Weragoda v The Queen - [2021] SASCA 123

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WERAGODA v THE QUEEN
[2021] SASCA 123
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice David and the Honourable Justice Stanley)
28 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES
Permission to appeal against conviction and appeal against conviction.
The appellant was convicted following a trial by jury of two counts of rape. The complainant was a young woman residing in Australia on a student visa and boarding at the appellant’s house. The offending occurred in March 2019 when the appellant digitally penetrated the complainant’s vagina and engaged in penile/vaginal intercourse over her objection.
The appellant seeks permission to appeal on the grounds that the trial judge erred in failing to give proper directions to the jury as to the complainant’s evidence. The appellant submits that these errors, together with the admission into evidence of a record of interview between a police officer and the appellant containing prejudicial opinion evidence, resulted in a miscarriage of justice.
Held (per the Court) refusing permission to appeal on grounds 1, 2 and 4, dismissing ground 3, and dismissing the appeal:
1.      The circumstances of the trial did not require a warning from the trial judge of the necessity to subject the complainant’s evidence to close scrutiny or to consider it with great care.
2.      Directions to the jury as to the reliability of the complainant’s evidence were given and it was appropriate for the trial judge to focus on the issue of credibility as this was the critical forensic contest at trial.
3. The trial judge adequately directed the jury in relation to the complaint evidence under s 34M of the Evidence Act 1929 (SA), and in particular the degree of consistency of the conduct of the complainant.
4.      The record of interview was admitted as a result of a considered forensic decision by the appellant’s trial counsel and the appellant remains bound by the conduct of his trial counsel. The trial judge gave clear and appropriate directions to the jury both at the time the record of interview was received in evidence and in the course of summing up as to its proper use.
Evidence Act 1929 (SA) ss 34L(5), 34M; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 17; , referred to.
R v Murray (1987) 11 NSWLR 12; Bromley v The Queen (1986) 161 CLR 315; Longman v The Queen (1989) 168 CLR 79; RPS v The Queen (2000) 199 CLR 620; R v Jones [2018] SASCFC 80; R v Usher (2014) 119 SASR 22; R v S, DD (2010) 109 SASR 46; R v H, T (2010) 108 SASR 86; R v J, JA (2009) 105 SASR 563; R v Van Wyk (2018) 132 SASR 46; B and D (1993) 66 A Crim R 192; R v Germakian (2007) 70 NSWLR 467; R v Tripodina (1998) 35 A Crim R 183; Liberato v The Queen (1985) 159 CLR 507; Douglass v The Queen (2012) 86 ALJR 1086; De Silva v The Queen [2019] HCA 48; R v T, S (2017) 128 SASR 66; R v Szejnoga (1998) 199 LSJS 97; Alford v Magee (1952) 85 CLR 437; R v Lowe [2016] SASCFC 118; R v Moores (2017) 128 SASR 340; Nudd v The Queen [2006] HCA 9, considered.

WERAGODA v THE QUEEN
[2021] SASCA 123
Court of Appeal - Criminal: Doyle JA, David JA and Stanley AJA
THE COURT:
Introduction

After a trial by jury the appellant was found guilty of two counts of rape. He appeals his conviction.
Grounds of appeal
There are four grounds of appeal:
1.   The Learned Trial Judge (LTJ) erred as a matter of law in failing to direct the jury that the prosecution case depended on the evidence of the complainant alone and to scrutinise her evidence with great care.
2.   The LTJ erred as a matter of law in failing to direct the jury that it was necessary for the jury to find that the complainant’s evidence was both credible and reliable and to direct the jury as to the matters that they could take into account in relation to an assessment of reliability.
3.   The LTJ erred as a matter of law in relation to his directions as to the use that the jury was entitled to make in relation to the evidence of initial complaint.
Particulars
3.1The LTJ directed the jury that the relevant consistency to consider was in relation to the expected reaction of the complainant and not between the alleged conduct, the complainant made and the evidence of the complainant in the witness box.
3.2The LTJ erred in failing to direct the jury to consider evidence of any inconsistency between the evidence of the complaint and the evidence of the complainant in the witness box.
4.   The fair trial of the Applicant miscarried as a result of a combination of grounds 1-3 above and the content of questions by the interviewing officer in relation to the Applicant’s interview with police where the police officer repeatedly expressed prejudicial and inadmissible opinions, cross-examined the Applicant and related hearsay allegations of the complainant.
Permission to appeal was conceded in respect of ground 3. Permission to appeal in relation to the remaining grounds was referred to the Court of Appeal.
It will be seen that, as counsel for the appellant put it, there is some overlap between each of the grounds.
Factual background
The complainant is a young woman who came to Australia on a student visa in July 2018 to undertake studies at the University of South Australia. She boarded at the appellant’s house. Resident in the house, apart from the complainant and the appellant, were the appellant’s partner, Sithara Kurunduwage (Sithara), and his father.
The complainant gave evidence that she lived at the appellant’s house from the time she came to Australia until March 2019. She gave evidence that by the beginning of 2019 she decided to move because she was finding the appellant and his partner annoying and living there was becoming uncomfortable. She succeeded in finding another place to live which was available at the end of March. On the Sunday before she was to move she was at home with the appellant. His partner and father had gone shopping. She and the appellant were standing outside her bedroom door when he asked for a hug because he did not get one from her for his birthday. They entered her bedroom and an argument took place as to whether she would give him a hug. She agreed to do so. After she let go he continued to hug her and said it felt comfortable. He kissed her on the cheek. She became angry. She sat on a chair in front of her desk. He sat on her bed and they talked. He told her that he had sexual fantasies about her. She got up and asked him to leave. She attempted to leave the bedroom. He grabbed hold of her from behind. He began to touch her breasts. She told him to stop. He put his hand down her shorts and digitally penetrated her vagina. He then pulled her shorts and knickers down and again digitally penetrated her. He then engaged in penile/vaginal intercourse over her objections. This occurred for only a few seconds. Suddenly he ran out of the room. The complainant then heard the front door and realised that the appellant’s partner and father had returned home from their shopping expedition.
The complainant was feeling scared. She went outside for some fresh air. She went back into the house and returned to her bedroom. She sent a message through WhatsApp to a friend, Nadun Madusanka, in Sri Lanka. She said in evidence that she messaged him “my house mate tried to fuck me”. She told him that she was scared and did not know what to do. Nadun asked what she meant by “tried to”. The complainant said she “ ...little bit explain” and that she “…feel embarrassed. I was regretting everything so I was slowly explaining”. She said she told Nadun “I was so scared I don’t know what to do”.
At the trial it was an agreed fact that if he had given evidence, Nadun would have said that the complainant told him that the appellant “had tried to do sexual harassment” and he removed her clothes to fulfil his sexual interest; and that the complainant told him she was “shocked and shamed”.
The complainant gave evidence that after she had sent this message Sithara came into her bedroom and asked her if anything had happened between her and the appellant. The complainant told her that the appellant had kissed her. The appellant’s father then entered the room and the complainant told him the same thing. She gave evidence that she only said that he kissed her because she was scared and did not think they would believe her. The complainant said that the appellant’s father asked him to apologise to her. He did so. She was then asked to leave the house because Sithara did not want her staying there any longer. She packed her bags and departed.
The appellant did not give evidence. The prosecution tendered the police record of interview conducted on 3 August 2019.
The appellant told police that on 24 March 2019 he was at home in the afternoon with the complainant. His father and his partner had gone shopping. At some stage he walked passed her bedroom door which was open. He spoke to the complainant. He asked her to give him a hug because she had not given him one on his birthday which was 3 March. He admitted that he had had dreams about kissing her but not of having sex with her. He said he had told the complainant about this. On this occasion he asked her two or three times before she agreed to give him a hug. Once he did so he kissed her neck and she started moaning so he kissed her again. He said while they were kissing she touched his genitals. Later in the interview he conceded this did not occur. He denied the complainant asked him to leave or said that she was uncomfortable with what they were doing. He said the complainant sat on a chair while he sat on the edge of the bed. He said the complainant came near to him so he pulled her toward him before hugging her and kissing her again. He said she had her back to him and as he was kissing her she started moaning so he touched her breasts. He then touched her shorts covering her vagina. He then placed his hand inside her pants and rubbed her vagina. He denied inserting his finger inside her vagina. She then dropped to the floor. He then removed her pants. He removed his penis from his pants and moved it towards her vagina but did not put it in. He was still rubbing her vagina with his hand. He said the complainant told him not to put his penis in her vagina and he did not do so. He denied the complainant had ever said “no” or that he had ignored her express wishes. He left the room when he heard his father and Sithara return home.
The complainant was cross-examined on this version of events given by the appellant during the police interview. She denied that events had transpired as he described them.
Under cross-examination the complainant accepted that she breached the conditions of her visa which only permitted her to work 20 hours per week. As a result, she was at risk of being deported to Sri Lanka. However, she denied having a specific conversation with Sithara about limiting the number of hours she worked in case someone disclosed to the Department of Immigration that she was working in breach of her visa. She did agree that there was general conversation in the household about visa working hours and that she told Sithara that she was not going to reduce the number of hours she was working as she needed the money. She denied the suggestion that she was worried that Sithara would report her to the Department of Immigration. She also denied that she planned what happened with the appellant so that she would have something which she could use to silence the family so they would not report her to the Department of Immigration. In re-examination she said she had had no contact with the Department of Immigration about her working hours.
It can be seen that the case for the prosecution relied solely on the evidence of the complainant.
Responsibility of a judge in a jury trial
In RPS v The Queen[1] Gaudron A/CJ, Gummow, Kirby and Hayne JJ said:[2]
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[Citations omitted].
[1] [2000] HCA 3, (2000) 199 CLR 620.
[2] [2000] HCA 3 at [41], (2000) 199 CLR 620 at 637
Ground 1
The appellant contends that there was a miscarriage of justice by reason of the trial judge’s failure to give a Murray direction that where, as in this case, guilt of an offence depends on the uncorroborated evidence of the complainant, the jury should scrutinise that evidence with great care. At trial a Murray direction was not sought. None was given. In addition the appellant complained that the trial judge erred in directing the jury that they were to reach their verdicts in accordance with their preference for the evidence of either the complainant or the appellant.
Underpinning the appellant’s complaint of the failure to give a Murray direction is his contention that some of the directions given by the judge in the course of summing up failed to convey to the jury that they could only convict if, after weighing all the evidence, they could be satisfied that the prosecution have proved the elements of the offence of rape beyond reasonable doubt and they could exclude as a reasonable possibility the appellant’s version of events. Instead, the judge gave directions that framed the question of guilt around an assessment of the truthfulness of each of the accounts provided by the complainant and the appellant.
We do not accept these submissions.
The foundation for these submissions by the appellant are the following passages from the summing up:
1.   In a case such as this one, your assessment of the truthfulness of those two accounts will naturally determine the verdicts.[3]
2.   I said earlier that in this case, your assessment of the truthfulness of the differing accounts given by [the complainant] and [the appellant] will be critical and naturally determine the verdicts.[4]
3.   Members of the jury, it would not have escaped your attention and each counsel has made detailed submissions to you about this already, but there are some very important differences between what [the complainant] has said in her evidence and what [the appellant] told the police concerning the sexual interactions.[5]
4.   As this case turns upon your critical assessment of the evidence given by [the complainant] and what [the appellant] said to the police, I will now give you some general directions on how you might go about assessing that evidence.[6] It must seem obvious, but it is for you to judge whether either of them was telling you the truth about what happened that afternoon.[7]
5.   When you are assessing what each of [the complainant] and [the appellant] have said, and deciding whether it is truthful, you will have regard to many different considerations, just as you would in everyday life.[8]
[3]     AB 21.4-21.2.
[4]     AB 22.9-22.10.
[5]     AB 37.3.
[6]     AB 37.4.
[7]     AB 37.5.
[8]     AB 38.6-38.5.
Prior to the enactment of s 34L(5) of the Evidence Act 1929 (SA) (the Evidence Act), a judge on a trial for a sexual offence was required to warn the jury that it is unsafe to convict an accused on the uncorroborated evidence of the alleged victim. That requirement was abolished by the enactment of s 34L(5). However, the abolition of the requirement to give such a warning did not exclude the necessity for a judge to direct a jury to scrutinise with great care the uncorroborated evidence of an alleged victim of a sexual offence where such a direction is necessary for the fair trial of the accused.
There is no rule of law or practice which requires that a Murray direction be given in every case where proof of an offence relies on the uncorroborated evidence of a witness. So much was accepted by the appellant. Rather, a trial judge is required to give such a direction where the circumstances of the case and the way that the trial was conducted necessitates giving such a direction to avoid a miscarriage of justice. The possibility of a miscarriage of justice determines both the occasion for giving the direction and its content. Where no such direction is needed to avoid a miscarriage, none need be given.[9]
[9] Bromley v The Queen (1986) 161 CLR 315 at 325.
In R v Murray[10] Lee J, with whom Maxwell and Keldham JJ agreed, said:[11]
The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of the criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
[10] (1987) 11 NSWLR 12.
[11] (1987) 11 NSWLR 12 at 19.
In Longman v The Queen[12] Brennan, Dawson and Toohey JJ said:[13]
… what par. (a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par. (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par. (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only.
[12] [1989] HCA 60, (1989) 168 CLR 79.
[13] [1989] HCA 60, (1989) 168 CLR 79 at 87.
McHugh J said:[14]
As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it.
[14] [1989] HCA 60, (1989) 168 CLR 79 at 107.
In Robinson v The Queen[15] Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ referred with approval to the passage from Lee J’s judgment in Murray set out above. Their Honours also referred to an important inconsistency in the complainant’s evidence, inconsistency in the complainant’s subsequent conduct and features indicating suggestibility, and concluded:[16]
Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.
[15] [1999] HCA 42, (1999) 197 CLR 162.
[16] [1999] HCA 42 at [26], (1999) 197 CLR 162 at 171.

The contemporary necessity for a Murray direction reflects the exacting nature of the criminal standard of proof.
In our view, the circumstances of this case did not require a Murray direction to avoid a miscarriage of justice.
This was a short trial. The evidence took less than two days. There was no complaint about forensic disadvantage. The real issue was whether the two acts of penetration of the complainant’s vagina by the appellant’s finger and penis occurred. It was obvious to the jury that the only evidence relevant to these questions was the complainant’s evidence. The trial judge emphasised this in his summing up when he said that the prosecution case relied entirely upon what the complainant said happened in her bedroom that afternoon.[17] At issue was the complainant’s credibility. There was no real issue of reliability. The events were relatively recent. There was no suggestion that the complainant was affected by drugs or alcohol at the time these events were alleged to have occurred. There was no question of identification. Her evidence was challenged on the basis that she had fabricated the story of the appellant’s penetrative acts. She was challenged on the basis that she had concocted this account for her own reasons to prevent the appellant or his family from reporting her to the Department of Immigration for visa breaches. The trial judge gave a number of directions to the jury emphasising the burden of proof. The summing up was also replete with references to the standard of proof.
[17] AB 24.1.
The trial judge directed the jury as follows:
However, when you are deciding whether something has been proved beyond a reasonable doubt in a criminal trial, it is also important that you understand that does not involve you having to make a choice between the different versions you have heard given by [the complainant] in her evidence and by [the appellant] in what he had to say to the police. It is not a mere question of preferring one version over the other. The question to be answered in a criminal trial is a fundamental one, and remains throughout, whether on all of the evidence presented to the jury in the trial – and I repeat all the evidence – has the prosecution proved the crime charged against the accused person beyond a reasonable doubt.[18]
…
As I have repeated more than once already, in a criminal trial, it is the sole responsibility of the prosecution to prove the crime charged against an accused person and do so beyond a reasonable doubt. [The appellant] does not shoulder any responsibility of proving anything to you or to the police. Let me make this next point to you very clear because it is important. Even if you were to reject as a reasonable possibility what [the appellant] said in his interview to the police took place between himself and [the complainant] that afternoon, as the prosecution has invited you to do, it would not follow from a rejection of his account that you would find him guilty of raping [the complainant]. You must still be satisfied beyond a reasonable doubt, after taking into account all of the prosecution evidence and the submissions about the sufficiency of that evidence as advanced by [counsel for the accused] that [the appellant’s] guilt has been proved by the prosecution beyond a reasonable doubt.[19]
…
Even if you were to reject as a reasonable possibility the version of events that [the appellant] told Detective Cassell, it would not follow that you would find him guilty. You still have to be satisfied that the prosecution has proved all of the elements of the offence of rape beyond a reasonable doubt before you may return a guilty verdict.[20]
…
Indeed, in a criminal trial, even the total discrediting of an accused person as a witness, or of the account that they have given the police during an interview, is not a substitute for evidence of the commission of a crime by that accused person. You would still need to consider all of the evidence presented to you in the trial to determine whether the guilt of the accused person, who has been discredited, has been proved beyond a reasonable doubt.[21]
[18] AB 22.9–23.1.
[19] AB 25.2-25.5.
[20] AB 33.4.
[21] AB 48.4.
There was no particular feature of the complainant’s evidence that required a warning from the judge of the necessity to subject it to close scrutiny or to consider it with great care.
It is telling that experienced trial counsel did not request such a direction. This strongly indicates there was nothing in the atmosphere of the trial itself which gave rise to the risk of a miscarriage of justice.[22]
[22] B and D (1993) 66 A Crim R 192 at 197; R v Germakian (2007) 70 NSWLR 467 at 472; R v Tripodina (1998) 35 A Crim R 183 at 191.
Having rejected the appellant’s contention that the trial judge erred in failing to give a Murray direction, we turn to address the second complaint under this ground of appeal; that is, a complaint that the trial judge erred in framing the case in terms that invited the jury to determine the case in accordance with their preference for, or choice between, the evidence of the complainant and the appellant.
The appellant’s counsel placed particular reliance upon the trial judge having commenced his summing up by referring to the differences between the accounts given by the complainant and the appellant, and having described the case as one in which “your assessment of the truthfulness of those two accounts will naturally determine the verdicts”.
In our view, this introductory framing of the case was fraught with a risk that the jury might misunderstand their task in the manner complained of by the appellant. However, when considered in the context of the trial judge’s summing up as a whole, we do not think there was any risk of the jury ultimately misunderstanding their task. The trial judge subsequently, and on more than one occasion, qualified or explained his reference to the differing accounts of the complainant and the appellant with directions to the effect that the jury’s task did not involve a choice between, or preference for, one or other account; and that even if the jury were to reject the evidence of the appellant, they must still be satisfied beyond reasonable doubt that the prosecution has proved all of the elements of the charged offences before convicting the appellant.[23]
[23] In conformity with Liberato v The Queen (1985) 159 CLR 507 at 515; see also Douglass v The Queen (2012) 86 ALJR 1086 at [12]-[13] and De Silva v The Queen [2019] HCA 48 at [9]-[11].
We would refuse permission to appeal on ground 1.
Ground 2
This ground complains of the trial judge’s failure to direct the jury that it needed to consider whether the complainant’s evidence was credible and reliable and to identify matters relevant to an assessment of her reliability as a witness.
The appellant submits that the trial judge directed only as to the issue of the complainant’s truthfulness.
We do not accept the submission.
The trial judge gave this direction to the jury concerning the evidence of the complainant and the evidence of the statement made by the appellant to the police:[24]
When it comes to what each of them has said, it is not the case that you have to accept everything or reject everything they have said. You may find that they said something to you that you were not prepared to accept. Should that happen, you do not necessarily have to reject the rest of what they said. They may have been genuinely mistaken about a matter while being entirely truthful and reliable about other matters.
On the other hand, if you were to find they were unreliable on something that you considered to be important, you might take a different view of their reliability generally, and so you may be reluctant to accept other things they have said.
[24] AB 37.10-38.2.
The trial judge did remind the jury that there were differences, or inconsistencies, between the complainant’s evidence in relation to the two counts of rape, what she had complained of to Nadun, and what Nadun said she had said to him.[25]
[25] AB 51.3-51.4.
In any event, the real contest at the trial, as we have already observed, was the credibility of the complainant. That was the critical forensic contest. The forensic contest was not conducted on the basis of a challenge to the reliability of the complainant’s allegation of rape. It was not put to her that she was mistaken about the appellant penetrating her vagina with his finger and penis. The cross‑examination of the complainant was conducted on the basis of an allegation of entrapment. It was put to the complainant that she devised a plan where she would entrap the appellant to engage in consensual sexual activity with her and then lie, and claim he raped her, so as to ensure that neither he, nor his family, would report her for working in contravention of her visa conditions.
Again, it is telling that experienced defence counsel did not complain to the trial judge of his failure to direct the jury on the question of reliability nor seek a redirection from him.
We would refuse permission to appeal on ground 2.
Ground 3
The appellant contends that the judge misdirected the jury in relation to the requirements of s 34M(4)(a)(ii) of the Evidence Act.
The essence of the appellant’s contention on this ground concerns the terms of the directions given by the trial judge on the issue of how the jury was to use the evidence of complaint.
The appellant contends that the trial judge erred in failing to direct the jury as to the differences between the complaint evidence (being the complainant’s evidence as to what she said to Nadun, and the agreed fact as to the evidence Nadun would have given as to the content of the complaint made to him) and the complainant’s evidence as to the charged conduct.
The appellant submits that the trial judge erred in failing to give judicial imprimatur to a direction that in assessing the degree of consistency of conduct of the complainant, the jury should weigh the differences or inconsistencies in the complaint evidence, and between that evidence and the complainant’s evidence as to the charged conduct. The appellant submits that the judge was required to identify for the jury these differences or inconsistencies in the evidence in the context of directing the jury as to how they could use the complaint evidence. It was not sufficient for the judge merely to raise them in summarising defence counsel’s closing address.
The conceptual or legal premise of this contention is that these differences or inconsistencies were relevant to “the degree of consistency of conduct” of the complainant for the purposes of s 34M(4)(a)(ii) of the Evidence Act. For the reasons explained below, we accept this conceptual or legal premise. We also accept that it was necessary for the trial judge to direct the jury as to the relevance of these differences or inconsistencies to the jury’s assessment of the consistency of the complainant’s conduct, and hence her credibility. However, we are satisfied that the trial judge did adequately direct the jury in relation to these matters such that the appeal on Ground 3 should be dismissed.
Section 34M of the Evidence Act provides:
34M—Evidence relating to complaint in sexual cases
(1)    This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)    In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)    Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)    If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)    to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)   It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)   In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
In R v Jones,[26] the Full Court explained that s 34M was enacted to replace the common law relating to complaint evidence in sexual cases. Evidence of complaint was not admissible at common law as probative of any fact in issue. But evidence of proximate complaint (but not delayed complaint) was admissible at the instance of the prosecution to bolster or buttress the complainant’s credit. And evidence of delayed complaint was admissible at the instance of the defendant to detract from the complainant’s credit.
[26] R v Jones [2018] SASCFC 80 at [107] (Kelly, Blue and Lovell JJ).
In R v Usher,[27] Kourakis CJ said:[28]
Section 34M of the Evidence Act abolished the common law with respect to recent complaint evidence in sexual cases and replaced it with a statutory regime. Section 34M expands the circumstances in which complaints are admissible, beyond the contemporaneity required by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions.
[27] R v Usher (2014) 119 SASR 22.
[28] R v Usher (2014) 119 SASR 22 at [48] (Kourakis CJ, Peek J agreeing).
Whilst contemporaneity is not a condition of admissibility of a complaint under s 34M, it is a condition of admissibility that the complaint is referable to the charged conduct, and hence capable of demonstrating a degree of consistency of conduct.[29] As Duggan J said in R v S, DD:[30]
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
[29] R v T, S (2017) 128 SASR 66 at [130]-[133] (Hinton J, Kelly and Nicholson JJ agreeing).
[30] R v S, DD (2010) 109 SASR 46 at [4] (Duggan J, Anderson J agreeing); see also at [98]-[99], [107]-[111] (Peek J).
At the time of the decision in R v S, DD, s 34M(4)(a)(ii) did not include the words “degree of”. Those words were added in 2015,[31] apparently to give effect to the construction of that section preferred by Kourakis J in R v H, T.[32]
[31] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA), s 17.
[32] R v H, T (2010) 108 SASR 86 at [105].
If complaint evidence is admitted under s 34M, then the trial judge must give the directions prescribed by s 34M(4). In particular, the trial judge must direct the jury that:
·the complaint evidence is admitted to inform the jury as to how the allegation first came to light (s 34M(4)(a)(i)), and as evidence of the degree of consistency of conduct of the complainant (s 34M(4)(a)(ii));
·the complaint evidence is not evidence of the truth of what was alleged (s 34M(4)(b));
·there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person (s 34M(4)(c)); and
·otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case (the chausette to s 34M(4)).
The terms of the directions required by ss 34M(4)(a)(ii) and (b) reflect the common law; namely, that the complaint evidence is admissible as evidence of the degree of consistency of conduct of the complainant (and therefore the credit of the complainant), and not as evidence of the truth of the complaint.[33]
[33] R v Jones [2018] SASCFC 80 at [117] (Kelly, Blue and Lovell JJ).
This permissible use of complaint evidence in assessing a complainant’s credibility was explained by Duggan J in R v J, JA:[34]
It was submitted that s 34M of the Act confined the relevance of a complaint to consistency and that it was a misdirection to tell the jury that it was relevant to “consistency and therefore credibility”.
In my view the reference to credibility in the summing up did not constitute a misdirection. Consistency of conduct is relevant to a consideration of the credibility of a complainant. In Suresh v The Queen[35] Gaudron and Gummow JJ said:
[The complaint] is admitted not as evidence of the facts in issue, R v Lillyman [1896] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460 at 472 per Barwick CJ.
This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency.[36] This in turn constitutes a buttress to the evidence of the complainant.[37] The trial Judge’s use of language was appropriate: the jury were told that the evidence was relevant to consistency and “therefore the credibility of the complainant’s evidence”.
[34] R v J, JA (2009) 105 SASR 563 at [92]-[93] (Duggan J, Nyland and White JJ agreeing).
[35] (1998) 72 ALJR 769 at 770.
[36] Evidence Act 1929 (SA) s 34M(4).
[37] Kilby v The Queen (1973) 129 CLR 460 at 472.
Immediately following this passage, Duggan J further explained that “consistency of conduct” for the purposes of s 34M encompassed both consistency in making the complaint when it would be expected to be made, and consistency between the wording of the complaint and the conduct alleged.[38]
[38] R v J, JA (2009) 105 SASR 563 at [94]-[95] (Duggan J, Nyland and White JJ agreeing), citing R v Szejnoga 199 (1998) LSJS 97 at 101-102 (Doyle CJ).
Subsequently, in R v S, DD, Duggan J reiterated these two aspects of consistency of conduct:[39]
In determining whether the trial Judge gave adequate directions to the jury on the proper approach for considering the complaint evidence, it is important to have regard to the circumstances in which such evidence might demonstrate consistency. Those circumstances were explained by Doyle CJ in R v Szejnoga:[40]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
[39] R v S, DD (2010) 109 SASR 46 at [3] (Duggan J, Anderson J agreeing).
[40] R v Szejnoga (1998) 199 LSJS 97 at 102.

It may thus be accepted that “consistency of conduct” for the purposes of s 34M has two aspects: first, consistency of the complainant’s conduct in making a complaint when, and in the circumstances that, one might expect (which may be referred to for convenience as the first aspect of consistency, or consistency in the making of the complaint); and secondly, consistency of the complainant’s conduct in making a complaint that is consistent in its terms with the complainant’s evidence at trial as to the charged conduct (which may be referred to as the second aspect of consistency, or consistency in the terms of the complaint).
The issue that arises in the present case is whether the trial judge was required to direct the jury as to the potential significance of the differences between the complaint evidence and the complainant’s evidence at trial as to the charged conduct. In our view, these differences were relevant to the degree of consistency of conduct of the complainant, and hence to the complainant’s credit. They were relevant to the second aspect of the consistency of the conduct of the complainant; that is, to the consistency in the terms of her complaint.
We do not consider that there is any conflict between this relevance and recognition that the complaint evidence must be capable of demonstrating a degree of consistency of conduct before it is admissible. In our view, the differences (even if referred to as ‘inconsistencies’) do not contradict the basis for the admission of the evidence. The making of a complaint that is referable to the charged conduct is capable of demonstrating at least some degree of consistency, and hence of bolstering or buttressing the complainant’s credibility to at least some extent, even if it differs in its terms from the evidence that the complainant ultimately gives as to the charged conduct.
In the ordinary course, a complaint that is referable to the charged conduct will be capable of demonstrating at least some degree of consistency of conduct. The following passage from the reasons of Kourakis J in R v H, T[41] might be taken as expressing the view that this will always be so:[42]
It is convenient now to deal with the supposed difficulty with the direction that the complaint is admitted as evidence of the consistency of the complainant’s conduct. It is contended that a complaint made decades after an alleged offence cannot in any material sense be consistent conduct. In my view, that difficulty dissolves once it is understood that the use of the complaint referred to in the direction described in s 34M(4)(a)(ii) is “as evidence of the [degree of] consistency of conduct of the alleged victim”. No violence is done to the meaning of the phrase by inserting the words in square brackets. Plainly, the degree of consistency will vary from case to case. There is no one measure of consistency. To read in the words “degree of” is also consistent with the final direction which the Judge must give the jury that it is for the jury to determine the significance if any of the evidence.
The construction I propose requires a direction to the jury that the making of a complaint in itself demonstrates some degree of consistency, even though that degree may be minimal. In my view for the reasons that I have given, that is Parliament’s intention and the ineluctable result of the language it has used. Moreover it is my view that a complaint however late is consistent with the allegation of an assault it makes. The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak of its occurrence. That is perhaps even more obvious when the recognition of the psychological and social factors to which I have earlier referred is taken into account. In any event, it is not open, given the terms of s 34M(2) of the Act to ever regard delay in itself as being inconsistent.
[41] R v H, T (2010) 108 SASR 86.
[42] R v H, T (2010) 108 SASR 86 at [105]-[106].
These reasons were subsequently approved, albeit obiter, by the Court of Criminal Appeal in R v Jones.[43]
[43] [2018] SASCFC 80 at [122].
In R v Van Wyk,[44] the Full Court summarised Kourakis J’s reasoning in the following terms:[45]
As has been seen, when first enacted s 34M(4)(a)(ii) of the Evidence Act did not include the words “degree of”. In R v H, T the absence of those words caused a difference of opinion in this Court as to the proper construction of s 34M(4)(a)(ii). In holding that s 34M(4)(a)(ii) should be construed as including the words “degree of” by implication Kourakis J, as he then was, explained that the making of a complaint, however late, is consistent with the happening of the alleged sexual assault particularly having regard to the contemporary understanding of the psychosocial sequelae of such assaults. He acknowledged that the making of a complaint may only be weakly supportive of a complainant’s credibility but that it was never inconsistent with it.
[44] R v Van Wyk (2018) 132 SASR 46.
[45] R v Van Wyk (2018) 132 SASR 46 at [28] (Kourakis CJ, Kelly, Lovell, Doyle and Hinton JJ).
We acknowledge that both Gray and White JJ in R v H, T took a different view, contemplating circumstances in which the delay in making a complaint may render it incapable of demonstrating consistency.[46] The extent to which this contrary view might be maintained given the subsequent amendment to s 34M(4)(a)(ii) to include the words “degree of” is not a matter that needs to be determined in the present case.
[46] R v H, T (2010) 108 SASR 86 at [48] (Gray J), [81] (White J); see also R v S, DD (2010) 109 SASR 46 at [112]-[113] (Peek J).
We would also observe that the Court in R v H, T was only concerned with inconsistency alleged to have arisen from the delay in making the complaint. It was thus a case focused upon the first aspect of consistency of conduct. An analogous issue might arise in respect of the second aspect of consistency. It might arise in a case where the complaint evidence, while referable to the charged conduct, is nevertheless in such radically different terms to the complainant’s evidence as to the circumstances of the charged conduct that the complaint cannot meaningfully be said to be consistent with that evidence. In such a case, an issue might arise as to whether the complaint evidence is inadmissible as incapable of demonstrating any degree of consistency; or, even if admissible, as to how directions might be given in conformity with s 34M(4)(a)(ii).
But such a case is far removed from the present case. In the present case it was not suggested that the differences between the complaint evidence and the complainant’s evidence of the charged conduct were so significant as to render the complaint evidence incapable of demonstrating any degree of consistency, and hence rendering it inadmissible. Rather, the defence case was merely that the differences were relevant to (and tended to reduce or limit) the degree of consistency of conduct.
The possibility of differences or inconsistencies operating in this way has been recognised in the authorities. For example, in R v S, DD, Peek J said of the complaint evidence in that case:[47]
The “consistency” relevant here is the act of complaint on the topic of sexual interference by the appellant and there was a basis upon which the jury could properly be directed pursuant to 34M(4)(a)(ii) that there was some “consistency of conduct”. True it is that there are also important elements of inconsistency and changes in her story and it was necessary that these matters be fully dealt with in the trial Judge’s summing up. However, those matters do not preclude admissibility.
[47] R v S, DD (2010) 109 SASR 46 at [114] (Peek J).
Similarly, in R v Jones, the Full Court said:[48]
It is obviously foreseeable that, if evidence of complaint is led, there will be material differences and arguably inconsistencies between the account given by the complainant in evidence and the earlier account given to the recipient of the complaint. Section 34M does not prohibit the jury taking into account in its assessment of the complainant’s credit any inconsistencies that it considers exist between the two accounts. They are simply inconsistent statements and subject to the requirements of s 28 of the Evidence Act. Of course, how any given inconsistency may adversely affect credit in those circumstances is a matter for the jury. It would require clear words to manifest an intention that a jury can take into account adversely inconsistencies in the evidence generally but must disregard what it regards as an inconsistency between the account given in evidence and the conduct of the complainant in making only a delayed complaint.
[48] R v Jones [2018] SASCFC 80 at [120] (Kelly, Blue and Lovell JJ).
In summing up to a jury, it is the trial judge’s responsibility to do more than merely state the law relevant to the issues in the case; the trial judge must explain how it applies to the particular factual issues in the case.[49] Consistently with this responsibility, in a case involving complaint evidence it will ordinarily be appropriate for the trial judge to go further than give directions that do little more than repeat the words or substance of the matters set out in s 34M(4). For example, on the topic of “consistency of conduct”, it will ordinarily be appropriate for the trial judge to identify the two aspects of consistency referred to earlier in these reasons, and to identify the evidence and submissions in respect of each.
[49] Alford v Magee (1952) 85 CLR 437 at 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
Of course, the trial judge should refrain from making any comments or suggestions as to what the jury should make of the relevant evidence; the jury should be told that it is a matter for them to determine the degree of consistency of conduct disclosed by the evidence, and to determine how this might impact their consideration of the complainant’s credibility. Approached in this way, we see no difficulty in reconciling the directions that we have suggested would ordinarily be appropriate with the direction in the chausette to s 34M(4).
We thus accept that the trial judge was required to give the jury some assistance in relation to what we have referred to as the second aspect of consistency of conduct. However, we consider that the trial judge gave adequate directions in this respect. In particular, the trial judge directed the jury that in considering the degree of consistency of conduct which the evidence disclosed, the jury were entitled to have regard to the consistency of the terms of the complaint. In summing up the judge gave the following directions to the jury:
Members of the jury, I will now give you some directions about how you may use the evidence of what [the complainant] disclosed via WhatsApp to her best friend Nadun who was in Sri Lanka at the time. I will also give you some directions about how this evidence must not be misused by you.
First, you may use the evidence of what [the complainant] disclosed to Nadun as informing when her allegations of being sexually assaulted by Mr Weragoda first came to light.
The second permissible use of this evidence is for what the law terms the 'consistency of conduct' of an alleged victim of a sexual assault.
That is, it may indicate to you that [the complainant’s] conduct in complaining or disclosing to Nadun what happened to her is consistent with the occurrence of the sexual acts which she has described in her evidence.
This is because the law states that you would generally expect someone who was sexually assaulted to complain about what happened to them.
In other words, what [the complainant] disclosed to Nadun is evidence which you may use when you are assessing the credibility or truthfulness of her evidence concerning her allegations that Mr Weragoda engaged in the charged sexual activity as she described it in her evidence.
Ordinarily, in a criminal trial, the rules of evidence would prevent a jury from hearing what a witness has told someone else about the commission of an alleged crime because that is considered to be a self-serving statement. In other words, just because you tell someone that something has happened to you does not prove or support the fact it occurred. Similarly, the person to whom that account has been made usually cannot give evidence of what they were told because that would be regarded by the law as hearsay evidence.
However, an exception to this general rule of evidence applies in cases involving allegations of sexual assault. The rationale behind this evidence, as I have said, is that ordinary human experience suggests that you would expect someone who was sexually assaulted to behave or react in a certain way; and that is, to complain about what happened to them. Hence the legal expression 'consistency of conduct', which simply means conduct you would expect in the circumstances if what was alleged had actually happened.
In considering the degree of any consistency of conduct which the evidence discloses, you may also have regard to the consistency of the allegations that were disclosed.
Members of the jury, it will be, of course, a matter for you to determine the degree or extent of any consistency of conduct demonstrated in what [the complainant] disclosed to Nadun and the significance, if any, of this evidence to your assessment of the credibility or truthfulness of what she said in evidence concerning the charged sexual acts.
I direct you that there may be a variety of reasons why an alleged victim of a sexual assault may make a complaint or a disclosure of that allegation at a particular time and to a particular person.
On the evidence, [the complainant] messaged Nadun and told him what happened very shortly after she said she had been sexually assaulted by Mr Weragoda. [The complainant] also explained why she chose to disclose what happened to Nadun and that was because he was her best friend; she had known him since grade 9 at school and he was someone she could talk to and discuss anything with - he was that type of friend, as she put it. She also said he was not going to judge her for what had happened to her.
The next direction about this evidence is to warn you against misusing the evidence.
In determining whether to act upon the evidence of what [the complainant] disclosed to Nadun, as I have just directed you about, you must clearly understand that what she disclosed to him is not evidence of the truth of that disclosure.
The law does not permit a jury to use what an alleged victim of a sexual assault has disclosed to another about that alleged sexual assault in that way. That is, you cannot use what [the complainant] disclosed to Nadun as evidence which supports the fact that Mr Weragoda engaged in the charged sexual acts as described by [the complainant] in her evidence. For that, you must rely solely on what she told you about those sexual acts in her evidence.
This means that you cannot use what she disclosed to Nadun as some form of independent or additional evidence which supports the fact that Mr Weragoda engaged in the charged sexual acts as she alleged in her evidence. Although, when you are assessing her evidence and when you are deciding whether what she said about those acts of sexual intercourse was credible or truthful, you may take into consideration what she disclosed as evidence of the degree of any consistency of conduct on her part which that evidence reveals.[50]
[50] AB 30.2-31.7.
It can be seen that the trial judge gave directions to the jury that in considering the degree of consistency of conduct which the evidence discloses, they may have regard to the consistency of the terms in which the allegations were disclosed, and that it was a matter for them to determine the degree or extent of any consistency of conduct in the complainant’s disclosure to Nadun and the significance, if any, of this evidence to their assessment of her credit. That direction was reinforced by the subsequent reminder of defence counsel’s submission that the evidence of initial complaint reflected adversely on her credit. This was sufficient.
In our view, this was an adequate explanation of the second aspect of consistency of conduct, and its relevance in assessing the complainant’s credibility.
We are also satisfied that the trial judge adequately linked this explanation to the evidence in the case. Immediately prior to his explanation of the use that might be made of the complaint evidence, the trial judge recited both the complainant’s evidence as to the complaint that she made, and the agreed fact as to what Nadun would have said had he given evidence. The trial judge had earlier summarised the complainant’s evidence as to the charged conduct. Later in his summing up, when summarising the defence case, the trial judge said:
[Defence counsel] also reminded you of the evidence given by [the complainant] of what she disclosed to Nadun, and indeed of what Nadun also said that she told him, namely, that [the appellant] ‘Tried to fuck her’, or ‘Tried to do sexual harassment’, not that he did, as [the complainant] said in her evidence. So, rather than demonstrating consistency on her part, [defence counsel] contended that it undermined what [the complainant] said, and in fact supported what [the appellant] told Detective Cassell.
While it might have assisted the jury to have identified the evidence (and in particular the differences in the evidence) relevant to the second aspect of consistency of conduct at the point of the summing up where his Honour explained the relevance of consistency of conduct, it was sufficient that the trial judge ultimately did so in the context of summarising defence counsel’s submission in respect of the same. This is consistent with the flexibility appropriately afforded to trial judges in the structuring of their summings up, particularly with a view to reducing the length of those summings up by avoiding repetition.
It is again telling that the appellant’s trial counsel did not object to the admission of the complaint evidence, or seek its exclusion in the exercise of the discretion, or seek further direction or a redirection. This does not prevent the point being taken on appeal, but the absence of objection at trial is a factor to be taken into account in assessing whether there was a miscarriage.[51]
[51] R v Lowe [2016] SASCFC 118 at [12]-[14]; R v Moores (2017) 128 SASR 340 at [53].
In our view, there was no error of law or misdirection.
We would dismiss ground 3.
Ground 4
Ground 4 complains that there was a miscarriage of justice as a result of a combination of grounds 1 to 3 and the content of questions by the police officer conducting the record of interview with the appellant, by reason of detailed cross‑examination of the appellant, hearsay narrative of the complainant’s allegations and repeated expressions of opinion by the interviewing officer. The appellant submits this was so prejudicial as to deny him a fair trial.
We do not accept this submission.
In our view, this ground fails fundamentally because this evidence was admitted as a result of a considered forensic decision made by the appellant’s trial counsel. Counsel sought the admission of the record of interview in its totality. The appellant wanted exculpatory statements in the record of interview connected to the now impugned questions admitted into evidence. The appellant is bound by the conduct of his trial counsel.[52] He was represented by experienced counsel. In addition, the judge gave clear and emphatic directions to the jury both at the time the record of interview was admitted into evidence[53] and in the course of summing up. Those directions were:
I need to give you some directions about some of the questions that were asked by Detective Cassell, or some views or opinions which he expressed, and you will remember that I gave you some directions about this immediately before the interview was played to you in this courtroom last Friday.
At times during his questioning of Mr Weragoda, Detective Cassell appeared to express his own opinions or doubt the plausibility of what Mr Weragoda was telling him, and you must ignore those opinions or views, as it is only your view that matters, and in arriving at those views you must not be influenced by Detective Cassell's personal views or opinions.
As I have already instructed you, questions that are asked do not amount to evidence, it is only answers to those questions that is evidence in the case.
At other times, Detective Cassell asked Mr Weragoda why [the complainant] would have said something and why she did something, but of course, it is impossible for Mr Weragoda to know what she was thinking, or why she may have done something. You must ignore those types of questions, and any answers given, altogether, as that will not assist you.
So, members of the jury, when you are evaluating what Mr Weragoda said in his police interview, you will need to take a great deal of care over some of the things that Detective Cassell was expressing, or pressing Mr Weragoda on, or asking him. And importantly, you are not to take any notice of Detective Cassell's views about consent in sexual cases. You must decide that issue, and indeed, what Mr Weragoda's state of mind was in relation to that issue, on the directions that I will be giving you about consent to sexual activity in a moment.[54]
[52] Nudd v The Queen [2006] HCA 9 at [9], (2006) 80 ALJR 614 at 618-619.
[53] T 165.
[54] AB 33.8-34.3.

In the circumstances, there was no real risk of the jury having regard to any opinions expressed by the investigating officer. They were directed they should only consider the evidence of answers given by the appellant, not the terms of questions asked by the investigating officer.[55]
[55] AB 34.
There was no miscarriage of justice on the basis of ground 4 whether considered in isolation or in combination with the other grounds.
In this case the judge’s summing up, to the extent it suggested the forensic contest revolved around the assessment of the truthfulness of the accounts given by the complainant and the appellant, was unfortunate and better not said. However, a consideration of the summing up, read as a whole, did not give rise to a miscarriage of justice. The judge’s directions were adequate to ensure the appellant received a fair trial.
We would refuse permission to appeal on ground 4.
Conclusion
We would refuse permission to appeal on grounds 1, 2 and 4, dismiss ground 3, and dismiss the appeal.