R v BLAYNEY & BLAYNEY No. SCCRM-02-10, SCCRM-02-22 [2002] SASC 192

Court of Criminal Appeal: Doyle CJ, Lander and Williams JJ

DOYLE CJ: The appellants were each convicted on the verdict of a jury on one count of rape of Ms S. They were tried jointly. They appeal against the convictions on grounds that include challenges to the admission of certain evidence, a challenge to a procedural aspect of the trial, challenges to the correctness of directions to the jury and a ground that the verdict is unsafe and unsatisfactory. As developed, the latter ground raises the question of whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty.

The appellants are brothers. Hereafter, for convenience, I will refer to them as Erik and Daniel. The prosecution case was that Erik and Daniel had intercourse with Ms S while she was unconscious as a result of consuming alcohol, or so badly affected by alcohol as to be incapable of consenting to intercourse.

There was no direct evidence as to the alleged intercourse. Ms S did not remember intercourse occurring. She did remember some of the surrounding circumstances. Erik and Daniel said that they had no memory of intercourse occurring, although at trial they accepted that DNA material obtained from Ms S and from her clothing showed that each of them had had intercourse with Ms S at about the relevant time.

I will now summarise the relevant circumstances as briefly as I can.

Daniel was friendly with Ms S. He invited her and her friend Ms G to join him and Erik at a farm owned by Mr Threadgold. Daniel drove them to the farm. Also present were Erik, Mr Threadgold and his girlfriend. This happened quite late at night on Saturday 23 May 1998.

All except Mr Threadgold began drinking spirits. They played a card game which involved drinking. Ms S consumed so much of the spirits that she quickly became grossly intoxicated. She vomited in front of the others during the card game. She vomited again in the toilet. Her clothes were changed for her by her friend Ms G. It must have been obvious to all of them that she was seriously affected by alcohol. The others were also affected by alcohol, except for Mr Threadgold. But they were not as badly affected as Ms S.

Ms S said that she remembered going outside with Erik to get some fresh air. He helped her walk outside. She was having trouble walking, and was feeling sick. She sat on the back seat of Erik's car, then lay down on the seat. She was trying not to be sick again. She felt a hand under her shirt and on top of her bra. She felt pressure on her stomach. She felt someone touching her under her underpants. She did nothing to resist. She was too unwell to say or to do anything. She remembered hearing someone say "Cut it out, you've just had a kid." She did not know who said that. As it happened, Erik's girlfriend had given birth to a child just a few days before. Then she must have fallen asleep. She next remembered hearing her name spoken, and someone asked her to move. She was very groggy. She wriggled a bit and her jeans were pulled up. She did not know who did that. She woke up next morning about 8.30am. She was still in the car. Her shirt was undone. Her pants were wet and smelt of semen. She felt very unwell. She could not remember much from the night before.

She found that her friend Ms G had gone home. Ms S's car was at Ms G's home. Ms S was dependent upon one of those still at the house for transport. About an hour later she went with Daniel and Erik to the nearby town where she lived. Erik went to the local hospital to visit his girlfriend. Ms S had breakfast at McDonald's with Daniel. They collected Erik from the hospital and Ms S was then dropped at her parents' home.

Ms S rang Ms G. She wanted to see if Ms G could fill in the gaps, she was feeling very confused and did not have much memory of the whole night. Evidence about this telephone conversation is the subject of one of the grounds of appeal. The evidence of Ms G was to the effect that Ms S was distressed and upset on the telephone, and that Ms S said she thought she was raped during the night.

Shortly after talking to Ms G, Ms S contacted the police and made a complaint of rape.

Erik gave evidence. He said that he was very drunk. He agreed that he helped Ms S outside. He said that when they went outside she made a sexual advance to him, rubbing his groin. They kissed. His next memory was of Ms S lying on the grass, and he was having a cigarette. They talked for a while. Ms S seemed normal although she was drunk. Ms S then lay on her back on the back seat of the car. Erik was going to drive her home but decided not to, because he had drunk too much. Ms S fell asleep and he left her there and went inside. Although he denied having intercourse when questioned by the police, he accepted that the DNA evidence indicated that he had had intercourse that night with Ms S. He said he would not have had intercourse in the back of the car. He suffered from a muscular disorder that would have made that difficult.

The relevant part of Daniel's evidence was to the effect that at a certain stage he went outside the house, Ms S was lying on the grass and Erik was nearby. Some time later when Ms G left, Daniel went outside again and saw Ms S lying on the back seat of the car. The door of the car was open. Erik was leaning into the car, over the top of her. Daniel said to Erik "Back off, you have just had a kid." He couldn't explain why he said that to Erik. Later Daniel took a doona out to Ms S, who was still in the car. She spoke to him. She pulled him towards her and they kissed. His next memory was of being sick. He went inside and left Ms S in the car.

Erik and Daniel gave evidence that in due course they went to sleep inside the house.

The prosecution case was that Erik was touching Ms S in a sexual way while she lay on the back seat of the car. That was why Daniel made the remark referred to above. The Prosecutor argued that Daniel was present while Erik had intercourse with Ms S as she lay on the back seat of the car, and that Daniel then had intercourse with her, or that Daniel had intercourse with her later when he took the doona out to her.

A detective spoke to Erik at his home at about 2.15pm on Monday 25 May 1998, the day after Ms S complained to the police. Erik voluntarily accompanied the detective to the police station and was interviewed by him. Daniel went to the police station later that day, having heard that Erik had gone there and that Ms S was making allegations against them.

That is a summary of the critical evidence. I emphasise that Ms S could remember no more than outlined above. She could not say who was touching her. She had no memory of having intercourse with anyone. She was not able to deny that she behaved in the manner described by Erik and Daniel, in particular she could not deny the sexual conduct that they alleged. She had no memory of it happening. Neither Erik nor Daniel had any memory of intercourse with Ms S, but accepted that it must have happened.

The Information came on for trial before a Judge of this Court in June 2001. Counsel for Erik objected to the admission of evidence of the short conversation that took place when a detective went to Erik's home on Monday 25 May and asked him to come to the police station for an interview. Counsel for the Director indicated that she did not propose to lead evidence of the conversation because it had not been recorded as required by s 74D of the Summary Offences Act ("the SOA"). The effect of the submissions before the Judge appears to be that because counsel for Erik objected to one question and answer only, evidence of the conversation would be led but the relevant question and answer would not be led. The question was one in which the detective said that Ms S was alleging that Erik had had sexual intercourse with her without her consent, and that that amounted to rape. The answer from Erik was "I didn't do anything to her."

The result was, as I understand it, that there was no objection to counsel for the Director leading evidence of the conversation at the house, provided that the relevant question and answer were excluded. There was no objection to evidence of the later recorded interview.

Other objections were argued. The Judge delivered a ruling in relation to certain evidence proposed to be led from Ms S, and in relation to evidence about the complaint made by Ms S in the telephone conversation with Ms G.

On the third day of the trial the Judge discharged the jury as a result of a remark made by Ms S.

On 4 December 2001 the trial began again, before a Judge of the District Court. Counsel told the Judge that they were content to proceed on the basis of the rulings made by the Judge of this Court. Those rulings were given to the Judge. On the second day the Judge discharged the jury when it came to light that one of the jurors knew the father of the accused.

The third trial began on 6 December 2001. Counsel again informed the Judge that they would abide by the rulings made at the first trial.

The evidence of the conversation with Erik at his home was led, excluding the relevant question and answer. Evidence of the recorded interview with Erik was also led, without any objection, it having been agreed that part of that conversation would not be led in evidence. However, as will emerge, there is now a complaint about part of that evidence.

The Judge at the first trial ruled, before any evidence was taken, that Ms S and Ms G could give evidence about the telephone conversation between them on Sunday 24 May 1998. He gave his ruling on the basis of depositions tendered at the preliminary hearing. The Judge published detailed reasons for the ruling. In her statement Ms S was rather vague about the conversation. She said that she told Ms G "I thought something might have happened to me, I don't think I said that I thought I may have been raped." In the circumstances, it is not surprising that she was vague about the conversation nor is the general nature of the conversation surprising. If Ms S was telling the truth, she had little memory of what had happened the night before, and it would have been natural to see if Ms G could, as Ms S said "fill in any of the gaps in my recollection of that night."

Ms G's statement was rather more detailed and more specific. According to Ms G, Ms S said she thought that Erik was raping her, and that Daniel had started to take over from Erik. Ms G said that Ms S was upset and crying.

The Judge rejected a submission that the complaint was not admissible because it was not made at the first reasonably available opportunity. I agree with the reasons that the Judge gave for so ruling. In brief, when Ms S woke up she was in a difficult situation. Her memory of what had happened was patchy. It is understandable that she might not have wanted to challenge or to offend Daniel or Erik, until at least she had had a chance to think about things. Ms S was barely acquainted with Mr Threadgold and his girlfriend, and it is understandable that she would not wish to confide in them. There are other factors to which the Judge refers, and I am content to adopt his reasons.

I agree also with the Judge's conclusion that what was said in the conversation amounted to a complaint. What Ms S said to Ms G was in the nature of a complaint, even if there was no specific allegation of rape. It suffices that a grievance was expressed, and that was clearly done. Once again, I am content to adopt the reasons given by the Judge for so deciding. His reasons are reported at [2001] SASC 211.

On the appeal, the points argued before the Judge at the first trial were argued very briefly, and I am content to deal with them equally briefly as I have done.

A further point was taken. At the third trial, it came out in the cross-examination of Ms S that before she went home and telephoned Ms G, she passed quite close to the local police station. This was not raised when the Judge made his ruling at the first trial. At the third trial some point was made of this by way of cross-examination of Ms S. But, significantly, the Judge at the third trial was not asked to revisit the question of the admissibility of the complaint. Of course, Ms S had given her evidence by then, but Ms G had not yet given evidence. Be that as it may, on appeal it was submitted that this further evidence undermined the ruling made by the Judge at the first trial, and should have led to the conclusion that the complaint was not made at the first reasonably available opportunity.

First of all, I consider that the additional fact is not a reason to reject the evidence. The fact that Ms S passed by the local police station does not alter my conclusion that the complaint was made at the first reasonably available opportunity. It was reasonable for Ms S to want to speak to Ms G before she did anything else. Second, I consider that in this respect the appellants are bound by the course taken at trial. Nothing was put before us on appeal to suggest that it was not reasonable to expect the appellants to have raised from the outset the fact that Ms S passed close to the local police station. Erik and Daniel lived in the same town. There is no reason why the point could not have been raised at the first trial. By the time of the third trial that point has even more force. There was an opportunity before the third trial began to revisit the admissibility of the complaint, if the appellants wished to do so. The reasons of the Judge at the first trial, in the final paragraph, refer specifically to the fact that the objection had been argued on the depositions, and that if the evidence departed from the depositions the admissibility of the complaint could be revisited. My view is that even if, for some reason, counsel was not alerted to the location of the police station until after Ms S had given evidence-in-chief, it is now too late for that matter to be raised and relied upon as a miscarriage of justice.

The objection on appeal to the admission of the video recorded interview with Erik raises matters not argued at trial.

The submissions on appeal draw on the judgment of this Court in R v Day [2002] SASC 95, a decision after the trial. It is now argued that s 74D of the SOA required that the conversation between the detective and Erik at Erik's home should have been recorded on videotape or audiotape. That point, as I have mentioned, was mentioned at the first trial by counsel for the Director as her reason for not proposing to lead the evidence of that conversation. So the point was present to the mind of those concerned. Mr Crocker next submits that the conversation at Erik's home constituted one part of "a series of conversations" for the purposes of s 74C of the SOA. The other part is the video recorded interview. That being so, Mr Crocker argues that the two conversations together constitute an interview for the purposes of s 74C, and because the first part of the interview was not recorded as required by s 74D (it is not disputed that the first part was not recorded as required by s 74D) the interview as a whole is rendered inadmissible by s 74E. This submission was not advanced at trial.

While the decision of this Court in Day may have alerted practitioners to the fact that an interview is defined by s 74C as including "a series of conversations", it should be borne in mind that these legislative provisions have been in force since 1996. That is a matter to be borne in mind when assessing the significance of the fact that, at trial, there was no objection to evidence of the recorded interview, or, ultimately, to evidence of the conversation at Erik's home. No material was placed before the court on appeal to support a submission that, for some reason, Erik should not be bound in this respect by the manner in which the trial was conducted.

I consider that the conduct of the case for Erik at trial amounts to a waiver of any objection to the admissibility of the evidence, and to the admissibility of the evidence of the conversation at Erik's home. I consider that there is nothing unfair in so deciding. In any event, I am satisfied that there were compelling grounds for the Judge to have decided, had the point been raised, that the evidence should be admitted on the basis that "the interests of justice require the admission of the evidence": s 74E(1)(b) of the SOA. There was no dispute about the accuracy of the evidence of the interview. The interview itself was conducted properly and fairly. If the interview and the earlier conversation were part of a single interview, the failure to comply with s 74D in relation to the earlier conversation can be regarded as a relatively minor matter. The substance of the earlier conversation was, in any event, repeated at an early stage of the recorded interview.

The submission on appeal proceeded on the assumption that the earlier conversation and the recorded interview were each part of the one "series of conversations". It is not necessary to decide that point now, but I wish to make it clear that I do not necessarily accept the premise.

The detective went to Erik's home to locate him, to identify him, and to ask him if he would agree to be interviewed at the police station. This conversation could have lasted no more than a minute or two.

The conversation and the interview are, in one sense, a series of conversations. One followed the other after quite a short interval, they involved the same people, they related to the same topic. But separate conversations should be regarded as constituting the one "series of conversations" only if there is some reason to do so. The matters identified by me are not, of themselves, such as to require a conclusion in every case that the conversation and the interview constitute "a series of conversations" for the purposes of s 74C. It is unlikely that Parliament intended to treat as one interview all conversations with a suspect simply because, in the sense identified, they can be said to be part of the one series.

Despite the matters identified by me, it is still necessary to consider whether those matters lead to the conclusion that the two conversations are part of the one series. I have no doubt that there will be circumstances in which it would be appropriate to regard successive conversations between an investigating officer and a suspect as separate interviews, and not as a single interview. It is impossible to identify in advance the circumstances in which that will be so, but that does not lessen my confidence that there will be such circumstances. Successive conversations are not necessarily part of the one series simply because they involve the same people and the same subject matter.

The conversation between the detective and Erik at Erik's home involved nothing more than the identification of Erik as the person the subject of an allegation, a brief indication of the allegation and a request to Erik to submit to an interview. There are strong arguments to support a conclusion that this conversation was quite separate from the more formal interview that followed a little later. It suffices to say that there are substantial grounds for thinking that the conversation at Erik's home should not be regarded for the purposes of s 74C and s 74D of the SOA as part of the interview which was conducted at the police station.

There is a further complaint. The recorded interview included some of the material from the first conversation that counsel for Erik had objected to, and that counsel for the Director agreed not to lead. Early in the recorded interview the detective asked Erik if he agreed that, while at Erik's home, the detective had told Erik that Ms S was alleging that Erik had sexual intercourse with her without her consent, and that that allegation amounted to an allegation of rape. However, as it happened, the detective did not repeat what Erik had said, namely "I didn't do anything to her." As I understand the submission, it was this answer which was the main basis for the objection to which the Prosecutor, rather generously, acceded. I should add that a little later in the recorded interview the detective repeated that Ms S was alleging that Erik had sexual intercourse with her without her consent.

The submission on appeal is, as I understand it, that it was unfair to lead evidence of the recitation of the allegations, as the Prosecutor had agreed to exclude that portion of the conversation at Erik's home.

There is no substance in this point. First of all, no objection was taken at trial to the leading of the evidence. Even if that was the result of some oversight, and I add that no explanation has been provided to the Court, my view is that the relevant material is quite inconsequential. It amounts to nothing more than the detective repeating, for the purposes of the recorded interview, that he had told Erik that Ms S was alleging sexual intercourse without her consent. Moreover, immediately thereafter, and after cautioning Erik, the detective asked the direct question "Did you have sexual intercourse with her last Sunday morning" to which Erik replied "No". No objection was taken or, to my mind, could have been taken to this question and answer. In the light of that, the admission of the material complained of is of no significance.

For those reasons I reject this ground of appeal.

A further ground of appeal is that at the third trial it was the duty of the District Court Judge to determine any questions that arose relating to the admissibility of evidence, and that it was not open to the District Court Judge to adopt, expressly or by implication, rulings made by the Judge at the first trial, even with the consent of the parties.

I agree that the District Court Judge had to determine for himself any questions that arose relating to the admissibility of evidence. He was not bound by the rulings made by the Judge at the first trial. It would have been better if counsel had distinctly identified to the Judge any objections to the admissibility of evidence that they wished to raise, informed the Judge of the rulings previously made, and, if they so chose, informed the Judge that while renewing the objections they did not wish to put any further submissions were the Judge minded to make the same rulings as were made by the Judge at the first trial. While to some this may seem a pointless procedure, it would bring home to the trial Judge the fact that particular points were being pressed, and the need for the trial Judge to consider them for himself, even though he might, as a matter of convenience, simply indicate that his rulings were the same as those previously made, and for the same reasons. He could do so if, having considered the previous rulings and reasons, he agreed with them.

But in the circumstances of the present case I consider that there has been no error of law, and no miscarriage of justice. Having regard to the manner in which counsel conducted the third trial, they must be taken to have invited the trial Judge to adopt the rulings previously made. It was open to the Judge to do that, as long as the Judge did so by way of expressing his agreement with the rulings previously made. It may be that the course taken by counsel could be regarded as a waiver of objections to admissibility, to the extent that counsel did not inform the Judge that particular objections were being pursued, but I do not proceed on that ground. Finally, in my opinion the appellants are bound by the course taken at trial. As counsel at trial adverted to the previous rulings, and informed the Judge that they invited him to proceed on the basis of those rulings, it cannot be said that any technical flaw resulting from a failure of the Judge to make a decision for himself gives rise to any miscarriage of justice.

The Judge told the jury on several occasions, in clear terms, that they could convict the appellants only if satisfied of their guilt beyond reasonable doubt. The Judge also told the jury, in the usual way, that it was for them to decide which witnesses they believed, wholly or in part. Having given the jury guidance on how to deal with inconsistencies, and on how to assess the credibility of witnesses, the Judge said:

"By way of summary on this topic, the position comes to this: if, on the evidence, you the jury, conclude that the accused is innocent you will, of course, acquit. But if you, the jury, are not satisfied of his guilt beyond reasonable doubt, you will also acquit. I say to you that if, at the end of the day, you are genuinely uncertain as to where the truth lies in this matter, then you cannot consider yourselves to be free from reasonable doubt and you must acquit.

I want to say a little more to you about witnesses. In the course of arriving at the truth of these matters as you see them, you will have to consider the various witnesses who gave the evidence they did in this case. You are the sole judges of the facts and, therefore, it is for you, and you alone, to decide whether you believe the whole or any particular part of the evidence of any witness."

The Judge then said a little more about how witnesses could be assessed. He introduced this by referring to arriving "at the truth of these matters as you see them". He concluded by referring to the fact that some of the witnesses would have been in the witness box for the first time in their lives. He then referred to demeanour of witnesses and the truthfulness of witnesses, and said:

"It is a matter for the commonsense of the jurors to try and assess where they can place their reliance in arriving at the truth of this matter."

Mr Crocker submits that these directions were erroneous, and undermined the direction that guilt must be established beyond reasonable doubt. He submitted that these directions would have led the jury to believe that all they had to do was to decide where the truth of the matter lay, and that to so direct them was an error of law: see R v Calides (1983) 34 SASR 355.

51. In the first of the passages quoted, the Judge did no more than tell the jury the circumstances in which they should acquit. What the Judge said could not have left the jury in any doubt that they should convict only if satisfied of guilt beyond reasonable doubt. This direction did not undermine the direction that the jury should convict only if guilt was proved beyond reasonable doubt.

52. The Judge then turned, or returned, to the issue of the assessment of witnesses. For obvious reasons the Judge gave the jury guidance on how to decide if witnesses were truthful or not. His reference to the truth of the matter arose in that context. The directions that the Judge gave the jury on this topic are in a form commonly used in the District Court and in the Supreme Court. In the context of the assessment of witnesses, I consider that the manner in which the Judge directed the jury was appropriate.

In the course of the summing up the Judge directed the jury as follows in relation to Ms G's evidence that Ms S was upset when she telephoned Ms G:

"You also heard [Ms G] say that [Ms S] was upset and distressed over the telephone. When signs of an alleged victim's distress are consistent only, and I repeat only, with them arising from the commission of the offence alleged against the accused, those signs are matters of importance, but for them to be important at all, you must be satisfied that the signs of distress are consistent only with the commission of the offence alleged against the accused and that they are not consistent with having been caused by something else."

I do not accept the submission that this direction was erroneous because there was no evidence from Ms S that she was upset during the telephone call. The direction was properly given on the basis of the evidence from Ms G.

However, in two respects the direction was deficient. It is well established that evidence of distress is admissible on the basis that it is part and parcel of a complaint, and on the basis that usually evidence of distress can be used only as evidence of consistency of behaviour and so as supporting the credibility of the witness: see R v Green [2001] SASC 25; (2001) 71 SASR 463 at 22-23 Doyle CJ, at 145-147 Olsson J. The Judge explained this to the jury.

The Judge should have reminded the jury that in deciding what to make of Ms G's evidence, they should bear in mind the possibility that Ms S's distress might have been attributable to something other than the commission of the alleged offence. For example, Ms S might have regretted her behaviour in becoming seriously intoxicated, and might have become upset when discussing the evening's activities. If she had consented to intercourse, she might have regretted that. More importantly, the Judge should have told the jury that when they came to consider whether they were satisfied beyond reasonable doubt that neither Erik nor Daniel believed that Ms S was consenting to intercourse, the fact that she was upset and distressed when speaking to Ms G was of no assistance to them. As Ms G had given and could give no evidence bearing in any significant way on this topic, the fact that she believed that they had had intercourse without her consent was irrelevant to proof of the state of mind of Erik and Daniel. It was important to point out to the jury that material that might buttress Ms S's credibility generally could not, in the particular circumstances, assist the jury in resolving this particular aspect of the case.

If these two deficiencies stood alone, they would not be enough to cause me to conclude that there was a real risk of a miscarriage of justice. I say that because, in the end, the jury were clearly told that this evidence went only to Ms S's credibility, and because the risk of them misusing the evidence is low. As well, I think it likely that the jury would have realised that there might be reasons for Ms S to be distressed, other than a belief that she had been raped.

In cross-examination, the Prosecutor asked Erik why he told the police that he did not have intercourse with Ms S. Erik said this was because, at the time, he did not believe that he had had intercourse with her. The conversation took place before the results of the DNA evidence became available. The Prosecutor then put it to Erik that this was a lie. He denied that. She then said:

"What's happened you have been caught out in that lie by the DNA evidence, haven't you?"

He replied "No." Daniel was cross-examined in a similar fashion, although there was no reference to him having been "caught out" by the DNA evidence. In her final address the Prosecutor attacked the credibility of Daniel and Erik, and in particular their claim not to remember key parts of the events of the night, even though they could remember other parts quite clearly. She also attacked the credibility of their denial of intercourse to the police. The Prosecutor never suggested that this was more than a credibility issue.

Despite this, the Judge gave the following direction to the jury. He referred to the suggestion in cross-examination that Erik had lied, and had been caught out by the DNA results. He then said:

"Members of the jury, it is my duty to give you the following direction concerning that argument by the Crown. It is open to you to infer that an accused entertains the consciousness of his own guilt of the crime if but only if you are satisfied beyond reasonable doubt of the following matters: first, that the statements attributed to him were indeed made by him. Second, that the statements were lies, that is, they were not only untrue but that he knew at the time that he made them that they were untrue. Thirdly, that the only reasonable explanation for his telling lies was his consciousness of guilt of this crime, not of some other wrongdoing or because of some other reason to say what he did.

If you are satisfied beyond reasonable doubt that Erik and Daniel in what they said to the police, that they had not sexual intercourse with [Ms S], were telling lies in that way and that they did so because of a consciousness of guilt of the crime you could use that consciousness of guilt as evidence of the actual guilt but, in doing so, you should be very careful to consider the possibility that there were other reasons why they said something untrue. Of course, you have the evidence of each of them. In Erik's case, he said that he said 'No' to the question because he did not then believe that he had had sexual intercourse with [Ms S]. And as to Daniel, he told you when he spoke to the police he did not know, he had no memory of having sexual intercourse with [Ms S]."

I consider that this direction was inappropriate and erroneous. The Prosecutor never suggested that the lies in question, if they were lies, could be used to infer consciousness of guilt. There was no reason to fear that the jury would have reasoned that way. In Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 at [16] the High Court said:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards [1993] HCA 63; (1993) 178 CLR 193 at 211, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)"

The reasons for this cautious approach are well known. There are many occasions on which appeal courts have found errors in directions relating to lies. It is generally recognised that there is a danger of a lies direction distracting the jury, and causing them to focus unduly on the issue. It is pertinent to repeat yet again what King CJ said on the topic in Harris v The Queen (1990) 55 SASR 321 at 323:

"The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt."

With all respect to the Judge, there was no occasion for the direction that he gave. If anything, the Judge should have told the jury not to use this lie, if it was one, as doing anything more than reflecting on credit. The direction gave rise to a risk that the jury would have attributed undue significance to what might seem to be a clear-cut issue - did Erik and Daniel lie when first spoken to by the police? There is a further problem. The Judge did not emphasise adequately to the jury the need to consider the possibility that even if Erik and Daniel lied to the police, they did so for a reason other than consciousness of guilt. There were other possible explanations for a lie, if one was told. Erik's girlfriend had just had a baby. Disclosure of intercourse with another woman at that time would have been embarrassing. Even if consensual intercourse had occurred, both Erik and Daniel might have been embarrassed by the circumstances under which it occurred, and might initially have denied intercourse for that reason. There were other factors to be borne in mind. These were not given adequate emphasis by the Judge. It was not enough simply to say that it was possible "that there were other reasons why they said something untrue."

I consider that this direction is a substantial deficiency in the summing up. It raises the risk of the jury having given undue prominence to the initial denials that intercourse occurred.

Mr Crocker submits that the summing up is deficient because the Judge did not warn the jury against discounting the evidence of Erik and Daniel, simply because they were the accused.

There is no general rule that a Judge must routinely caution a jury in those terms. Whether it is necessary for the Judge to give the jury any guidance in relation to the assessment of the accused will depend upon the circumstances of the case. In R v Ong [2001] SASC 437; (2001) 80 SASR 537 the Court took the view that, in the particular circumstances, it was necessary for the Judge to give the jury guidance on the proper use of the evidence of the accused. But that simply reflects what was necessary in that case.

In the present case the Judge reminded the jury of the need to evaluate the evidence of Daniel and Erik, and to assess that evidence against the other evidence. In effect, he was telling the jury to treat them like any other witness. Later he emphasised that the accused could have remained silent, but chose to enter the witness box and submit to cross-examination. He told the jury that if they saw fit they could give credit to the accused because they did that.

In my opinion the directions that the Judge gave were quite adequate in the circumstances.

A separate complaint advanced by Mr Crocker was based on the following sentence in the summing up:

"There is the evidence given on behalf of the Crown, the evidence of the accused which I suggest you scrutinise carefully."

Mr Crocker submitted that this would have been understood by the jury as a direction to submit the evidence of the accused to particular scrutiny. If the Judge had said that, that would have been an error, particularly if it implied that the evidence of the accused should be doubted. But there is no reason to think that this is what the Judge said, what the Judge meant, or how the jury would have understood what the Judge said. This sentence occurs in the middle of a paragraph in which the Judge was speaking to the jury about evaluating the evidence as a whole. I suspect that, as delivered, the relevant sentence was nothing more than a direction to scrutinise carefully all of the evidence in the case, the evidence for the prosecution and the evidence for the defence. Immediately after the sentence in question the Judge began by referring to "The totality of this evidence ...".

It is significant that none of the counsel commented on this passage, which came within a few minutes of the conclusion of the summing up. I am confident that if any counsel had formed the impression that this portion of the summing up might have been misunderstood by the jury, they would have raised it with the Judge.

The case called for careful directions about the effect of intoxication on Ms S and on Erik and Daniel.

The jury had to be satisfied beyond reasonable doubt not only that Ms S did not consent to intercourse, but also that Erik and Daniel knew she was not consenting, or were recklessly indifferent as to whether she was consenting. In the circumstances, there was a need for careful direction to the jury about the effect of intoxication on Erik and Daniel, and in particular on how they might have perceived or understood Ms S's behaviour and her state of mind.

Particularly significant was the evidence given by Erik and Daniel of sexual advances made by Ms S. She had not been able to deny that she did what they claimed she did, because of her lack of memory. If the jury considered it a reasonable possibility that Ms S did behave as they claimed, it was necessary for the jury to give careful consideration to the significance of this behaviour when deciding if they were satisfied that Erik and Daniel nevertheless knew, when intercourse occurred, that she was not consenting, or were recklessly indifferent as to her consent.

The Judge in my respectful opinion generally dealt quite adequately with the issue of intoxication. But there is a difficulty with this particular aspect of intoxication. The Judge identified to the jury this element of the offence, the state of mind of Erik and Daniel, as the third element. He told the jury that the intoxication of the accused:

"... may, of course, affect your estimate of his credibility and reliability as a witness and it may also affect your assessment of the accuracy of his perceptions at the time of the events and their occurrence."

Then he dealt with the intoxication of Ms S, and the question of whether she was consenting. In the course of doing so he referred to the evidence by Daniel and Erik about the claimed sexual advances, referring to this behaviour as "sexual touchings."

After that he turned to the question of the state of mind or belief of the accused. He said:

"If you are satisfied that [Ms S] did not consent to the act of intercourse with the particular accused, you must then turn to the third element, namely that the particular accused knew she was not consenting, or he was recklessly indifferent as to whether she was consenting. Here again, the question of intoxication assumes a potential significance in this case, in relation to the perception of the accused at the time of the alleged intercourse. In the course of your deliberations, you ought to ask yourselves whether it is reasonably possible that the accused was intoxicated to the point that his perception was dulled so that he misinterpreted or misunderstood body movements or conduct on the part of [Ms S]. It is possible that the alcohol could have affected his interpretation of [Ms S's] reactions, particularly if you feel that her reactions were, in any sense, conflicting or ambiguous."

After that he reminded the jury that the prosecution had to prove that the accused knew Ms S was not consenting, or were recklessly indifferent as to consent, and then he repeated, in slightly different terms, the direction that I have just set out.

Mr Crocker submitted that, in the passage set out, it was an error to refer to intoxication as having "a potential significance." He contrasted this with the directions relating to the intoxication of Ms S, where there was no suggestion that intoxication was merely of "potential significance." I reject this submission. There is no risk that the jury would have been misled by the way in which the Judge expressed himself.

However, I accept the further submission by Mr Crocker about this aspect of the summing up. I agree that the direction did not emphasise sufficiently the significance which a jury could attach to the sexual advances alleged by Erik and Daniel. I am not satisfied that the jury would have understood the reference to "body movements or conduct" as a reference to this evidence. The Judge had previously referred to this conduct as "sexual touchings." There is a risk that the jury might have understood the reference to "body movements or conduct" in the passage set out, as a reference to something else, and in particular to the passivity of Ms S during intercourse, or to the absence of resistance. This risk is enhanced by the fact that the Judge spoke of Ms S's "reactions", which might have been taken as a reference to her reaction to the initiation of intercourse.

Viewed as a whole, this aspect of the evidence of Erik and Daniel is somewhat unlikely. But the case is unusual, to the extent that Ms S was unable to deny as part of her evidence. It was important that this part of the case be dealt with adequately. I consider that there is a risk of a miscarriage of justice arising from the failure to link the evidence by Daniel and Erik about sexual advances, sufficiently clearly, with the issue of their state of mind.

In M v The Queen (1994) 181 CLR 491 Mason CJ, Deane, Dawson and Toohey JJ pointed out that in criminal appeals counsel and courts have often referred to the question of whether a verdict is unsafe or unsatisfactory, even though that expression does not appear in the relevant legislation: at 491-492. However, as they went on to say, the common form criminal appeal provisions in Australia do allow a verdict to be set aside if a verdict is unsafe or unsatisfactory, as that expression has been explained in the cases. As their Honours said (at 493):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (citation omitted)

Just what is involved in the application of that test has been the subject of some difference of opinion within the High Court. That difference sufficiently emerges from the reasons of Brennan CJ in M v The Queen and from his reasons in Jones v The Queen (1997) 191 CLR 439 at 441-444. However, the approach taken by the majority in M v The Queen was confirmed as the correct approach by Gaudron, McHugh and Gummow JJ in Jones at 452.

In Gipp v The Queen (1998) 194 CLR 106 Kirby J referred to the persisting use of the expression "unsafe or unsatisfactory", despite its absence from the common form statutory provision: at 147-149. As he pointed out, there is a danger that the use of the expression "unsafe or unsatisfactory" might mislead, and might distract attention from the specific criteria found in the statutory provision.

It is worth bearing this in mind. In the present case the submission, as I understood it, is put in a form which poses the question identified by the majority in M v The Queen. The issue is whether it was open to the jury to be satisfied beyond reasonable doubt that Erik and Daniel were guilty. It is not suggested that there was a lack of evidence to sustain a verdict. Accordingly, the effect of this submission is that there has been a miscarriage of justice because it was not open to the jury to be satisfied beyond reasonable doubt that Erik and Daniel were guilty.

We were provided with detailed written particulars in support of this ground. Matters that were particularly emphasised were the gaps in Ms S's evidence, her general poor memory, the fact that she was unable to deny the evidence of the alleged sexual advances, some discrepancies in the evidence of Ms S, and some peripheral matters on which it was suggested that other evidence showed her to be mistaken.

Despite the matters referred to, I consider that it was open to the jury to be satisfied of guilt beyond reasonable doubt. The evidence that intercourse had occurred was powerful. The evidence about Ms S's state of intoxication, coupled with her own evidence, provided a firm basis for a finding that she had been incapable of consenting or in any event had not consented to intercourse. In the circumstances notwithstanding the significance of the evidence by Erik and Daniel about the sexual advances, and about their own lack of recollection of intercourse, I consider that there was evidence on which it was open to a jury to be satisfied beyond reasonable doubt that they knew Ms S was not consenting to intercourse, or were recklessly indifferent to her consent.

For those reasons I would reject this submission.

In my opinion the verdict should be set aside.

The directions as to lies and directions on intoxication give rise to a real risk that the jury would have put undue emphasis on one aspect of the evidence, and may not have fully appreciated the significance of the defence case in relation to the issue of the intent of the accused. For those reasons there has been a miscarriage of justice, and that is why the verdict must be set aside.

I would order a retrial. It is unfortunate that it is now four years since the events in question. Nevertheless, there is evidence capable of supporting a conviction, and I find no reason not to order a retrial.

LANDER J. I agree for the reasons given by Doyle CJ that this appeal should be allowed and there should be an order for re-trial.