jury about the “special dangers” to be taken into account in assessing the complainant’s evidence. They were told to “scrutinise” his evidence “with particular care”. She explained what it was that gave rise to the reason to do so, reminding them particularly of Dr Govan’s evidence. It was obvious from Dr Govan’s evidence and indeed from the evidence of the complainant himself and his mother that there was good reason why the evidence might be unreliable. No further explanation was needed. Members of the jury were told that they must “carefully consider” those issues when assessing his evidence, and that they should not be convinced of the accuracy and truth of it unless they had “subjected his evidence to very close and careful scrutiny” and that they were “satisfied that it is safe to convict upon it”.
I accept the respondent’s submission that the combination of the attacks made on the reliability of the complainant as a witness did not call for a direction that it was unsafe to convict without corroboration. Dr Govan’s evidence did not indicate that the complainant was incapable of telling the truth or that he suffered from delusions or hallucinations that would have impacted upon his ability accurately to recall events in which he had been involved. In my opinion the trial Judge’s direction was appropriate in all the circumstances. I would reject this ground of appeal.
Conclusion
It follows that in my opinion the appeal should be dismissed.
WHITE J: I agree that the appeal should be dismissed and with the reasons of Bleby J.