Supreme Court of SA|1992-10-16

R v. DOLAN File No. SCCRM 92/584 Judgment No. 3638 Number of pages - 23 Criminal law and procedure - evidence (1992) 58 SASR 501 [1992] SASC 3638 (16 October 1992)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA King C.J.(1), Olsson(2) and Mullighan(3), JJ.

CWDS Criminal law and procedure - indecent assault and unlawful sexual intercourse - failure to direct jury as to permissible and impermissible use of evidence of course of sexual conduct other than the conduct particularised as the subject of the charges - appeal allowed and convictions set aside - whether new trial should be ordered - motive for falsehood - lack of substantial corroboration - verdicts of not guilty on two counts casting doubt on credibility of alleged victim. Confessions - when caution should be administered. Child witness - need for corroboration direction with respect to 14 year old alleged victim of sexual offences. Evidence Act 1929 (SA) s34i. R v Pahuja (12988) and R v Do applied. S v R ; distinguished. Hargan v The King ; and R v Morgan discussed. R v Hallam and Karger ; R v Szach ; DPP v Hester and R v Dossi , considered.

HRNG ADELAIDE, 15 September 1992 #DATE 16:10:1992 Counsel for appellant: Mr D.H. Peek. Solicitor for appellant: Legal Services Commission of SA, Counsel for respondent: Ms A.M. Vanstone. Solicitor for respondent: Director of Public Prosecutions (SA)

JUDGE1 KING C.J. The appellant was tried in the Supreme Court by judge and jury on an information containing one count of indecent assault on a girl under the age of 12 years and four counts of unlawful sexual intercourse with the same girl. He was found guilty on the count alleging indecent assault and on two of the counts of unlawful sexual intercourse but not guilty on the other two counts of unlawful sexual intercourse. He has appealed against his convictions. At the conclusion of the argument the court allowed the appeal, set aside the convictions and substituted verdict and judgment of acquittal in relation to each of the counts on which he had been convicted. We indicated that we would deliver our reasons later. 2. Each count complied with the legal requirement that it allege only one offence, but the case of the prosecution was that there had been a course of sexual maltreatment of the alleged victim by the appellant over a period extending from August 1989 to September 1991. The counts themselves did not differentiate between the offence charged and other incidents of the same kind described by the alleged victim as part of the course of conduct. Counsel for the prosecution made some effort in opening to particularise the counts but except as to the first count it amounted to little more than to indicate the type of sexual act which occurred in the incident forming the basis of each count. The incident to which the first count related was identified as being an occasion when the alleged victim and the appellant, who was living with the alleged victim's mother, were engaged in the process of moving the family belongings from one house to another, and was alleged to have occurred at the old house. The incident in the second count was identified as being an occasion when the appellant inserted his finger into the alleged victim's vagina. The third count was said to relate to the first occasion on which the appellant inserted a dildo into the vagina of the alleged victim. The fourth count was said to relate to an occasion on which the appellant had inserted his penis into the vagina of the alleged victim. The fifth count was said to relate to the last occasion on which the appellant inserted his finger into the vagina of the alleged victim. 3. The alleged victim gave evidence of numerous occasions on which the appellant touched her in the area of the breasts and the vagina. She gave evidence of his inserting his finger into her vagina on "many occasions". She alleged that he had inserted the dildo into her vagina on several occasions and that he had penetrated her with his penis twice. 4. In addition to giving evidence of the general course of conduct, the alleged victim described particular incidents which corresponded with the incidents identified as relating to the various counts. In his summing up the learned trial judge read those passages to the jury and identified the incidents related therein as the incidents which were respectively the subject of the counts. The learned trial judge did not, however, direct the jury as to the use which they could make, and the use which they could not make, of the evidence of the course of conduct. His Honour did not state the basis upon which the evidence of conduct other than that charged was admitted into evidence. I assume that it was admitted as indicating the relationship between the appellant and the alleged victim and as establishing the true context and setting in which the offences were alleged to have occurred. I consider that it was properly admissible on that basis. It would not be possible to properly appreciate and evaluate the evidence of the alleged victim as to the incidents forming the subject of the counts without the knowledge that they occurred in the setting of a course of sexual conduct occurring over a period of time. The occurrence of the course of conduct was a necessary part of the alleged victim's story and her account of the incidents which were the subject of the charges, could only be evaluated in that context. Moreover the significance of her failure to complain of the conduct for a period of two years or more had to be evaluated in the light of the relationship between the parties including the alleged course of sexual conduct. 5. 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. 6. None of those directions were given in the present case. I think that the result is that the trial was fatally flawed and that the convictions cannot stand. I do not think that it would be proper to apply the proviso to section 353(1) of the Criminal Law Consolidation Act, for reasons similar to those which were advanced by the majority of the High Court in S v R [1989] HCA 66; (1989) 168 CLR 266. 7. There was, in my opinion, another valid criticism of the summing up. The alleged victim was 14 years of age at the time of giving evidence. In R v Pahuja (1988) 49 SASR 191, this court held that the amendment to section 34i of the Evidence Act which relieves the trial judge of the obligation to give a corroboration warning in proceedings in which a person is charged with a sexual offence, leaves intact the rule of practice requiring a judge to give such a warning with respect to the evidence of a young child. There appears to be no hard and fast rule as to the age at which it ceases to be necessary to give the warning, but in Hargan v The King [1919] HCA 45; (1919) 27 CLR 13 where the witness was 141/2 years of age it was held that the warning was necessary. The learned trial judge did caution the jury with respect to the alleged victim's evidence. He said: "Ladies and gentlemen, this information alleges sexual crimes and I must tell you that experience has shown that persons complaining of such crimes, especially young girls, have sometimes told false stories for various reasons, and sometimes for no reason at all. Before you convict this accused you must scrutinise Nicola's evidence very closely." 8. He did not, however, refer to the need to look for corroboration nor indicate to them what evidence might be regarded as corroborative. Moreover he related his caution simply to the fact that it was a sexual case and did not allude to the age of the witness who was the alleged victim. I consider that he should have done so. As the conviction must be set aside, it is necessary to consider whether there should be a new trial. In considering this question, something may turn on whether the judge at a new trial should exclude evidence of an interview between a detective and the appellant which was recorded on video tape. 9. After the girl complained to her mother about the appellant's alleged behaviour, an arrangement was made through the mother for the appellant to attend at the police station. He knew when he went to the police station that the matter about which he was to be interviewed related to the alleged victim. The appellant's evidence was that he told the detective that he did not mind being interviewed. He agreed to the video-taping. 10. The detective put to the appellant the substance of the alleged victim's allegations. The effect of his answers was that he did not remember doing anything to the girl. He said that he did not suffer memory loss. After some further questions about his health history, the detective cautioned the appellant for the first time. The appellant then declined to answer further questions. 11. At the trial counsel for the appellant objected to the admission of the evidence of the interview. He contended that it was inadmissible or alternatively that it should be excluded in the exercise of the judge's discretion. The learned judge accepted the evidence of the detective that he had not made up his mind to arrest the appellant until the appellant gave the answers referred to and until he was unable to explain his answers by reference to any memory loss or health defect. His Honour considered that the detective was under no obligation to caution the appellant prior to the stage at which he gave the caution. 12. The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution. 13. The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions. In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers. The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest. There are many cases which have insisted on the need for caution in these circumstances. I refer only to R v Williams (1976) 14 SASR 1 especially at pp 4-5 where Wells J. cites a passage from the judgment of Cullen C.J. in R v Currie [1912] NSWStRp 101; (1913) 29 WN (NSW) 201. 14. There have been many developments in police interrogation practice in recent years, not least of which is the use of the formal interview in an interview room on police premises, the questions and answers being recorded either on a typewriter or, more recently by means of audio or video tape. This interrogation frequently takes place before arrest. I do not think that the view which finds expression in the older cases that the need for the caution only arises when the police officer has made up his mind to arrest, adequately satisfies the requirements of fairness in the light of contemporary practices. It is noteworthy that the version of the English judges' rules adopted in 1964, provides that: "As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence." Archbold Criminal Pleading and Practice 39th ed para 1389. 15. That rule has been reproduced in substance in Code C issued under the authority of section 66 of the English Police And Criminal Evidence Act 1984; Archbold (1992) Vol 1 para 15-258. 16. It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge's discretion. 17. The investigating detective in the present case was conducting a systematic interview of a definite suspect. The allegations made by the girl which he was about to put to the appellant, amounted to reasonable grounds for at least suspecting the appellant of having committed the alleged offences. I think that the situation called for the caution. 18. If there were a new trial, it would be a matter for the decision of the trial judge as to whether the omission of the caution should, in the circumstances, lead to the exclusion of the evidence. I do not think that it is crucial from the point of view of this present decision, because, in my opinion, the answers given by the appellant did not amount to corroboration of the girl's story. His use of the expression "I don't remember" is equivocal. Many persons tend to use this expression in the sense of a denial. Something depends on the emphasis given to the words and often their use appears to be the result of a habit of avoiding outright contradiction. It is common experience for witnesses in court to use that expression. When asked whether they mean that the event which is said to be not remembered may have occurred and has been forgotten, they frequently indignantly deny that any such event occurred. The appellant was not asked whether the alleged events may have occurred and have escaped his memory and I think it would be quite unsafe to draw any inference adverse to him from the fact that he used an expression which may have been no more than a habit of speech. 19. The case for the prosecution depended very much upon the girl's evidence. It received some slight corroboration from the mother's evidence which, if accepted, indicated that the appellant had made a somewhat equivocal admission to her. The appellant denied the allegations on oath and explained the conversation with the mother in a way consistent with his innocence. On the girl's own evidence, there was a motive for a false allegation. She did not attempt to disguise her dislike, even hatred, of the appellant. This would be quite understandable, of course, if the appellant were indecently interfering with her, but her evidence gave the impression that the basis, or at least the primary basis, for her dislike of the appellant was his intrusion into the affairs of the family and in particular his attempts at imposition or discipline upon the alleged victim. Considerable caution was obviously required in assessing her evidence. 20. The most disturbing features of the case are the verdicts of not guilty returned by the jury on the two most serious counts, the one of penetration with a dildo and the other of penetration by the penis. These verdicts are only explicable on the basis that the jury entertained doubt as to the evidence of the girl on these points. She gave clear evidence of penetration on more than one occasion by both the dildo and the penis. The medical evidence was at best from the prosecution's point of view equivocal. If the credibility of the alleged victim as to these incidents is in doubt, it is impossible to feel any confidence about the truth of the other charges. 21. If there were another trial upon the counts upon which the appellant was found guilty, the evidence led from the girl could not, as a matter of law, include the dildo incident and the penis incident which were identified as the subject of the charges on which he was acquitted, and in my opinion, could not as a matter of fairness include the other dildo and penile incidents. It would therefore be a fundamentally different story than that put forward at the trial under review and I do not think that a trial conducted under those circumstances could be regarded as satisfactory. 22. In all the circumstances, I have reached the conclusion that justice would not be served by requiring the appellant to stand trial again.

JUDGE2 OLSSON J. This was an appeal against the convictions of the appellant by a jury of one count of indecent assault, one count of unlawful sexual intercourse with a person under 12 and one count of unlawful sexual intercourse. At the conclusion of the hearing of the appeal the Court upheld it, set aside the convictions in question and substituted for them verdicts of acquittal. In so doing it indicated that reasons would be published at a later date. I now express my reasons for concurring in the orders made. 2. The appellant was presented for trial before a jury at Port Augusta on five separate counts alleging various forms of unlawful sexual activity between himself and the daughter of his former de facto wife. As a matter of convenience I will simply refer to the alleged victim as "Nicola". Nicola was just over 14 years and three months old at date of trial. 3. The Crown case was to the effect that the appellant first became acquainted with Nicola's mother late in 1988. She was then living at Wittwer Street, Whyalla, with Nicola and two other children. 4. Just prior to Christmas of that year the appellant moved into the Wittwer Street home and assumed a de facto relationship with the mother. He remained living there, in that relationship, until the whole family group moved to other premises, a short distance away, on 26 August 1989. 5. The new home was situated in Wainwright Street, Whyalla. At the Wainwright Street house the appellant and Nicola's mother slept in one bedroom, Nicola had another and the two other children were in a third bedroom. 6. According to evidence given by the mother, she was first told by Nicola, in October 1991, that the accused had been sexually interfering with her. Shortly afterwards the mother confronted the appellant and asked him whether he had touched Nicola, to which he made a somewhat ambiguous reply. This resulted in the mother ordering him to leave the house. There was some dispute, on the evidence, as to exactly what was said by the appellant and what he intended to convey by it. 7. It would seem that the allegations made by Nicola were not brought to the attention of the police for some time afterwards. It was not until about 2 December 1991 that police officers interviewed first Nicola and her mother and then the appellant. 8. In essence, the story told by Nicola to the police was that the appellant had been sexually abusing her in various ways over a lengthy period of time, commencing from about 26 August 1989 and continuing until about September 1991. Certain specific incidents, the subject of the five specific counts ultimately charged against the appellant, were identified by Nicola to the police officers. 9. On 2 December 1991 the appellant attended at the Whyalla Police Station with an acquaintance, as a consequence of receiving a message asking him to do so. On the uncontroverted evidence of the appellant he did not know precisely why he was wanted at the police station. He deposed that all he knew at the time was that it was something to do with Nicola. On arrival at the police station, Detective Ackroyd did not immediately explain the nature of any allegations against him, but simply asked whether he would consent to a video interview. The appellant deposed to being somewhat nervous at the situation in which he found himself, but said that he agreed to the request made. The video of what followed was duly played to the jury at the trial and a transcript of the content of it was put before the Court of Criminal Appeal. 10. After some introductory questions identifying the parties present, a confirmation that the appellant was not under arrest, and the obtaining from him of a series of personal particulars, the text of the interview read as follows:- "Q. Do you know a Nicole Butler. A. Yes. Q. I have a statement from Nicole which consists at this present time of six pages. In that statement she has made some allegations in relation to yourself which has occurred approximately over the past two years. I am going to ask you some questions in relation to those allegations, do you understand that. A. Yes. Q. How long have you known Nicole Butler. A. For about three years. Q. How do you know her.

A. Through her mother which I'm going out with ... Q. You've been going out with her mother. A. Yes. Q. For approximately three years. A. For about three years, yes. Q. Did prior to them living at their current address of 53 Wainwright Street, did they live at 20 Wittwer Street. A. Yes. Q. Did you live there with them. A. For only a couple of months before we shifted. Q. And currently live with them at Wainwright Street. A. Yes. Q. Do you stay there every night. A. Q. Currently at Wainwright Street do you stay there every night. A. Yes, just before ... I go camping. Q. But would you call that your proper address at Wainwright Street. Q. Whose address was the other one.

A. My sisters. Q. And Nicole is Kim Butler's daughter. A. Yes. Q. Do you know how old Nicole is. A. I think she's about 13. Q. She's made several allegations in relation to yourself, I will name them off and then just ask for a response, do you understand that. A. What do you mean by response? Q. And just ask for your comment, after each allegation I'll ask for you to make a comment on that. A. Yeah. Q. Okay. A. Yes. Q. All right, she has stated that between '89 and '90 just prior to them moving from Wittwer Street during the night you touched her boobs and started stroking them and you tried to slip your hand down the lower part of her body. What do you say to that. A. I can't remember doing it. Q. She's also stated at about a week later, it wouldn't be a week later but sometime later, after that period and obviously when you were living in Wainwright Street that you came into her room, you put your hand down her knickers and either put one finger - or did put one finger into her vagina whilst she was in bed. What do you say to that. A. I don't know anything. Q. She has also stated that in April of this year also again in her bedroom she was in bed, you came into the bedroom and reached down and pulled her knickers off. You then tried or attempted to place your penis into her vagina, what do you say to that. A. Don't remember doing that. Q. She has also stated that whilst you were placing your penis into her vagina you kept saying, 'Relax, stop tensing up, just relax.' Can you recall that. A. No. Q. She has also stated that just before the September holidays of this year, about 6.30 in the morning, she was again in her bedroom and she was asleep with just her knickers on. You came into the bedroom, again told her to relax, you then placed your penis, or attempted to place your penis into her vagina, and in any event you put your fingers into her vagina. What do you say to that. A. Don't remember doing anything. Q. She's also stated that during the September school holidays, again whilst she was home, your hands went down

the top of her knickers and either one or two of your fingers were placed into her vagina. What do you say to

that. A. Don't remember doing anything. Q. Do you suffer from any memory loss. A. Not that I know of.

Q. Are you on any medication at present. A. Yes, I've got hernias. I've got to have tablets to soften up the bowels. Q. Hernias. A. Yes. Q. Are you currently seeing a doctor. A. Yes. Q. And who is that.

A. A Dr Leow Q. And that is for the hernias. A. Yes, and also for my back. Q. Have you ever suffered long term memory loss for any reason. A. No, I remember once when I knocked myself out and I couldn't remember anything for a couple of days. Q. How long ago was that. A. About when I was 13. Q. But as far as you know you've suffered no ill effects from that. A. Not that I know of. Q. I'm going to ask you some further questions in relation to these allegations which I've put to you. You do not have to answer them unless you wish to but anything you do say may be given in evidence. Do you understand that. A. Yes. Q. Do you wish to answer any further questions in relation to allegations I have put to you. A. No. Q. I take it that at some time in the future you will be seeking legal advice in relation to these charges. A. Yes. Q. In any event, after speaking to a solicitor if you wish to do so you may give a statement in relation to the allegations which I have put to you. Do you understand that. A. Yes. Q. You are going to be arrested at this stage for four counts of rape and one count of indecent assault on Nicole Butler. Do you understand that. A. Yes. Q. Do you wish to make any comment in relation to those charges. A. No." 11. It is to be noted that, despite having already obtained a detailed statement from Nicola and also spoken to her mother prior to the interview, no caution was administered by the police officer to the appellant until virtually the end of the interview. It is also to be observed that, as soon as that caution was administered, the appellant exercised his right to decline to answer any further questions. 12. The specific incidents put by Detective Ackroyd to the appellant in fact formed the basis of certain of the counts ultimately brought against him in the Information. 13. In the course of the trial the somewhat equivocal responses given by the appellant to certain of the propositions put to him were of considerable significance from the point of view of the Crown case, because it was asserted that those responses were not consistent with the likely reactions of a person who was totally innocent of the matters alleged against him. 14. There can be little doubt that this material, if it was properly admitted, was likely to have had a significant influence on the thinking of the jury. 15. In the course of the committal proceedings preceding the trial, Detective Ackroyd was cross-examined about the circumstances related to the interview. He insisted that he had not decided to arrest the appellant until he arrived at the point at which he actually administered the caution to him. 16. He did, however, concede that he was well aware of the detailed allegations made against the appellant prior to the commencement of the interview, and that they specifically focused upon the appellant as the alleged offender. He asserted that there was no one thing said by the appellant during the Record of Interview that caused him, ultimately, to decide upon arrest. Eventually, it was, Ackroyd said, simply the fact that, on several occasions, the appellant professed not to remember specific allegations, coupled with statements regarding an absence of mental illness or other relevant medical condition, that ultimately brought about his decision. The logic of certain aspects of his stated process of reasoning is somewhat difficult to follow. 17. At the trial counsel for the appellant objected to the admission of the Record of Interview in evidence, on the basis of the failure of Ackroyd to give a timely caution. It was also submitted that, as a matter of discretion, the Record of Interview ought to be excluded, having regard to the nature and form of some of the questions asked. Counsel did not specifically advert to the question of whether or not it could be said that the statements made by the appellant at the interview were voluntary. That issue was raised upon the appeal. 18. As I read the trial transcript, these submissions were opposed by the Crown on the basis that the obligation of the police officer to administer a caution only arose at the point of time at which the interrogating officer had positively made up his mind to arrest the appellant. As the officer had deposed that this did not occur until the caution was actually given, there was - it was contended - no logical basis for excluding the content of the Record of Interview. The learned trial judge, in effect, upheld the Crown submissions. 19. In reviewing this aspect of the case it is convenient, first, to direct attention to the fundamental question of whether or not, in the relevant legal sense, the statements made by the appellant to Detective Ackroyd were voluntary statements. As to this the onus rested fairly and squarely upon the Crown of demonstrating that the statements made were, in fact, voluntary. (MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512.) 20. The classic statements of the law bearing upon voluntary and non-voluntary statements are to be found in McDermott v The King (1948) 76 CLR 501, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 and The King v Lee and Others [1950] HCA 25; (1950) 82 CLR 133. 21. These authorities hold that a confessional or potentially incriminating statement made to a police officer out of court by an accused person may not be admitted in evidence against him upon his trial unless it is shown that such statement has been made in the exercise of his free choice. The choice in question is that of a free choice to either speak or be silent. If the statement is the product of circumstances in which, despite the fact that there has been no apparent direct duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it nevertheless appears that the person interrogated felt obliged to answer, then the Crown onus may well not have been discharged. 22. As was said by King C.J. in The Queen v Hallam and Karger (1984) 42 SASR 126 at 135, it is possible to envisage cases in which removal of a free choice may, in a practical sense, clearly derive from the very pressures stemming from the situation in which a person may have been placed by actions of the police. 23. In the instant case it was put to this Court that the practical situation in which the appellant found himself was that, having gone to the police station without really knowing the basis of the request for him to do so, he was taken to an interview room and, literally, simply given the choice of submitting himself to a video interview or one which was based on the traditional manual recording of the discussion. The Crown signally failed to demonstrate that it was, at any stage, made clear to the appellant at the outset that he was not required to submit himself to the process in question at all, nor did it appear that Ackroyd had indicated at the outset precisely what the interview was to be about. The opening questions confirming that the appellant was not under arrest did nothing to abate that situation. Moreover, there was positive evidence that he was in a nervous and apprehensive state of mind upon arrival at the police station. 24. It seems to me that the approach of the police officers in this case left a great deal to be desired; and that there is a strong basis for concluding that, in the relevant sense, the answers given by the appellant to questions asked of him prior to the caution being administered were not voluntary. The impression with which he seems to have been left was that he had no real option but to submit himself to some form of interview. 25. Even if that conclusion be incorrect, serious questions also arose as to whether or not the learned trial judge should nevertheless have exercised his discretion against admitting the material on more general grounds of unfairness. In this regard it should be said at the outset that the basis of the submissions made by counsel for the Crown were unduly simplistic. 26. In a case of this nature the question of the point at which a caution ought to be administered is not solely to be determined by reference to whether or not, at a given time, the relevant police officer had definitely decided to arrest and charge the person being interviewed. 27. That test derives from the so-called Judges' Rules, which have never formally been adopted on a definitive basis in this State. Those rules have been regarded as providing no more than a basis for consideration when a question arises as to whether evidence of a confessional nature should be excluded. (The Queen v Lavery (No 2) (1979) 20 SASR 430 at 460, R v Bailey (1958) SASR 301 at 314.) As was emphasised in the latter case, every matter must finally be judged by reference to a careful consideration of the circumstances of the particular case and the tests flowing from authorities such as R v Lee and Ors [1950] HCA 25; (1950) 82 CLR 133. 28. At the end of the day what is essentially in issue is the ultimate test of fairness. The reports are littered with decisions of Judges of this Court which indicate the adoption of a broad, case by case, consideration. It is, of course, well established that, once it be demonstrated that the relevant police officer entertained such a strong and well founded suspicion of the person interviewed that it would have been wholly unreasonable not to have decided upon an arrest and a caution is not given, then the conversations in question will normally be excluded. (See, for example, The Queen v Williams (1976) 14 SASR 1.) However, it may well be that, in some instances, as a matter of common fairness, a caution should be administered well prior to that stage. 29. For present purposes the dictum of King C.J. in The Queen v Szach (1980) 23 SASR 504 at 583 is particularly pertinent. He there said:- "If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at

the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the

questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. ... " 30. In my view, that was exactly the situation which pertained to the interview of the appellant in this case. The police already had in their possession a full and definitive statement from the alleged victim and had also obtained some confirmatory information from her mother. As a matter of plain common sense, having regard to the nature of the allegations made, it was almost inevitable in the circumstances that the appellant would be charged unless he was able positively to exonerate himself in some way. Protestations of the police officer to the effect that it was only when he actually administered the caution that he had positively decided to make an arrest ring hollow. Even if he remained in some doubt up to that point, the plain fact of the matter was that the appellant was the prime suspect, there was a substantial body of information which had already been collected identifying him as an offender, and common fairness indicated that he should not be led into making unguarded statements in the guise of being asked to comment upon serious allegations made against him. 31. The mere fact that, when cautioned, he immediately exercised his right to silence strongly suggests that, up until that point, he had no comprehension of what his rights were. It would seem obvious that he was unwittingly led into responding to questions asked of him in a manner which was highly equivocal and was later sought to be used against him. Had he been aware of his right to silence at an earlier point in time it seems almost certain that those answers would never have been given. They were unfortunate answers, because they were equivocal and very much open to interpretation. They had the tendency to be highly prejudicial to him - dependent upon what interpretation was placed upon them. 32. I would be prepared to hold that, having regard to the competing considerations referred to in authorities such as The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and The Queen v Austin (1979) 21 SASR 315, the learned trial judge ought not, as a proper exercise of discretion, to have admitted the material in question in any event; and that its admission had such a potentially prejudicial effect that the trial miscarried. However, that aspect was but one of a number of difficulties which arose in relation to the trial. 33. Although a number of points were debated before this Court, I find it necessary only to touch upon certain of them. 34. At this point it is instructive to consider the actual counts as originally set out in the Information. These read as follows:- "First Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Wayne Thomas Doylan between the 1st January, 1989 and the 31st December, 1989 at Whyalla, indecently assaulted Nicola Jean Butler, a person under the age of 12 years. Second Count Statement of Offence Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Wayne Thomas Dolan between the 1st January, 1989 and the 22nd March, 1990 at Whyalla, had sexual

intercourse with Nicola Jean Butler, a person under the age of 12 years, by inserting his finger into her vagina. Third Count Statement of Offence Unlawful Sexual Intercourse with a Person under 12. (Ibid.) Particulars of Offence Wayne Thomas Dolan between the 1st January, 1989 and the 22nd March, 1990 at Whyalla, had sexual intercourse with Nicola Jean Butler, a person under the age of 12 years, by inserting an object into her vagina. Fourth Count Statement of Offence Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Wayne Thomas Dolan between the 1st April, 1991 and the 30th April, 1991 at Whyalla, had vaginal sexual intercourse with Nicola Jean Butler, a person of the age of 13 years. Fifth Count Statement of Offence Unlawful Sexual Intercourse. (Ibid.) Particulars of Offence Wayne Thomas Dolan between the 1st August, 1991 and the 30th September, 1991 at Whyalla, had sexual intercourse with Nicola Jean Butler, a person of the age of 13 years, by inserting his finger into her vagina." 35. On the third day of the trial the learned trial judge permitted the Crown to amend the third and fifth counts. The third count was amended so as to constitute an allegation of the offence of unlawful sexual intercourse, contrary to section 49(3) of the Criminal Law Consolidation Act and the particulars of that offence were amended to plead dates extending from 22 August 1989 to 30 June 1991. In the case of the fifth count, the amendment was to the particulars of offence so as to define the period as extending from 1 August 1991 to 15 October 1991. 36. These amendments were not unimportant indicators of the fact that, as the evidence finally came out, the Crown was forced to shift ground somewhat from its original detailed assertions. 37. The transcript of proceedings at the trial reveals that, after the accused had been arraigned, Miss Vanstone, who prosecuted for the Crown, opened the case in very brief terms indeed. She, inter alia, made the point that it was alleged by the Crown that the accused indulged in a course of conduct involving regular sexual interference by the appellant of Nicola over quite a long period of time; and that the five charges which had been isolated were not supposed to represent all of the occasions when criminal conduct occurred. Rather, were they intended to represent various types of conduct. 38. Having made that point she went on to give some particulars of the specific incidents giving rise to the five counts. 39. As to this she said:- "Count one occurred at Wittwer Street, Whyalla. It was alleged the family were in the course of moving from their home there to Wainwright Street, Whyalla. The accused and Nicola went back to Wittwer Street to pick up some more possessions and they were alone in the house. There it was alleged the accused sat Nicola down on a bed and caressed her breasts and other areas of her body. If that occurred I imagine you would have no difficulty in finding that amounts in law to indecent assault. From that time on it is alleged the accused began touching Nicola regularly. This would occur most often in her bedroom. Again the conduct took various forms. Count two, which occurred between 1 January 1989 and 22 March 1990, relates to an occasion when the accused put his finger into her vagina. Count three concerns the allegation that the accused inserted a dildo into her vagina. Count four alleges that the accused had vaginal intercourse with Nicola, that is he placed his penis inside her. The last count, count five, concerns the final occasions that anything occurred between the accused and Nicola and the dates of that count are between 1 August 1991 and 30 September of that year. It is alleged that the accused came into Nicola's bedroom during the night and put his finger into her vagina." 40. Following the Crown opening Mr Duffy, of counsel for the appellant, made a number of submissions in the absence of the jury. 41. First, he objected to the admissibility of the Record of Interview. That objection was overruled. I have already dealt with the circumstances related to it. There is no need to dilate further upon them. 42. Next, Mr Duffy sought a mistrial or, alternatively, a direction to the Crown that it better particularise the circumstances relied upon as constituting the five counts. 43. He pointed out that the defence was in considerable difficulty, due to the manner in which Miss Vanstone had opened by referring to a course of conduct involving regular sexual interference, coupled with the fact that the particulars set out in the Information were so general and spanned such a lengthy period of time that it was difficult to determine precisely what it was that the appellant was being called upon to meet. Moreover, he made the point that the use of the words almost continually or regularly, as employed in the opening, was highly prejudicial and unfair to the appellant. There had been no attempt, at that stage, to explain to the jury the manner in which it was entitled to view any evidence of actual interference alleged beyond the specific five counts relied upon. 44. In proffering those submissions he particularly referred to the case of S v R [1989] HCA 66; (1989) 168 CLR 266 as founding a conclusion that, as presented, the various counts were duplicitous. 45. Miss Vanstone responded to the objection made by seeking to rely upon the general statements as relating to evidence which she was entitled to lead to establish the general relationship existing between the appellant and Nicola over the relevant period of time. 46. She did, however, descend to some further particulars as to the five counts. In this regard she said:- "The first count refers to the occasion when the family was moving from Wittwer Street to Wainwright Street and the indecent assault allegedly occurred at the old address when she and the accused were there, and that is referred to on p 1 of the statement. (Reference by her to the statement was, of course, a reference to the declaration of Nicola tendered in the committal proceedings.) The second count is referred to in the third paragraph on p 2 of her statement, when it is said, as the particulars relate, that he inserted a finger into her vagina. Count three refers to inserting an object into her vagina, and that's referred to on p 2 of the statement, the fourth paragraph, and the Crown is going to focus on the first occasion when that happened. Count four relates to the April 1991 occasion when he allegedly had vaginal intercourse with her, and that's clear because April is specified in the fourth count particulars. So that's that occasion. That's towards the bottom of p 2 of the statement. Count five arises out of the material on p 3 of the statement, the middle of the page, referring to the September holidays. That's clear, I think, because count five refers to a period between 1 August and 30 September of that year when he put his finger into her vagina." 47. Those particulars having been given the learned trial judge overruled the objections advanced by Mr Duffy in relation to the opening and the lack of particulars. 48. Mr Duffy then sought leave, pursuant to the provisions of section 34(i) of the Evidence Act 1929 (SA), to question Nicola in relation to two previous asserted episodes of sexual abuse, but for the limited purpose of demonstrating that she knew that she could complain to her mother if she had been sexually abused and that, if she did so, the mother would respond appropriately. 49. This was a reference to the fact that, on two previous occasions, boarders in the mother's household had been said to have sexually interfered with Nicola. She, it was submitted, had promptly complained to her mother, with the consequence that the latter had immediately ordered the persons concerned to leave the house. 50. This was an important issue from the point of view of the defence, because Mr Duffy, quite understandably, was seeking to make a significant point of the fact that, despite her assertions that she had been receiving unwelcome sexual attentions from the appellant over a long period of time, Nicola did not make any complaint to her mother until October 1991, somewhat after the last act of sexual interference pleaded in the Information. The learned trial judge ruled that leave was required under the section, on the basis that sexual activity is defined in the statute to include sexual experience or lack of sexual experience and that any questions of the nature proposed would necessarily focus upon that aspect. 51. Mr Duffy's application in this regard was strongly resisted by Miss Vanstone. In the event the learned trial judge simply indicated to Mr Duffy that he was against him. 52. I have dwelt upon the foregoing matters at some length, because they are an important prelude to a series of major issues which were debated upon the hearing of the appeal. 53. It is convenient, first, to refer to the refusal of the learned trial judge to permit the cross-examination sought by Mr Duffy. 54. There can be no doubt that the proposed cross-examination bore upon what was, potentially, an important aspect of the defence case seeking to demonstrate a lack of credibility and consistency on the part of Nicola. 55. Section 34(i) of the Evidence Act, so far as is material, is expressed in the following terms:- "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). (2) In deciding whether leave should be granted under subsection (1)(b), the judge shall give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection and shall not grant leave unless satisfied that the evidence in respect of which leave is sought- (a) is of substantial probative value; or (b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and that its admission is required in the interests of justice. (3) Leave shall not be granted under subsection (1)(b) authorizing the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim. (4) ... (5) ... (6) ... (7) In this section- 'evidence' includes an allegation or statement made by way of an unsworn statement; 'sexual activities' includes sexual experience or lack of sexual experience." 56. In my view there is something to be said for the argument advanced before this Court that, in the circumstances, leave was probably not required to pursue the general line sought to be pursued by Mr Duffy. The essential thrust of his proposed line of cross- examination was not to investigate what sexual activity had actually occurred on the prior occasions but, rather, Nicola's behaviour pattern following the incidents in question (the occurrence of which was not in dispute), with a view to establishing the making of immediate complaints and the mother's prompt actions in actively assisting her to resolve the problems. The desired cross-examination went not to sexual activity, as such, in the sense in which that expression is used in the section but, rather, to the subsequent conduct of Nicola and her mother. 57. Even if that view be incorrect (and it must be conceded that dicta in R v Ugoloni (1989) 51 SASR 303 may well be contrary to it), then it is difficult, if not impossible, to perceive how leave could fairly have been refused, having regard to the wording of the section. It is to be noted that the essential focus of that section is the avoidance of unnecessary distress, humiliation and embarrassment to the witness, and the consideration of probative value and the bearing of the proposed topic of questioning on the credibility of the witness. 58. In the case at bar Mr Duffy made it plain that his proposed cross- examination related solely to incidents which had admittedly taken place and he undertook to limit it to aspects highly pertinent to the credibility of the witness and the all important issue of recent invention. The propensity for distress, humiliation or embarrassment of the type envisaged by the section was minimal, because the essential thrust of the proposed cross-examination would be to conduct subsequent to the relevant incidents and not focus on the incidents themselves. In any event, the cross-examination was necessary to enable Mr Duffy effectively to develop an important aspect of the defence case and there was a solid basis of fact justifying that which he proposed. 59. It follows that, in my opinion, the learned trial judge fell into error in denying the application made by Mr Duffy and that such error resulted in serious prejudice to the appellant. 60. Having regard to the conclusions above expressed and those to which I have come concerning other major issues arising on the appeal, I do not propose to discuss in detail the contentions which were advanced concerning alleged duplicity in relation to the particulars of the various counts, the criticisms made of the Crown opening and the evidence led concerning an alleged course of conduct by the appellant over a long period of time. It is sufficient merely to comment that it was fairly open to the Crown to adduce evidence concerning the relationships which existed over time between the appellant and Nicola. Moreover, reasonable particulars were ultimately provided by Miss Vanstone to enable the defence case adequately to be mounted. 61. However it must be accepted that, in a situation of that nature, it was very much encumbent upon the learned trial judge, in the course of his summing up, to explain to the jury the manner in which they ought to go about the task of considering each count on merit, in light of the specific evidence bearing upon it. It was also vital that he explain to the jury in very clear terms the limited purpose for which the other background evidence of relationship could be used and the dangers of resorting to it for an impermissible purpose. 62. In the course of what was a very brief summing up indeed the learned trial judge merely had this to say:- "You must consider the evidence relating to each count separately. You must not reason that because there are a number of counts that he must be guilty. You must not reason along the lines of one in, all in. You must consider each count separately. It is open to you to acquit of all, to convict of all, or to convict of one or more or to acquit of one or more." 63. He did not comment at all on the permissible mode of use of the wider evidence of sexual activity, nor did he caution the jury against its impermissible use. 64. I am compelled to the view that this omission was, in the circumstances of the present case, a significant omission on the part of the learned trial judge which also had the potential to result in clear prejudice to the appellant. 65. A major issue which was ventilated on the appeal touched upon the extent of the obligation of the learned trial judge, in a case of this type, to give a full and adequate corroboration warning to the jury in relation to the evidence of Nicola. 66. In the course of his summing up the learned trial judge contented himself with merely saying:- "Ladies and gentlemen, this information alleges sexual crimes and I must tell you that experience has shown that persons complaining of such crimes, especially young girls, have sometimes told false stores for various reasons, and sometimes for no reason at all. Before you convict this accused you must scrutinise Nicola's evidence very closely." 67. On any view this was a relatively perfunctory warning, which fell far short of the full corroboration warning often required in relation to the evidence of young persons and which certainly was required in this case, by virtue of the clear evidence of animosity on the part of Nicola towards the appellant. 68. In the course of the appeal a great deal of debate ensued as to the rationale for the established rule of practice requiring full corroboration directions in the case of the evidence of young persons, and whether or not the principle was truly applicable in the present case. 69. The requirement to give a corroboration warning in the case of the evidence of children in sexual cases, notwithstanding the provisions of section 34(i) of the Evidence Act, was reaffirmed by this Court in R v Pahuja (1988) 49 SASR 191. It has been followed by the Judges of this Court ever since. The attention of the present Court was drawn to a series of cases in which the requirement had been confirmed in the case of various young witnesses of the age of about 14 years, or a little under, at time of trial. 70. In Hargan v The King [1919] HCA 45; (1919) 27 CLR 13 the female complainant was, in fact, about 14 1/2 years of age. In the course of his judgment in that case, Barton J. said:-

"... the jury ought to have be told that, while they may act upon the evidence of such a witness as a matter of law they

should hesitate long before acting upon it in the absence of corroboration." 71. In the course of his reasons for decision in Pahuja King C.J. pointed out that, in many sexual cases, prudence often dictates the giving of some appropriate caution or warning, notwithstanding abolition by section 34(i) of any rule of law or practice obliging this to be done in such cases. As the learned Chief Justice pointed out, a judge will normally do so as part of his duty to provide guidance to the jury as to the assessment of the facts of the particular case. In so doing he is free to frame the cautionary warning in such terms as he sees fit, bearing in mind the exigencies of the case. 72. However he went on to point out that, quite aside from the former rule related to sexual cases, there was a separate clear rule of law or practice, quite independent of the operation of section 34(i), that a judge is obliged to warn a jury of the danger of acting upon the uncorroborated evidence of a young child. He referred to, but did not discuss in detail, a series of authorities bearing upon the existence and nature of that independent rule. 73. In the course of the present appeal, the Crown sought to argue that Nicola was described in the report of the learned trial judge as a mature fourteen year old when she gave her evidence. It was submitted that it could not therefore be said that she was a young child in the relevant sense. This was, it was argued, particularly so because the rationale for the rule related to the evidence of young children stemmed simply from likely imperfections in their comprehension of events, and of questions put to them or of their own powers of expression and, at times, the possibility of small children being subject to the influence of others. (DPP v Hester (1973) AC 296 at 325, R v Dossi (1918) 13 Cr App R 158.) 74. In my opinion this is an inaccurate summation of the basis of the rule. Moreover, the rule does not depend for its application upon the apparent maturity of the child in question, at least as the sole criterion. 75. Whilst it is true that, in Hester's Case, Diplock J. was particularly focusing on the unintentional inaccuracy which is often inherent in the evidence of young children, he was there particularly referring to children who are so young that their comprehension of events and of questions put to them or their own powers of expression might be imperfect. It is quite obvious that he was not attempting an exhaustive analysis of the reasons for the rule but merely illustrating one particular aspect of it. So, also, it was in Dossi's Case that Atkin J. was contrasting the situation of child complainants in relation to adult female complainants in sexual cases when he said:- "Small children are possibly more under the influence of third persons - sometimes their parents - than are adults, and they are apt to allow their imaginations to run away with them and to invent untrue stories." 76. These are but some reasons for the existence of the rule, and they are particularly relevant in the case of children of very tender years. 77. However, it is clear from the published authorities that the courts, based upon their long experience, have always been wary of evidence given (particularly in sexual cases) by children both of tender years, and also those who, whilst they may have obtained teenage status, are not yet adults in the real sense of the word. 78. No doubt children at that age vary considerably in terms of maturity and reliability, but the fact remains that there is often the risk of the inherent irresponsibility of youth which may prompt a juvenile to embark upon a course of action either for an improper motive or without pausing to attain a true appreciation of the seriousness of the consequences of his or her actions and statements. (In this regard the reasoning of King C.J. in R v Do (1990) 54 SASR 543 at 547 is pertinent.) 79. This is particularly the situation with young female complainants in certain domestic situations in which there may well be a distinct possibility that conduct is actuated by motives of malice or revenge as a means of escaping from what is seen to be an unduly strict, restricted or perceived oppressive domestic regime or, in some cases, even by a malicious motive directed towards destroying some form of developing liaison between a parent and some other person. Such potential situations are routinely seen in the criminal jurisdiction. The nature and extent of a warning given will necessarily be the product of the environment of the particular case, and the factual issues which arise within it, coupled with an assessment of the degree of maturity and presentation of the young witness in question. (R v Morgan (1978) 3 All ER 13.) 80. It is stating the obvious to say that, in the context of the instant case, there was a pressing need to give a very full and careful warning having regard to the obvious motives for falsehood which were revealed by the evidence; and to which the attention of the jury needed to be directed in strong terms. 81. But a glance at the initial cross-examination of Nicola reveals that, not only did she resent the appellant from the outset (because of his developing relationship with her mother), but, as time went by, she positively developed a hatred for him because of his strict attitude towards her and the restrictions which he imposed upon her desired social activities. 82. A great deal of tension had arisen because of the appellant's objections to her friendship with an older girl named Michelle, and what the appellant perceived as an undesirable influence which that person had upon Nicola. Michelle was 2 years older than Nicola and tensions arose as to the desire of Nicola to go out at night with, and be in the company of, Michelle. Nicola candidly admitted, in reference to the appellant, that she "hated his guts" and that she had actually had discussions with Michelle as to ways of getting rid of the appellant from the household. 83. In the course of cross-examination Nicola conceded that, although she claimed to have been subjected to persistent sexual abuse at the hands of the appellant, she had never complained immediately after any incident of such abuse, notwithstanding that she appreciated that, had she done so, this would have had the almost certain consequence, at the time, of removing the appellant from the household. 84. All of these factors, viewed in the context of Nicola's age, necessarily required her evidence to be subjected to a very critical and close scrutiny. They were indicative of a situation in which clear corroboration of her evidence was highly desirable, lest an injustice result. 85. The fact is that these aspects were never fully dealt with in the summing up in a manner which was appropriate to the circumstances. Once again, on that basis alone, it seems to me that, with respect, the summing up was fatally flawed. 86. Although other aspects were dealt with in the course of argument upon the appeal there is only one further, but very important, matter to which I would desire to direct attention in these reasons. 87. At the end of the trial the jury returned verdicts of guilty on the first, second and fifth counts. However they returned a verdict of not guilty in relation to the count of unlawful sexual intercourse, concerning the alleged use of the dildo and also the count of unlawful sexual intercourse related to the allegation of vagina sexual intercourse said to have occurred in April 1991. 88. It must be borne in mind that both of the allegations as to which verdicts of not guilty were returned were the subject of quite specific evidence given by Nicola, both as to what was said to have taken place and the circumstances in which each incident was alleged to have occurred. 89. Miss Vanstone sought to argue that the verdicts were explicable on the basis that the medical evidence led was somewhat equivocal as to whether a genital examination of Nicola indicated that she had been the subject of full vaginal penetration or not. Miss Vanstone sought to argue that the verdicts returned on these counts may simply have reflected an uncertainty on the part of the jury as to whether there had been the necessary penetration. They should, she contended, be viewed in that light. 90. In my opinion such a conclusion is not fairly open on the evidence. The plain fact of the matter was that Nicola gave quite unequivocal evidence to the effect that she experienced full penetration on each occasion. Particularly in the case of the alleged penile intercourse she spoke of the appellant having his penis inside of her. 91. In my opinion it is impossible to view the verdicts of the jury as to the third and fourth counts as being other than the outcome of a conclusion on their part that they did not believe the story related by Nicola concerning the relevant incidents. 92. That being so, there is a very strong reinforcement of the other matters of complaint related to the content of the summing up, or, rather, the lack of its content. Having regard to the essential features of the story told by Nicola as to an ongoing course of conduct and the clear motive on her part for falsehood stemming from her relationship with the appellant, the question of her general credibility assumed critical importance. 93. Once it was accepted that she was not telling the truth as to two very important aspects of her story then, as a matter of simple logic, that cast a very considerable shadow over the remainder of her evidence concerning the other counts. (See, for example, the reasoning of Gibbs J. in R v Crnjanin (1965) Qd R 324.) This rendered it imperative that a clear and unequivocal corroboration warning be given. 94. In this case not only was the presence of strong corroborative evidence minimal, but there were also clear indications on the evidence which raised the possibility of recent invention. This was not really canvassed with the jury in any definitive manner. 95. At the end of the day I entertained no doubt that, not only did the trial miscarry, but, on any objective overview of the evidence, the verdicts returned as to the first, second and fifth counts were manifestly unsafe and unsatisfactory. In my opinion very unsatisfactory features of this case would remain upon any retrial. I therefore formed the view that, in the circumstances, the only appropriate outcome of the appeal was a quashing of the verdicts appealed against and the substitution for them of verdicts of acquittal.

JUDGE3 MULLIGHAN J. I agree with the reasons for judgment of the Chief Justice.

Evidence Act 1929(SA)

English Police And Criminal Evidence Act 1984

Evidence Act 1929(SA)

English Police And Criminal Evidence Act 1984

R v Pahuja

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

R v. DOLAN File No. SCCRM 92/584 Judgment No. 3638 Number of pages - 23 Criminal law and procedure - evidence (1992) 58 SASR 501 [1992] SASC 3638 (16 October 1992)

Parties

Legislation Cited (4)

Cases Cited (21)