Supreme Court of SA|1993-06-17|Before: Legoe ACJ

COLIN JOHN HICKMAN v. R No. SCCRM 93/58 Judgment No. 3993 Number of pages - 13 Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up (1993) 60 SASR 415 [1993] SASC 3993 (17 June 1993)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), MATHESON(2) AND PERRY(3) JJ

CWDS Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up Reasons for allowing appeal - trial judge did not properly direct jury on the right of an accused to elect to give or not to give evidence and the way this evidence should be considered by jury - failure to give adequate corroboration warning as to the youth of the victim at time of offence - details as to what should be included in such a warning - propensity chain of reasoning where acts of sexual intercourse other than those charged. Directions to be given to jury where complaints made in cases of sexual assault where witness called by Crown to support credit of prosecution witness

HRNG ADELAIDE, 18 May 1993 #DATE 17:6:1993 Counsel for appellant: Mrs M E Shaw Solicitors for appellant:
Olsson and Co Counsel for respondent: Ms W J Abraham Solicitors for respondent: Director Of Public

JUDGE1 LEGOE ACJ This court announced its decision at the conclusion of argument, namely, that:- (1) the appeal be allowed; (2) the three convictions be set aside; and (3) that the appellant be retried on the information. 2. The court reserved the right to give reasons later. I deal with the grounds of appeal as amended by leave of the court in the order in which they were argued by counsel. 3. Ground 8 was made the principal attack on the summing up. The passage in the summing up is set out in the reasons of my brother Perry J. At the trial, counsel for the defendant now appellant at the trial requested a redirection on this point. But the redirection, which is also set out in Perry J's reasons, did not, in my opinion, correct the error. Counsel for the respondent said that "it would have been preferable if that remark had not been made". In the context the learned trial judge did not direct the jury on the right of an accused to elect to give or not to give evidence at the trial, and the way such evidence should be considered by the jury. I agree with Perry J that this ground has been established. In my opinion the other grounds should be reviewed in order to assess the overall effect of this misdirection. 4. Grounds 1 and 2 challenge the adequacy of the warning given to the jury. Perry J has fully reviewed the relevant authorities. In my opinion the fact that the youth of the victim at the time of the alleged offences (two some eight years prior to the trial and the most recent some five to six years prior to the trial) called for a very careful and clear direction on the particular facts. In my opinion the learned trial judge gave a reasonably comprehensive summary of the arguments for and against accepting the evidence of the victim. However, there was no real stress laid on the care that the jury should take in deciding the case on her evidence alone. The learned judge did refer to the fact that there was "no supporting evidence ..." for the victim's account. But the learned trial judge then gave a further series of "pros" and "cons" in relation to her evidence. His Honour added "There is no corroborative evidence" without directing the jury as to what amounts to corroboration - "In giving the warning, it is not necessary to use the word 'corroboration', but if it is said, the jury should be given an explanation of what it means" R. v. Byczyko (No.1) (1977) 16 SASR 506 cited in R. v. Duke (1979) 22 SASR 46 at 50 per King CJ. In this summing up a warning was not spelt out in so many words, but the word "corroboration" was used more than once without any explanation. R. v. Duke ibid. 5. I agree with Perry J that it is in the discretion and judgment of the trial judge as to the extent of the direction and warning to be given to the jury on evidence of children which in part may be determined by the age of the child, and the circumstances in which the complaint of sexual interference with that child arose. But I do not find it particularly helpful to approach the adequacy of a summing up by saying that "some sort of warning" based on the age of the child may be necessary. The trial judge has the advantage of seeing and hearing the child give evidence. It is a notorious fact that the child witness can be as impressive or unimpressive as other witnesses. However, I do consider this summing up was not adequate in view of the issues which arose at the trial on the victim's account, and the younger age of the child at the time of the offences. 6. I agree with Perry J that relevant material to be put to a jury on facts like this case without laying down an exhaustive list may include:- (a) a warning about the dangers upon the evidence of a victim aged between nine and 10, and later 11 to 12, at the time of the offences; (b) the fact that there is some evidence of hatred; (c) the fact that a child of that age made no complaint for some time afterwards; (d) the risk of motivation to concoct the story when desiring compensation; (e) the fact that the delay deprived the appellant of an effective contemporary opportunity of investigating the circumstances. 7. In general, the jury should be told of the reason for giving a warning. 8. I would uphold grounds 1 and 2. Grounds 3 and 4 raise questions as to the adequacy of the summing up in assisting the jury as to the use to be made of the victim's evidence that acts of intercourse had occurred on occasions other than the three occasions charged, and the propensity chain of reasoning that evidence may suggest to the jury that they adopt. Such evidence is admissible but the basis for allowing such evidence to go to the jury should be clarified. See The Queen v. Etherington (1982) 32 SASR 230. I consider these two grounds are closely bound up with grounds 1 and 2, and when combined, should be allowed. 9. Ground 5 alleges that the evidence of the witness Liz Wilkey should not have been admitted. It was argued by counsel for the respondent that this evidence was admissible in consequence of the cross-examination of the victim and her mother. The victim was cross-examined on her version for failing to complain about the alleged acts of sexual intercourse until after the appellant had left the house. It was submitted that the victim's evidence and explanation that she was scared of the appellant was put "into context" by the evidence of Elizabeth Wilkey. The cross-examiner was probably suggesting recent invention or reconstruction or similar foundation by the victim. But I cannot see how that cross-examination permitted the Crown to lead the evidence of Liz Wilkey on the unrelated topic of violence inflicted on the victim's mother on a quite separate occasion. 10. I agree with counsel for the appellant:- (a) The prosecution cannot in general call evidence supporting the credibility of its own witness - Cross on Evidence Australian Edition 1991, para.17250. (b) The prosecution may not call another witness to prove a prior consistent statement. R. v. Parker (1783) 3 Doug.KB 242; 99 ER 634; Jones v. South Eastern and Chatham Rail Co. Management (1918) 87 LJKB 775 at 779, per Neville J (DC of KBD), and R. v. Roberts (1942) 1 All ER 187. (c) Simply because a witness is cross-examined as to a prior inconsistent statement, does not permit the prosecution to lead evidence of other consistent statements - see Nominal Defendant v. Clements [1960] HCA 39; (1960) 104 CLR 476 at 479 per Dixon CJ who said: "If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his

account is a late invention or reconstruction. But, inasmuch as the rue forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by a witness, great care is called for in applying it." 11. The judge must determine whether it is a case for applying the principle. 12. I am clearly of the opinion that this is not such a case for applying the principle to Liz Wilkey's evidence. The prosecution should not have been entitled to adduce from her evidence which merely supported the victim's statement in cross-examination that she was frightened of the appellant. That went solely to her credit, and was not central to the issue before the jury. The cross-examiner was bound by her answer on that point. Ground 6 raised a similar propensity chain of reasoning point but this ground was related to the evidence of alleged violence by the appellant to the victim's mother. That ground was established on the same basis as ground 4. 13. Ground 7 attacked the adequacy of the summing up as to the use to be made of the conversations between the victim and her mother. These conversations were the subject of cross-examination of the victim to test her memory, consistency and reliability of events which allegedly had occurred many years before but not repeated to her mother until a long time afterwards. They were not "recent" complaints. But the victim's answers were final. That cross-examination did not justify the prosecution to lead evidence of "complaints" from the victim's mother. There was no direction given to the jury on this evidence, and once admitted the jury should have been told what use they could make of it. Ground 7 has been established. 14. The cumulative effect of grounds 1 to 8 makes it unnecessary to consider ground 9 that the verdicts are unsafe, unsatisfactory and against the weight of the evidence. Grounds 1 to 8 are more than sufficient to support the orders made by this court. I publish my reasons for the orders made.

JUDGE2 PERRY J The appellant appeals against his conviction in the District Court on three counts of unlawful sexual intercourse with a person under the age of 12 years. 2. The alleged victim, whom I will call T, was aged about 9 years and 6 months at the time of the incident the subject of the first count, which is alleged to have occurred in February 1985. The incident the subject of the second count is alleged to have occurred a month later. The third count relates to an incident which occurred in July 1987 when T was just under the age of 12 years. 3. A fourth count was laid alleging unlawful sexual intercourse in terms designed to meet the possibility that the last occasion occurred after T had turned 12. No doubt because of the final state of the evidence, that count was never put to the jury. The precise manner in which it was disposed of does not appear clearly from the record. 4. T's mother and her natural father separated some years before the alleged offences. Subsequently, in late 1984, the appellant formed a relationship with T's mother, at which stage he moved in with her, T and her two younger brothers at T's mother's house at Mile End. The offences are alleged to have occurred at that house, as to each occasion at night after T had gone to bed. The Crown case was that on each of the nights in question the accused entered T's bedroom, that he removed her bedclothes and her underclothing, that he held her down by the wrists and proceeded to have vaginal sexual intercourse with her. 5. T's evidence was that the appellant told her at the time of each assault that if she ever told anyone about the matter "he would kill me and my mum". 6. In relation to the third count, her evidence was that the acts were the same as before except that the appellant kissed her breasts. 7. The counts were representative counts said to be part of an ongoing course of conduct on the part of the appellant, the evidence of T being that similar acts had occurred on between 12 and 14 times between the occasions referred to in the first and third counts. 8. The appellant gave evidence in the course of which he asserted that the alleged offences never occurred, and that there had never been any sexual contact between him and T. 9. After hearing the argument of counsel on the hearing of the appeal the Court quashed the convictions and ordered a re-trial. The Court said that it would publish its reasons later. The grounds of appeal canvass a number of alleged defects in the summing-up and also challenge the rulings given by the learned trial Judge pursuant to which certain evidence was adduced by the Crown. 10. As to the summing-up, the appellant complains of the following passage in the summing-up: "The evidence of the accused when he is interviewed by the police, and this is some four years after the event, is he says it never happened at all. The accused has always denied this ever happening. He denied it to the police officer when he was questioned. In the committal proceedings, he reserved his defence. In these proceedings, he has given evidence on oath, and you know he was not required to give any evidence, and you will give him credit for the fact he has given evidence and been subject to cross-examination and he has denied it on this occasion. The only thing which is obvious in all of this is that he had the opportunity, but opportunity is not corroboration. Of course, he was living in the home with (T) and her mother. He says that on occasions he sat in the loungeroom when he hadn't changed and had not gone to Mrs Rawlings' bedroom. He says that sometimes late at night he would then shower and come out with his towel on. There are two things about an accused's denial in these circumstances. They are common in every case, not only with this accused. If he is falsely charged, there is nothing more he can do than deny it. If he is properly charged, he would deny it. He has denied it consistently and you have heard him give his evidence. There is nothing more he can do in a trial of this

nature than deny it. You cannot expect any more from the accused in cases such as this than to make a denial. There is nothing else he can do. He cannot prove a negative. (The emphasis is mine) The passage in question was the subject of comment by counsel for the appellant following the conclusion of the summing-up. He is reported as having said to the learned trial judge in the absence of the jury: "You said an accused would do the same thing even if he was guilty... That is not giving him any credit for his evidence at all." 11. As a result of that discussion and also in response to certain other matters which were raised by counsel, the jury were recalled and given further directions by the learned trial Judge. He is then reported as having said: "I mention to you that the accused can do no other than deny it and, of course, that is what the accused has done in this trial. He can do no other than to deny the event and he has done that and he has done it on oath, and you are to give due weight to his evidence in all of this issue." 12. In my opinion the suggestion to the jury clearly implicit in the passage in the summing-up, which I have underlined, would have operated in an impermissible fashion to devalue the evidence of the appellant in the eyes of the jury. 13. Recently the High Court has had occasion to emphasise the importance of preserving the presumption of innocence and of avoiding any direction to the jury which might tend to erode it, see Robinson [1991] HCA 38; (1991) 55 A Crim R 318. In that case the High Court ordered a new trial after holding that comments by the trial judge to the effect that the accused "had the greatest interest of all the witnesses... and therefore you should scrutinise his evidence closely" amounted to a misdirection. In the course of the joint judgment of Mason CJ, Brennan, Deane, Toohey and McHugh JJ the Court said: "The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny: see DPP v Hester (1973) AC 296 at 324-325, (1972) 57 Cr App R 212 at 242-244, Longman [1989] HCA 60; (1989) 168 CLR 79 at 85, 104-105; [1989] HCA 60; (1989) 43 A Crim R 463 at 466, 481...Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person." 14. In my opinion the words in question in this case, despite the redirection, had a clear tendency to put in the minds of the members of the jury the belief that it was common for anyone charged with a criminal offence to deny it even if the charge has properly been laid. The undermining of the presumption of innocence thereby occasioned was compounded by an earlier passage in the summing-up, during the course of which the learned trial judge said: "...usually a prosecution is commenced by the police alighting on somebody, believing that they may have committed an offence and the duty of the police is to keep the peace and to bring people before the court if they think they have committed an offence, but the police never decide whether anybody has committed an offence or not." 15. It is clearly impermissible to suggest to the jury that the police believe the accused to be guilty. 16. The matters to which I have referred so far were, in my view, serious enough to justify ordering a re-trial. 17. In deference to the other submissions put by Mrs Shaw, and also in view of the fact that the Judge who is to conduct the re-trial might benefit from the views of this Court as to the other grounds, I will proceed to deal with them. 18. The first two grounds of the appeal complain of an alleged failure on the part of the learned trial Judge adequately to warn the jury as to the dangers of acting upon the evidence of T. 19. During the course of his summing-up the learned trial Judge said: "Mr Evans put to you two reasons why T may have made up this story. One, as a means to obtain money, and the other to deter her mother from associating with Hickman. As Mr McEwen has said, no statement was made to her mother for 6 to 12 months after Hickman had left. As to money, there is no evidence whatsoever other than she heard about this, after she complained to the counsellor, that there is a possibility, she didn't describe it as this, of criminal injuries compensation. She didn't even know about that until after the event. Mr Evans put to you that all children in schools are taught about their legal rights. I don't know where he got that information from. There is not a skerrick of evidence about it. You only determine(sic) on what evidence you have got. The evidence was given by a girl who is now 17 and a half years of age. You might think she was very reticent about giving her evidence. You remember that she was called and then we had to adjourn while she composed herself before she gave her evidence. You might think she was a competent actress in performing in this particular way. She is now nearly 17 and a half and giving her evidence in that capacity. You have to remember that she is talking about events that are happening to a very young girl, 9 on two occasions and 11 on the third. Young children may say things, or may report things, in a different manner than they happen. There is no suggestion that this has happened on this occasion, because she is now 17 and a half and, I suppose, you may infer, that she now feels strong enough, emotionally, to speak about it, and complain about it, when she wouldn't have as a young child. You have to have regard to the fact that they are in fact complaints of a very young child. That is the fact of the whole matter. You have to have regard to the evidence given of the delay in reporting. Again, you may have regard also to the fact that a person of 9 might not like to say anything about it; a

person of 17 and a half might then have the courage to tell the court about the matter. They are matters for you to consider. You have to consider all of the evidence of the reasons for the delays. That is for you to determine. The other matter that you have regard to is that there is no supporting evidence for what T says. Mr McEwen is quite right. It is rarely ever in these sorts of cases that there is any supporting evidence. Mr Evans has quite properly put to you that there didn't appear to be any upset noticable(sic) to her mother by these events from time to time, either in her home life or in her schooling. You might consider that Mr Hickman says that T was always a mother's daughter, and she might have always been close to her daughter and wouldn't notice that she was being any more close than she usually was. They are matters for you to consider. There is no support in the evidence for her story; that is, there is no independent evidence of someone seeing him in the bedroom with a towel on, or any matters that you might consider. There is no screaming out when he is committing these acts on her and her mother hearing screams. There is no corroborative evidence. It is quite right what Mr McEwen says; it is rare in these sorts of cases for there to be corroboration. That is something that you must have regard to, and you must weigh the evidence very carefully, on two grounds particularly: The complaints of a very young child, and there is no corroboration." 20. The question of the nature and content of a warning in cases of this kind has been the subject of recent comment in both the High Court and by this Court. 21. In Pahuja (1988) 49 SASR 191 this Court held that s.34i(5) of the Evidence Act did away with the rule of law or practice requiring a corroboration warning in sexual cases, but held that the trial Judge might nonetheless give such a warning in the exercise of his discretion, if the circumstances of the case called for such a warning. The Court further held that the rule which is either a rule of law or practice and which is independent of the rule relating to sexual cases "that a judge must warn a jury of the danger of acting upon the uncorroborated evidence of a young child", was unaffected by the enactment of s.34i(5) (see per King CJ at 200 and per Cox J at 216). 22. In Longman [1989] HCA 60; (1989) 168 CLR 79 the High Court appears to have approved the decision in Pahuja, and furthermore emphasised that in trials of sexual offences, the provisions in the Evidence Act (WA) equating with s.34i of the Evidence Act (SA) dispensed only with the requirement to warn of the general danger of acting upon the uncorroborated evidence of alleged victims of sexual offences as a class, and there is still a requirement to give a warning if the circumstances of the case called for it. 23. Although Longman did not involve the evidence of a child witness, the complainant in that case being 32 years of age at the time of the trial, she was deposing to assaults alleged to have occurred between the age of 6 and 10 years. In that case it was held that the delay in prosecution had deprived the accused of any effective opportunity to investigate the circumstances of the alleged offending, and that that aspect of the matter should have been the subject of a warning: see per Brennan, Dawson and Toohey JJ at 91: "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer (1987) AC, at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.) Ante, pp 31-32, 42-44, 56-57, 71-72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy." 24. While the delay in this case was not so marked as in Longman, it nonetheless called for a similar warning. 25. Whether or not any such warning should have been reinforced by reference to considerations arising from the age of T is a separate question. As I have indicated the requirement for such a warning, in the case of child witnesses, has been unaffected by the passage of s.34(i) of the Evidence Act. T was 17 years and 5 months of age at the time of giving evidence and was between 9 years and 6 months and 11 years and 11 months of age at the time of the alleged offences. Normally the giving of evidence by a witness of nearly 17 and a half years of age would not require a particular warning. But in determining whether such a warning should be given the trial Judge should take into account the age of the witness at the time of the alleged offending: see R v Bryce and Dewar (Unreported) Judgment No. 3887 per King CJ (Duggan J concurring) at 5: "I think that the age of the child at the time of giving evidence is the predominant consideration in determining whether a corroboration warning should be given. The reasons commonly given for the warning, namely susceptibility of children to influence by adults, the tendency to confuse fantasy with fact and youthful irresponsibility, are all directed to the degree of maturity existing at the time of giving evidence. It is clear, however, that the judge is entitled to take into account the age of the child at the time of the alleged offence; B v R supra at p 445. I think too that a relevant consideration is the age of the child at the time of making the first complaint. Once a false complaint is made a witness tends to be locked into the situation created by the making of the false complaint and may persist with it even though with greater maturity making of the complaint is regretted." 26. In my opinion some sort of warning based upon T's age at the time of the alleged offending was necessary. In the case of the evidence given by children who, at the time of giving evidence, are of tender years the warning should normally be a full corroboration warning. In cases such as this, it is in the discretion of the trial Judge whether or not a full corroboration warning or something falling short of that, tailored to the particular circumstances, is required. 27. I would have thought that in this case it was sufficient to warn the jury of the dangers of acting upon the evidence of T given her age at the time of the alleged offending; the fact that there is some evidence that she "hated" the appellant and resented his position in the household; the fact that she was then a young child and that she had not made a complaint for some time afterwards; that there was a risk that she might be motivated to concoct by reason of factors such as a desire for compensation; that the case was virtually a matter of her word against that of the accused; and that the delay in prosecution had deprived the appellant of an effective contemporary opportunity of investigating the immediate circumstances of the alleged offending. If such a warning was to include a reference to corroboration, and I do not see that it need necessarily use that word specifically, the term should be defined. What is important is that in giving any warning the reason for it must be made clear to the jury. 28. In my opinion the warning given by the learned trial Judge in this case fell short of the warning which was necessary if the jury were to be given the assistance which the case called for. Furthermore, the expressions of the learned trial Judge "it is rarely ever in these sorts of cases that there is any supporting evidence" and "it is rare in these sorts of cases for there to be corroboration", were undesirable as they tended substantially to detract from the efficacy of the warning. Further criticism of the summing-up was based on the perceived failure of the learned trial Judge to give an adequate direction as to the use to be made by the jury of the evidence of the commission by the accused of other similar offences which were not charged. The matter is not the subject of any direction by the learned trial Judge during the course of his summing-up, but was referred to by him after the jury was re- called and he gave further directions to them. In the course of doing so he said: "I mentioned that the offences charged are three, ignoring the fourth count, and that she gave evidence of a course of conduct of some 14 occasions. Now, you can have regard to those 14 occasions just to show the nature of the 11 relationship between them. You can't use that to say 'Well, he has done that on those occasions, therefore he has committed these ones'. You understand the difference? You can have regard to what she says to show the course of conduct between them, but you can't reason to say 'He has done it all these many times, he must have done it on these three'. You can't use those occasions to support the evidence of these, but you can use it to show the nature of the relationship only." 29. There was some evidence in the case that the accused had committed certain assaults on T's mother, and following the passage to which I have just referred the learned trial Judge continued: "Now, evidence was given suggesting that the accused had committed some other offences, that is the assaults. I told you that, I think, it would be unfair to have any regard to that as against the accused and you shouldn't use that evidence to say 'Oh he has committed those assaults, therefore he is likely to have committed these offences'. You can't use that for that purpose and, in fact, you might think they are so equivocal, those matters, in any event that you don't have regard to them. Even if you do think you are satisfied those were assaults, you can't use that to say 'Well, therefore he is more likely to have committed these offences'." 30. In my opinion the redirection sufficiently emphasised the legitimate use of the evidence of the course of conduct as between the appellant and T, and of the assaults, but might perhaps have said more clearly that the evidence the subject of each particular count must be considered independently from the evidence of the occasions which were not the subject of any charge. The requirement for a clear direction to that effect remains even where the evidence of the alleged victim as to each of the occasions is not accompanied by particularity which distinguishes between them very clearly (see R v Dolan (1992) 167 LSJS 309 per King CJ at p 310): "In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them." 31. The evidence of the alleged assaults upon T's mother was the subject of separate criticism by counsel for the appellant. In order to understand that criticism it is necessary to refer to the manner in which the evidence emerged at trial. 32. Counsel for the Crown led from T, without objection, during the course of her evidence in chief that she had told her mother about the alleged incidents about a year after the appellant had separated from her mother and left the household. He further led from her that it was late in 1991 that she finally spoke to a school counsellor and then went to the police. In neither instance was any detail given of what was said. 33. In cross-examination some detail was adduced and T was questioned closely as to the reason for the alleged late complaint. One of the reasons given by her in cross-examination was her belief that the appellant might carry out his threats to "kill me and my mum". Her evidence as to that led counsel for the Crown in re-examination to elaborate upon the reasons why she was frightened of Mr Hickman. During the course of the re-examination it was elicited from T that at about the time when the appellant split up from T's mother, he had attempted to stab her with a screwdriver. An alleged witness to this incident was said to be T's auntie, a Mrs Wilkey. The Crown went on to call Mrs Wilkey in rebuttal to confirm the incident with the screwdriver. 34. In allowing re-examination of T as to the screwdriver incident and allowing Mrs Wilkey to be called in rebuttal on that issue, the learned trial Judge fell into error. That incident was entirely collateral to the conduct the subject of the charges and related only to the credit of T. Except in the case of certain limited exceptions, such as the statutory provisions concerning previous inconsistent statements, the answers which a witness gives to questions relating solely to credit are final and "cannot be pursued through re-examination or rebuttal"; see Ligertwood Australian Evidence (Butterworths) p 322 para 7.76, and see Attorney-General v Hitchcock (1847) 1 Exch R 91. 35. It follows that it was not open for the Crown to attempt to buttress T's evidence of the reasons for the late complaint, her belief that the appellant might act violently towards her or her mother, or as to her knowledge of other alleged assaults by the appellant. Furthermore, the evidence of alleged acts of violence between the appellant and T's mother, apart from being inadmissible, was highly prejudicial. 36. For these reasons I was of the view that the convictions should be quashed and that there should be a retrial.

JUDGE3 MATHESON J I agree with the reasons of Perry J.

R v Bycsko

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

COLIN JOHN HICKMAN v. R No. SCCRM 93/58 Judgment No. 3993 Number of pages - 13 Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up (1993) 60 SASR 415 [1993] SASC 3993 (17 June 1993)

Parties

Cases Cited (8)