R v ALJ No. SCCRM-00-164 [2000] SASC 357

Court of Criminal Appeal: Prior, Debelle and Lander JJ

1 PRIOR J: I agree that this appeal should be dismissed for the reasons given by Lander J. I add a little with respect to the first ground of appeal.

2 The trial judge's directions on reasonable doubt adopt the directions given by the trial judge in R v Britten & Eger[1]. The transcript of proceedings before the Court of Criminal Appeal discloses that counsel for Eger complained that the passage now complained of was "an attempt at definition of reasonable doubt" which may or may not be correct "depending on the setting of the entire case". The Court did not identify any misdirection within the general directions given by the trial judge in that case. Neither King CJ nor Millhouse J said that the passages now complained of were erroneous.[2] Mohr J described these directions as unexceptional.[3]

3 In The Queen v Wilson, Tchorz and Young[4], King CJ referred to what was stressed by the High Court in Green v The Queen[5], that judges should adhere to the conventional formula that the burden is on the prosecution to prove a charge and each ingredient of it beyond reasonable doubt. No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain. A judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt but if a judge does so care must be taken to add that if jurors at the end of their deliberations, as reasonable persons are in doubt about the guilt of an accused the charge has not been proved beyond reasonable doubt. Proof beyond reasonable doubt requires that doubts, irrespective of degree of strength which they attain, be given effect to if the jurors, as reasonable persons, are prepared to entertain them.

4 In R v Pahuja[6], King CJ referred to these observations in Wilson, and said:

"The expression reasonable doubt is a composite expression meaning a doubt which would be entertained by a reasonable person in the circumstances, or as Latham CJ put it in Burrows v The King[7], 'a doubt such as would be entertained by reasonable men, recognising their responsibility to the accused and to the law'. An explanation which conveyed that meaning accurately to a jury would not be a misdirection. But although an explanation of the meaning of reasonable doubt which is accurate cannot be a misdirection, such explanations are not to be encouraged. This has been emphasised in many cases and it is necessary only to recall Green v The Queen[8].

5 His Honour went on to say that, in Wilson, he sought to reiterate the admonition to judges not to depart from the conventional formula as to proof beyond reasonable doubt and to attempt explanations which so often lead to error. His Honour said he also sought to draw attention to the point for which Green is an authority,

"namely that 'jurymen themselves set the standard of what is reasonable in the circumstances' and that therefore 'a reasonable doubt is a doubt which the particular jury entertain in the circumstances'."

6 In my view, the directions given by the judge in this case did not attempt to explain or define reasonable doubt. Nor can anything said in the passage complained of be construed as a suggestion that the jurors should disregard a doubt which, at the end of their deliberations, they thought existed. Likewise, there is nothing in what Her Honour said which seems, to me, to require the jurors to subject such a doubt to a process of analysis in order to determine its quality[9].

7 This was not a long summing-up. It was not confusing to speak of a practical court of law and decisions made in a reasonable, sensible way. I do not think that that language elevated a reasonable doubt to a rational doubt. I think that, within the direction, Her Honour was not doing anything more than acknowledging that jurors, themselves, as reasonable persons, set the standard of what is reasonable in the circumstances.

8 In my view, nothing put by the judge could be understood as, in any way, detracting from the jury's authority in this case. The passages complained of did not undermine the clear directions given with respect to onus of proof. The jury could not have construed what the trial judge said as calling on them to import an objective or analytical approach to the concept of reasonable doubt. The whole summing-up could not have left the jury in any doubt that it was for them to consider whether the prosecution had established the appellant's guilt with respect to a particular charge beyond reasonable doubt.

9 DEBELLE J. On 8 June 2000 the appellant was found guilty by a jury of an offence of gross indecency and an offence of indecent assault. He was convicted and sentenced to imprisonment for a period of two years. The non-parole period was 15 months. The appellant appeals against the conviction.

10 The prosecution case was that shortly before Christmas 1998 the appellant and a male friend went camping overnight with three children, two boys and a girl who were the alleged victims of the charge of gross indecency. It was alleged that during the night the appellant had masturbated in front of the children. The allegations in relation to the offence of indecent assault were that at about Christmas in 1998 the appellant and a girl C, one of the children on the camping trip, were staying with one of C's brothers at C's grandmother's house at Woomera. It was C's evidence that the appellant had touched her on the inside of the vagina while watching what she called "rude movies". The appellant is an uncle of the three children.

11 The prosecution called the three children and their mother. The child C was aged 12 years when she gave evidence. She was aged 10 years at the time of the alleged offence. The two boys were her brothers. One is older, aged 13 years when he gave evidence. The other is younger, aged 11 years when he gave evidence.

12 Two grounds of appeal turn on matters of law unrelated to the allegations of fact made against the appellant. I deal with them first.

13 The first ground of appeal is that the trial judge erred when instructing the jury as to the burden of proof. The relevant part of the direction to the jury reads:

"The burden of proving a charge lies wholly upon the prosecution. The accused does not have to prove anything. If he puts forward a defence, he does not have to prove it. It is the prosecution that has to disprove it, or show that it is irrelevant, otherwise the prosecution will not have proved its case.

Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. You are to bear in mind that this is a practical court of law, and decisions must be made in a reasonable sensible way, but if, at the end of the case, you are left with a reasonable doubt about the guilt of the accused, that's a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty." (Emphasis added.)

14 The appellant complains of the use of the words which are italicised submitting that the judge had defined reasonable doubt and imported an objective or analytical approach to the concept of reasonable doubt thereby contravening the injunction of the High Court in Green [1971] HCA 55; (1971) 126 CLR 28. Counsel for the appellant had asked for a redirection but the trial judge refused.

15 I do not think that the latter part of the direction, that is to say, the words "that's a doubt reasonably arising on the evidence" impair the effect of the direction or depart from a proper direction as to the burden of proof. It is a reminder that the doubt must be reasonable and be based on the evidence. The appellant submitted that it is capable of misleading a jury on those occasions when the absence of evidence on an issue may give rise to a reasonable doubt. I do not think that is a reasonable construction of those words.

16 The words "this is a practical court of law, and decisions must be made in a reasonable sensible way" raise different issues. The judge is embarking on an attempt to define reasonable doubt and, in doing so, qualifies the epithet "reasonable" by the expressions "practical court of law" and "a reasonable sensible way". In doing so, the judge is elevating a reasonable doubt to a rational doubt, particularly when she uses the epithets "practical" and "sensible". The epithet "reasonable" means what is reasonable having regard to the circumstances: Brown (1913) 7 CLR 570 at 594. So in Green (supra) at 32 - 33, the High Court said:

"A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes': Windeyer J., Thomas v. The Queen (1960) 102 CLR at p. 606. A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case."

17 Although those observations were made concerning a direction which contained a number of errors, the observations remain apposite here. To adapt the words of King CJ in Wilson Tchorz and Young (1986) 22 A Crim R 130 at 133 - 134, this direction requires the jurors to subject their mental state to examination or to determine whether the doubt which was rational, that is to say, a doubt which is more than a reasonable doubt.

18 Since drafting these reasons, I have read the reasons of Prior and Lander JJ. I am unable to agree with them. It is pertinent to add that the formal direction used by the trial judge departs from the usual form and its use should be discouraged.

19 For these reasons, I would allow the appeal and order a retrial.

20 Another ground of appeal which raises a question of law concerns a ruling made under s 34I of the Evidence Act 1929. The appellant sought to cross-examine C to the effect that she had, on an earlier occasion, made an allegation of sexual impropriety against a friend of her father. It was said that the impropriety had incurred in Perth and was said to be an allegation of the same or similar misconduct to those made against the appellant. When pressed by the trial judge for details of the allegation, counsel for the appellant said that he had told the judge all he knew. He did not know whether or not the allegation was true. The application was refused. The appellant asserts that leave under s 34I to cross-examine on this topic was not required or, if required, it ought to have been given.

21 The first question is whether leave was required. Section 34I has a number of provisions relating to evidence in sexual cases. For present purposes, it is sufficient to refer only to s 34I(1) which provides:

" 34I. (1) In proceedings in which a person is charged with a sexual offence, no question shall be asked or evidence admitted--

(a) as to the sexual reputation of the alleged victim of the offence; or

(b) except with the leave of the judge, as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused)."

22 It is possible to identify a question or two on this topic which might not require leave under s 34I. However, Mr Algie, who was counsel for the accused at the trial, had very properly and very candidly stated that he did not know whether the allegation was true or not. The proposed line of questioning was therefore fishing. The expression "sexual activities" is defined by s 34I(b) to include sexual experience or lack of sexual experience. The proposed line of questioning would by implication, if not expressly, involve questions as to C's prior sexual experience. In those circumstances, the questions fell within s 34I. The judge correctly refused leave since it was apparent that the accused was simply fishing. Furthermore, there was no means of determining whether the allegation was truly made or false. This ground of appeal must therefore fail.

23 The remaining grounds of appeal are complaints that aspects of the defence case were not fairly put to the jury. While he acknowledged that the trial judge was not obliged to repeat everything put on behalf of the appellant, Mr Algie submitted that, when viewed overall, the direction did not fairly put the case for the defence. Although a number of grounds were argued, it is sufficient to refer to two only.

24 Two issues were central to the defence case. One applied to the alleged offending on the camping trip. The other concerned the alleged offending at C's grandmother's house. These had assumed a good deal of significance at the trial. In relation to the camping trip, it was submitted that the three children could not have seen anything because it was dark at the time. This submission received a brief passing reference in the direction when the judge was discussing inconsistencies in the evidence. The judge said that the inconsistencies included the state of light or dark in the tent when the offence was alleged to have occurred. If the matter had stood there the direction may have been adequate particularly as this had been a short trial.

25 However, the trial judge failed to mention an important matter concerning the alleged offending at C's grandmother's house. C's evidence-in-chief was that she and her brother, together with the appellant, had watched what she called "rude movies" which had been put on by the appellant. Her evidence did not indicate whether the movies were shown on television or video tape film played on a video recorder. In cross-examination, C assented to questions that the films were on video tape. It was put to her that there was no video tape player at her grandmother's house but she asserted that there was. There was evidence from C's brother, her grandmother and a cousin that, at the time of the alleged offending, the grandmother did not have a video recorder but had acquired one some two months before the trial. The prosecution and the defence counsel both thereafter proceeded on the footing that the films which were played were on video tape. Counsel for the prosecution had cross-examined the appellant on that footing. The appellant was asked in cross-examination whether there was a video shop at Woomera from which video tapes could be hired. The appellant did not know whether there was. The appellant also denied having borrowed a video recorder. He did not have a video recorder at his house at Pimba because the house was not then connected to electricity. There was no prosecution evidence or any other evidence whether there was a video store at Woomera or whether it was possible to hire a video recorder at Woomera. In his address to the jury, counsel for the prosecution had suggested that the appellant might have hired the video recorder from a store at Woomera, notwithstanding the paucity of evidence on that subject.

26 In cases of this kind essentially turning on accusation and denial, evidence of objective facts can often assist in weighing the evidence and ultimately determining whether the prosecution has discharged its burden of proof. The evidence concerning the video recorder was an important fact to consider when weighing the reliability of C's evidence. The trial judge did not refer to it at all in her direction. After the direction, the trial judge was asked by Mr Algie to read a passage of evidence from one witness to the effect that there was no video recorder at the grandmother's house. The judge agreed to read the evidence but did not accede to a subsequent request to summarise the defence submission.

27 A trial judge is not bound to discuss all of the evidence and to analyse all of the conflict in the evidence and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice: Domican (1992) 173 CLR 555 at 560. However, the trial judge is required to put the defence case adequately to the jury: R v Schmahl [1965] VicRp 95; (1965) VR 745 at 748 - 749. That obligation was later noted in Domican (supra) at 561:

"Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."

28 In this trial, the question whether there was a video tape recorder at C's grandmother's house had assumed importance. There was clear evidence that C's grandmother did not have a video recorder at the relevant time and that pay television was not then in operation at Woomera. In the absence of any evidence as to whether it was possible to have a video recorder to play the video tape, the question of how it was possible for the appellant to watch a video tape film played on a video recorder thus assumed a great deal of importance.

29 The trial judge's reference to the defence case was relatively brief. Apart from reciting the appellant's denials and briefly summarising the evidence of the defence witnesses, the trial judge did not put any aspect of the defence case to the jury. The obligation to put the defence case is not discharged by a mere recitation of the evidence led by the defence. Given that this was a short trial, the evidence would in all likelihood have been fresh in the minds of the jury. The task for the trial judge in this case was to relate that evidence of the critical issue of the credibility of C. Although this was a short trial and the evidence would have been fresh in the minds of the jury, that does not gainsay the need for a direction as to how the evidence should be used. Furthermore, the trial judge had put her weight behind some parts of the prosecution case. The defence was entitled to have its case clearly and fully presented to the jury. The question whether it was a reasonable possibility that there was no video recorder at the house and the effect of that upon the reliability of C's evidence was so plainly important to the conduct of the defence case that it ought to have been put to the jury. It was one of the central features of the defence case. The failure to put an essential part of the defence case to the jury resulted, in my view, in a miscarriage of justice. I would therefore allow the appeal on this ground also.

30 Given the conclusions I have reached, it is unnecessary to deal with the other grounds advanced by the appellant.

31 For these reasons, I would allow the appeal. I would make an order setting aside the verdict of guilty and order a new trial.

32 LANDER J. The appellant was charged with three separate offences. First, that he committed an act of gross indecency on 1 October 1998 in the presence of three children, C, CN and T, all being under the age of sixteen years. (CN is a girl). Secondly, between 1 October 1998 and 27 January 1999 indecently assaulted CN, a person under the age of ten years. Thirdly, some time between 1 October 1998 and 27 October 1999 had digital sexual intercourse with CN

33 A jury unanimously found him guilty of the first count. The jury was unable to reach a verdict in relation to the second count. It reached a majority verdict of guilty to the alternative charge of indecent assault in relation to the third count.

34 On 27 June 2000 the accused was sentenced to imprisonment for a period of two years. A non-parole period of fifteen months was set.

35 The trial before a District Court Judge and jury proceeded over three days. On the first day the Crown opened and called the three children who are referred to in the first count and who are the nephews and niece of the appellant. The prosecution then called those children's mother.

36 On the second day the Crown called a police officer. The accused then gave evidence. He called B who was separately charged with gross indecency in relation to the first count. The accused then called his brother, J and his mother, CN's grandmother. The evidence concluded in the afternoon of the second day and the Crown and defence counsel then addressed the jury.

37 On the morning of the third day the Trial Judge delivered her charge to the jury which was concluded by 10.56am. The jury returned and further directions were given and eventually the jury retired at 11.23am. The jury returned the verdicts at 3.39pm.

38 The point of reciting the course of the trial is to indicate that the jury retired less than twenty four hours after the appellant's case had opened and the evidence led in the appellant's case would have still been fresh in the minds of the jurors.

39 The first and second counts were said to have occurred on the same day when the appellant and B had taken the three children named in the first count camping. The Crown case was that the two adults set up a camp site somewhere between two country towns and erected two tents. The three children occupied the larger tent and the appellant and B the smaller tent.

40 It was the Crown case that the appellant and B came into the larger tent and both masturbated in front of the children. That was the subject of the first count.

41 The second count occurred later in the evening on the Crown case when CN went into the smaller tent. Whilst in that tent the appellant, upon CN's account, grabbed her leg and licked her vagina.

42 The Crown case was that the third count occurred at CN's grandmother's house during the Christmas holidays. It was the Crown case that whilst her grandmother was away CN stayed with the accused and CN's brother C. It was the Crown case that the third count occurred whilst CN and the appellant were watching "rude movies". The Crown case was that the appellant put a blanket over CN while she was sitting next to the appellant. It was the Crown case that the appellant felt her vagina with his finger and inserted his finger in her.

43 In respect of that count the jury must have concluded that there was an indecent assault but they were not satisfied beyond reasonable doubt that there had been penetration of the vagina.

44 The appellant was given leave to appeal on three grounds:

(1) The learned Trial Judge erred as a matter of law in that Her Honour misdirected the jury in relation to her direction on reasonable doubt;

(2) The learned Trial Judge erred as a matter of law in that Her Honour failed to give any adequate directions or warnings as to the infirmity of the prosecution evidence as was required in the circumstances of the case and/or failed to adequately put the defence case to the jury;

(3) The learned Trial Judge erred as a matter of law in her rulings in relation to s 34Iof the Evidence Act 1929.

45 In the course of Her Honour's summing up to the jury, Her Honour directed the jury as follows:

"... The burden of proving a charge lies wholly upon the prosecution. The accused does not have to prove anything. If he puts forward a defence, he does not have to prove it. It is the prosecution that has to disprove it, or show that it is irrelevant, otherwise the prosecution will not have proved its case.

Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. You are to bear in mind that this is a practical court of law, and decisions must be made in a reasonable sensible way, but if, at the end of the case, you are left with a reasonable doubt about the guilt of the accused_, that's a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty_."

46 The appellant counsel complained of the direction immediately after Her Honour had concluded her charge. Her Honour refused to redirect.

47 The appellant submitted that that direction was wrong in law in that it imported an objective or analytical approach to the concept of reasonable doubt contrary to the directions of the High Court in Green v The Queen [1971] HCA 55; (1971) 126 CLR 28.

48 There is no doubt that a Trial Judge will have misdirected a jury if the Trial Judge qualifies a direction given as to the onus of proof beyond reasonable doubt unless the qualification is in terms which does "not diminish the jury's sense of their obligation not to convict upon supposed proofs about which they, as reasonable persons, feel a doubt": R v Wilson (1986) 42 SASR 203 at 206.

49 In Green v The Queen (supra) the Court said at 32 after referring to a number of cases where misdirections had been given:

"Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown."

50 The appellant complains of those parts of the direction repeated above which are in italics.

51 In my opinion it could not be said to be a misdirection for a Trial Judge to direct a jury that the doubt must arise on the evidence. In my view that part of the direction that reminds the jury that the doubt must arise on the evidence is unexceptionable.

52 In my opinion it is also not a misdirection to direct a jury that a criminal court is a practical court of law and decisions must be made in a sensible way, even when directing the jury on the onus and standard of proof.

53 Such a direction does not, in my opinion, diminish the direction to the jury that they must acquit the accused if they are left with a reasonable doubt about the accused's guilt.

54 The direction does not infringe the direction of the High Court in Green v The Queen by improperly directing the jury to subject their mental processes to a process of analysis in order to determine the reasonableness of the doubt.

55 There was no attempt in this summing up to explain reasonable doubt.

56 The direction was not couched in terms which would have left the jury believing that they could determine the guilt of the accused unless they were satisfied beyond reasonable doubt.

57 In the impugned passage the Trial Judge told the jury that "... nothing short of proof beyond reasonable doubt will do....He is not to be convicted unless his guilt has been proved beyond reasonable doubt."

58 She finished that part of the direction by again reminding the jury that if they were left with a reasonable doubt the appellant was entitled to the benefit of that doubt and find him not guilty.

59 The direction given by the Trial Judge did not offend the principles stated in Green v The Queen and did not misdirect the jury in relation to this important aspect of the Trial Judge's charge.

60 The direction was perfectly clear; the prosecution had the burden of establishing the appellant's guilt beyond reasonable doubt. No burden lay upon the appellant.

62 On this appeal the appellant argued that the Trial Judge failed adequately to direct the jury, or to remind the jury, of important features of the defence case and in particular:

(a) The significance of CN's description of the alleged offences; the lack of surrounding detail or any evidence of sexual gratification and CN's demeanour.

(b) The significance of darkness in the tent; statements to police re darkness in the tent and CN's inability to describe what she saw.

(c) The evidence establishing that there was no video recorder at the grandmother's house when count 3 was said to have been committed and a pornographic video preceded the occurrence of count 3.

(d) The variation between the three children inside the tent relevant to count 1 and the evidence of possible collusion, contamination or concoction through discussions between the children.

(e) The significance of the evidence called by the defence, in particular the evidence of J and his mother in relation to the absence of a video player and the "bath" incident.

63 There can be no doubt of course that the Trial Judge was under an obligation to put the defence case to the jury fairly and properly.

64 That, however, does not mean that the Trial Judge must discuss every piece of evidence which may be important in the defence case. The Trial Judge must exercise some judgment as to how he or she puts both the prosecution case and the defence case.

65 In exercising that judgment, the Trial Judge will have regard to the length of the trial, the issues raised in the trial, the complexity of those issues and the addresses of counsel.

66 In this case, as I have already observed, the trial concluded very quickly. The Crown case was entirely uncomplicated. The defence case was also uncomplicated. The defence case in relation to the first and second counts was that the appellant and B went camping with the children but nothing of the kind complained of by the children occurred.

67 In relation to the third count the defence case was there was no touching of any kind. It was also part of the defence case that the children could not have been watching "rude movies" because at the time the accused's mother did not have a video recorder. In those circumstances it was the defence case that CN's evidence could not be acted upon because the unreliability of that evidence had been demonstrated by proof of the fact that there was no video recorder.

68 In her summing up the Trial Judge accurately put the defence case in relation to the first and second counts. She also, in my opinion, accurately put the defence case in relation to the third count. She reminded the jury, who only the previous night had heard this evidence and heard the appellant's counsel address, that it was the defence case that neither CN nor her brothers came to the house during the period Christmas 1998. The accused said his mother had instructed him not to entertain them and he complied with those instructions. She reminded them of the evidence given by J who had said that there was no video recorder at the grandmother's house. She also reminded them that the grandmother gave evidence to the same effect.

"I am not going to attempt to summarise the addresses of counsel. You heard them yesterday and no doubt they are fresh in your minds. You should give very careful attention to all the points that they made to you. I am sure you have been assisted by the careful submissions that they made."

70 In my opinion, the learned Trial Judge did not fail to put the defence case to the jury. The essential elements of the defence case were referred to without any comment. The defence case was adequately put.

71 I have dealt with the matters specifically referred to in paragraphs (c) and (e) of this ground of appeal. The Trial Judge clearly brought to the attention of the jury the evidence of J and his mother to the effect that the grandmother (J's mother) did not have a video recorder at the time. She also read, at the request of defence counsel, C's evidence that the grandmother had only had a video recorder for the last two months.

72 Counsel had the previous evening addressed the jury on the significance of that evidence. The Trial Judge was under no obligation to point out once again the significance of the evidence of which she had reminded the jury.

73 I do not believe that the Trial Judge failed to put the defence case in respect of counts one and two by failing to direct the jury in relation to the matters in paragraphs (a) and (b).

74 They were matters again to which defence counsel had referred in his address as being matters which tended to effect the reliability of the childrens evidence.

75 It was not necessary in discharging her obligations that the Trial Judge remind the jury again of the arguments put by defence counsel.

76 That leaves the matter in paragraph (d). The appellant argued that the Trial Judge was under an obligation to point out to the jury that there was a risk of collusion, contamination or concoction, particularly having regard to the ages of the children and the delay in making a complaint.

77 The Trial Judge did not direct the jury that the children might have colluded in the giving of their evidence. Nor did she warn them that their evidence might have been concocted or indeed might have been contaminated. The evidence did not suggest that their evidence was as a result of their collusion or that it was concocted or contaminated. The Trial Judge did warn them that CN's evidence was inconsistent in part with her statement to the police. She pointed out the inconsistencies and directed the jury that if they thought the inconsistent areas important it might undermine any confidence they had in the witness. She balanced that direction by telling the jury that if they thought the inconsistency was trivial they might be inclined to overlook the inconsistency. In the end she properly left the matter to the jury.

78 She pointed out to the jury that CN had delayed in complaining about these matters. She told the jury delay might call into question the truth of the allegation. She directed the jury that there was no evidence to explain why there had been a delay and in view of that it would be difficult to attach much importance to the delay.

79 She referred, in her summing up, to an uncharged incident involving CN. The appellant, B and J gave some evidence inconsistent with CN's evidence on that topic. The Trial Judge directed the jury that they could use the evidence on that topic to evaluate CN's evidence. She said:

"... If, for example, you doubted CN's honesty and reliability in her description of the uncharged incident at (a country town), then that would likely give you cause for concern about all her evidence. That's for you to say. But that is a proper use of that evidence."

80 The Trial Judge, in my opinion, properly brought to the jury's attention those aspects of CN's evidence which might have affected their assessment of her credibility. She also directed them appropriately as to how the particular pieces of evidence could be used.

81 It was open to the Trial Judge to have referred to the possibility of collusion on the part of the children in giving their evidence but in the circumstances of this case she was not obliged to do so.

82 Immediately after the jury first retired they handed a question to the Sheriff's Officer in the following form;

"Does A (the accused) know of any reason why CN would want to vindicate (sic) him?"

83 There was some debate about how her Honour should answer the question and the appellant's counsel expressed some misgivings about her Honour's proposed answer.

84 In due course her Honour answered the question in the following terms:

"I think what is meant is does A, the accused, know of any reason why CN would falsely implicate him. That's the way I read that question. What I want to say in answer to that is this. The accused was not asked in evidence whether he knew of any reason why CN would falsely implicate him and so there is no evidence on that topic. And your decisions on this case must be based on the evidence and not on any speculation. But I remind you that the onus is on the prosecution to prove its case. It is not for the accused to advance reasons why someone would make up a false allegation against him. I hope that answers the question."

85 In my opinion the answer given by the Trial Judge was appropriate. She pointed out that there was simply no evidence on the topic and it was not for the jury to speculate on why CN would falsely implicate the appellant.

86 She again drew the jury's attention to their obligation to decide the case upon the evidence and not to speculate. She reminded them once again that the onus was on the Crown to prove the case against the appellant and no onus fell upon the appellant to advance reasons why someone would make up a false allegation against him.

87 It was put to her Honour, before her Honour answered the question, and again on appeal to this Court, that the direction in those terms failed to adequately direct the jury. It was put that her Honour should have directed the jury that an accused might not know why a false allegation is made and that experience has shown that there are many reasons why a false allegation might be made, or in some circumstances there may be no reason at all. The jury, it was submitted, should have been told that the fact that the accused might not know of the reason for the making of the false allegation does not mean that the allegations may not be false. The appellant relied on Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.

88 This case is quite different from Palmer v The Queen (supra). In that case the accused was cross-examined as to why the complainant might have a motive to lie about him. The High Court concluded that such a question was inadmissible because, unless the appellant could give a reason for the complainant lying, it would invite the jury to conclude that the complainant's evidence was truthful.

89 To that extent the standard of proof falling upon the prosecution would be diminished.

90 In this case the appellant was not confronted with that question nor could he have been. When the question was directed to the Trial Judge, the appropriate response for the Trial Judge was to inform the jury that there was no evidence of any reason, one way or the other, and that they were not to speculate upon why the complainant might have implicated the appellant.

91 That was, in my opinion, to answer the question directly and appropriately. Moreover, the Trial Judge correctly, in my view, reminded the jury of the obligations falling upon the prosecution and the lack of obligations falling upon the appellant.

92 It would not have been appropriate for the Trial Judge to descend into the detail suggested by the appellant. That would only be likely to confuse the jury. It would not have been appropriate for her Honour to direct the jury that an accused may not know why a false allegation is made when there is simply no evidence on that topic. Nor was there any evidence on the other topics to which counsel referred.

93 The proper response to the question was in the form of the answer given by the Trial Judge.

95 The accused wished to cross-examine the child CN as to whether she had earlier made allegations of sexual impropriety against a friend of her father's in Western Australia.

96 It was put on appeal that the evidence was relevant in that it would, if it were the case that she admitted making such a complaint, establish that the child had knowledge sufficient to make allegations of a sexual nature, and possibly had been exposed to sexual experience.

97 It was put that if, on the other hand, she admitted the allegation and admitted it to be false it may have provided a reasonable motive as to why she made a false allegation against this appellant and would possibly make the delay in making the complaint difficult to accept.

98 Although they were the alternatives put by the appellant other possibilities arose. It may have been that she might simply deny making the complaint.

99 The learned Trial Judge refused to allow the appellant's counsel to question the child about any earlier complaint of the kind mentioned. She held that such a question would give rise to a consideration of s 34I of the Evidence Act and, therefore required her leave. She refused leave upon the basis that the evidence would not have been of substantial probative value, nor would it have been likely materially to impair confidence in the reliability of CN's evidence.

100 The Trial Judge concluded, on the other hand, that it would very likely cause distress, humiliation and embarrassment to the child.

101 It appears that appellant's counsel articulated the reasons for wishing to cross-examine the child at trial in a different way to those given on this appeal. However, in the end result none of that matters much.

102 In my opinion, the first question, that is whether or not she had on an earlier occasion made allegations of sexual impropriety against a friend of her fathers in Western Australia, did not raise a consideration of s 34I, because the question however answered did not give rise to a consideration of the child's sexual activities, before or after the events of and surrounding the offences for which the appellant was charged.

103 If however the question had been permitted and the child had admitted making the complaint any further questions would have given rise to a consideration of the provisions of s 34I and would have compelled the Trial Judge to exercise her discretion whether leave should be given.

104 In the circumstances of this case inevitably the Trial Judge would have refused leave for the same reasons she gave in refusing leave to the first question.

105 If, on the other hand the child had answered no, then that would only have established that she had never made a report of that kind.

106 In my view the Trial Judge should have allowed the first question to be asked, but no miscarriage of justice has been occasioned to the appellant in her failing to do so because, even if the child had given an affirmative answer, a consideration of s 34I would then have arisen and the Trial Judge inevitably would have refused leave.

107 In my view that would have been, in the circumstances of this case, where the appellant's knowledge of this report was hearsay, a proper exercise of the discretion.

1. (1988) 49 SASR 47 at 62

2. (1988) 49 SASR 47 at 54 - 55, 62 - 65. See also Cox J in R v Pahuja (1988) 49 SASR at 204 - 212

3. (1988) 49 SASR 47 at 51

4. (1986) 42 SASR 203 at 207

5. [1971] HCA 55; (1971) 126 CLR 28

6. (1988) 49 SASR 191 at 194

7. [1937] HCA 56; (1937) 58 CLR 249 at 256

8. [1971] HCA 55; (1971) 126 CLR 28

9. Queen v Wilson, Tchorz and Young (1986) 42 SASR at 206

(1988) 49 SASR 47 at 62

[2] (1988) 49 SASR 47 at 54 - 55, 62 - 65. See also Cox J in R v Pahuja (1988) 49 SASR at 204 - 212

[3] (1988) 49 SASR 47 at 51

[4] (1986) 42 SASR 203 at 207

[5] [1971] HCA 55; (1971) 126 CLR 28

[6] (1988) 49 SASR 191 at 194

[7] [1937] HCA 56; (1937) 58 CLR 249 at 256

[8] [1971] HCA 55; (1971) 126 CLR 28

[9] The Queen v Wilson, Tchorz and Young (1986) 42 SASR at 206