R v T No. SCCRM-99-26 Judgment No. S242 [1999] SASC 242

Supreme Court of SA|1999-06-11|Before: Doyle CJ, Mullighan JJ, Prior J

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE BRIGHT)

(Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ)

DOYLE CJ I would allow the appeal against conviction. I agree with the reasons given by Prior J. I agree also with the reasons given by Mullighan J, save that I do not accept that the conviction on Count 1 is inconsistent with the acquittal on Count 5.

I agree with Mullighan J that a retrial should not be ordered on Count 1. A judgment and verdict of acquittal should be entered on that Count.

Usually the decision whether a retrial will take place should be left to the Director of Public Prosecutions. An order for a retrial does not require the Director to proceed. But in a number of cases this Court has declined to order a retrial when an accused person would face a significantly different case on the retrial from that faced at trial. I consider that this is one of those cases.

Count 2, on which the jury were unable to agree, is not before this Court. The Court is not able to make any order in respect of that Count. It is for the Director to decide what is to happen on that Count.

PRIOR J This is an appeal against a conviction upon one count of indecent assault. The appellant was tried upon an information which alleged two separate offences of indecent assault and three of unlawful sexual intercourse with a young person between February 1989 and June 1992. The jury returned a majority verdict of guilty on the first of the indecent assault charges. It was unable to agree as to the second and returned not guilty verdicts on the three counts of unlawful sexual intercourse.

The appellant complains of a ruling made by the trial judge about the consequences of cross-examination of the complainant with respect to photographs taken of one or two other people. The trial judge had ruled that if the appellant's counsel cross-examined the complainant in relation to an allegation by the complainant that photographs were taken of another person, the prosecution would be entitled to lead evidence in re-examination of alleged acts of sexual misconduct by the appellant against that person and lead evidence from that person on the topic of the alleged photographs.

Further grounds of appeal related to directions given to the jury. It is said that the judge's directions were inadequate in relation to the significance of the absence of recent complaint and delay in reporting the matter to the police. It is further said that there were inadequate directions with respect to the proper and improper use of uncharged incidents and the taking and showing of photographs.

The appellant says that the judge should have warned the jury of the danger of acting upon the evidence of the complainant in view of his age at the time of the alleged offence, the fact that the complainant's evidence was unsupported, the appellant's denial of the allegations on oath and the matters already referred to with respect to the absence of complaint and delay in reporting.

A further complaint is that the verdict returned on the indecent assault charge was inconsistent with the acquittal on a charge of unlawful sexual intercourse, being the fifth of the five charges before the jury. The verdict is said to be unsafe and unsatisfactory because of the not guilty verdicts returned, the absence of any support for the complainant's evidence, the appellant's denial of the offence on oath, the long delay in the reporting of the charge, the complainant's age at the time of the alleged offences and the inconsistency of the verdicts returned on the first and fifth counts when they both depended solely upon the credibility of the complainant.

Counsel for the appellant wished to cross-examine the complainant about the identity of persons in photographs the complainant alleged he was shown by the appellant. The complainant's evidence was expected to be that the photographs were of two other boys, one of whom had made allegations of sexual misconduct against the appellant. The appellant was charged with unlawful sexual intercourse with that person. That charge was originally joined with the charges then before the court. The trial judge ordered that that matter be severed and the subject of a separate trial. In a statement, that person had said that he could not remember any photographs of him ever being taken by the appellant. The other person gave a statement to police saying there was no sexual misconduct between him and the appellant, nor were photographs taken of him by the appellant at any stage.

The effect of the trial judge's ruling was that if the appellant's counsel cross-examined the complainant upon the basis that there were no photographs taken of one of the boys, that would enable the prosecution to positively lead evidence that the other, although he could not remember photographs being taken, was also a person in the photographs. Further, the trial judge said it would permit the leading of evidence of sexual misconduct by the appellant with that boy. Against the trial judge's indications, no evidence was led from the complainant with respect to who the persons were in the photographs. The prosecution's case was that the photographs were no longer in existence.

I think the trial judge erred. The appellant's counsel should have been allowed to question the complainant about the identity of the persons in those photographs and have the jury hear of their denial or doubt as to photographs being taken. That was an issue properly going to the complainant's credit on a material issue. Nevertheless, if that issue were to be before the jury as to the complainant's credit, it could not allow the prosecution to introduce evidence of sexual misconduct with one of those two. That would be inconsistent with the order severing the charge involving that boy. Such evidence could not be used to bolster the credibility of the complainant. Nor could it be introduced to render it more likely that the appellant took photographs of the kind the complainant claimed he was shown. To introduce the evidence would have unduly prejudiced the appellant in his trial on the matters then before the jury. It would have been unfair to allow that evidence to be before the jury. It was not sufficiently probative of any of the charges then being tried.

The offence found proved was alleged to have occurred in 1989, when the complainant was aged about 13. When he gave his evidence he was 23 years of age. The other charges related to periods of time when the complainant was between 13 and 17 years of age. The evidence before the jury was that the complainant did not make a statement to police until August 1997.

In summing-up to the jury, the trial judge said that the complainant did not make any complaint to any person at any very short time after any of the events alleged in the five charges. His Honour said that in the case of some offences and in particular, some sexual offences,

"it might be very odd if no complaint were made very soon after the events. Sometimes, a rape, for example, could occur in circumstances where an absence of complaint would be consistent with embarrassment, or something like that. Speaking generally, people tend to complain about the commission of sexual offences reasonably promptly, but they do not always do so. Look at the circumstances of this case, look at your assessment of (the complainant), the way the relationship developed, and all of the facts of the case, but do consider whether you think that the fact that it was a long time before any complaint was made has any implications for you in this case. I don't suggest one way or the other, I just ask you to consider it."

The form and content of the direction is complained of. The appellant says that this was a case calling for a warning about the danger of acting upon the complainant's evidence given the periods of time involved in the occasions the subject of the charges and the date when a statement was given to police. A warning was called for with the authority of the judge[1]

. I think the respondent is correct in the submission that the form of the direction was adequate, sofar as the trial judge did tell the jury to consider whether they thought the long time before the complaint was made had any implications for them.

16 It is often appropriate for a trial judge to instruct a jury that in evaluating the reliability of the evidence of a complainant in a sexual case the jury can take into account delay in the making of any complaint. In Kilby v R[2], Barwick CJ said that a jury can take into account that a complainant had made no complaint at the earliest reasonable opportunity and that particular circumstances may call for such a direction to be given "as a general rule". That was a case involving the issue of consent. This was not a case where the prosecution had to negative consent with respect to any charge. However, the absence of consent was relevant to the circumstances of the first count though apparently not to the others given the evidence from the complainant about how the relationship developed and how the subsequent sexual exchanges were consensual. The trial judge could have invited the jury to consider whether the absence of a timely complaint, if that be the jury's conclusion, was relevant to the credibility of the complainant with respect to the first charge in particular and a fact to be considered in evaluating the consistency of his evidence. There may be many reasons to explain why a complaint was not made promptly. The complainant spoke of being shocked and embarrassed by this first act of masturbation, after the complainant said he was encouraged by the appellant to remove his underpants whilst having his jeans dried in a clothes' drier at the appellant's house.

17 It is for the jury to weigh up these possible reasons and the significance of the delay in complaining, certainly in cases where consent is an issue[3]. So too in this case, where the two incidents preceding the occasion the subject of the first charge were so different from that alleged in the first count and the subsequent conduct. Thus, whilst absence of consent was no answer to any charge it was not an irrelevant circumstance with respect to the first count and the question whether there was a credible explanation for the failure to make a prompt complaint. The complainant's credit with respect to that charge seems open to possible challenge with respect to that count in a way it was not with respect to the other counts.

18 Whilst the respondent sought to say that the directions were adequate, I think that, in this case, the trial judge should have given a clearer warning, at least with respect to the first count, that the delay could reflect adversely on the complainant's credit depending on the view the jury took of any reasonable explanations for the delay[4]. Likewise, the jury should have been told to consider whether the passage of time may gave rise to any prejudice to the appellant with respect to any particular count[5]. In this case, the appellant was entitled to a direction that the absence of complaint was capable of adversely impacting on the complainant's credibility with respect to the first count if not explained to the jury's satisfaction. Any unexplained delay was to be taken into account in considering difficulties that the accused might have in answering a particular charge. Events occurred over a long period of time. I think the summing-up paid inadequate attention to the possible impact of delay upon the ability of the defence to prepare its case. Again, with respect to the first count, the appellant's evidence was that he never had a clothes' drier, in which he allegedly dried the complainant's jeans. The direction should have been more specific, the possible impact of delay upon the ability of an accused to prepare his or her case is often a matter that a jury might not fully appreciate unaided. More detailed emphasis was required in this case than the trial judge gave to this factor.

Throughout the complainant's evidence, he spoke of many other occasions of alleged sexual misconduct by the appellant. Almost all of that was after the occasion the subject of the charge found proved. The complainant gave evidence of two touchings on his leg on two separate occasions before the indecent assault alleged in the first count.

The trial judge told the jury to be careful how it dealt with evidence about incidents alleged by the prosecution not themselves the subject of the charges. His Honour said that if, and only if the jury found all, or any of those background incidents proved beyond reasonable doubt, could the jury rely on them for any purpose. He said that if proved, those incidents "may explain how the relationship developed or how situations occurred". His Honour also said that that evidence "might cause the jury to doubt the appellant's denials but they were not the subject of charges themselves". He specifically told the jury that it could not conclude that while a particular charge was doubtful, certain background information satisfied the jury that conduct of that sort occurred at some other place at some other time and therefore convict on one of the charges actually laid. The jury was told that it could only convict if satisfied in relation to a specific charge laid.

I think the trial judge should have given the jury more specific directions as to the proper use of the uncharged incidents. In particular I think the jury had to be told that the evidence of what the complainant said occurred between them before the occasion the subject of the first count was evidence of how the relationship alleged began but that neither it, nor the evidence of other uncharged offences after that could be used to satisfy the jury as to the appellant's guilt on the first count. The fact that the jury returned a guilty verdict on this count alone is cause for concern. The directions given with respect to uncharged incidents were general and not specific to each charge and the first count in particular. That omission, together with the incorrect ruling and the lack of a particular warning about the only possible significance of the delay in complaining, means that the appellant was deprived of a chance of acquittal.

There is also something in the argument as to inconsistent verdicts on the first and fifth counts, given the times when the two events occurred. It might be thought that the complainant's memory of events more recent than those associated with the first charge would be more reliable, yet the jury acquitted on the latest charge. However, I am not persuaded that this Court should make a finding favourable to the appellant on this ground. Detail was lacking in the evidence with respect to the fifth count.

As for the other grounds of appeal, I agree with the submission put on behalf of the respondent that no warning was required with respect to the complainant's age. As for the fact that the complainant's evidence was unsupported, the directions as to burden of proof and the need to look at the complainant's evidence "very carefully" were adequate. No further warning or direction of the kind suggested was necessary. I reject the arguments advanced in support of the remaining ground of appeal. It was open to the jury to convict but only upon proper and adequate directions.

I would allow the appeal, set aside the conviction and order a retrial on the count the subject of the guilty verdict and the one upon which the jury failed to agree.

MULLIGHAN J The appellant was found guilty by verdict of the jury of one count of indecent assault and appeals against that conviction.

He was a coach of young boys at a cricket club for many years and coached teams of varying ages. He formed a relationship with a member of the team which he was coaching in the period from 1988 to 1992 who was aged from 13 years to 16 years during the period. I shall refer to him as "A". During the relevant period the appellant was aged from 45 to 48 years and was married with adult, or nearly adult, children.

In addition to the charge of indecent assault of which the appellant was found guilty, he was charged on the same Information with a further count of indecent assault and three counts of unlawful sexual intercourse with a person under the age of 17 years, said to have been A.

It was alleged that the first act of indecent assault of which the appellant was found guilty involved an act of the appellant masturbating A said to have occurred in February or March 1989 when A was aged 13 years. It was alleged that the incident occurred during an end of season wind-up party for the cricket team in a shed at the rear of the house of the appellant which contained rooms including a room with a pool table. The second count of indecent assault was alleged to have occurred in the same shed in 1990 when A was aged 14 years and to have involved what may be described as simulated sexual intercourse without penetration. It was for that reason that the charge of indecent assault was selected. The third charge alleged that the appellant had committed an act of fellatio on A who, at the time, was aged 15 years, when they stayed in a motel in Adelaide in February or March 1991. The fourth charge also alleged that the appellant had committed an act of fellatio on A and that he was aged about 16 years at the time. The incident was said to have occurred at another motel in Adelaide during another trip in 1992. The last charge also alleged an act of fellatio upon A at a house in a country town, leased by the appellant, when A was aged 16 years during the first half of 1992.

Also the appellant was charged on the same information with another count of unlawful sexual intercourse with another person under the age of seventeen years. This charge alleged that the appellant committed an act of fellatio upon a boy, whom I shall call "B", said to be aged 13 years during the period from 1st September 1988 to 1st April 1990.

Before the trial, it was ordered that this lastmentioned charge be tried separately from the other charges which then proceeded to trial. The appellant was found guilty of the first charge of indecent assault. The jury was unable to agree on the second charge. The appellant was found not guilty of the other three charges.

The prosecution case was that over the four years embraced by the five charges, the appellant had conducted a sexual relationship with A. At the time of the trial, A was aged 23 years. He had played cricket and the appellant coached at the cricket club from when he was aged about 12 years to when he was aged 16 years. The appellant was his coach throughout that time. Soon after A joined the club, the appellant offered him paid work on weekends doing jobs at his home. During the years which have been mentioned, A spent a good deal of time with the appellant and the sexual relationship soon developed and continued. The first incident, which was not the subject of a charge, occurred when the appellant was teaching A to drive a motor vehicle even though he was under age and did not have a driver's licence. It occurred on an old dirt road. A was then too short to reach the pedals and use the steering wheel so he sat on the lap of the appellant in order to reach the steering wheel. According to A, the appellant rubbed his inner leg. A stopped the car and protested. The appellant apologised and took him home. The next day he told A that the contact with his leg was accidental. About a month later, according to A, there was an incident at the appellant's home when A spilt paint on his shorts and the appellant began to wipe away the paint in the area of the groin. A said that he pushed him away and told him to desist.

The sexual conduct progressed to the accused masturbating A, and later to fellatio. As might be expected, A could not particularise the date, time, place or the nature of the sexual conduct on each occasion over those years, however he claimed to be able to remember the occasions which are the subject of the charges. At the trial, he gave evidence about the alleged incidents and about many other occasions of sexual conduct with the appellant which were not the subject of charges.

A said he was able to particularise the occasion of the first of the two incidents which are the subject of the charges of indecent assault because it occurred during the first end of season party for the team which he attended at the home of the appellant. His evidence is that on this occasion, he remained at the house after the party and was playing pool with the appellant. He spilt soft drink over his jeans. At the suggestion of the appellant, he removed them and they were washed and dried. The appellant then suggested that he remove his underpants which were also wet from the soft drink and the appellant proceeded to do so. It was then that the act of indecency occurred. A told the jury that he was embarrassed, shocked, amazed, angry and confused about the incident and that he did not tell anyone about it because he was embarrassed and did not want to say anything about it.

According to A, after this first incident there were many occasions when the appellant masturbated him in the same shed and in his motor vehicle. He said this conduct occurred once every month or month and a half and about a dozen or more times in 1989. He said he found it enjoyable but confusing as it was performed by a male. He did not tell anyone about it because he did not want to do so. A also claimed that there was an occasion in 1989 or 1990 when the appellant took photographs of A whilst he was in the shed naked with what he called an instamatic camera.

On the occasion to which the second count relates, A was again in the shed but in the little bedroom. He said that he and the appellant were drinking a bottle of Johnny Walker Black Label whisky. They consumed nearly the whole bottle with A having drunk about half of it. He said the accused had drunk a little less than him. He also said that he was drunk and the appellant was a little drunk and at the request of the appellant he removed his clothes. The appellant said he wanted to teach A how to have sex. The appellant then had the boy lie on top of him and put his penis between his legs and move up and down. He did so until he ejaculated. They stayed in the room for a time watching television and drinking. The appellant then took him home. A said that he did not want to tell anyone about this incident and did not do so. He said that he enjoyed this conduct.

A asserted that during 1990 the appellant took more photographs of him whilst he was naked.

During the early part of the following year, the first act of fellatio is said to have occurred which is the incident referred to in the third count. According to the appellant, it occurred in about March 1991. It was the end of the cricket season and the appellant and A went to Adelaide to attend speedway races. They stayed at a motel although in cross-examination he said the purpose could have been to attend motor cross races in Adelaide on the Friday and Saturday nights. According to A, the appellant left him alone in the motel room on the Friday night and a woman, presumably a prostitute, went to the room and had both oral and vaginal sex with him. The next day the appellant asked him whether a woman had come to the room, what had happened and whether he enjoyed it. A told him that the woman had sex with him, including performing fellatio upon him. The appellant then asked if he could also perform fellatio on A like the woman had done and he did so. A told the jury that he did not tell anyone about this incident. He also told the jury that they did not go the speedway because it was washed out. At this time, on A's evidence, he would have been aged 15 years. Later in his evidence, he acknowledged that the incident could have occurred in March 1993 when he went to Adelaide with the appellant to attend a motor cross event.

According to A, the appellant thereafter performed fellatio on him on many occasions. The incident which is the subject of the fourth count also occurred when the appellant brought A to Adelaide. They stayed in another motel and went to motor cross races at the Adelaide Entertainment Centre. They stayed at another motel, at Bolivar, and an act of fellatio occurred. On A's evidence, he would have been aged 16 years at this time, the incident having occurred in 1992.

There is some confusion on the part of A as to when the trip for speedway purposes occurred and when a later motor cross event was held, however, the prosecution case was that these trips and, therefore, the acts of fellatio occurred in 1991 and 1992.

The last act of sexual intercourse, which is the subject of the fifth count, is said to have occurred in a house in a country town which the appellant leased and occupied after separating from his family. According to A, the appellant told him that if he ever had an argument with his mother and decided to leave home, he could move into the house with him without telling her. A said that he did have an argument with his mother and he left home without telling her and stayed with the appellant over a weekend, during which time the appellant performed an act of fellatio on him.

A told the jury that during the 1991/1992 cricket season, he continued to play cricket and he did not tell anyone about his relationship with the appellant.

Towards the end of 1993 A formed a relationship with a young woman. He continued to see the appellant but spent less time alone with him. They had purchased, and owned, a motor car together. According to A, the appellant wanted to see more of him. He wrote letters to him and attended at his home unexpectedly. A moved to Adelaide but returned to his family home on weekends to see his mother and girlfriend. On such an occasion, he saw the appellant. He described an incident when they were sitting in A's motor vehicle at a car park of a large shop. The appellant said he wanted to buy him another motor vehicle for his eighteenth birthday and placed his hand on his penis. A rejected this approach and the relationship ended.

At no time did A ever tell anyone about the sexual features of the relationship and when again asked why he had not done so, he said that he never wanted to tell anyone what was going on.

There was an issue between the appellant and A about the jointly owned motor vehicle. Initially it was registered in the name of A and left at the home of the appellant. A alleged that they had contributed to the purchase price equally which was denied by the appellant. According to A, after he had commenced his relationship with the young woman, the appellant told him that he should stop seeing her and see more of him. A rejected this suggestion and soon after found that upon re-registration of the motor car, it was registered in the name of the appellant without his knowledge or consent. He confronted the appellant who told him that if he stopped seeing the young woman, he would give him the motor vehicle.

Thereafter A went to the home of the appellant on occasions to collect his property and on one occasion saw the appellant burning photographs he had taken of him. A, untruthfully, told the appellant that he had stopped seeing the young woman so that he could recover the motor vehicle and thereafter saw the appellant from time to time. At this time A was aged 17 years.

There were occasional further meetings between A and the appellant but there was no resumption of the sexual relationship. Eventually, the appellant sold the motor vehicle and retained the proceeds.

It appears that A first disclosed the alleged sexual relationship when he made a statement to police in Adelaide in August 1997. We were informed that the police approached him to provide information about the complaint made by the other boy, B, and that is when he told the police what he says had happened.

The appellant gave evidence and denied that he had ever had any type of sexual relationship with A. He denied the incidents referred to in the five charges. After A had made his statement to police, detectives went to the appellant's house and questioned him there and at a police station on 9th September 1997. The appellant denied any sexual conduct with A.

His case is that he coached the cricket team in which A played for about four years as it progressed through the grades. According to him, A did some weekend work with him on a few occasions. There were regular end of season parties at his home for members of the team he was coaching and their parents. In particular, the appellant denied the incident about A's jeans being removed because soft drink was spilled on them. He denied ever taking photographs of A naked. He denied the incident which is the subject of the second charge. He said that he did not drink alcohol and had not done so since he was aged 18 years.

The appellant admitted staying with A at the two motels. He said that on the occasion of the third charge, they intended to go to the speedway at Virginia but it was washed out. He said they stayed only one night. On the occasion of the fourth charge, they also stayed one night in a motel and went to a motor cross event at the Adelaide Entertainment Centre. He told the jury that the first time he heard that A was making these allegations against him was when the police spoke to him. He then made enquiries at the motels, the Entertainment Centre and the Bureau of Meteorology to try and ascertain when relevant events occurred, when he stayed at the motels and as to the state of the weather at relevant times. It was established that there was a motor cross event at the Adelaide Entertainment Centre on 9th October 1993, there was no such event in or about February to March 1991, there was no record at one of the motels of the appellant ever having stayed at that motel and there was a receipt issued to A by one of the motels on 26th March 1993. Records of the Bureau of Meteorology were admitted in evidence which revealed that it was raining on 9th October 1993. Records for the other motel were not available.

This evidence is important. In conjunction with the evidence of A and the appellant, it establishes or tends to establish, that A and the appellant were at Adelaide and Bolivar not in 1991 but in 1993 when A was aged 17 years. The appellant denied that he had ever stayed two consecutive nights at the first motel with A or that he had ever sent a woman to his room. He denied that he ever performed fellatio upon A at a motel or anywhere for that matter.

The appellant said that he separated from his wife for a short period and rented the house in a country town for a period of six weeks in the first half of 1992. He then returned home to his family. He said that there was an occasion when A stayed with him at that house. According to him, A told him that he had left home and wanted to move in with him. The appellant said that he made him telephone his mother. According to him, A stayed with him for two nights. He denied that there was any sexual contact between them of any nature including fellatio.

As to the motor vehicle, the appellant said that he purchased it by taking out a loan. A did not have any money and he was to pay the appellant for the vehicle in due course, but at no time did he make any financial contribution to the vehicle. Records from a credit union admitted into evidence reveal that the appellant withdrew $8,000 in late December 1992. He said that he registered the vehicle in joint names because he thought it would be easier to transfer it into A's name after he paid the appellant for the vehicle. He later transferred the vehicle into his own name.

The appellant denied ever trying to stop A from seeing the young woman. He denied ever writing letters to A offering to give him the motor vehicle if he terminated that relationship. He denied that he offered to purchase another motor vehicle for A. He said that the last time he saw A was when he asked the appellant to give him $3,000 and he refused. According to the appellant, there was an incident when he said that A had driven a motor vehicle and purposely collided in a minor way with a vehicle which he was driving following what may be described as a digital gesture by the girlfriend.

There was no corroboration of the evidence of A and it was a case of his word against that of the appellant.

I now turn to the grounds of appeal in the order in which they were argued.

The first ground is that the learned Trial Judge failed to direct the jury adequately as to the significance of the absence of a recent complaint by A and the delay in reporting the matter to the police. As has been seen, A did not make a complaint to anyone during the course of his association with the appellant and he made his statement to the police about eight years after the first alleged incident of sexual conduct and over five years after the incident alleged in the fifth count in the information. The learned Trial Judge directed the jury about this matter as follows:

"In this case, one matter that I want to comment on is that, on any version, [A] did not make any complaint to any person at any very short time after any of the events alleged. Now, he says that the conduct took place over quite a lengthy period of time, but it was still quite a long time after that before any complaint was made. In the case of some offences, and, in particular, some sexual offences, it might be very odd if no complaint were made very soon after the events. Sometimes, a rape, for example, could occur in circumstances where an absence of complaint would be consistent with embarrassment, or something like that. Speaking generally, people tend to complain about the commission of sexual offences reasonably promptly, but they do not always do so. Look at the circumstances of this case, look at your assessment of [A], the way the relationship developed, and all of the facts of the case, but do consider whether you think that the fact that it was a long time before any complaint was made has any implications for you in this case. I don't suggest one way or the other, I just ask you to consider it."

In my view, this direction was inadequate for three reasons. It was essential that the jury be given clear and accurate directions about this long delay and the use which could permissibly be made of it. A recent complaint or its absence is often of little assistance in the resolution of facts in issue (Jones v The Queen (1997) 191 CLR 439 at p453) and is usually only relevant as to the credit or reliability of the alleged victim: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at p472, Sparks v The Queen [1964] AC 964 at p979 and Jones at p454. Where there is substantial delay, as in the present case, there is all the more reason to give such a direction to the jury. It is for the jury to assess the reason for the delay or for not having made any complaint at all depending upon what view the jury took of A's explanation. If the jury accepted his explanation, the delay would not be likely to impugn his credit or raise doubt about his reliability. Whilst it is unlikely that in the circumstances of the present case the failure by a young boy to disclose homosexual conduct with his cricket coach would be likely to affect his credit, that was a matter for the jury and a clear direction about that matter should have been, and was not, given. As may be seen from the direction given in the present case, the jury were not told of the use which could be made of the delay in disclosing the conduct which was a misdirection.

The second reason is that the learned Trial Judge did not give a direction in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. Brennan, Dawson and Toohey JJ said at p91:

"[T]here 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 R v Spencer [1987] UKHL 2; [1987] AC 128 at 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 (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 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, scrutinising 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. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

In Jones, a case where the delay in making a complaint was about four years, Brennan CJ referred to this observation in Longman and said that it was applicable in that case even though the lapse of time was shorter at pp445-446): see also Gaudron, McHugh and Gummow JJ at pp453-454. In R v K [1997] SASC 6193; (1997) 68 SASR 405, this Court held that a suitable warning should be given where the delay was some five to six years.

It may be seen that the learned Trial Judge did not refer to the delay in this context at all.

It was suggested in argument that a direction along these lines was not necessary unless there was some evidence of prejudice to the appellant by reason of the delay. I do not think that is so. In most cases of substantial delay, the potential for prejudice will be obvious. In some cases it will be apparent that there has been no prejudice. I have in mind cases where sexual conduct is alleged on one occasion and despite the delay, that allegation may be adequately investigated by the defence. However, in most cases, there will be prejudice. In cases such as the present, where it is alleged that there have been many incidents of such conduct over a substantial period of time and a long time ago, the possibility of prejudice will be obvious without evidence to that effect and the trial Judge should direct the jury accordingly. However, in the present case, the evidence did reveal that the appellant was hampered in the presentation of his defence. His inability to obtain clear information from the two motels exemplifies the need for the warning in the present case. True it is that he was able to establish that there was no motor cross event at the Adelaide Entertainment Centre in 1991 and that there was no record of his having stayed at the two motels at relevant times, but there was a record of A having stayed at one of them in 1993 when A was over the age of 17 years which could explain the verdicts of not guilty on the third and fourth counts. However, if he had been informed of the allegations soon after the events are alleged to have occurred, he may have been able to obtain other evidence which may have assisted him in his defence. That is the point made by Longman and was not addressed by the learned Trial Judge in his summing up.

The importance of this matter is illustrated in the context of both the first count and the second count of indecent assault. It is one thing to remember a party but quite another to remember who left with whom, who may have remained and which parents attended and when they left. If any of those matters could be recalled and persons with relevant evidence could be located, the defence could possibly be assisted. As to the second count, as has been mentioned, A said that he and the appellant were drinking whisky and were intoxicated. The appellant denied that he drank alcohol. If the occasion had been more precisely specified, it is possible that the appellant may have been able to refute this allegation with evidence to the contrary which could have disproved or cast doubt upon the evidence of A. I am not suggesting that exculpatory evidence would have been available. I merely mention these matters as illustration of the point made in Longman.

The third reason is that the learned Trial Judge expressed himself in terms of making a comment about the delay. As has been seen, he gave no directions about the significance of the delay in the circumstances of the case and what he did say was not said as a direction with the authority of the Judge. I reject the contention that if the learned Trial Judge had given a warning in terms of Longman and indicating it was with his authority as the Trial Judge, the consequence would have been to impugn the credibility and reliability of A. Properly directed, the jury would have clearly understood that it was for them to assess A and the significance, if any, of the delay.

It was suggested during the course of argument that the direction should be in the terms that if the jury was not satisfied with the explanation for the delay in reporting the sexual conduct that they should heed the warning. I reject that approach. The nature of the direction must, of course, be tailored to meet the circumstances of the particular case but in cases of delay there must be a suitable direction about the significance of delay in the context of both the reliability or credit of the complainant and its impact upon the defence. The reason for delay would normally have no bearing upon the latter.

The next ground argued complains that the learned Trial Judge erred in failing to warn the jury as to the danger of acting upon the evidence of A in view of his age at the time of the alleged conduct, his evidence being unsupported, the delay in reporting the matter and the difficulties thereby facing the appellant, the absence of a recent complaint and that the appellant had denied the allegation on oath. The complaints about delay and the absence of a recent complaint have been discussed.

As to the other matters raised by this ground, it is to be understood that relevant part of the summing up which has already been mentioned followed appropriate and accurate directions about the burden and degree of proof. The learned Trial Judge then directed the jury as follows:

" In this case, [A] says that certain things happened. [The appellant] says that they didn't. I guess there is room for some doubt about some of the details, but there is no room for honest mistake about the basic allegations. If [A] is wrong about them, it can only be because he is telling lies. Exactly the same applies to [the appellant. Each gave evidence on oath. No doubt, part of your deliberations will be to decide whom you believe, whom you prefer, but I must remind you that that is not the whole question. If you were to disbelieve one, that would not automatically mean that you would believe the other. You might disbelieve both. In particular, if you were to disbelieve [the appellant], it would not follow that you would be satisfied beyond reasonable doubt by the evidence of [A]. You might or might not. It would still be necessary for you to look at [A's] evidence very carefully to see if you were satisfied by it. This is the inevitable consequence of the prosecution have to be proved beyond reasonable doubt."

"Only if you are satisfied of his truthfulness, can you convict on any of the counts. Do [the appellant's] denials cause you to entertain any reasonable doubts about that? Does anything about the way [A] gave his evidence lead you to doubt? Does any part of the evidence from any source lead you to doubt his general honesty? If so acquit."

"So, not because I want to suggest anything about whether or not you should accept his evidence, but because it is the only direct evidence of the matters charged, it is critical for you to look at [A's] evidence very carefully. What motives may he have to lie? Is there something else that we don't know about in the relationship which has caused unhappiness? Is he cross about cars? Are there any number of other matters which cause you to doubt what he said which may have caused him to tell lies to you? Where his evidence touches on matters advanced by others, what have they said? Does he seem to be right about them?"

I can see no basis for objection to these directions. A was an adult at the time of his giving evidence and, indeed, when he made his statement to the police. As a matter of law, no warning had to be given to the jury that it was dangerous to convict without corroboration of his evidence because he was a young person when the alleged offences were said to have occurred or because they were of a sexual nature: Longman, R v Pahuja (1987) 49 SASR 191 and Question of Law (No 1 of 1993) [1993] SASC 3896; (1993) 59 SASR 214.

If the circumstances of the case indicate that there is a possibility of a miscarriage of justice, a warning should be given and in terms appropriate to those circumstances: Bromley v R [1986] HCA 49; (1986) 161 CLR 315 at p319 and Longman at p86. However, there is nothing about any of the particular matters raised for consideration in this ground of appeal, when considered separately or together which require such a warning. A's age when the alleged offences were said to have happened did not as a matter of law or practice require a warning. The reasons for a warning with respect to child witnesses are summarised in DPP v Hester [1973] AC 296 by Lord Diplock at p322; B v The Queen [1992] HCA 68; (1992) 175 CLR 599 by Dawson and Gaudron JJ at p616. A was not a child witness and those observations do not apply to him. There is nothing in the transcript of his evidence to suggest that he was experiencing any difficulty in giving evidence or that there was any reason for some special direction or warning to the jury because he was a teenager when the incidents he was relating occurred, apart, of course, from the delay which has been discussed.

Next, it is said that there should have been a warning that it is dangerous to convict upon the uncorroborated evidence of A because this was a case of one oath against another. In support of that contention, reference was made to Question of Law (No 1 of 1993) where King CJ said at p218:

"It is proper where an accused person has given evidence in denial of the charge and there is no convincing corroboration of the alleged victim's allegation, to remind the jury that the case is, or may be if they find the supporting evidence unconvincing, a case of oath against oath and of the difficulty in such circumstances of arriving at a conclusion of guilt beyond reasonable doubt. Where that course is taken, the jury should also be told that there are cases in which an alleged victim's evidence is so convincing and the accused's denials so incredible that it is possible to reach that state of mind, but that caution is indicated. It is proper to refer to aspects of human nature and behaviour such as those mentioned in the above passages from Pahuja's case which are relevant to the facts of the case. In discussing the evaluation of witnesses, reference to the possibility of hidden motives for giving false evidence or making a false allegation is permissible if that appears to the judge to be desirable having regard to the circumstances of the case."

King CJ, in referring to Pahuja, was drawing attention to his observations in that case as to aspects of human nature and behaviour which may give rise to a particular type of warning in certain circumstances (see p199). However, these cases do not oblige a trial judge to give a particular type of direction in every case which may be described as oath against oath. I reject the submission that in such cases there must be a direction that there is a difficulty in arriving at a conclusion beyond reasonable doubt. No such direction is necessary or, in my view, desirable. Of course, the trial Judge must consider all of the circumstances of the case and any matters arising which require appropriate directions to assist the jury to reach a just conclusion. However, in the present case, apart from the question of delay, there was no feature of A or his evidence which required a direction along the lines suggested in argument. The direction given by the learned Trial Judge was appropriate in the circumstances.

It is also contended that any error on the part of the learned Trial Judge was compounded by the observation which posed the question, "What motives may he have to lie?". Far from being an error, I think the summing up in that respect, when considered in its entirety, was appropriate in the circumstances. As has been seen, reference to the possibility of hidden motives for giving false evidence is permissible if regarded by the trial judge as desirable: Question of Law (No 1 of 1993) at p218.

It was contended that the decision of the majority of the High Court in Palmer v R [1998] HCA 2; (1997) 151 ALR 16 is contrary to those observations of King CJ. In Palmer, it was held that it was impermissible to ask the accused in cross-examination whether the complainant had any motive to make up her allegations. It was accepted that the absence of proof of motive is entirely neutral. Brennan CJ, Gaudron and Gummow JJ, at p21, approved the observations of Hunt CJ at CL in R v Uhrig (CCA (NSW) 24th October 1996 unreported at pp15-16 to the effect that such questioning:

"... invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to be, they should accept the evidence of that witness and convict, R v E (1996) 39 NSWLR 450 at 464. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case."

However, their Honours, at p22, went on to accept the further observations of Hunt CJ at CL in Uhrig:

"What this court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all."

In the present case, the learned Trial Judge was not in error in raising the question in the particular context which included possible motives which could be inferred from the evidence.

In my view, this ground, with the exception as to delay, is not established.

The next ground is that the learned Trial Judge erred in failing to direct the jury adequately as to the use which could properly be made of the various incidents which were not the subject of the charges. It will be remembered that there were two alleged incidents before the occasion referred to in the first count and many thereafter.

He gave directions about other matters, including that the jury was likely to have strong views on the type of conduct disclosed in the evidence and that they should do their best not to let those views colour their deliberations. He went on to say:

" In the same way, be careful how you deal with evidence about incidents alleged by the prosecution, but not actually themselves the subject of charges. If, and only if, you find all or any of those background incidents proved beyond reasonable doubt can you rely on them for any purpose. If proved, they may explain to you how the relationship developed, or how situations occurred. They might cause you to doubt [the appellant's] denials, but they are not the subject of charges themselves. If you decide to convict, it must be in respect of one or more of the charges actually laid. You could not conclude that, while a particular charge was doubtful, certain background information satisfied you that conduct of this sort occurred at some other place at some other time and, therefore, convict on one of the charges laid. You will only convict if you are satisfied in relation to the specific charges laid."

In my view, these directions are inadequate for two reasons. The importance of appropriate directions on this matter was stressed in R v Dolan [1992] SASC 3638; (1992) 58 SASR 501. King CJ, with whom I agreed, said at p503:

"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. 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 encumbent 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."

First, the learned Trial Judge did not direct the jury adequately as to the permissible use of this evidence. No doubt, as in Dolan, the evidence was admitted to establish the context and setting in which the offences were alleged to have occurred and could also explain why no complaint was made by A. In that context, a long standing sexual relationship may be viewed differently from a relationship in which isolated acts of sexual conduct occurred. The evidence was relevant for these purposes and the directions of the learned Trial Judge did not, in my view, go far enough in that they did not explain adequately the permissible use of the evidence. The direction made no mention of the absence of complaint. It did not adequately specify any of the permissible purposes for which the evidence could be used. Although mention was made of how the relationship developed or situations developed, there was no explanation as to the relevance and significance of those matters in the context of the incidents which are the subject of the charges. I think it was a misdirection to say that these uncharged incidents might cause the jury to doubt the denials of the appellant without a careful explanation as to the impermissible use of the evidence for that purpose. It is possible in a case such as the present case that the jury could reach the conclusion that the appellant had not been truthful about features of the relationship and, unless carefully directed to the contrary, go on to reason that his lack of credibility assisted in establishing his guilt of a charged incident in relation to which the evidence was lacking or was doubtful or unconvincing. That is a type of propensity reasoning against which the jury must be carefully instructed. There was no direction against that process of reasoning. There was the danger that the jury could adopt the process of reasoning that if they accepted A's evidence about features of the relationship which had been denied by the appellant, that finding could assist them to conclude that the appellant was guilty of a particular charge even though the evidence in support of that charge was not convincing.

Also, it was a misdirection not to adequately direct the jury against the impermissible use of the evidence. The direction given was too general. The jury should have been directed that if they found any or all of the uncharged incidents proved beyond reasonable doubt, they could not for that reason conclude he was guilty of any of the charges. The relationship evidence could not be used for that purpose. It could not be used to show that the appellant was of bad character or that he was the type of person who would commit offences of this nature. I do not think the direction on that matter given by the learned Trial Judge was sufficiently clear, particularly in view of a direction he had earlier given as follows:

"However, in a case like this, if you are satisfied beyond reasonable doubt of one count, let's say one of the counts of fellatio, it might be the case that that would assist you in considering another count. For example, you would have decided already that you didn't believe [the appellant], you would have decided that he had a sexual interest in [A], and you would have decided that he had, on at least one occasion, performed oral sex on [A]. In those circumstances, you might more readily accept an allegation that the same thing occurred on some other occasion. But be clear that you can only do this on the basis of a count which you had already found to be proved beyond reasonable doubt in its own right. You could not do it just by adding up a number of allegations which were not themselves separately proved."

I think these two directions could lead to propensity reasoning along the lines that if they found one incident of sexual conduct proved, that would assist them to find another such incident proved, and to disbelieve the appellant.

The next ground is that the verdict of guilty on the first count is inconsistent with the verdict of not guilty on the third, fourth and fifth counts. It is submitted that clearly the jury did not accept his evidence about the incidents which were the subject of the last three counts and consequently a verdict of guilty based upon his evidence with respect to the first count cannot stand. I do not think that observation may be made based upon the verdicts of counts three and four. Those verdicts of not guilty may be due not to doubt about whether the sexual conduct occurred, but whether A was, at the relevant times, under the age of 17 years. However the verdict of not guilty on the fifth count could not be explained in that way. It was clearly established in the evidence that A was aged 16 years at the time of this alleged incident. He was born on 8th December 1975. The appellant took out the lease on 18th January 1992 and the appellant left the house on 14th March 1992. A was at the house overnight only on one occasion. Whilst it is true that A told the jury that he could not remember if the incident occurred on a couch or in a bedroom and other matters of detail, his description of the actual incident was precise and with detail. His claimed inability to remember details such as the precise location within the house, whether he or the appellant were sitting or lying down and whether the appellant had removed his clothes, could not be regarded as a reason for the verdict of acquittal. After all, this was the only incident said to have occurred in this country town. It is not as if it could have become subsumed in A's memory of other incidents in that location. It is alleged to have occurred when A had left home without the knowledge of his mother. It could be said that it is likely that he would remember this sort of detail if the allegation was true. At the least, that was a relevant consideration for the jury.

Clearly, the jury must have rejected A's evidence about this incident or had a reasonable doubt about it. I think it is fair to say that this verdict damaged the credibility of A with respect to all counts in much the same way as was found to have occurred in Jones at p453; see also Dolan at p506. As has been mentioned, the prosecution case rested upon the uncorroborated evidence of A. The appellant could not be convicted on any count unless the jury were satisfied that he was a truthful, reliable and accurate witness. Clearly, they were not so satisfied with respect to the incident, the subject of the fifth count. There was nothing in the evidence about this count which could otherwise explain the verdict, as could be the case with respect to the verdicts on counts three and four. I do not think any of the principles discussed in Mackenzie v The Queen (1996) 71 ALJR 91 dictate a contrary conclusion.

For all of these reasons, the trial miscarried.

The appellant briefly argued the ground that the verdict of guilty on the first count was unsafe and unsatisfactory. The real basis of that submission has been mentioned in the context of other grounds and it is unnecessary to examine it further. Other grounds have been established and the conviction cannot stand. It is not appropriate to apply the provision to s353(1) of the Criminal Law Consolidation Act 1935. It could not be said that there has not been a miscarriage of justice.

I mention the last ground of appeal. In a statement to police, A said that the appellant had shown him two sets of photographs each depicting a different named boy. The photographs depict the erect penis of each boy. I shall refer to them as B and C. B is the person to whom the count in the Information which was severed relates. B told the police that he could not remember any such photographs being taken by the appellant. However, C told the police that he denied any sexual activity with the appellant and denied that any such photographs had been taken of him. Counsel for the Crown proposed to ask A about the appellant having shown him these photographs which were said to have been taken in the pool room in the shed of the appellant's premises without identifying the boys.. Counsel for the appellant wanted B and C called by the Crown so that he could cross-examine them with a view to establishing that this evidence of A was untrue. The purpose of such cross-examination was obviously to impugn the credit and reliability of A.

The matter was raised in advance with the learned Trial Judge. The prosecutor submitted that if such cross-examination occurred, evidence from B could be led by the prosecution in re-examination to establish that sexual conduct occurred between him and appellant. The learned Trial Judge ruled that if A was cross-examined along the lines indicated, he would allow the prosecution to adduce evidence from B, not only as to the circumstances in which the photographs were taken by the appellant, should B be able or willing to give such evidence, but as to the whole incident which is the subject of the charge in the Information which was severed.

It appears that the learned Trial Judge ruled that if A was cross-examined along the lines suggested and C was called to establish that there had not been any photographs of him, the prosecution could call B to give evidence of sexual conduct between him and the appellant. In view of this ruling, the matter was not pursued by defence counsel.

With respect, I think the ruling of the learned Trial Judge was incorrect. The prosecution was entitled to lead the evidence of the photographs being shown by the appellant to A as part of the relationship between them and its nature. Counsel for the appellant was entitled to establish what A had said in his statement and lead evidence from C with a view to showing that A's evidence was untrue. Such a course could not justify the prosecution leading evidence about sexual misconduct by the appellant with B on occasions unrelated to the charges involving A which were before the jury. If the appellant had been able to impugn the credit and reliability of the appellant in this way, it is possible that the jury would have lacked sufficient confidence in him and his evidence to have found the appellant guilty of the first count.

The appeal should be allowed and the verdict of guilty on the first charge set aside. In my view, there should not be a retrial of that charge. If there was a retrial, evidence from A as to the alleged incidents, the subject of counts three, four and five, could not, as a matter of fairness, be led in view of the verdicts of acquittal. Therefore, the story at a retrial would be fundamentally different than the story at the present trial and such a trial would not be satisfactory: see Dolan at p506.

I would enter a verdict of acquittal on the first charge. I appreciate that the appellant may be retried on the second charge but that is a matter for the Director of Public Prosecutions which he can consider in the light of these reasons. It is not a matter for this Court.

3 Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 448

[3] Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 448

Criminal Law Consolidation Act 1935

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Judgment (117 paragraphs)

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Cases Cited (14)