R v Wildy - [2011] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILDY
[2011] SASCFC 131
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
10 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant found guilty by a jury of two counts of indecent assault, one count of attempted unlawful sexual intercourse, and two counts of unlawful sexual intercourse - at trial the prosecution led evidence that the appellant made two payments to the victim, the first of which the appellant denied making, the second he admitted but characterised as a loan - evidence of the payments was put to the jury as supporting an inference that the appellant was trying to buy the victim's silence - whether judge erred in law in failing to direct the jury that it could only use evidence of the first payment if it was satisfied beyond reasonable doubt that it was made and that it could only use evidence of either payment if it found there was no rational explanation for the payments other than the appellant's guilt - whether judge required to warn the jury that there might be other reasons for making the payments - whether verdicts were unreasonable.
Held (Vanstone J, Sulan J agreeing): appeal dismissed - jury did not have to be satisfied of the payment evidence beyond reasonable doubt before using it in the way suggested by the prosecutor - jury did not have to exclude any other rational hypothesis for the payments consistent with innocence before using the evidence - in the circumstances there was no requirement to direct the jury as to other motives the accused may have had for paying the money - in any event the suggested failure to direct did not go to the application of a rule of law - the verdicts were not unreasonable.
Held (White J dissenting): judge erred by not giving an Edwards type direction in respect of the appellant's post alleged offence conduct.
Criminal Law Consolidation Act 1935 (SA) s 353, s 49, s 56, s 270A, referred to.
Edwards v The Queen (1993) 178 CLR 193, applied.
R v Loader (2004) 89 SASR 204, distinguished.
Domican v The Queen (1992) 173 CLR 555; Broadhurst v The Queen [1964] AC 441; Bromley v The Queen (1986) 161 CLR 315; Pollitt v The Queen (1992) 174 CLR 558; R v Inston (2009) 103 SASR 265; Simic v The Queen (1980) 144 CLR 319; Davies v Director of Public Prosecutions [1954] AC 378; Hargraves v The Queen [2011] HCA 44; M v The Queen (1994) 181 CLR 487; R v Power (1996) 87 A Crim R 407; R v Chang (2003) 7 VR 236; R v Watt (1905) 20 Cox CC 852; R v Flanigan (1997) 190 LSJS 499; R v Liddy (2002) 81 SASR 22; Barca v The Queen (1975) 133 CLR 82; Peacock v The King (1911) 13 CLR 619; Shepherd v The Queen (1990) 170 CLR 573; R v Ciantar (2006) 16 VR 26; R v Nguyen (2000) 118 A Crim R 479; R v Evans (1985) 38 SASR 344; R v Renzella [1997] 2 VR 88; R v Laz [1998] 1 VR 453; R v White (1998) 2 SCR 72; Papazogolou v The Queen [2010] VSCA 201; R v S, BB (2007) 175 A Crim R 449; R v O, N [2009] QCA 62; Zoneff v The Queen (2000) 200 CLR 234; Dhanhoa v The Queen (2003) 217 CLR 1; Petty v The Queen (1991) 173 CLR 95; Parkes v The Queen (1976) 3 All ER 380; R v Mitchell (1892) 17 Cox CC 503; Harris v The Queen (1988) 37 A Crim R 29; R v MMJ (2006) 166 A Crim R 501; R v Kora [2000] NZCA 47; Woon v The Queen (1964) 109 CLR 529; R v Heyes (2006) 12 VR 401, considered.

R v WILDY
[2011] SASCFC 131
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
VANSTONE J: The appellant was charged on information with indecent assault (two counts), attempted unlawful sexual intercourse and unlawful sexual intercourse (two counts). The offences were said to have occurred on two occasions in the late 1970s and early 1980s. He stood trial in the District Court before judge and jury and was found guilty as charged. He now appeals against those convictions, arguing that inadequate direction was given to the jury in relation to evidence that on two occasions he advanced sums of money to the complainant; and that the convictions are “unsafe, unreasonable and against the weight of the evidence”.
Background
In order to give context to the complaints on appeal it is necessary to set out a good deal of the detail of the evidence.
The complainant, “J”, was born in 1967. He was 43 years of age at the time of the trial. He was the youngest child in a large family. His early life was marked by disruption and sadness. He was effectively an orphan before he turned 10 years of age. He attended a great many different schools and spent time in state-run boys’ homes and, later, in foster homes.
When he was about 11 years old he joined a scouting group. There he came to know the appellant, who was a scoutmaster. Their association continued over a number of years. From an early stage, J confided in the appellant about his difficulties at home and at school, and they developed a relationship outside the scout group. On occasion, J would stay overnight at places where the appellant was living. One of those was at Kensington Park, where the appellant lived with the owner of the house. In about 1980, the appellant became his temporary foster carer. That situation continued for perhaps two years. It was at the Kensington Park house that J said the first two offences occurred. At this time he was still in primary school. J described the appellant as coming to his bedside to comfort him in the night and then getting into bed with him and fondling him. It is unnecessary to elaborate upon the specific allegations but they were the basis of counts 1 and 2, both indecent assaults.
The complainant alleged that there were other, uncharged, occasions of sexual interaction between them in the same period. Some of these were described in detail. There were many occasions when the appellant gave J presents, including such items as clothes, a bicycle, a surfboard and money, as well as taking him out to restaurants and other outings.
Counts 3, 4 and 5 were described by J as occurring some years after the earlier conduct. In the meantime, the appellant had gone to live with his aunt and uncle at Norwood. J went to live there too, for what he thought was a period of about two years. At that time he attended the Marryatville High School, although was ultimately expelled from that school.
Some months later, and in 1982, he moved to the far north of the state to live with an uncle. While there he had his sixteenth birthday and obtained his driving licence. He said he telephoned the appellant to ask whether the appellant would lend him money to buy a car. The appellant suggested to J that he come to Adelaide so that they might together look for a suitable car and he did so. By then, the appellant was living at a flat at Klemzig and J stayed there with him for what he thought was two or three nights. He said that during that period oral and anal sex occurred between them, as well as mutual stimulation. Some detail of that activity was given.
The complainant said that he and the appellant together looked for a car for J to purchase and one was found at the premises of a dealer near to the appellant’s home. J said that the car was purchased with $1,700 provided by the appellant. The complainant drove that vehicle back to his home in the far north.
The next time J saw the appellant was a number of years later when the appellant came to visit him in the Yatala Labour Prison. J said there were a couple of such visits. He saw the appellant again in the late 1990s, when J was living in Adelaide. That came about in the following way.
J said he contacted the appellant by letter. The letter was not produced, but its terms were the subject of evidence. In his letter, he told the appellant that he was “really angry” at the appellant having molested him when he was younger and asked him for the sum of $50,000. J said that the letter contained threats against the appellant. He told him he hated him and that he blamed the appellant for “bad thoughts” that he entertained. The complainant said he received a written response to his letter and it was tendered as P2 before the jury. The terms of that letter are as follows.
Dear [J],
I was [devastated] when I recently received your letter and have agonised over what to say to you. I have shown the letter to members of my family who advised me to seek legal advice which I did.
My solicitor stated that your letter constitutes a serious attempt of blackmail and extortion which should be reported to the police.
I am not prepared to do this but would rather defend your allegations in court if it came to this. Nor am I going to be a party to any blackmail or extortion.
[J] I would like to meet with you, talk through the issues and discuss other ways that I can help you in your current financial position and help you to provide a happy and financially secure position for your girls. This I can not do through a letter but would prefer to meet you and organise for this to happen.
I look back at the terrible traumas you have had in your life and will never understand the agony and suffering you have experienced. (My dad just recently died from cancer. I was lucky to have him for 38 years so I can understand a little what you must have experienced losing your parents at such an early age.)
I look back at the time you spent with me and the subsequent visits you made to see me in recent years. These memories are filled with many happy moments and also many sad ones.
[J] if I have wronged you in any way I am [truly] very sorry. Looking after you was a difficult time for both of us and I certainly made many mistakes which if I could turn back time would do differently.
I feel I have a commitment to you and no matter how you feel about me your life and your [family’s] is still very important to me.
[J] let me help you and your family in a way that is not as a result of an extortion or blackmail but through a commitment that I promise to honour that assists you and your girls in providing them with a good education.
For this to happen we need to talk.
If you are prepared to do this please phone or write to me.
In regards to your photos I have a few which I will forward onto you. One is a large poster size photo of you taken in the Flinders Ranges.
Once again I want to apologise for any way in which I have wronged you.
I want to help you and promise faithfully that I will.
Please contact me and allow for this to happen which will have positive outcomes for both of us.
Mark
In evidence, J explained that the reference towards the end of the letter to photographs was in response to his request that the appellant return photographs of J that he had. J said that on an occasion when he had been to a house at which the appellant was living, he had seen one of the photographs – enlarged so that it was about two feet high – hanging up in the front hallway. Such a photograph was found by police in the cellar of the house at Semaphore where the appellant was living when arrested.
In accordance with the request made by the appellant in the letter P2 the two men met. They met at an hotel. J said he told the appellant he was angry and needed to get away from Adelaide. He said he wanted to go to Queensland. He said the appellant told him he would lend him some money and within a few days gave him a cheque in the sum of $6,000. J said he cashed it, bought a car with it and travelled to Queensland. There was no further contact between them. J said that it was not until 2009 that he made a complaint to police. He said at that stage his life had deteriorated and he suffered from depression.
The appellant gave evidence in his defence and denied any sexual interaction between himself and J. He agreed that he had lived in a house at Kensington Park, but not with a scout leader called “Mark”, as claimed by J. In cross-examination he denied that he had given J $1,700 with which to buy a motor vehicle. He agreed that he had loaned him the sum of $6,000 to buy a car in the aftermath of an exchange of letters, of which P2 was the latter. He said for that purpose he borrowed $2,500 from his mother and took the rest from his savings. Prosecuting counsel put to the appellant that the advance of moneys to J was, on both occasions, an attempt to buy his silence. It was later put to the jury in this way:
Having been threatened with extortion – that’s the phrase he used in his reply – blackmail, what does he do? He hands over $6,000. He doesn’t go to police. He says in his reply, Exhibit P2, the handwritten letter authored by the accused, he has legal advice. The legal advice seems to be ‘it’s a serious attempt at blackmail or extortion’.
Take it further, he could go to police but he doesn’t want to do that. Maybe that’s credit for him, but maybe there is a reason he doesn’t want to take it further. Maybe he doesn’t want the matter to go to police at all and maybe the way he sets about dealing with it is to give [J] the $6,000, let him buy the car because he wants the money to buy the car to go to Queensland to get a job. Problem solved.
…
Members of the jury, he is, I suggest trying to buy [J]’s silence. He groomed him, but it all bubbles to the surface for [J], and rather than deal with this as a blackmail attempt or to extort money, the accused was prepared to give money over.
Prosecuting counsel also established through the appellant that, although J’s letter demanding money alleged that the appellant had “abused” J, the appellant had no recollection of asking what J meant by “abuse”. Counsel put to the appellant, and later argued to the jury, that there was no need for the appellant to ask, because they both knew what had happened between them in the earlier years.
In his summing up the trial judge referred to the evidence of the advances of money attested to by J. The judge put the respective versions clearly and accurately. He also referred to counsels’ arguments about that evidence. He reiterated the prosecutor’s argument based on the lack of enquiry about “abuse”. However, the judge gave no particular direction to the jury going to the evaluation and use of the evidence on these topics. At the conclusion of his directions the judge was not asked either to make any correction, or to give any further direction on that or any other topic.
Arguments on appeal
The appellant argued that specific directions to the jury in relation to both payments were needed, as well as a direction concerning the lack of enquiry about the use of the word “abuse” in J’s letter.
Mrs Shaw QC, for the appellant, acknowledged that, apart from the fact that the earlier $1,700 payment was disputed and the later one admitted, a relevant point of distinction between them was that the former was a payment associated with the commission of counts 3, 4 and 5 and so was merely another fact in issue; whereas the $6,000 payment was made some years after the claimed abuse had ceased. Normally, counsel submitted, no particular direction would be needed with respect to the earlier payment because it would usually amount merely to another fact in issue. Nonetheless, Mrs Shaw argued that because prosecuting counsel had put to the appellant in cross-examination and had argued to the jury that it could conclude that both payments were attempts to buy J’s silence, a specific direction was needed in respect of the earlier, as well as the later payment.
In respect of the $1,700 payment, counsel submitted that the jury should have been told:
(a)that before using the evidence in any way at all the jury would have to be satisfied beyond reasonable doubt that the sum of $1,700 was indeed paid, and
(b)the jury could only conclude that the payment was made to “buy J’s silence”, that is that it was “an implied admission of guilt”, if satisfied beyond reasonable doubt that there was no rational explanation for making the payment, other than guilt.
In respect of the admitted $6,000 payment, Mrs Shaw argued that the direction outlined as (b) above should have been given. She argued that even if the jury accepted that the appellant was trying to buy J’s silence in making the $6,000 payment, it should have been told that such a motivation might only indicate panic or a wish to avert a false accusation and did not necessarily imply guilt.
Mrs Shaw referred to this evidence as post-offence conduct and consciousness of guilt evidence and likened the evidence of the later payment to evidence of flight, or concealment of evidence. She submitted that a direction of the type described in Edwards v The Queen (1993) 178 CLR 193 should have been given in circumstances where the prosecution relied on the conduct as evincing a consciousness of guilt. In Edwards the Court held that where a lie is relied upon in proof of guilt it must be precisely identified for the jury. The jury must be instructed that the lie should not be taken into account unless it was told because the accused knew that the truth of the matter would implicate him in the offence. The jury should be reminded that there could have been other reasons for the accused’s lie, including panic or a wish to escape an unjust accusation.
In a similar vein, Mrs Shaw argued that, inasmuch as the appellant’s failure to enquire what was the abuse referred to in J’s letter was being used as an “implied admission of guilt”, that too should have attracted a direction that it could only be relied upon if any other rational explanations for the appellant’s conduct were excluded beyond reasonable doubt.
Mrs Shaw argued that the directions contended for were required as a matter of law.
A second ground of appeal asserted that the verdicts were unreasonable.
Were the directions deficient
I deal first with the suggested requirement that the jury be told it could not use either the evidence of payments or the lack of enquiry about the meaning of abuse unless it were satisfied beyond reasonable doubt both of the conduct and that it demonstrated a consciousness of guilt. In my view that is not the law and directions along those lines would have been incorrect.
So much is made clear in Edwards v The Queen. That was a case concerning the availability of what were suggested to be testimonial lies by the appellant as corroboration of the sexual offence of which he was charged and the directions to be given to the jury in relation to the finding of, and use of, the lie. The critical issue was whether the jury had to be satisfied beyond reasonable doubt of the lie and the inference to be drawn from it before acting upon the evidence. It might be expected that there would be more reason to apply some sort of standard of proof to a matter to be used as an item of corroboration, as opposed to some evidence amounting to merely another fact in issue. However, the majority comprising Deane, Dawson and Gaudron JJ found that unless the evidence constituted the only evidence against the accused person – which would be unusual – it did not have to be proved beyond reasonable doubt any more than did the inference. Their Honours said, at 210:
Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
In a separate dissenting judgment Brennan J similarly observed, at 202-205, that the standard of proof was to be applied to the elements of an offence and not to the evaluation of evidence. McHugh J did not find it necessary to address this issue.

In my opinion this principle is of general application. There is no reason why it should not apply to other forms of post-offence conduct, and every reason why it should.
I turn next to the argument concerning a specific direction about the $1,700 payment. As already observed, this payment, which was denied by the appellant, was said to have been made more or less contemporaneously with the commission of counts 3, 4 and 5. Although it was not put in this way, the jury could have taken the view that it was payment for sex. Prosecuting counsel suggested that, like the later payment, it was made to buy J’s silence. I consider that this evidence went to prove no more than another fact in issue. It was part and parcel of the circumstances described by J relevant to those counts. Its significance was just another issue for the jury. No special direction was required in relation to it. In his summing up the judge reminded the jury of the competing evidence relevant to this allegation. No more was required.
The next question is what warning or direction, if any, was required in relation to the admitted $6,000 advance. It should be noted that this is not a case where there was a danger of misusing evidence; that is in using it for an improper purpose. This case only raises the issue of evaluation of evidence. I start with the observation that the rationale underlying the requirement that trial judges give juries warnings in specific terms about the evaluation of certain witnesses or evidence of a particular type is generally that the law regards the experience of judges as apprising them of particular dangers inherent in evidence of certain witnesses, or evidence of a particular type; dangers of which jurors are, or may be, ignorant. For example, experience has shown that disputed identification evidence where the witness is not familiar with the appearance of the person being identified is liable to be attended by honest mistake. In Domican v The Queen (1992) 173 CLR 555 at 561 the High Court referred to the “seductive effect of identification evidence”.
Similarly, the common law has it that there is a danger in juries relying too heavily upon, or reading too much into, the lies of an accused person. In Broadhurst v The Queen [1964] AC 441 at 457, Lord Devlin referred to the “natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without further ado”. This passage was cited by the majority (at 208) and quoted by Brennan J (at 205) in Edwards.
Where evidence does not fall within one of the established categories calling for a full warning, the question of whether any danger of relying on the evidence is apparent to the jury informs both the decision as to whether a warning need be given and the content of the warning: Bromley v The Queen (1986) 161 CLR 315 per Gibbs CJ at 319 (Mason, Wilson and Dawson JJ agreeing) and Brennan J at 325; Pollitt v The Queen (1992) 174 CLR 558 per Brennan J at 585-586, Deane J at 586-588, Dawson and Gaudron JJ at 605-606, McHugh J at 614.
In respect of the payment of $6,000 there was, in my view, no danger of the jury placing too much reliance on it and no need for any warning or other direction in respect of it. I say that for the reasons which follow.
This was not a case where the accused was silent about his motives for the loan. On the contrary, he gave quite detailed evidence going to his motivation. The effect of it was that it had nothing to do with J’s written threat to him and everything to do with assisting J, a person for whom he retained affection; that the payment was made with a view to “helping to get his life back on track”. In my opinion it would have been inappropriate and quite damaging to the appellant had the judge canvassed with the jury a situation where the jury might reject that explanation and then go on to consider other possible innocent explanations, such as panic or the wish to avert an unjust accusation.
There was no argument in the trial in terms of the $6,000 loan manifesting a “consciousness of guilt”, or an “implied admission” and no reliance by prosecuting counsel on lies in the way there was in Edwards or in R v Loader (2004) 89 SASR 204. In Loader the prosecution case implicating the accused consisted almost entirely of circumstantial evidence in the form of his post-offence conduct. It included evidence of extensive activities and lies designed to paint a false picture that the two deceased men were still alive. As he admitted at trial, Loader had buried their bodies and disposed of the motor car of one of them. Loader gave evidence at trial explaining his conduct. His reasons for that conduct were the critical contest in the case. Conservative directions, including a lies direction were given. I do not consider that this authority assists the appellant. Other cases cited by the appellant concerning lies do not help, for parallel reasons. In the present case, evidence going to the admitted loan was merely presented by prosecuting counsel as an item of circumstantial evidence which was more consistent with the action of a guilty man than with that of an innocent one.
Unlike some post-offence conduct, for example, a lie, or the clandestine disposal of a body, the fact of the loans was not of itself discreditable. To the contrary, accepting the appellant’s explanation, his conduct was compassionate and laudable. It could be likened to his earlier conduct in giving J a bicycle and other items.
The competing evidence and arguments on each side about the significance of both advances were clearly put to the jury by the trial judge. No further or other direction was sought by either counsel. In my view no specific direction going to either advance was required.
I consider that the argument regarding the failure to enquire about the meaning of J’s claim of abuse similarly fails. There was nothing unusual or inherently dangerous in the cross-examination or in the submissions put to the jury. The appellant’s failure to enquire was explained by him; this was just another strand of evidence about which arguments went both ways.
I consider that the arguments in support of the first ground wrongly attribute to all so-called post-offence conduct, or consciousness of guilt evidence, the particular dangers which have long been identified as attending evidence of lies. In fact, any of this conduct could have occurred before or after the offending. As seen, the $1,700 payment occurred in conjunction with it. The argument here illustrates how misleading it can be to affix labels to a range of items of evidence, quite different in their nature, and then to import and apply considerations applicable to one such item to the whole class. This evidence had none of the hidden dangers of lies evidence. It was not inherently discreditable. To require specific directions in respect of items of circumstantial evidence such as these would not only burden the jury, it would also amount to an invitation to the jury to examine, piecemeal, each strand of evidence. It would lead to pointing out to the jury what is plainly obvious: that there might be more than one explanation for a person’s words or actions. The jury is well equipped to evaluate evidence of this kind. Judicial experience gives no particular insight.
There is no substance in this ground of appeal.
Is an error of law alleged
Before leaving this ground of appeal, I would add that, even had I reached the conclusion that a direction of some sort about the advance was required, I would not have accepted Mrs Shaw’s argument that the failure to so direct amounted to an error of law.
In R v Inston (2009) 103 SASR 265 I discussed the importance in terms of s 353 of the Criminal Law Consolidation Act 1935 of the characterisation of any failure by a trial judge to give a required warning. Under the terms of that section, which is in a form common to interstate legislation, a misdirection or failure to direct which amounts to an error of law leads to the quashing of the conviction, unless the proviso is applied. Examples of errors of law include failure to give directions required by statute, and the wrongful admission or rejection of evidence: Simic v The Queen (1980) 144 CLR 319, 327. An error of law might also encompass a failure to obey a common law requirement to warn against reliance on the evidence of a suspect witness where that requirement had “hardened” into a rule of law, such as the rule relating to warning about accomplice evidence: Davies v Director of Public Prosecutions [1954] AC 378, 399. (In Longman v The Queen (1989) 168 CLR 79 at 85 Brennan, Dawson and Toohey JJ made the observation that the rule requiring a corroboration warning in trials of sexual offences “did not quite harden into a rule of law in Australia”.)
Disobedience to a requirement to assist the jury in its evaluation of an accused person’s lies where they are said to evince a consciousness of guilt has not been classified by the High Court as falling into the category of a decision of law. And, returning to the facts of the present case, the suggested failure to direct seems to be quintessentially a matter going to the role of the trial judge to help the jury in its task, rather than related to the application of any rule of law.
I draw support for this view from the recent High Court case of Hargraves v The Queen [2011] HCA 44. There, the Queensland Court of Appeal had held that the trial judge’s direction concerning evaluation of witnesses, which included a reference to whether a witness had an interest in the subject matter of the trial, amounted to a misdirection. However, applying the proviso, the Court found that no substantial miscarriage of justice had resulted. The High Court held that there was no misdirection, because the relevant direction would have been understood by the jury to refer only to a critical prosecution witness and not to the accused persons: [48]. But importantly, the Court characterised the nature of the alleged misdirection, finding that it would not have amounted to a wrong decision on a question of law:
39.In both Robinson and the present case the immediate question was and is whether on any ground whatsoever there was a miscarriage of justice at the trial. The appellants' allegation in this case that there was a misdirection was not an allegation of any of the other grounds of appeal identified in the common form criminal appeal statute. It was not an allegation that the verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence; it was not an allegation of the wrong decision, at trial, of any question of law.
40.The governing principle applied by the Court in Robinson was not identified as being new. Rather, the Court directed attention to whether the directions that were given at trial constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining "the benefit" which the "presumption [of innocence] gives to an accused person". That is, the Court determined whether there was on any other ground whatsoever a miscarriage of justice by applying a principle which, when stripped of the rhetorical overtones that may be sounded by reference to "the presumption of innocence", directed attention to the fundamental features of a criminal trial.
The question was, rather, whether the judge’s instructions had deflected the jury from its fundamental task of deciding whether the prosecution had proved its case, so giving rise to a miscarriage of justice. The Court held that, while the Queensland Court of Appeal was correct to dismiss the appeal, it should have done so, not by application of the proviso, but on the footing that no miscarriage of justice had been made out: [50].
Returning to the present case, even had I been persuaded that a direction of some sort about the payments was required, the appellant would still have had to demonstrate that the failure to give the direction caused a miscarriage of justice.
Were the verdicts unreasonable
The second ground of appeal complains that the verdicts are “unsafe, unreasonable and against the weight of the evidence”.
The appellant relied on several general matters relating to the complainant’s evidence and also upon specific areas where it was said his evidence was demonstrably inaccurate. I mention the principal arguments.
Senior counsel pointed to the fact that the allegations related to a period about three decades ago and the case relied solely upon the complainant’s evidence. It was said that in a number of areas there were differences in J’s recollection of events at different times. It was contended that as a result of the long delay before any complaint the appellant was at a forensic disadvantage in defending the allegations. Then, there was evidence before the jury that J had a number of convictions for serious criminal offences. It was established that at a time proximate to the period during which J claimed to have been abused, J had sought the assistance of two psychologists at the suggestion of the appellant. It was accepted that he had not made a complaint of sexual abuse to either psychologist.
Then, attention was drawn to certain specific matters where it was said that J’s evidence was inaccurate. For example, while J said in evidence that the house at which the first two offences had occurred was at Kensington Park, J acknowledged in cross-examination that he had previously nominated Cambelltown or Newton as the suburb in which that house was located. J explained this by saying that he was unsure of the names of the eastern suburbs and had later located the relevant house, which turned out to be in Kensington Park. He acknowledged he could have been wrong about the name of the person with whom the appellant lived at that house and his role as a scout master. He thought that one of the other scout masters lived with the appellant. Further, J claimed that he had been sexually assaulted by the appellant in the course of a driving holiday to Perth, during which they had travelled in a Jaguar motor car owned by a Mr Gurry and stayed in motels. The appellant gave evidence and called evidence to the effect that he had never travelled to Perth with J, or indeed embarked on a road trip in Mr Gurry’s Jaguar alone with J. Mr Gurry gave evidence that he had never loaned the Jaguar to the appellant prior to 1981 and Mr Gurry’s then wife confirmed as much. J accepted that he might have confused the destination of the trip. It appeared that J did take a trip to Casterton in the Jaguar with Mr Gurry’s wife and son, but not with the appellant, and also a second, later, trip in 1982 in the Jaguar involving Mr Gurry’s wife, the appellant and J. According to the defence evidence, this was not a trip in which motels were used.
The trial in this matter took place over a period of not quite four days. Queen’s Counsel appeared on both sides. The evidence was presented with admirable conciseness and clarity. All the arguments which formed the basis of this ground of appeal were strongly put to the jury by senior counsel for the defence. Most of them were referred to by the judge in clear terms. No complaint was made about the summing up. There is no reason to apprehend that the significance of any of the arguments was lost on the jury. This is not a case where the complainant maintained a position which was proved to be wrong in any material particular.
I have subjected the evidence in the matter to the close analysis required by M v The Queen (1994) 181 CLR 487. I do not consider that any of the identified matters, considered individually or collectively, give rise to concern that there has been a miscarriage of justice. Indeed, while the resolution of the contest in the matter came down to a contest of credibility, there were significant items of evidence which told against the appellant’s denials. I have already set out the full terms of the letter, P2, which the appellant wrote to J and which was before the jury. In my view, against the background of the content of J’s letter, this was a damning piece of evidence against the appellant. I have also referred to the appellant’s possession of a photographic enlargement of J as an adolescent. I consider that, too, to have been a telling piece of evidence.
As I said, I have no misgivings about the verdicts. In my view there is no substance in this ground of appeal.
Conclusion
I would dismiss the appeal.
WHITE J. This appeal raises questions about the directions which a Judge should give to a jury when the prosecution relies in part on evidence of a form of post offence conduct - more neutrally, post alleged offence conduct - of an accused. The conduct of this kind alleged against the appellant was his response to an accusation made by the complainant some years after the alleged offending, comprising in part his failure to challenge or enquire about the abuse alleged by the victim, and in part the financial assistance which he gave to the complainant shortly after the accusation was made. The prosecution alleged that, by providing that assistance, the appellant had sought to cause the complainant to refrain from reporting his conduct.
In addition to his complaint that the trial Judge did not direct the jury appropriately in relation to this evidence, the appellant also contends that the verdicts are unsafe, unreasonable and against the weight of the evidence.
Background Circumstances
A jury convicted the appellant of five sexual offences. The first two offences were committed on the one occasion, probably sometime in 1979. Both were offences of indecent assault[1] and involved one victim, J.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The remaining offences were also committed on a single occasion, in 1984 and also involved J. One of the offences was attempted unlawful sexual intercourse[2] (anal sexual intercourse) and the other two were offences of unlawful sexual intercourse[3] (fellatio and anal sexual intercourse respectively).
[2] Sections 49(3) and 270A of the CLCA.
[3] Contrary to s 49(3) of the CLCA.
J was born in November 1967 and was 11 or 12 years old when the first two offences were committed. He was 16 years of age when the next group of offences were committed.
J was the youngest child in his family. When he was five years of age, his father separated from his mother and effectively ceased all contact with J. J’s mother died when he was nine years of age. He then went to live for a time with an older sister. For these and other reasons, J had a very difficult childhood and, at one stage while his mother was still alive, was sent to live in a boys’ home.
When J was 9 or 10 years old, he joined a Scout group at which the appellant was a leader. He struck up a friendship with the appellant. J said that at one stage when he was in trouble, he went to stay with the appellant who was then living with his parents. Later still, J stayed regularly at a house in Kensington Park which the appellant was sharing with a Mr Wright.
J gave evidence of the appellant’s conduct one night when he and the appellant were alone in the Kensington Park house. J was in bed distressed. The appellant came to comfort him and, after a time, got into the bed with J. The appellant commenced fondling J’s penis and later rubbed his erect penis against J’s bottom until he ejaculated. The fondling of the penis was the indecent assault which was the subject of Count 1, and the rubbing of the appellant’s penis against J’s bottom the indecent assault which was the subject of Count 2.
J said that shortly after these incidents, the appellant started buying things for him such as clothes, a pushbike, a surfboard and shoes. Other evidence indicated that in late 1979 or early 1980, the Department of Family and Community Services (FACS) placed J in the appellant’s care as a foster parent. J continued in the appellant’s care until at least 1982. The appellant’s purchases for J appear to have coincided with the period during which J was in his care.

J said that at one stage the appellant took him on road trip to Perth. They travelled in a Jaguar motor vehicle. He said that further sexual activity occurred between him and the appellant in a motel room in Perth. This activity included mutual masturbation, fellatio, attempts by the appellant to engage in anal sexual intercourse with J, and J’s engagement in anal sexual intercourse with the appellant. J claimed that conduct of a like nature also occurred on various occasions before and after the trip to Perth, but he was unable to give any details about these incidents. None of this alleged conduct was the subject of any charge.
J said that after the appellant left the Kensington Park house, he went with him to live in the home of the appellant’s aunt and uncle, Mr and Mrs Gurry. He thought that he lived in that house for approximately two years, most probably 1980 and 1981. While living with the Gurrys, he went to school at Marryatville and, on being expelled from that school, to another at Norwood. J said that no sexual activity occurred between him and the appellant in the period in which he was living in the Gurry home or while he was at the Marryatville and Norwood schools.
In 1982 J went to live with an uncle in the far north. He continued, however, to maintain intermittent telephone contact with the appellant.
J obtained his provisional driver’s licence in May 1984. Shortly afterwards, he telephoned the appellant and asked him for a loan of money with which to buy a car. J then came to Adelaide and stayed for two or three nights with the appellant at his flat at Klemzig. J was 16 years of age at the time.
J said that on one of these nights sexual activity occurred. The appellant fondled his penis and then attempted sexual intercourse with him by anal penetration. However, J found this too painful and the appellant did not persist. This is the offence of attempted unlawful sexual intercourse which was the subject of Count 3. J said that he then masturbated the appellant and engaged in an act of fellatio on him. This is the offence of unlawful sexual intercourse which was the subject of Count 4. Finally, J said that he then engaged in anal sexual intercourse with the appellant – the subject of Count 5. J said that conduct of a similar kind also occurred on the following night. This was the last occasion upon which sexual activity with the appellant occurred.
During the course of this visit J and the appellant went looking for a car. The appellant paid the purchase price of $1,700 for a second‑hand Holden.
Thereafter contact between the appellant and J was intermittent. The appellant did visit J on more than one occasion when he was in prison.
J gave evidence of a letter he sent to the appellant. The letter was not adduced into evidence as the appellant said that he had destroyed the original and J had not kept a copy. J said that in the letter, he had told the appellant of his anger at having been molested, that he hated him, that he wished to ensure that nothing similar happened to his own daughters, and that he had demanded payment of $50,000. Other evidence indicated that this letter was probably sent in early 1998.
The appellant responded with a letter in the following terms:
Dear [J], I was [devastated] when I recently received your letter and have agonised over what to say to you. I have shown the letter to members of my family who advised me to seek legal advice which I did.
My solicitor stated that your letter constitutes a serious attempt of blackmail and extortion which should be reported to the police.
I am not prepared to do this but would rather defend your allegations in court if it came to this. Nor am I going to be a party to any blackmail or extortion.
[J] I would like to meet with you, talk through the issues and discover ways that I can help you in your current financial position and help you to provide a happy and financially secure position for your girls. This I cannot do through a letter but would prefer to meet you and organise for this to happen.
I look back at the terrible traumas you have had in your life and will never understand the agony and suffering you have experienced …
I look back at the time you spent with me and the subsequent visits you made to see me in recent years. These memories are filled with many happy moments and also many sad ones.
[J] if I have wronged you in any way I am truly very sorry. Looking after you was a difficult time for both of us and I certainly made many mistakes which if I could turn back time would do differently.
I feel I have a commitment to you and no matter how you feel about me your life and your family’s is still very important to me.
[J] let me help you and your family in a way that is not as a result of an extortion or blackmail but through a commitment that I promise to honour that assists you and your girls in providing them with a good education. For this to happen we need to talk. If your prepared to do this please phone or write to me.
…
Once again I want to apologise for any way in which I have wronged you. I want to help you and promise faithfully that I will.
Please contact me and allow for this to happen which will have positive outcomes for both of us.
It can be inferred from this letter that J had threatened, as part of his demand for $50,000, to report the appellant’s conduct.
There was no evidence at the trial which supported the appellant’s claim in the letter that he had sought legal advice before responding to J.
Shortly after receiving the letter, J arranged to meet the appellant. J told the appellant of his anger and that he wished to go to Queensland to work. The appellant said that he would lend J money with which to buy a car. Shortly afterwards the two men met again and the appellant gave J a cheque for $6,000. J acknowledged that this sum was a loan which he had used to buy a car.
That was the last contact between the two men until the trial.
The Defence Case
The appellant, who was born in 1957, gave evidence at the trial and, in addition, called evidence from Mrs Gurry (now Ms Calder) and from Mr Wright.
The appellant said that when he was 20 years of age he had met J through activities in the Cub movement. In addition, at one stage J had been a student at a school at which he had taught. In July 1980 FACS asked him to be a temporary foster parent of J and he agreed to do so. He said that under that arrangement J lived with him and Mr Wright at the Kensington Gardens house for a few months. Shortly afterwards he and J (but not Mr Wright), together with the appellant’s nephew, MT, moved to a flat in Norwood where they lived until the end of 1981.
The appellant said that J then moved to live with J’s sister for a short period before coming to live with him in the Gurry home between January and October 1982.
The appellant denied engaging in any sexual activity with J at all and denied having driven to Perth in a Jaguar (or indeed in any other car) with J. The Gurry family had a Jaguar and had twice taken J on a holiday to Victoria in it. Mr Gurry and Ms Calder confirmed that they had not lent their Jaguar to the appellant for a trip to Perth.
The appellant said that J had come unannounced to visit him at his Klemzig flat in about 1984. However, he denied that J had stayed there and denied providing $1,700 for the purchase of a car. He denied that any sexual activity had occurred on this occasion.
The appellant confirmed that he had received the letter from J and said that the letter included a threat to the following effect:
If you don’t pay X amount of money or something I’m going to tell your family that you abused me, something like that.
He said that J had gone on in the letter to detail the things which had gone wrong in his life. The appellant was certain that the letter referred to “abuse” and not to “sexual abuse”. After speaking to his mother, he sent the letter quoted above. The appellant said that very shortly afterwards he received a telephone call from J in which J apologised to him and asked him to destroy the original letter, which he did. This telephone call occurred, he said, before J had received his written response.
Shortly afterwards, he and J arranged to meet. J told him of the current difficulties in his life and of his inability to get to Queensland for work without a car. He offered to lend J the money with which to buy a car. He said that he had lent J the sum of $6,000 because of difficulties which J had with his family and in his life generally at that time, and because J needed to buy a car in order to get to a job in Queensland. He had been generous because it was “an opportunity for [J] to get his life back on track”.
Although the appellant believed that he had asked J why he was making an allegation of abuse, he acknowledged that he had not confronted J about his allegation of abuse, nor even made any enquiry as to the nature of the abuse which J alleged. He gave the following evidence in cross-examination:
QWhen you met with [J] did you discuss the content of the letter with him.
AYes.
QWhat was discussed.
AI just said, as I had in the letter, I was devastated by what – “Why are you doing this?”
QDid he elaborate on what he meant by “abuse”.
ANo.
QDid you ask him.
ANo. I don’t think so.
QWere you curious as to why he might be accusing you of some form of abuse.
AYes, I would have been.
QDid your curiosity extend to you asking him a question about what he meant.
AVery hard to remember what happened in that conversation. I believe I would have.
QTell us what you remember being said about it.
AI think I would have said “[J], this is, you know, garbage, this is rubbish, why are you doing this?”
QYou’ve used the phrase I believe “I would have”, is that because you’re not really sure.
AYeah, I’m not sure, I’m not sure.
QI’m not asking you to speculate, I’m asking you to tell us what you can remember.
AOkay.
QDo you remember any conversation with him about what he meant by “abuse”.
AIn that context, no.
The appellant went on to say that it had not crossed his mind that J might be alleging sexual abuse. He had no understanding of what J could be referring to. Although he considered that he was in a sense being blackmailed, he thought that J had been put up to it by someone else and in fact that it was not J who had written the letter.
The appellant said that a day or so after the meeting J had telephoned to say that he had found a suitable car at a cost of $6,000. The appellant obtained $2,500 from his mother and provided the balance from his own resources as a loan. He gave J his bank account details in order to facilitate the repayment. However, the loan has never been repaid.
The Prosecution Case Concerning Financial Assistance
In addition to J’s evidence concerning the conduct of the appellant said to constitute the offences, the prosecution case placed considerable emphasis on the circumstances relating to the appellant’s loan of $6,000 and on his response to J’s letter. The prosecutor referred in his opening to J’s letter in early 1998, the appellant’s response to that letter and to the loan of $6,000 itself, although he did not at that stage give that evidence any particular characterisation.
In his cross-examination the prosecutor questioned the appellant extensively about these matters. In the course of that cross‑examination, the appellant said that the accusation of abuse had come as a bombshell and that the receipt of the letter had been devastating. He said that J’s letter contained words to the effect that if the appellant did not pay him an amount of money, he would tell the appellant’s family of his abuse. The appellant said that even though he had not known what J meant by his use of the word “abuse” in the letter, he had not challenged J on the topic nor enquired as to what it was that J was referring. He denied that the absence of any enquiry by him as to what J meant was because he well knew the conduct to which J was referring. He denied that he had lent the sum of $6,000 to the appellant in an attempt to secure his silence.
This topic was also a prominent part of the prosecutor’s final address to the jury. He suggested to the jury that, by his response and the loan of $6,000, the appellant had attempted to buy J’s silence and that the appellant’s knowledge of his own conduct towards J explained his omission to make any enquiry about the nature of the abuse which J was alleging. The tenor of the prosecutor’s submissions is seen in the following passages:
On the accused’s account [the letter] was against a background of a perfectly friendly visit in 1984, a perfectly friendly couple of visits to the prison at Northfield, a chance encounter at the shops and against a background of all the help he had given [J] over the years.
If you think about that from the accused’s perspective, put ourselves in his shoes, that’s the background that he alleges: “There has been no sexual abuse, I’ve taken this lad in, I’ve done everything I can for him, I visit him in gaol, I say ‘G’day’ at the Arndale shops, we have a chance meeting at my flat at OG Road where we sit and talk, there is no problem”. And keeping ourselves in the accused’s shoes, he is confronted with this threatening, abusive letter. It’s not just a letter that threatens to do harm to him. It’s a letter that accuses him of abuse. The accused says that it only spoke about “abuse”. It didn’t specify what sort of abuse. He was asked whether he made any inquiry when he subsequently met [J] whether the abuse was sexual, physical, emotional or what on earth it could possibly be that [J] was talking about. … Members of the jury, there would be no need to discuss it, would there, if you both knew exactly what had happened? You both knew exactly what had gone on at the place of Kensington and the place at OG Road. You wouldn’t need to ask questions about “abuse”. “What do you possibly mean? Sexual abuse? I never laid a hand on you. It couldn’t be physical abuse, emotional abuse”. Of course you wouldn’t have to talk about it if you knew what really had gone [on].
As can be seen in this passage, the prosecutor was inviting the jury to draw an inference from the absence of any enquiry by the appellant that he knew the nature of the abuse which J was alleging.
In relation to the payment of the sum of $6,000, the prosecutor submitted to the jury:
Once again that [the letter containing the threat and demands] doesn’t cloak [J] in glory but it might tell us something about the relationship between these two men that [J] could turn up out of the blue, speak about abuse and get $6,000 in his pocket and go off and buy a car. It’s an attempt to buy silence, I suggest, is the key issue of that evidence.
The prosecution did not, at any stage, suggest to the jury that the evidence of financial assistance could be regarded as an implied admission of guilt.
However, it is plain enough that by the passages quoted the prosecutor was inviting the jury to infer the appellant’s guilt from these two aspects of his conduct in early 1988. He was not relying on this evidence for credit purposes only.
In contrast, the prosecutor did not place much reliance on the evidence concerning the advance of $1,700 in 1984. In his opening he did not refer at all to this payment or to the purchase of the car in 1984. In his final address to the jury the prosecutor did refer to J’s evidence on the topic, but only in the context of reminding the jury of the evidence concerning the occasion on which the second group of offences was said to have occurred. The prosecutor did at the same time remind the jury that the appellant had denied advancing the sum of $1,700, but did not suggest that they should draw any inference from the advance, even if they were satisfied that it had occurred.
However, when cross-examining, the prosecutor had put to the appellant that he had paid the sum of $1,700 in order to buy J’s silence in relation to his earlier sexual abuse. The appellant denied that suggestion. On appeal Mrs Shaw QC, for the appellant, relied on this question for her submission that the Judge should have given the jury a specific direction concerning the evidence about the payment of $1,700.
Senior counsel for the appellant at trial made only brief reference to J’s letter in early 1998 and the associated events. Counsel suggested to the jury that J’s letter was an attempt at blackmail or extortion which did not reflect well on J and which had been rejected unequivocally by the appellant. He made no reference at all to the payment of $1,700.
The Judge’s Summing-up Regarding the Financial Assistance
As part of his summary of the evidence the trial Judge reminded the jury of the evidence given by each of J and the appellant concerning the loan of $6,000 and the correspondence which had preceded it. He also reminded the jury of J’s evidence that the appellant had, in 1984, purchased a car for him at a cost of $1,700 and of the appellant’s evidence denying that that had occurred. The Judge reminded the jury of the prosecutor’s submissions concerning the letter and the loan of $6,000 and the defence counsel’s submission that it was J who had most to fear if his letter to the appellant was still in existence. Apart from reminding the jury of the evidence and of counsel’s submissions, the Judge did not give the jury any specific directions as to the way in which they could use the evidence of the appellant’s response to J’s letter and of his financial assistance to J, nor did he give any warnings concerning its possible misuse.
Submissions on Appeal
The appellant’s submission on the appeal was that the Judge should have directed the jury that they should not conclude that he had had lent the $6,000 to J in order to buy his silence and therefore to infer that he had committed the offences unless it was satisfied beyond reasonable doubt that the payment was such an attempt, ie, that it was the only rational explanation for the payment. Counsel also contended that an Edwards-type direction,[4] suitably adapted to the circumstances of this case, should have been given. The appellant’s grounds of appeal also complained of the absence of directions concerning his omission to enquire about the abuse alleged by J in his letter, but counsel’s submissions did not identify any particular direction which should have been given in that respect.
[4] Edwards v The Queen (1993) 178 CLR 193.
The appellant submitted that specific directions should have been given in relation to J’s evidence about the advance of $1,700, This was because it was possible that the jury would take the same view of that evidence as they did of the $6,000, and because of the prosecutor’s suggestion in cross-examination that it had been paid to secure J’s silence. Counsel also submitted that because the appellant had denied making the advance, the jury should have been directed that they had first to consider whether they were satisfied that the advance had been paid. If they were satisfied of that fact, then the Judge should then have given the same direction as the appellant contended was required in relation to the loan of $6,000.
Finally, counsel submitted that the jury should have been directed that if they considered that the appellant had lied in his evidence concerning the advance of $1,700, they could use their satisfaction that he had lied as a matter going only to their assessment of the appellant’s credit more generally, and not as a piece of circumstantial evidence from which the appellant’s guilt could be inferred.
As can be seen, the appellant’s submissions accepted that the evidence concerning the payment of $1,700 and $6,000 had probative value. His complaints concerned only the adequacy of the Judge’s directions.
Directions Concerning the Loan of $6,000

The right of a person who is accused or suspected of having been a party to an offence to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence is of course fundamental.[38] The rule which prevents the trier of fact taking an accused’s silence when questioned into account is designed to prevent oppression by the police or other authorities of the State.[39]
[38] Petty v The Queen (1991) 173 CLR 95 at 99.
[39] Ibid at 107 (Brennan J).
However, the position is different when the accused person is speaking to someone with whom he or she is on equal terms. In such cases, the accused’s reaction to the accusation, including his or her silence, are matters which a jury may take into account when considering their verdict.
In Parkes v The Queen,[40] the mother of a victim of a stabbing went immediately into a yard where she saw the accused holding a knife. She twice accused him of having stabbed the victim but he made no reply. When she threatened to detain him until the police arrived, the accused attempted to stab her with the knife. The Privy Counsel in Parkes approved the following direction of Cave J in the earlier decision R v Mitchell:[41]
Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person’s presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true.[42]
(Emphasis in the original)
This statement in Parkes has been applied in Australia in Harris v The Queen[43] and R v MMJ,[44] and in New Zealand in R v Kora.[45]
[40] [1976] 3 All ER 380.
[41] (1892) 17 Cox CC 503 at 508.
[42] [1976] 3 All ER 380 at 383.
[43] (1988) 37 A Crim R 29.
[44] [2006] VSCA 226; (2006) 166 A Crim R 501.
[45] [2000] NZCA 47.
In Woon v The Queen,[46] Windeyer J expressed the principle in the following passage:
A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he is being expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.[47]
[46] (1964) 109 CLR 529.
[47] Ibid at 541. (Windeyer J dissented as to the result in Woon, but not as to the point of principle).
In R v MMJ,[48] the accused was charged with sexual offences against his stepdaughter. The prosecution relied in part on evidence that the accused had failed to respond to questions to him from the victim’s mother in which she asked whether he had been or was sexually involved with the victim. Warren CJ considered that an Edwards-type direction was required in relation to this evidence of post offence conduct.[49]
[48] [2006] VSCA 226; (2006) 166 A Crim R 501.
[49] Ibid at [30]-[31]; at 511.
Ashley JA, with whom Buchannan JA agreed, considered that the evidence required careful directions to the jury, although His Honour did not go so far as to say that an Edwards-type direction was necessary. In particular, Ashley JA considered that if the jury concluded that the mother’s question contained implicitly an allegation that the accused had engaged in inappropriate sexual conduct generally with the complainant, it should have been told that it was not open to treat the question as alleging that the accused had committed any one or more of the particular offences with which he was charged. Instead, the jury should have been directed that it could treat the evidence as showing a relationship between the accused and the complainant, in which context the evidence of the particular charged offences could be considered. Relevantly for the purposes of the present case, Ashley JA said:
Fourth, if the jury was able to decide what form the question had taken, and approximately when it had been asked, it was open to the jury to conclude that implicit in the question was an allegation that the accused had engaged in inappropriate sexual conduct generally with the complainant in the period embraced by the question. But it was not open to the jury to treat the question as alleging that the accused had committed any one or more of the particular offences with which he was charged. The asking of the question, moreover, provided no evidence of the truth of the implied accusatory statement.
Fifth, the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.
Sixth, in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it. If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question. In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant — at least in the period embraced by the question, but not necessarily confined to that period — in which context the evidence of the particular charged offences could be considered.[50]
[50] Ibid at [89]-[91]; at 523.
In the present case, apart from reminding the jury of the evidence and of counsel’s submission, the Judge did not give the jury any directions at all as to the permissible uses which they could make of his failure to deny to J his accusations of abuse (if they were satisfied that there had been such a failure) and of his omission to enquire as to the nature of the abuse which J was alleging. Nor did the Judge direct the jury that they should not reason that his silence indicated guilt unless they considered that there were no innocent explanations for that silence.
In my respectful opinion, such directions were required and the Judge’s directions were deficient in this respect also.
The Advance of $1,700
As indicated earlier, J’s evidence concerning the accused’s advance of $1,700 in 1984 for the purchase of a car received relatively little attention at the trial. Were it not for the extensive reliance in the trial by the prosecution on the loan of $6,000 in 1998, I would not have thought that the Judge’s omission to give any directions concerning the advance of $1,700 had occasioned any miscarriage of justice. J’s evidence concerning the advance should have been regarded as simply forming part of the circumstances in which the third, fourth and fifth offences were alleged to have been committed.
However, I agree that the evidence concerning the loan of $6,000, and the prosecutor’s submissions concerning it, gave rise to the possibility that the jury would view the payment of $1,700 in the same light. The prosecutor’s question to the appellant concerning his reason for the advance of $1,700 made that possibility explicit.
In these circumstances, I consider that the trial Judge should have required the prosecutor, in the absence of the jury, to indicate what inference, if any, he proposed that the jury could make of the advance of $1,700. If the prosecutor did not suggest that any inference adverse to the appellant could be drawn, the Judge should have given the jury an explicit direction to that effect. If, on the other hand, the prosecutor contended that the advance of $1,700 did support an inference of guilt, then I consider that the jury should have been directed that they had first to decide whether the advance had been made, and if it had, been given directions similar to those discussed above in relation to the loan of $6,000.
In summary, I consider that Ground One succeeds and that, subject to consideration of Ground Two, a new trial should be ordered.
Ground 2: Verdicts Unsafe, Unreasonable and Against the Weight of the Evidence
The appellant submitted that each of the verdicts was unsafe, unreasonable and against the weight of the evidence with the effect that his convictions should be quashed and verdicts of acquittal entered.
In support of this ground the appellant referred first to the fact that the offences were said to have occurred more than 30 years before the trial, to the effect which that lapse of time had had on the quality of the prosecution evidence, and on his own ability to defend himself. He drew attention to the absence of any contemporaneous evidence providing support for J’s claims.
In addition, the appellant drew attention to a number of aspects of the evidence in which J’s memory was shown to be unreliable. The information alleged that the first two offences had occurred at “Newton or another place” whereas J said, for the first time in his evidence, that those two offences had occurred at Kensington Park. J had said that he and the appellant had travelled together to Perth in a Jaguar motor car. Mr Gurry and Ms Calder, on the other hand, supported the appellant’s evidence that they had never provided their Jaguar to the appellant for such a trip. J had little recollection of the fact that the appellant had been appointed by FACS as his foster parent whereas it was plain from the evidence of the appellant, Ms Calder and Mr Wright that such a placement had been made.
J did not remember all the addresses at which he had lived with the appellant nor the fact that he had lived at the Gurry home with the appellant’s nephew. J did not remember a holiday which he had taken with Mr and Mrs Gurry and was mistaken as to the first name of Mr Wright. This is not an exhaustive catalogue of the matters in respect of which there appeared to be some shortcomings in J’s memory.
The appellant drew attention to the fact that at one stage he had taken J to see a child psychologist for assessment and treatment. He asked the jury to infer that he would not have taken such a step if he had in fact being sexually abusing J, because of the risk of J disclosing that fact. Further, the appellant drew attention to the fact that J had not made any report of sexual abuse to the child psychologist.
The approach required of this Court when considering a ground of appeal of the present kind is well known. The plurality said in M v The Queen:[51]
Where, notwithstanding 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 and 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 has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.
I have reviewed the evidence at the trial with these considerations in mind.
[51] (1994) 181 CLR 487.
The prosecution evidence did not rely only upon the evidence of J. It relied in addition on the letter sent by J to the appellant and the appellant’s response to that letter. In addition, the appellant agreed that he had made the loan of $6,000 to J in early 1998. Properly directed, the jury was entitled to regard the evidence regarding the correspondence, and the appellant’s response to it, as particularly damaging.
Some lapses of memory and discrepancies are almost inevitable in the recounting of events which occurred some 30 years previously. The jury’s attention was drawn to each of the matters upon which the appellant now relies. In my opinion, it was open to the jury to regard the matters identified by the appellant as being peripheral to the central allegations being made by J, and as not detracting from the reliability of the essential elements of his account. They were obviously matters to which the jury had to give careful consideration but it was, in my opinion, open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on all five counts.
I would reject this ground of appeal.
Conclusion
I would allow the appeal and set aside the convictions on all five counts. I would remit the matter to the District Court for retrial.