ANDERSON (A PSEUDONYM) v THE KING [2024] SASCA 36

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE SCHAMMER) DCCRM-19-1316 Appellant: ANDERSON (A PSEUDONYM) Counsel: MR S MCDONALD SC - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MR D PETRACCARO SC WITH MS L BROWN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 15/05/2023 File No/s: SCCRM-22-007277 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ANDERSON (A PSEUDONYM) v THE KING [2024] SASCA 36 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby) 28 March 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS The appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The offending allegedly occurred when the complainant was between three and four years, and 10 years, across three locations commencing more than 20 years ago. The complainant had difficulty identifying the dates and frequency of the offending. Aspects of the complainant’s account were not mentioned until shortly before trial, and the complainant said that therapy caused her to have unblocked memories. It was put to her that some of the offending could not have occurred at the times and places she described. The prosecution called evidence from the appellant’s former wife who said that when the complainant was 21 she confronted the appellant about the allegations of sexual abuse in “the first telephone call” to which he said that he did not remember and he threatened suicide. The prosecutor invited the jury to find that the appellant “backtracked” and minimised his opportunities for offending in his record of interview. No directions were given about these “lies”. The prosecution called three witnesses who gave “complaint” evidence pursuant to s 34M(3) of the Evidence Act 1929 (SA). Two of the complaints were made at least five and seven years after the -- 1 of 55 -- first complaint. The complainant had forgotten about the first complaint, which was made when she was 13 or 14 years. The later complaints were made to different people and one was said to comprise an “elaboration” of the first complaint. No objections were made and no directions were sought by counsel who appeared for the appellant at the trial. The appellant sought permission to appeal on four grounds: 1. The verdict is unreasonable and/or is not supported by the evidence. 2. There was a miscarriage of justice by reason of the failure of the trial judge to adequately direct the jury as to the permissible use of certain evidence which it was contended were “lies”. 3. A miscarriage of justice occurred by reason of the admission of evidence of three distinct complaints in circumstances where the second and third complaints could not be viewed as part of the “initial complaint” or an elaboration of it. 4. A miscarriage of justice occurred because the jury was not directed that if they experienced a doubt about the complainant's evidence in relation to one or more of the sexual acts alleged, then they should – or alternatively, may – take that doubt into account in assessing the credibility and reliability of the complainant's evidence concerning other acts and as a whole, pursuant to Markuleski v The Queen (2001) 52 NSWLR 82. HELD (the Court) granting permission to appeal and allowing the appeal: 1. As for appeal ground 2, directions were required concerning the “lies” in both the “first telephone call” and the “record of interview” pursuant to Edwards v The Queen (1993) 178 CLR 193 or Zoneff v The Queen (2000) 200 CLR 234. 2. Regarding the “first telephone call” the purpose of seeking a direction from the trial judge would have been to ensure that the jury only had regard to the evidence in a permissible manner. In relation to the evidence regarding the “record of interview”, it was necessary that the jury be given specific assistance as to how they should reason concerning this evidence. In this case, there was no rational forensic justification for failing to request a direction. Absent any direction at all, there has been a miscarriage of justice, [56]-[59], [74]-[76]. 3. As for appeal ground 3, the complaint evidence adduced about the second and third complaints should not have been admitted. The complaints were disparate and remained unconnected. They could not be regarded as an elaboration of the “initial complaint” pursuant to s 34M(6) of the Evidence Act 1929 (SA), [96]-[99]. 4. Observations made regarding the determination of an “initial complaint” and the need for care to be exercised by counsel when considering the relevance and admissibility of complaint evidence, [91]-[95], [103]-[104]. 5. As for appeal ground 4, because only one offence was charged, s 29B of the Evidence Act 1929 (SA) did not preclude the trial judge giving a form of direction pursuant to Markuleski v The Queen (2001) 52 NSWLR 82, [124]-[126]. 6. The approach consistently applied in this State should be applied to s 50 cases. In most cases the usual directions will be sufficient. The trial judge was not required to direct the jury that if it entertained a reasonable doubt about one allegation of sexual offending, it may carry that doubt over into its consideration of the other allegations of sexual offending and complainant’s evidence more generally, [128]-[130], [134]-[136]. 7. As for appeal ground 1, acknowledging that it is important to keep in mind that the ultimate question is whether it is reasonably possible that the alleged conduct did not occur – rather than whether it is possible that it did occur – it was, on the whole of the evidence which we have found was admissible, reasonably open to the jury to find it proved beyond reasonable doubt that the appellant committed two or more sexual offences, [226]. -- 2 of 55 -- 8. This is not a case where any doubts the jury may have experienced in relation to some aspects of the evidence given by LP must necessarily have translated into a rejection of her evidence in its entirety. Indeed, if properly instructed in the manner we have suggested, a jury might well regard LP’s evidence as appropriately bolstered by the initial complaint, consistently with s 34M of the Evidence Act, [227]. 9. Whether the evidence is regarded as going solely to the appellant’s credit or as some evidence probative of guilt, the jury might well also have found that the statements attributed to the appellant during the first telephone call and the record of interview undermined the appellant’s denials. This is not a case in which the jury must, as distinct from might, have entertained doubt about the appellant’s guilt, [228], [232]. 10. The appeal is allowed on appeal grounds 2 and 3. Appeal grounds 1 and 4 are dismissed. There should be orders quashing the appellant’s conviction and remitting the matter to the District Court for retrial. Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 157, 158; Evidence Act 1929 (SA) ss 29B, 34M; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), referred to. Boyle (a pseudonym) v The Queen [2022] SASCA 50; Bromley v The Queen (1986) 161 CLR 315; Crofts v The Queen (1996) 186 CLR 427; Day v The Queen [2021] SASCA 38; Dent v The Queen [2021] SASCFC 4; DES v The Queen [2020] SASCFC 32; Dhanhoa v The Queen (2003) 217 CLR 1; Edwards v The Queen (1993) 178 CLR 193; Hamilton-Smith v George (2006) 247 FCR 238; Hamra v The Queen (2017) 260 CLR 479; Henry v The Queen [2022] SASCA 60; Hofer v The Queen (2021) 274 CLR 351; Hill v The Queen [2021] SASCA 83; Jones v The Queen (1997) 191 CLR 439; KBT v The Queen (1997) 191 CLR 417; Libke v The Queen (2007) 230 CLR 559; Longman v The Queen (1989) 168 CLR 79; M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; Markuleski v The Queen (2001) 52 NSWLR 82; MFA v The Queen (2002) 213 CLR 606; NBM v The Queen [2021] SASCA 105; Orreal v The Queen (2021) 274 CLR 630; Osland v The Queen (1998) 197 CLR 316; Pell v The Queen (2020) 268 CLR 123; Perara-Cathcart v The Queen (2017) 260 CLR 595; Police (SA) v Mahon (2022) 141 SASR 374; R v BEC [2023] QCA 154; R v C (1993) 60 SASR 467; R v Cassebohm (2011) 109 SASR 465; R v Dat Tuan Nguyen (2001) 118 A Crim R 479; R v E (1997) 96 A Crim R 489; R v England (2013) 116 SASR 589; R v H, T (2010) 108 SASR 86; R v Hare [2007] SASC 427; R v Hoskins [2007] SASC 92; R v J, JA (2009) 105 SASR 563; R v Jones [2018] SASCFC 80; R v KET [1998] VSCA 73; R v Kirkman (1987) 44 SASR 591; R v Landmeter (2015) 121 SASR 522; R v Liddy (2002) 81 SASR 22; R v Maiolo (No 3) [2014] SASCFC 89; R v Moores (2017) 128 SASR 340; R v P, S [2016] SASCFC 97; R v Quist (2017) 127 SASR 471; R v Rendell (2018) SASCFC 71; R v Sondhi [2023] SADC 41; R v VM [2022] QCA 88; R v Usher (2014) 119 SASR 22; R v White (1998) 125 CCC (3d) 385; R v Wildy (2011) 111 SASR 189; Roberts v R (1994) 178 LSJS 131; Robinson v The Queen (1999) 197 CLR 162; Sondhi v The King [2024] SASCA 7; VP v The Queen [2021] NSWCCA 11; Zoneff v The Queen (2000) 200 CLR 234, considered. -- 3 of 55 -- -- 4 of 55 -- ANDERSON (A PSEUDONYM) v THE KING [2024] SASCA 36 Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA THE COURT: Introduction 1 The appellant was convicted on 27 September 2022 following a trial by a jury of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty was imprisonment for life. 2 The appellant is the father of the complainant. It is alleged that his offending spanned a number of years. Apart from the contention that the verdict is “unreasonable or cannot supported having regard to the evidence” within the meaning of s 158(1)(a), it is also contended that the admission of certain evidence or the failure to give certain directions resulted in a “miscarriage of justice” within the meaning of s 158(1)(c) of the Criminal Procedure Act 1921 (SA) (the CPA). 3 The appellant’s application for permission to appeal against conviction, brought pursuant to s 157 of the CPA, was referred to this Court for argument as on appeal. 4 For the reasons that follow, permission to appeal should be granted and the appeal allowed. The appellant’s conviction should be quashed, and the matter remitted to the District Court for retrial. 5 These reasons are set out as follows: Introduction .................................................................................................................................... 1 The particulars of the offending and an overview of the trial ........................................................ 2 The amended Notice of Appeal ..................................................................................................... 4 Appeal ground 2 – Miscarriage of justice concerning “lies” ......................................................... 5 The first telephone call ............................................................................................................... 9 The record of interview ............................................................................................................ 14 Appeal ground 3: Miscarriage of justice concerning complaint “elaboration” ........................... 18 Appeal ground 4: Markuleski v The Queen and s 29B of the Evidence Act ................................ 25 Appeal ground 1: Verdict unreasonable or cannot be supported ................................................. 32 The prosecution evidence ......................................................................................................... 34 The appellant’s case on appeal ground 1 ................................................................................ 42 The complainant’s young age .................................................................................................. 42 The complainant’s reliance on “nightmares” and “flashbacks” ............................................ 43 Inconsistencies in the complainant’s evidence ........................................................................ 45 Evidence of consciousness of guilt ........................................................................................... 48 -- 5 of 55 -- [2024] SASCA 36 The Court 2 Summary................................................................................................................................... 49 Conclusion ................................................................................................................................... 51 The particulars of the offending and an overview of the trial 6 The particulars of the charged offending were that between 16 October 1997 and 16 October 2008 at Virginia, Williamstown and Price the appellant maintained an unlawful sexual relationship with his daughter, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a) touching her breasts on more than one occasion, b) touching her vagina on more than one occasion, c) kissing her on the mouth on more than one occasion, d) inserting a finger into her vagina, e) performing an act of cunnilingus upon her on more than one occasion, f) causing her to touch [the appellant]’s penis on more than one occasion, g) rubbing his penis on her on more than one occasion, h) causing her to watch pornography on more than one occasion. 7 The appellant entered a plea of not guilty and the trial commenced on 19 September, concluding on 27 September 2022. 8 The complainant, who shall be referred to as LP, was born on 17 October 1993 and, by the time of the trial, she was 28 years. 9 As will become clear, the complainant’s evidence was broadly to the effect that the offending commenced when she was three or four years of age at Virginia, which was after the appellant and the complainant’s mother had separated. She said that the offending continued in three tranches until she was around 10 years: the offending first occurred when the complainant and her brother stayed with the appellant in his cabin in Virginia, then when the appellant stayed with them overnight at Williamstown, and finally in a house owned by the appellant’s father in Price, a town on the Yorke Peninsula, north of Adelaide. 10 The complainant was clear that the offending did not continue after she reached puberty. The complainant nonetheless had difficulty identifying the dates of the offending or how often it occurred and, in several respects, it was put to her that the offending could not have occurred at the times and places she described. It will be necessary to return to the detail of the complainant’s evidence and the challenges made to it. -- 6 of 55 -- [2024] SASCA 36 The Court 3 11 The prosecution called the complainant’s brother, TM, who is three years older, having been born on 29 December 1990. He described the frequency with which he and the complainant saw their father as well as details concerning the house in which their father lived at Price. 12 The complainant’s mother, AM, gave evidence about her separation from the appellant which, when linked with LP’s evidence, occurred before the offending is alleged to have commenced. Her evidence was also directed to events soon after the complainant’s 21st birthday in 2014 when the complainant told her mother about the offending. Whether the detailed evidence given about the circumstances of this disclosure by LP and AM was inadmissible complaint evidence was not addressed at the trial. No objection was taken. AM said that she telephoned the appellant after learning of the abuse of her daughter. In response to her allegation that the appellant had engaged in the sexual abuse of the complainant, and that AM believed LP, the appellant is alleged to have said to AM, “I don’t remember”, and he threatened suicide. 13 AM also gave evidence about a second telephone conversation with the appellant, apparently in 2018 and some years after the first call, when he agreed to AM’s request for assistance with funding for the complainant’s therapy. AM said that she told the appellant that this was for the consequences of the appellant’s sexual abuse of LP. She was challenged about that. The trial judge gave directions as to how the fact of this $1,000 payment could be used by the jury, employing “consciousness of guilt” reasoning although the evidence appears to have been used as an admission by conduct. 14 The prosecution called evidence from two other witnesses regarding “complaint” evidence which the prosecution contended was admissible because it came within s 34M(3) of the Evidence Act 1929 (SA) (the Evidence Act). Evidence of an “initial complaint” was given by AR, who was at school with the complainant. When they were both aged around 14 or 15 years, apparently in 2007 or 2008, AR said that she noticed “self-harming scars” on the complainant’s legs. In response to her questioning about that scarring, the complainant told AR that “her dad had been touching her” and implied that “it was of a sexual nature”.1 15 LP’s evidence was that she had not recalled making this complaint until she was later reminded about it. 16 Evidence of what was contended to be an “elaboration” of the initial complaint was called from BW, a former domestic partner of the complainant, who said he was born on 29 October 1990. His evidence was that the complainant spoke to him about sexual abuse involving her father about “a year, 12 months” 1 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 160. -- 7 of 55 -- [2024] SASCA 36 The Court 4 after they started dating.2 They had started dating when he was “late 22, 23” years.3 This timing suggests a conversation in late 2013, 2014, around five to seven years after the initial complaint. BW said that the complainant was crying when she told him that sexual “things had happened between her and her father”.4 17 LP’s evidence was that she recalled making this complaint to BW, adding that she told him that the sexual abuse included “oral”.5 18 The appellant maintained that this last conversation could not properly be regarded as an “elaboration” of the “initial complaint” within the meaning of s 34M(6) of the Evidence Act and that it was therefore inadmissible. No objection was taken to the admission of this evidence at the trial. 19 The prosecution put the record of interview between police and the appellant before the jury. The appellant denied the offending in his record of interview and, according to the prosecution, effectively minimised the time he had spent with the children in his cabin at Virginia. The appellant contended that the trial judge failed to give directions about the statements made by the appellant in the first phone call to AM, as well as to police, which may have been treated by the jury as lies, told out of a consciousness of guilt. Again, at the trial no objection was made and no direction was sought concerning these matters. 20 The appellant did not give evidence but called evidence from his father, EP, about the state of the house EP owned at Price in which the appellant lived for a time and where it was alleged that the third tranche of offending occurred. EP produced various invoices and other records which proved the dates for certain of the renovations carried out at those premises. It was contended that this evidence demonstrated that the complainant’s evidence about the timing and location of certain of the offending was unreliable. 21 After retiring for over five hours, the jury delivered their verdict just after 8 pm on 27 September 2022.6 The amended Notice of Appeal 22 By an amended Notice of Appeal dated 27 April 2023, the appellant relies upon the following proposed grounds of appeal: 1. The verdict is unreasonable and/or is not supported by the evidence. 2 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 165. 3 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 164. 4 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 165. 5 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 41. 6 The jury’s verdict was by a majority pursuant to s 57 of the Juries Act 1927 (SA). -- 8 of 55 -- [2024] SASCA 36 The Court 5 2. There was a miscarriage of justice, by reason of the failure of the trial Judge adequately to direct the jury as to the permissible use, and the conditions for particular uses, of: (a) the evidence of LP’s mother, the appellant’s ex-wife, [AM], that, on a telephone call to the appellant, she accused him of abusing LP and he said that he “didn’t remember” – which on the prosecution case was a lie told to avoid outright denial, made by the appellant out of a consciousness of guilt; and (b) statements made by the accused in his record of interview on which the prosecution relied as lies, and which the Judge instructed the jury they could use “how you see fit”. 3. There was a miscarriage of justice by reason of the admission of evidence (from the complainant [LP] and other witnesses) of three distinct complaints in circumstances where the second and third complaints (made to [BW] and [AM] respectively) were neither an “initial complaint” nor an elaboration of the initial complaint (the relevant “initial complaint” being the complaint made to the witness [AR]). 4. There was a miscarriage of justice because the jury was not directed that a doubt they experienced in relation to LP’s evidence in relation to one or more of the alleged sexual acts should, or alternatively could, be taken into account in assessing the credibility and reliability of the remainder of her evidence. 23 The appellant is now represented by different counsel, who did not appear at the trial. As has been seen, the points now taken by the appellant were not taken before the trial judge. Counsel who appeared for the appellant at the trial provided an affidavit, which was received by this Court without objection from counsel for the Director of Public Prosecutions (SA) (the Director), which effectively denied that the failures to object or take points had any forensic purpose. Rather, there was said to be “oversight”. 24 It is convenient to commence with appeal ground 2 and the complaint about what is said to have been evidence of various “lies”. Appeal ground 2 – Miscarriage of justice concerning “lies” 25 Under this ground it is necessary to consider whether statements made by the accused in the first telephone call with AM, and in the course of his record of interview with police, should have been made the subject of specific directions to the jury. 26 In R v Wildy, the Court of Criminal Appeal explained that trial judges give juries directions and warnings because they may be ignorant about the dangers associated with certain evidence, such as lies: “the common law has it that there is a danger in juries relying too heavily upon, or reading too much into, the lies of an accused person”.7 7 R v Wildy (2011) 111 SASR 189, [28]-[30] (Vanstone J, with whom Sulan J agreed). -- 9 of 55 -- [2024] SASCA 36 The Court 6 27 In R v BEC the need for judges in criminal proceedings to give juries a range of directions and warnings to assist them when undertaking their fact-finding was explained:8 Trial judges in criminal proceedings give juries directions and warnings to assist them when undertaking their responsibility to determine and analyse the facts. As importantly, some directions and warnings are given because of the risk that juries may be ignorant about the dangers associated with certain kinds of evidence which are liable to be misused or given inappropriate weight.9 In this way, juries are given the benefit of the long experience of the criminal courts in undertaking fact-finding and in dealing with certain kinds of evidence. Examples of cases where assistance is usually required include cases involving identification evidence, evidence about lies told by an accused, and cases involving evidence which is capable of being regarded as a form of express or implied admission of guilt by an accused. In this last-mentioned kind of case the evidence may take many forms. In some cases it may be evidence led by the prosecution of flight from, or lies told after, alleged offending, whilst in others it may take the form of the failure by the accused to deny an accusation made to or in the presence of the accused. 28 Where the prosecution adduces evidence of statements made by the accused which the prosecution contends are lies, it is necessary that these be addressed by appropriate directions. The nature of those directions will vary according to whether the prosecution draws attention to what are said to be lies for the purposes of determining the accused’s guilt or merely when evaluating the credibility of any account given by the accused. Those directions will usually extend to explaining the proper use as well as the limits on the proper use which can be made of these kinds of statements by an accused. It is necessary for the trial judge to carefully identify the particular category of lies before the court and to tailor directions specific to each category, addressing each suggested lie separately.10 In Edwards the High Court explained:11 There is a difference between the mere rejection of a person's account of events and a finding that a person has lied. 29 Accordingly, where an accused’s lies are treated as evidencing a “consciousness of guilt”,12 an “Edwards direction” is usually required, whereas 8 R v BEC [2023] QCA 154, [63]-[64] (Livesey AJA, with whom Callaghan J agreed). 9 See, for example, the warnings discussed in Bromley v The Queen (1986) 161 CLR 315, 319 (Gibbs CJ with whom Mason, Wilson and Dawson JJ agreed), 325 (Brennan J) regarding a potentially unreliable witness who had a mental illness; Longman v The Queen (1989) 168 CLR 79, 95-96 (Deane J); Robinson v The Queen (1999) 197 CLR 162, [19]-[20], regarding delay and inconsistency in the evidence of a child, discussed in R v VM [2022] QCA 88, [30]ff (Sofronoff P, with whom Mullins JA and Kelly J agreed); and R v Wildy (2011) 111 SASR 189, [28]-[30] (Vanstone J, with whom Sulan J agreed), regarding lies by an accused. 10 See for example R v Quist (2017) 127 SASR 471, [262] (Blue J, with whom Lovell J agreed); Dent v The Queen [2021] SASCFC 4, [80]-[84] (Kelly J, with whom Peek and Parker JJ agreed). 11 Edwards v The Queen (1993) 178 CLR 193, 208 (Deane, Dawson and Gaudron JJ) (Edwards). 12 See Edwards v The Queen (1993) 178 CLR 193, 209-210. -- 10 of 55 -- [2024] SASCA 36 The Court 7 where they are treated as relevant only to an evaluation of the accused’s “credibility”, a “Zoneff direction” is usually given.13 30 Speaking generally, an Edwards direction is required where the prosecution relies on lies as circumstantial evidence demonstrating the accused’s consciousness of guilt. The direction will usually identify those matters about which the jury must be satisfied before adopting that form of reasoning, so as to guard against the jury adopting erroneous reasoning. The potential forms of erroneous reasoning will vary according to the facts of the case. They may include a failure to consider whether there may possibly be innocent explanations for the accused’s statements or conduct apart from a consciousness of guilt. For example, in Edwards, Deane, Dawson and Gaudron JJ said:14 A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realization of guilt and a fear of the truth". Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. 31 Where this form of reasoning is appropriately employed the evidence can be used as probative of the accused’s guilt. 32 By contrast, a Zoneff direction is given where the prosecution does not rely on consciousness of guilt reasoning but there remains some risk that the jury might nonetheless engage in that form of reasoning. Although the form of the direction will depend upon the circumstances of the particular case, its purpose is usually to avoid the jury engaging in consciousness of guilt reasoning and to identify the permissible use of the evidence.15 The permissible use of the evidence may often be confined to a rejection of the accused’s account. The direction may include the warning that rejection of the accused’s account, or a finding that the accused lied, does not mean that the rejection is itself probative of guilt or that the accused is guilty. 13 Zoneff v The Queen (2000) 200 CLR 234 (Zoneff). 14 Edwards v The Queen (1993) 178 CLR 193, 210-211 (citations omitted). 15 Hill v The Queen [2021] SASCA 83, [190]-[195] (Kelly P, Livesey JA and Blue AJA). -- 11 of 55 -- [2024] SASCA 36 The Court 8 33 Obviously enough, the circumstances of any particular case may well raise a combination of both kinds of lies as well as other statements or conduct by an accused which are said to be probative of guilt. 34 It has been recognised that directions such as these may not necessarily be required if the prosecution does not contend that a lie is evidence of guilt unless the judge apprehends that there is a real danger that the jury may apply that process of reasoning.16 It is nonetheless necessary to be vigilant even where the prosecution does not explicitly seek to employ consciousness of guilt reasoning. In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ explained:17 There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards,18 “the accused knew that the truth … would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.) … A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: “You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.” 35 A broadly similar approach to directions is required from a trial judge where the prosecution relies on statements or conduct engaged in by an accused after the alleged offending, such as evidence of flight, the destruction of relevant evidence or what is said to be fabricated, exculpatory evidence. 36 In R v Nguyen, Winneke P recognised that the introduction of evidence of post-offence conduct, including lies, to support an inference of consciousness of guilt “is highly ambiguous and susceptible to jury error”.19 The danger is that a jury 16 Dhanhoa v The Queen (2003) 217 CLR 1, [34] (Gleeson CJ and Hayne J); R v Cassebohm (2011) 109 SASR 465, [39]-[41] (Doyle CJ, with whom White and Peek JJ agreed) where there was “no particular reason to think that the jury would have inferred that any lies (if the jury thought they were lies) were evidence of guilt” and “no reason why the judge should have apprehended a real danger that the jury would reason that any lies or inconsistencies were evidence of guilt”. 17 Zoneff v The Queen (2000) 200 CLR 234, [16], [23]. 18 Edwards v The Queen (1993) 178 CLR 193, 211. 19 R v Dat Tuan Nguyen (2001) 118 A Crim R 479, [20], citing R v White (1998) 125 CCC (3d) 385, 398. -- 12 of 55 -- [2024] SASCA 36 The Court 9 may fail to consider alternative explanations for the accused’s behaviour and “mistakenly leap from such evidence to a conclusion of guilt” rather than consider, for example, whether the accused “fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation”.20 37 President Winneke explained that the probative strength of post-offence conduct “such as concealment of weapon or flight, with or without ‘covering lies’” will depend on many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence was tendered. Winneke P held that the circumstances of the case before him required an Edwards direction, and he explained its content:21 But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt. 38 In this case it is necessary to evaluate the statements made by the accused, particularly as to whether they were capable of being treated as lies, as well as the way in which they were deployed by the prosecution at trial so as to determine whether and to what extent any direction or warning was required to be given to the jury. The first telephone call 39 In this case, AM was asked to give evidence about the circumstances in which she learned about the allegations of sexual contact between her daughter and the appellant. She explained that after her 21st birthday LP received a gift from her father and some money. This must have occurred after 17 October 2014, given the complainant’s date of birth was 17 October 1993. 40 AM said that the complainant “just threw it, didn’t want it, didn’t want anything to do with it” which AM described as “very unusual behaviour for her”. AM told the jury that there was “a bit of an argument” with LP because she thought that children who received gifts should send a thankyou note or at least a thankyou phone call but that the complainant “just didn’t”.22 AM explained that she then 20 R v Dat Tuan Nguyen (2001) 118 A Crim R 479, [20], citing R v White (1998) 125 CCC (3d) 385, 398. 21 R v Dat Tuan Nguyen (2001) 118 A Crim R 479, [20] (citations omitted). 22 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 119. -- 13 of 55 -- [2024] SASCA 36 The Court 10 learned about the allegations of sexual abuse and became “really upset” and made a telephone call to the appellant:23 A So after I’d heard what had happened, I did make a phone call to [the appellant] and said ‘[LP] has said that this has happened’ and that ‘I believe what she’s telling me, that she doesn’t tell lies’ and he didn’t deny it. He didn’t say what I would expect someone to say; ‘Absolutely not, there’s no way I could do that to my daughter’, he didn’t say that at all. Q What did he say. A He couldn’t remember. Q Did he say anything else on that first telephone all. A He threatened suicide, which had been a pattern in our relationship … 41 AM gave evidence that there was a second telephone call on the topic of sexual abuse in which she asked the appellant for a contribution to the cost of counselling for the complainant. AM said that the appellant subsequently transferred $1,000 into AM’s account. AM told the jury that it was very unusual to receive money from the appellant because he did not generally pay for any of the children’s expenses.24 An agreed fact and a bank statement showed that the transfer was made on 31 January 2018. 42 AM’s evidence about what was said in the first telephone call was challenged in cross-examination:25 Q … I’m suggesting that you rang and asked if he’d done anything to upset [LP] and he replied ‘No’, not that he was aware of. Do you accept that. A No, I don’t. Q I suggest you then accused him of sexually abusing [LP] and he replied that he did not and had no idea of what you were talking about. A That is absolutely incorrect. … Q Specifically, I suggest that he never said to you, in response to the allegation of sexual abuse, of him sexually abusing [LP], that he didn't remember… A That's not correct. He did say that. 23 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 119. 24 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 120 25 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 144. -- 14 of 55 -- [2024] SASCA 36 The Court 11 43 AM’s evidence about the second telephone call was also challenged in cross- examination. AM rejected the suggestion that she did not explain to the appellant that the money was required for treatment or therapy connected to the sexual abuse which it was said the appellant perpetrated on LP.26 44 In his final address, the prosecutor invited the jury to reason to a consciousness of guilt by relying on the statement which AM said was made by the appellant in the first call, together with her reaction to that statement. The prosecutor also relied on the evidence of AM regarding the appellant’s payment of $1,000 following the second telephone call, in the following way:27 Her Honour will direct you as to the use that can be made of that evidence and the hurdles for consciousness of guilt. It’s a pretty high threshold for the prosecution to get over, the prosecution accepts that. Work your way through it, watch the record of interview on that topic, because he knows that the money is for treatment for what [LP] has said has happened. He knows that. And in the opening phone call he doesn’t deny it, despite the fact that [AM] is going ‘I’m expecting him to say that this is impossible, hasn’t happened, can’t happen, wouldn’t happen, didn’t happen. Rather, he says “I don’t remember”’. That’s what she took away from that phone call. And she follows up, asks for the money and he pays it. 45 The prosecutor explicitly invited the jury to reason to a consciousness of guilt concerning the payment of $1,000 for LP’s therapy for the consequences of sexual abuse by taking into account that, in “the opening phone call he doesn’t deny it”.28 Moreover, the prosecutor relied upon AM’s conjecture about what she expected the appellant would have said during the first call if the allegation which was put to him was in fact false. 46 The approach of the prosecution was clearly articulated in an exchange which occurred before the trial judge commenced her summing up:29 HER HONOUR: So really, isn’t the prosecution submission effectively going to be – maybe not in so many words, but really, that he will be asking the jury to infer that the fact that he paid that money was indicating that he was guilty; reflective of a consciousness of guilt or indicative of some kind of implied acknowledgement that he had, in fact, offended in that way? DR SALU: Yes, your Honour. That, together with if they accept [AM]’s evidence that he did not deny the conduct, that he avoided the denial and then the second phone call then taken in the setting of the first phone call, the implication is open that there is a consciousness of guilt, yes. 26 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 145-147. 27 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 245. 28 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 245. 29 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 224. -- 15 of 55 -- [2024] SASCA 36 The Court 12 HER HONOUR: And it’s the two phone calls together? DR SALU: Together. HER HONOUR: I thought that's how you were going approach it. DR SALU: Yes, together with the record of interview. HER HONOUR: Yes. I just needed to know how I was going to deal with that. … 47 In the course of her summing up, the trial judge summarised the evidence and repeated the submissions of the parties. Although she gave a “consciousness of guilt” direction concerning the $1,000 payment, no direction was given regarding the use of AM’s accusation and the appellant’s response during the first telephone call to the appellant. 48 Whether the statement which AM said was made by the appellant during the first phone call was to be used as evidence revealing a “consciousness of guilt” or merely as evidence going to the appellant’s credit was, at least initially, a matter for the prosecution. Depending upon the intended use of the evidence of the first telephone call it was necessary for the trial judge to direct the jury as to the permissible and impermissible uses of that evidence. 49 In the course of his submissions to this Court, the Director submitted that the submissions made during the course of the final address by the prosecutor should be “understood as being confined to post-offence conduct of the payment of the $1,000” in which case “no issue of lies as consciousness of guilt … arises”. 50 Given the dramatic nature of AM’s evidence about the statement AM attributed to the appellant, coupled with his threatened suicide and the way in which the prosecutor closed the case before the jury, that submission must be rejected. 51 If the evidence from AM was accepted by the jury, the jury might well have reasoned that it was inherently unlikely that an innocent father would say “I don’t remember” when his former wife put an allegation that he had sexually abused their daughter. That reaction was likely to have been underscored by her evidence that the appellant threatened suicide after she put the allegation to him. 52 That is very the kind of statement which may well result in the jury leaping to a finding of guilt without staying to carefully determine whether the statement was made in the terms alleged and, if it was made, considering whether on the whole of the evidence there might have been other, innocent explanations for the statements attributed to the appellant. The jury should have been directed to consider whether there were possible alternative explanations having regard, for example, to the nature of the relationship between AM and the appellant by the time of the first call. Whilst alternative explanations may not have been obvious, the importance of the evidence required that the jury consider whether, for example, mistaken recollection, misunderstanding or embarrassment might -- 16 of 55 -- [2024] SASCA 36 The Court 13 possibly have explained the interaction between AM and the appellant. A direction which specifically addressed these considerations associated with the first call was therefore required. 53 In the absence of any direction, the risk that the jury misused the evidence about the appellant’s statement during the first call in arriving at its verdict cannot be excluded. 54 It is common ground that counsel for the appellant at trial did not object to the evidence, nor seek a direction or make any complaint about the summing up on this topic. The Director’s written submission was that the absence of an application by counsel for the defence for a further direction affords a practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task.30 55 Though the unchallenged evidence of counsel for the appellant at trial was that there was “an oversight on my part”, the Director also contended that there was a rational forensic justification for the conduct of counsel. It was submitted that it suited the appellant’s case at trial not to highlight the statements attributed to him during the first call by asking for a specific direction to be given to the jury about it. 56 Whether there was a rational forensic justification for the conduct of counsel at the trial must be determined objectively, and not merely by reference to the evidence of counsel.31 Nonetheless, the Director’s submissions must be rejected. 57 The evidence of AM on this point was, of its nature, dramatic in its effect. No objection was taken to the evidence from AM about what she would have expected the appellant to say in response to the allegation. By the time of the summing up, the issue had been highlighted by the prosecutor. 58 The purpose of seeking a direction from the trial judge would have been to ensure that the jury only had regard to the evidence in a permissible manner. There was in this case nothing to be gained by counsel remaining silent about it. There was no rational forensic justification for failing to request a direction which, given the way in which the prosecutor put the case, was probably an Edwards-type direction rather than a Zoneff-type direction.32 59 Absent any direction at all on this topic there has been a miscarriage of justice.33 30 Cf Perara-Cathcart v The Queen (2017) 260 CLR 595, [60]. 31 Police (SA) v Mahon (2022) 141 SASR 374, [66] (Livesey P, Lovell and Doyle JJA), and the cases there cited. 32 Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J). 33 Hofer v The Queen (2021) 274 CLR 351, [41] (Kiefel CJ, Keane and Gleeson JJ). -- 17 of 55 -- [2024] SASCA 36 The Court 14 The record of interview 60 When interviewed by police on 1 November 2018, the appellant was asked about his separation from AM, as well as when he moved out of their Williamstown home and into a caravan park at Virginia, north of Adelaide, and commenced living in a cabin. The appellant agreed with the proposition that he moved after LP was around three years and remained there for several years. 61 One topic addressed by police was whether there were opportunities for the appellant to offend. The police officer put to the appellant that AM was working fulltime and that she “sometimes dropped [the children] off” to see the appellant in his cabin whilst she worked. The appellant’s answer was “Right. Not very often”. He went on to say that he could not remember the complainant “visiting much at all”.34 It may be noticed that the appellant did not initially deny that there were some visits by his children to his cabin. 62 After the detail of some of LP’s allegations of sexual abuse were put to the appellant, and he denied the offending, he moved to a more emphatic statement: “I never had her on my own like”.35 The police officer then put to the appellant the following proposition:36 Q So you’re saying you don’t really remember [LP] and [TM] coming to the caravan park. A No. Q at all? A No, not at all. 63 This shift by the appellant to a more emphatic position on this topic in the course of the record of interview remained, even allowing for some confusion between topics. For example:37 Q Right. So you don’t remember the kids ever coming to you or your … A No. Q your cabin? A No. 34 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022) MFI P13, lines 166, 170. 35 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022) MFI P13, line 205. 36 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022) MFI P13, line 232-235. 37 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022) MFI P13, line 270-289. -- 18 of 55 -- [2024] SASCA 36 The Court 15 Q Now does that mean it didn’t happen or does that mean that you don’t remember, just don’t remember it happening? A It’s just, it never happened. Q Hmm. A It never, you know. Q Ok. A So how is it then? A Hey? Q How is it then that she can describe the unit. A Like… a visit maybe, but I never had them there alone, like the two of them, or one of them on their own so. Q So who else would have been with you then? Are you saying that [AM] was with you when they were there? A She, she might have brought them there, I don’t, because I still don’t remember them even being there that much at all. Q Hmm. A But, but I never did this. Q Ok. A I’m not into children, sorry. 64 It can be seen that the topic of whether his children visited him in his cabin at Virginia was interspersed with the appellant’s denials of the offending. 65 As might have been expected, in the course of his closing address the prosecutor invited the jury to find that the appellant was in his record of interview attempting to minimise his contact with the complainant and, thereby, his opportunity to commit the offending. When the appellant was interviewed by police, he denied the alleged offending. Among other things, he initially said that he thought his children had not visited him at the cabin in the caravan park. The prosecutor in his closing address invited the jury to find that the appellant, in the interview, had been attempting to minimise his contact with LP and his opportunity to commit the alleged offences:38 So, what do we make of the record of interview? In the record of interview, the accused: hardly ever saw the kids. LP and TM to the caravan park? No, not at all. He was with CC 38 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022),247. The reference to CC is a reference to the appellant’s then girlfriend. -- 19 of 55 -- [2024] SASCA 36 The Court 16 a lot ‘I hardly ever saw, I was hardly ever at the park once I was going out with her’. Doesn’t seem to fit with CC’s account. Certainly doesn’t fit with [LP’s] account of visiting the caravan park. Doesn’t fit with mum’s account. Doesn’t fit with TM’s account. He was plain: kids never came to the cabin. It just, it never happened. And then he starts backtracking. Never had the two of them or one of them on their own. Right. And LP only stayed with friends at Price when she was 18. Now, ladies and gentlemen, take care with the record of interview. Work it through. On the prosecution case, to the police, he’s limiting the opportunity that he’s alone with the kids. And he knows the allegations from the earlier conversation. … 66 The appellant submitted to this Court that this part of the closing address should be viewed as an invitation to the jury to reason that the appellant deliberately lied about the extent of his interaction with his children in his cabin because he knew that the truth would implicate him in the offending. 67 In the course of her summing up, the trial judge directed the jury that they could use the evidence of the record of interview, particularly the answers given by the accused, “how you see fit”.39 As her Honour later instructed the jury:40 As I said, it is a matter for you as to what weight you give the answers the accused gave to police during that record of interview. 68 The appellant submitted that, as with the statement by the accused which was described by AM in the first telephone call, the absence of any direction at all from the trial judge regarding the proper use of any asserted lies in the record of interview was prejudicial. The appellant submitted that the specific conditions for and warnings about consciousness of guilt reasoning had to be explained to the jury in accordance with Edwards. 69 Alternatively, if the prosecution case was that the lies were not to be left on the basis that they demonstrated a consciousness of guilt, the appellant submitted that it was necessary that this alternative approach be spelt out and that a direction be given regarding the proper, limited use to be made of any lies in the record of interview, in accord with Zoneff. That would reflect the ordinary approach which is taken to lies in a record of interview.41 70 In that event, it would be necessary to make it clear to the jury that the accused’s statements were not to be used for consciousness of guilt reasoning and could only be taken into account when assessing the credibility of the statements made by the accused in the record of interview.42 39 Summing Up, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 27 September 2022), 4. 40 Summing Up, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 27 September 2022), 6-7. 41 Edwards v The Queen (1993) 178 CLR 193, 208 (Deane, Dawson and Gaudron JJ). 42 R v Quist (2017) 127 SASR 471, [188]. -- 20 of 55 -- [2024] SASCA 36 The Court 17 71 On this aspect of the case, counsel for the Director submitted that the prosecutor did not rely upon the appellant’s denials in the record of interview as lies told out of a consciousness of guilt. It was submitted that to have proceeded in that way would have “transgressed the rule in Roberts v R”.43 It was submitted that this “rule” was that a direction about lies as revealing a consciousness of guilt is not necessary where the suggested lies concern the accused’s general denial of the offending. 72 Those submissions must be rejected. 73 The Court of Criminal Appeal in Roberts accepted that lies told in a record of interview may be available to be used as evidence of a consciousness of guilt where they relate to a discrete issue rather than to the general issue of guilt or innocence.44 As can be seen from the extracts earlier set out, the appellant’s denials in the record of interview which were highlighted by the prosecutor at the trial concerned his opportunity for offending in the cabin at Virginia. Those denials were not confined to the general issue of the appellant’s guilt. 74 Again, given the way in which the case was put to the jury by the prosecution, and left to the jury by the trial judge, it was necessary that the jury be given specific assistance as to how they should reason concerning the appellant’s suggested lies in his record of interview. That was not done. 75 Having regard to the way in which the case was put by the prosecutor, it was probably necessary that an Edwards-type direction rather than a Zoneff-type direction be given. The prosecutor’s reference to the appellant minimising his time, or “limiting the opportunity”, was put in a context where he was inviting the jury to reject the appellant’s explanation and prefer the evidence of the complainant and her mother and brother, which had suggested that there were numerous visits to the cabin in Virginia.45 Whilst it might perhaps have been possible to view these submissions as only involving an attack on the appellant’s credibility, when one adds the accusation that the appellant was also “backtracking” in his record of interview, because he knew about the allegations of sexual abuse from his conversation with AM, the preferable view is that the jury was being invited to reason that the appellant lied and made these statements to police out of a consciousness of guilt. 76 Either way, some direction was required. As with the statement made in the first phone call, the risk that the jury reasoned that the appellant was guilty because 43 Roberts v R (1994) 178 LSJS 131; [1994] SASC 4753 (Roberts), [5] (Perry J, with whom Prior J agreed): “As Mr Doyle QC put it to the Court during the course of his argument, in my opinion correctly, if a finding that the appellant has lied is only a conclusion to be drawn from the finding of guilt, there is no need for a direction as to lies. Commonly that will be the case where the only possible finding that the accused has lied relates to the accused's general denial of the offence and protestation of innocence.” 44 Roberts v R (1994) 178 LSJS 131; [1994] SASC 4753, [6] (Perry J, with whom Prior J agreed). 45 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 247. -- 21 of 55 -- [2024] SASCA 36 The Court 18 he backtracked and lied in his record of interview cannot be excluded. In the absence of any directions on this topic, there has been a miscarriage of justice. 77 The appellant should be granted permission to appeal on appeal ground 2 and the appeal should be allowed. Appeal ground 3: Miscarriage of justice concerning complaint “elaboration” 78 As there is to be an order that the matter is to be remitted it is appropriate to address appeal ground 3, concerning the complaint evidence. 79 In R v Usher Kourakis CJ (with whom Peek J agreed) said:46 Section 34M of the Evidence Act abolished the common law with respect to recent complaint evidence in sexual cases and replaced it with a statutory regime. Section 34M expands the circumstances in which complaints are admissible, beyond the contemporaneity required by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions. 80 Section 34M of the Evidence Act is in the following terms: 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. 46 R v Usher (2014) 119 SASR 22, [48]. -- 22 of 55 -- [2024] SASCA 36 The Court 19 (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 81 At common law, evidence by way of complaint following alleged sexual offending could not be given by a complainant unless it was proximate in time to the alleged offence and could, on that account, be said to be “recent”. In Crofts v The Queen Dawson J said:47 Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or delay. On the other hand, a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint or lack of a recent complaint can go. It does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts. 82 The purpose of complaint evidence is to bolster the credibility of the complainant. It is one of a limited number of exceptions to the common law rule against permitting a witness to give evidence of prior, consistent statements made out of court. Complaint evidence is accordingly important evidence in many cases of alleged sexual offending. 83 By s 34M(3), evidence related to the making of an “initial complaint” of an alleged sexual offence is admissible in a trial of a charge of a sexual offence. 47 Crofts v The Queen (1996) 186 CLR 427, 434 Dawson J (in dissent as to the outcome). -- 23 of 55 -- [2024] SASCA 36 The Court 20 Section 34M does not require that the complaint be “recent”, nor does it preclude calling evidence of the complaint from the complainant, regardless whether evidence is also called from those to whom the complaint was said to have been made.48 84 No suggestion may be made to a jury that a failure to complain, or a delay in the making of a complaint, is of probative value concerning the complainant’s credibility or consistency of conduct, s 34M(2). 85 By s 34M(3), evidence about an “initial complaint” is admissible notwithstanding that it might have been made years after the alleged offending. That reflects the contemporary view that the mere fact of delay in making a complaint does not necessarily suggest that the complainant should be doubted.49 86 Nevertheless, the probative value of complaint evidence will necessarily vary from case to case.50 87 In addition, s 34M(4) mandates that, where complaint evidence is admitted, the trial judge must give certain directions to the jury. The trial judge must direct the jury that the evidence is admitted to “inform the jury as to how the allegation first came to light” (s 34M(4)(a)(i)), and as evidence of “the degree of consistency of conduct” of the complainant (s 34M(4)(a)(ii)). As Duggan J explained in R v J, JA,51 consistency of conduct encompasses both consistency in making a complaint when one might be expected to be made, as well as consistency in the content of the complaint. 88 Moreover, the trial judge must direct the jury that the evidence is “not admitted as evidence of the truth of what was alleged” (s 34M(4)(b)), that there may be varied reasons why the complainant has made a complaint of a sexual offence at a particular time or to a particular person (s 34M(4)(c)) and, “but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence…” (see the chaussette to s 34M(4)).52 89 By s 34M(6) the term “initial complaint” is defined and extended to include “information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time)”. 90 In R v Maiolo (No 3) the Court of Criminal Appeal emphasised that s 34M(3) renders admissible a single “complaint” made by the complainant, as distinct from “a collection of disparate complaints made over an undefined period of time”.53 As to what may be regarded as “elaboration” within the meaning of s 34M(6), the 48 R v P, S [2016] SASCFC 97, [70]-[74] (Nicholson and Lovell JJ, with whom Parker J agreed). 49 R v Rendell (2018) SASCFC 71, [53] (Kourakis CJ, with whom Stanley and Bampton JJ agreed). 50 R v H, T (2010) 108 SASR 86, [106] (Kourakis J, as he was). 51 R v J, JA (2009) 105 SASR 563, [95]. 52 See generally R v Jones [2018] SASCFC 80, [111]-[129] (Kelly, Blue and Lovell JJ). 53 R v Maiolo (No 3) [2014] SASCFC 89, [80] (Peek J, with whom David and Stanley JJ agreed), citing R v England (2013) 116 SASR 589, [44]. -- 24 of 55 -- [2024] SASCA 36 The Court 21 Court of Criminal appeal in R v Maiolo (No 3) took what might be regarded as a broad view:54 First, such information will only be taken to be “provided by way of elaboration of the initial complaint” within the meaning of s 34M(6) if the initial complaint and the further information provided are sufficiently connected together so as to be reasonably viewed as one complaint.55 There is a certain amount of flexibility here in that this conclusion will not necessarily be excluded by any particular matter such as the precise time between the first complaint and when the further information is later provided or the fact that such information is provided to a person other than the original complainee.56 Rather, the decision as to “sufficient connection” is to be made by reference to all of the facts of the particular case; in making that decision, reference by analogy may be made to common law decisions such as Freeman, Corkin and others referred to above, provided always that primary regard is paid to the legislative intent in enacting s 34M. 91 Whilst it may be acknowledged that there is a degree of flexibility in the determination of what is an “elaboration”, particularly having regard to the time between the complaints and the people to whom they are made, there must nonetheless be a readily identifiable connection between the complaints, with any later complaint elaborating the initial complaint in a manner sufficient to enable their proper characterisation as one, “initial complaint”. 92 As can be seen at the outset of these reasons, LP did not recall the first complaint made to AR at the time she made her later disclosure to BW. That tends to suggest that what was later disclosed was not connected with or in elaboration of the first complaint made to AR as it is difficult to see how what was later said could be regarded as “information provided by way of elaboration of the initial complaint”, as s 34M(6) requires. In addition, the period of between five and seven years between the complaints to AR and BW might also make it difficult to see how they can properly be considered to be connected with one another, still less properly characterised as a single, initial complaint.57 93 Nonetheless the Director relied upon the additional detail LP gave to BW in her evidence about the nature of the complaint she made, namely, that “it was sexual abuse and I did mention that oral, oral happened”.58 It was submitted that the addition of this further detail permitted the characterisation of what was said to BW as an elaboration of the first complaint to AR. 54 R v Maiolo (No 3) [2014] SASCFC 89, [82] (Peek J, David and Stanley JJ agreeing). See also Boyle (a pseudonym) v The Queen [2022] SASCA 50, [24], quoting from R v Jones [2018] SASCFC 80 at [75]. 55 R v England (2013) 116 SASR 589. 56 Indeed, the decisions of the Court in relation to s 34M make it clear that such further information provided by way of elaboration of the initial complaint may be given to someone other than the initial complainee. As explained above, this is very much in conformity with the more recent common law cases such as Freeman and Corkin. 57 Cf, the unusual case of R v Landmeter (2015) 121 SASR 522, [13]-[14] (Vanstone and Bampton JJ, Peek J dissenting) where the majority held that complaints to the complainant’s father six years apart comprised one complaint even though the complainant did not give a detailed account of what she had said. 58 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 41. -- 25 of 55 -- [2024] SASCA 36 The Court 22 94 For the purposes of addressing this ground of appeal it may be assumed that the jury was entitled to find that, notwithstanding the limitations in BW’s recollection, the complainant’s evidence was to be preferred and that the complaint made to him contained the additional detail that the appellant’s alleged sexual abuse extended to oral sexual activity. Indeed, it may also be accepted that the addition of further detail in a subsequent complaint following a first complaint will be relevant to a determination about whether what is subsequently revealed is by way of elaboration of the first complaint, permitting both complaints to be viewed as an “initial complaint” within s 34M(6). Nonetheless, the mere addition of a further detail in a complaint which follows a first complaint will not necessarily, of itself, permit the conclusion that what was later said is by way of elaboration of what was earlier said. 95 For these purposes, the complainant need not intend to elaborate the first complaint, and the determination of what amounts to elaboration must usually be made objectively. The determination as to whether a later complaint is by way of elaboration of a first complaint, so that they may both be regarded as an “initial complaint” within the meaning of s 34M(6), will depend on all the circumstances of the case, including the timing and context in which these complaints were made, as well as their content. 96 When one looks at what was said, the people to whom the complaints were made, and their context, the proper conclusion is that these complaints were years apart and disparate. They remained unconnected. The further statement made to BW cannot properly be regarded as being in the nature of an elaboration of the first complaint made to AR. It was a separate complaint. 97 Accordingly, this evidence should not have been admitted because it did not form part of the initial complaint, whether by way of elaboration or otherwise. 98 The appellant also criticised the evidence led from AM regarding what was described as a third complaint made by LP to AM, soon after LM’s 21st birthday. That evidence has been outlined earlier in these reasons. That evidence could not be led as complaint evidence in the circumstances of this case. It too was disparate and unconnected with the first complaint. It did not appear to contain any detail adding to what had earlier been disclosed and it occurred even later in time than the complaint made to BW. 99 It is, however, likely that this evidence was led as part of the context for the evidence concerning the first telephone call, presumably on the basis that it was necessary to a proper understanding of the narrative of the evidence given by AM.59 If so, it would have been preferable had the evidence been led in a manner which was carefully confined, leaving out of account the detail of the complaint evidence that LP and AM were permitted to give in this case. 59 Day v The Queen [2021] SASCA 38, [43]-[45] (Kelly P, Lovell and Livesey JJA). -- 26 of 55 -- [2024] SASCA 36 The Court 23 100 Counsel for the prosecutor could simply have asked AM whether, after she learned of the allegations of sexual abuse from LP, she telephoned the appellant. She could then have been asked to recite what she recalled about the words used during that telephone call, or at least the effect of what was said, by AM and the appellant.60 To do otherwise courted the risk, which counsel for the appellant emphasised in this case, that the jury was given a detailed account which could only have had the effect of impermissibly bolstering the appellant’s credibility because it went well beyond what was necessary to provide proper context for AM’s account of the first telephone call. 101 It follows that complaint evidence was impermissibly adduced from LP, BW and AM which was unrelated to the initial complaint evidence given by AR. 102 Again, whilst counsel for the appellant at the trial did not object to this evidence, that does not relieve this Court from the responsibility of determining whether there has been a miscarriage of justice. In this case, the jury was explicitly instructed that the evidence of these complaints could be used to enhance the credibility of the complainant.61 Objectively, there was no forensic advantage to be gained for the defence by failing to seek rulings which excluded the later complaints, nor in remaining mute on the issue. The proper conclusion is that there has been a miscarriage of justice because the evidence was not only inadmissible but prejudicial to the appellant:62 Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. Indeed, the following passage has appeared in the Australian edition of Cross on Evidence for many years, and still appears in the loose-leaf edition at the time of writing: … In its conditions of contemporaneity and spontaneity it is reminiscent of, but does not fit within, the res gestae exception to the hearsay rule. It constitutes an exception to the general rule that a witness’s credit should not be bolstered by the party calling the witness, at least in advance of any attack. It is potentially prejudicial in putting before the jury a sometimes lurid account of the facts which the judge must then solemnly instruct the jury to be no evidence of them. It is illogical in supporting the witness’s testimony without itself being evidence of the facts it asserts. It is anomalous in applying only to a small and bizarre assortment of offences in some of which sexual relationship is disputed, in other of which violence is disputed is disputed, in some of which absence of consent is a necessary ingredient, and to some of which it is irrelevant. It creates resentment in applying to admit previous consistent statements made by one party to the proceedings when no such concession is made to the other. 60 Hamilton-Smith v George (2006) 247 FCR 238, [79] (Besanko J). 61 Summing Up, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 27 September 2022), 10, cf Boyle (a pseudonym) v The Queen [2022] SASCA 50, [25], [31]. 62 R v Maiolo (No 3) [2014] SASCFC 89, [77], [79] (Peek J with whom David and Stanley JJ agreed) (citations omitted). -- 27 of 55 -- [2024] SASCA 36 The Court 24 … The fact is that multiple statements of an alleged victim making complaint after complaint in relation to the defendant’s conduct is almost certain to have the effect of blurring the distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant. There is no reason to believe that there is a legislative intention to subject a defendant to an unfairly prejudicial effect of such multiple complaints… 103 Before leaving this ground, it is necessary to emphasise that it starkly raises an issue which has previously been explained by the Court of Criminal Appeal, namely, the need for particular care to be exercised by counsel for the prosecution and the defence when considering the relevance and admissibility of complaint evidence, well before the jury is empanelled:63 First, the fact that a defendant is charged with a sexual offence necessarily entails that before charges were laid the complainant made a complaint to the police referable to the charges. It is established by decisions of this Court that an “initial complaint” may comprise a statement to a police officer that led to the laying of charges. It follows that in every case evidence of initial complaint will be available to be led by the prosecution. However, the probative weight of complaint evidence can vary greatly from case to case. Leading evidence if its probative weight is small may give rise to complexities when it comes to directing the jury about the evidence. Prosecutors should not blindly lead evidence of complaint just because it is admissible without considering the consequences. They should consider whether to exercise their discretion not to lead evidence of complaint in cases where its probative value is slight. Secondly, as was discussed in R v P, S,64 before evidence of complaint is led, the complainant should be carefully proofed to ascertain whether there were any earlier conversations that might amount to complaint and to maximise the confidence counsel may have about the evidence that may be given in answer to questions designed to elicit evidence of complaint. Thirdly, before evidence of complaint is led, it is desirable that the prosecutor and defence counsel discuss what evidence is to be led as complaint evidence and broadly what directions the Judge will be invited to give concerning it. This may not be necessary in simple cases involving a single proximate complaint but is highly desirable in complex cases such as this. Fourthly, before evidence of complaint is led, it will generally also be desirable that the Judge be informed in advance what evidence is to be led as complaint evidence and broadly what directions the Judge will be invited to give concerning that evidence. Again this may not be necessary in simple cases but is highly desirable in complex cases. 104 It is not clear whether these issues were ever appropriately considered and discussed. Certainly, the transcript does not suggest that the parties gave the trial judge any reasonable opportunity to consider the issues raised by this ground and to make the necessary rulings and directions. 63 R v Jones [2018] SASCFC 80, [84]-[88] (Kelly, Blue and Lovell JJ). 64 R v P, S [2016] SASCFC 97, [22]-[24] (Nicholson and Lovell JJ, with whom Parker J agreed). -- 28 of 55 -- [2024] SASCA 36 The Court 25 105 It follows that the appellant should also be granted permission to appeal on Ground 3, and that the appeal should be allowed on this ground as well. Appeal ground 4: Markuleski v The Queen and s 29B of the Evidence Act 106 The appellant relied on the ruling of the NSW Court of Criminal Appeal in Markuleski v The Queen,65 submitting that s 29B of the Evidence Act did not prevent the trial judge hearing the trial of a charge under s 50 of the CLCA from giving what may be described as a form of “Markuleski direction”. 107 The appellant contended that it was necessary for the trial judge to direct the jury that, if the jury experienced a doubt about LP’s evidence in relation to one or more of the sexual acts alleged, then they should – or alternatively, may – take that doubt into account in assessing the credibility and reliability of LP’s evidence as a whole. 108 It was common ground that this direction was not given and that it was not sought by counsel for the appellant at trial. Moreover, it was also accepted that the trial judge gave conventional and appropriate directions regarding the need to carefully evaluate the complainant’s evidence as a whole, as well as directions regarding the burden and standard of proof. 109 From 1 June 2022 Markuleski directions were, to an extent, abolished in South Australia. The Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) enacted the following provision in the Evidence Act: 29B—Prohibited direction in relation to doubts regarding truthfulness or reliability of victim’s evidence (1) In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges. (2) Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in subsection (1) is abolished. 110 As can be seen, the direction prohibited by s 29B is that, where the truthfulness or reliability of a complainant’s evidence on one charge is doubted, “that doubt must be taken into account” when assessing the evidence “generally or in relation to other charges”. 111 In Markuleski v The Queen a majority of the New South Wales Court of Criminal Appeal considered the necessity for a direction in a case involving “word against word” where the jury acquitted on one count of sexual offending but convicted on five others and there was scope to question the complainant’s account 65 Markuleski v The Queen (2001) 52 NSWLR 82. -- 29 of 55 -- [2024] SASCA 36 The Court 26 generally.66 Spigelman CJ (with whom Carruthers AJ agreed) commenced by addressing whether the guilty verdicts were unreasonable. 112 After carefully reviewing the reasons of the High Court in Jones v The Queen,67 his Honour concluded that there was no reason to doubt “the appropriateness of a jury accepting a witness’ evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness”.68 The former Chief Justice then reviewed Osland v The Queen69 and doubted earlier authority to the effect that “in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant’s evidence” across the different counts.70 113 Spigelman CJ acknowledged that the circumstances of a particular case may lead to the conclusion that a jury which had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts, but “it does not follow that that must necessarily be the case”,71 and he cited the following well-known passage from the reasons of King CJ in R v Kirkman:72 Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. 114 The Chief Justice then added:73 This particular application of the principle that an appellate court should respect the constitutional role of the jury, must be given careful consideration in cases alleging inconsistency in verdicts. There are often a number of possible explanations for divergent verdicts that do not necessarily give rise to a doubt about the complainant’s credibility on all counts. For example, where there is contradictory evidence on one count but not on others, the jury may well have taken the view that there was no point in adding yet another verdict of guilty, so that it was unnecessary to fully consider the conflicting evidence. 66 Markuleski v The Queen (2001) 52 NSWLR 82. 67 Jones v The Queen (1997) 191 CLR 439. 68 Markuleski v The Queen (2001) 52 NSWLR 82, [31]-[32], citing KBT v The Queen (1997) 191 CLR 417, 424 (Brennan CJ, Toohey, Gaudron and Gummow JJ). 69 Osland v The Queen (1998) 197 CLR 316. 70 Markuleski v The Queen (2001) 52 NSWLR 82, [64], which was inconsistent with Jones v The Queen (1997) 191 CLR 439 and its particular facts. 71 Markuleski v The Queen (2001) 52 NSWLR 82, [73]. 72 R v Kirkman (1987) 44 SASR 591, 593. 73 Markuleski v The Queen (2001) 52 NSWLR 82, [76]. -- 30 of 55 -- [2024] SASCA 36 The Court 27 115 On the directions given in that case, whilst Spigelman CJ expressed “considerable reluctance to add to the number of directions and warnings which trial judges are already required to give”,74 he held that it “will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally”.75 It will be noticed that this direction is expressed in mandatory terms, “… that [doubt] must be taken into account …”. Because of the inadequacy of the direction given on this issue and on the issue of the delay in complaint, the Chief Justice proposed that the appeal be allowed, and a new trial ordered. 116 Wood CJ at CL agreed, though he appears to have doubted the need for a mandatory direction:76 I see no reason to confine the direction to reliability. It is equally, if not more, applicable in relation to credibility or truthfulness. Moreover, I see no reason to do more than bring to the attention of the jury the circumstance that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for them to take that into account when considering the evidence of the complainant or central witness upon the remaining counts. This should, however, be kept in context, in that the jury should be reminded that it is but one of the circumstances that they can properly take into account, when evaluating the overall credibility and reliability of the complainant as it impacts upon the remaining counts, including any other fact or circumstance which may provide an explanation for any question which may arise. It is, in my view, inappropriate for any direction, or comment, in this regard to become elevated, by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straight jacket for the jury. In some cases, where it is obvious that the witness’s reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness’s evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything. 117 Grove J disagreed, and whilst he accepted that some form of direction may be required, he also doubted whether any mandatory direction was appropriate.77 After referring to the view of Spigelman CJ that the “crucial matter” was to direct that any doubt that the jury may form with respect to one aspect of the complainant’s evidence ought be considered when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a 74 Markuleski v The Queen (2001) 52 NSWLR 82, [184] citing the adjuration of McHugh J in KRM v The Queen (2000) 206 CLR 221, [37]: “The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings”. 75 Markuleski v The Queen (2001) 52 NSWLR 82, [188]. 76 Markuleski v The Queen (2001) 52 NSWLR 82, [261]-[263]. 77 Markuleski v The Queen (2001) 52 NSWLR 82, [280]. -- 31 of 55 -- [2024] SASCA 36 The Court 28 reasonable doubt about the complainant’s evidence with respect to all other counts, his Honour concluded that whether any direction was necessary would depend on the case:78 Whilst I consider that it would be prudent to give such a direction in some cases I am apprehensive that language incorporating the concept of cruciality will be interpreted as mandatory. For my part I would refrain from expression in any terms which might be so interpreted. There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges. 118 Moreover, his Honour found that the directions given in that case were not “inadequate to the circumstances” of that case.79 Finally, though Simpson J appears to have agreed with Spigelman CJ, Wood CJ in CL and Grove J as to the law, in light of the acquittal on one count, her Honour would have acquitted on the other counts as well.80 119 The giving of a direction that it is mandatory to take into account – that the jury “must” take into account – a doubt on one count when evaluating others, or the complainant’s evidence more generally, does not represent the practice in South Australia.81 Indeed, in R v Hare the Court of Criminal Appeal declined to follow Markuleski v The Queen.82 That was a case involving three counts of indecent assault involving the same complainant, a 12-year-old boy, where the trial judge gave a “separate consideration direction”. The appellant was convicted on two of the three counts. As the reasons in R v Hare and Markuleski v The Queen show, the issue usually arises in connection with an argument about inconsistent verdicts.83 Vanstone J (with whom Nyland and Bleby JJ agreed) explained why a direction expressed in mandatory terms was not usually necessary:84 Counsel did not complain of the directions … so far as they went. However, he contended that the judge should have gone further and warned the jury that if it was not prepared to accept V’s evidence in respect of any particular matter or count, then such a doubt should be taken into account in determining whether it was prepared to accept his evidence on other matters or counts. Counsel suggested that this obligation fell upon a trial judge irrespective of any particular circumstances in the evidence calling into question the complainant’s reliability. Counsel relied on R v KWG [2000] SASC 398 and R v Markuleski (2001) 52 NSWLR 82. Counsel also purported to rely on R v Liddy (2002) 81 SASR 22, 64-73, but I consider that the case does not support the argument. 78 Markuleski v The Queen (2001) 52 NSWLR 82, [280]. 79 Markuleski v The Queen (2001) 52 NSWLR 82, [283]. 80 Markuleski v The Queen (2001) 52 NSWLR 82, [324]-[326]. 81 R v Moores (2017) 128 SASR 340, discussed below. 82 R v Hare [2007] SASC 427 (Nyland, Bleby and Vanstone JJ). The Queensland Court of Appeal likewise declined to follow Markuleski v The Queen in R v Rankmore; ex parte Attorney-General (Qld) [2002] QCA 492, [26]-[29] (de Jersey CJ, with whom Williams JA and Mullins J agreed). 83 R v Hare [2007] SASC 427 [13]. In that case Vanstone J cited MacKenzie v The Queen (1996) 190 CLR 348, MFA v The Queen (2002) 213 CLR 606 and R v Hoskins [2007] SASC 92; (2007) 169 A Crim R 325. 84 R v Hare [2007] SASC 427, [19]-[22]. -- 32 of 55 -- [2024] SASCA 36 The Court 29 There is no general rule that requires the direction as contended for by counsel. That is, there is no obligation upon a trial judge dealing with sexual charges resting on the evidence of a single complainant to direct the jury that any doubt which it entertains in relation to proof of one count must be carried into its consideration of other counts: Liddy, per Mullighan J at [186]-[192] and per Williams J at [515]-[523]. Although Mullighan J referred in the passages cited to KWG and Markuleski and to the statements within those cases suggesting that such a direction was obligatory, or at least prudent, I do not read his reasons as agreeing that such a direction was necessary in the usual case. On the contrary, his Honour expressed the view that any obligation would arise from the particular circumstances of the case. The same view was taken in this court in R v B, P [2006] SASC 229. In a particular case such a warning might be necessary to avoid a perceptible risk of miscarriage of justice: Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ and at 95 per Deane J. Juries are perfectly capable in the great majority of cases, where the significance of any infirmity in a complainant’s evidence is obvious, to bring that infirmity to account, in relation to other charges, to the extent that it is necessary or appropriate, and to do so without need of any specific direction. That is part and parcel of the task which juries constantly undertake in evaluating the evidence of witnesses. It is undesirable to burden juries with unnecessary directions. That is particularly so where such a direction may introduce an imbalance which would need to be redressed. Because just as an infirmity could adversely affect judgement of credibility as a whole, so an acceptance of a complainant’s account of a disputed event (and a rejection of the version of an accused person) could flow through to other counts in a way which assisted the prosecution case. If a direction as sought upon this appeal is to be given, then it raises the question of whether a counterbalancing direction would also be required. 120 Nonetheless, it would seem that the terms of s 29B permit a trial judge to direct a jury that it “may” – not must - take into account a doubt on one count when evaluating others and the complainant’s evidence generally.85 Whether that was the intended effect of the amendment was not argued before this Court and it need not be addressed. 121 The appellant’s contention was simply that as this trial involved only one offence charged under s 50 of the CLCA, and as not “more than one offence” was charged, then s 29B did not in terms apply and some form of direction should have been given having regard to the issues arising across the different sexual acts and offences alleged. The Director’s submission was that, whilst: … it may be that s 29B of the Evidence Act 1929 (SA) talks of multiple offences, to “adapt” the reasoning of a case that the Parliament has set its face against to an offence under s 50 of the Criminal Law Consolidation Act 1935 (SA), which though singular, is made up of constituent sexual activity which would themselves amount to offences (and have to be proved beyond reasonable doubt), would make a mockery of the rationale in abolishing the rule. 122 The Director’s submission must be rejected. An appeal to epithets such as “mockery” is no substitute for the application of orthodox principles of statutory 85 R v Sondhi [2023] SADC 41, [80]-[83] (Muscat DCJ); an appeal on other issues was dismissed, Sondhi v The King [2024] SASCA 7, [4]-[11] (Doyle JA, Blue and Kimber AJJA). -- 33 of 55 -- [2024] SASCA 36 The Court 30 construction. The Court must begin with the words used by the Parliament, considered in their statutory context. Neither party suggested that resort to context or purpose could alter the clear effect of the text of s 29B of the Evidence Act. 123 The proof of an offence charged under s 50 of the CLCA requires that the trier of fact be satisfied beyond reasonable doubt that, under s 50(12) of the CLCA, the accused has engaged in “2 or more unlawful sexual acts with or towards a child over any period”, where “unlawful sexual act” means “any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence”. However, that mode of proof cannot elide the fact that only one charge was laid and could in this case be proved. 124 That is to say, where the prosecution alleges the commission of what, if separately charged, may have comprised two or more sexual offences, that does not amount to “a trial in which more than one offence is charged” as s 29B of the Evidence Act requires. Indeed, the very purpose of s 50 of the CLCA (and its precursor) was to avoid and overcome various of the difficulties encountered where separate offending had been charged.86 125 One evident purpose of s 29B was to address the inconsistency which it was suggested was associated with a Markuleski-type direction and the standard direction that the jury must give “separate consideration to each count”. That is not an issue which arises directly in a case involving only one charge. It reinforces the need for close adherence to the text of the provision. 126 It follows that s 29B of the Evidence Act was not engaged in this case. 127 On the assumption that s 29B of the Evidence Act did not preclude the trial judge giving a Markuleski-type direction, did the failure to give that kind of direction, or a variation of it, amount to a miscarriage of justice where the direction was not sought by the appellant at trial? That is to say, was the trial judge required to direct the jury to the effect that, if the jury doubted the truthfulness or reliability of the complainant’s evidence in relation to one or more of the unlawful sexual acts and offences alleged, that doubt must - or might - be taken into account when assessing the truthfulness or reliability of the complainant’s evidence generally? 128 The analysis of this ground must commence with the authorities in this State which have consistently expressed the view that the failure to give a Markuleski-type direction will rarely involve error or otherwise give rise to a miscarriage of justice.87 In R v Moores the accused was charged with a number of counts of sexual offending. It was submitted that the failure to give a Markuleski-type direction occasioned a miscarriage of justice. The Court of 86 Hamra v The Queen (2017) 260 CLR 479, [20]-[28] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). 87 R v Liddy (2002) 81 SASR 22; R v B, P [2006] SASC 229; R v Hare [2007] SASC 427; R v Moores (2017) 128 SASR 340 (Vanstone, Blue and Doyle JJ). -- 34 of 55 -- [2024] SASCA 36 The Court 31 Criminal Appeal disagreed, explaining that, exceptional circumstances aside, it was not ordinarily required:88 A trial judge is not required to direct a jury that, if it entertains a reasonable doubt about one count, it must carry that doubt into its consideration of the other counts where multiple counts of sexual charges rest on the evidence of a single complainant. Ordinarily, there is no need for a trial judge to direct a jury that it may carry such a doubt about one count into its consideration of the other counts, although in exceptional circumstances, it may be desirable or even necessary for such a direction. 129 It will be noticed that the Court there considered a direction to the effect that the jury may, not must, use a doubt on one count when considering other counts. The Court reasoned that the jury would have understood that, if it entertained a doubt about the complainant’s truthfulness in respect of one count, that would necessarily impact on its assessment of her truthfulness in respect of another count. No further, specific direction was required. 130 A similar approach should be taken to s 50 cases. 131 Where the accused is charged with one count under s 50 of the CLCA which will be proved where the jury finds that accused committed two or more sexual offences, though it may not be agreed as to which two or more offences were committed, it will rarely be necessary for the trial judge to direct the jury that, if it entertains a reasonable doubt about one allegation of sexual offending, it may carry that doubt over into its consideration of the other allegations of sexual offending and the complainant’s evidence more generally. 132 The appellant argued that it is the nature, or structure, of a s 50 offence that makes it appropriate, if not necessary, to give a direction to the effect that the jury may take into account a doubt about one aspect of the complainant’s evidence when considering the balance of the complainant’s evidence. In particular, the appellant argued that because the jury is only required to be satisfied that the appellant engaged in two of the unlawful sexual acts alleged in a s 50 case, there is a real risk that jurors might concentrate on allegations in respect of which they have confidence in the complainant’s evidence, and not give appropriate regard to inconsistencies or other frailties arising from a consideration of the complainant’s evidence in relation to other allegations. 133 Whilst we accept that this is a consideration that might be weighed when considering whether to give a direction in a s 50 case, we are not persuaded that it justifies the contemplated direction in s 50 cases generally, or in the particular circumstances of the present case. 134 In most cases the usual directions given regarding the burden and standard of proof, and the need for a careful evaluation of the complainant’s evidence as a whole, will result in the jury recognising that difficulties with credibility or reliability about one aspect of the complainant’s account must be taken into 88 R v Moores (2017) 128 SASR 340, [184] (Blue J, with whom Vanstone and Doyle JJ agreed). -- 35 of 55 -- [2024] SASCA 36 The Court 32 consideration when evaluating other aspects of the complainant’s account, and the account generally. 135 There is some danger that if, in addition, a ritualistic Markuleski-type direction is always given in s 50 cases – even if it is given in permissive rather than mandatory terms – that may detract from the need to carefully evaluate particular allegations in their proper context. There may be rare cases where a Markuleski-type direction might be helpful in order to address particular criticisms made of the complainant’s evidence. Whether that is required will depend on the particular circumstances of the case. However even if it is thought desirable, it will not be appropriate for a trial judge to direct in mandatory terms. Where some direction is thought appropriate, it may then also be necessary to add a direction that this should not detract from the need to carefully evaluate particular allegations in their proper context, considering whether for example they are inherently credible or supported by other evidence. 136 It follows that the trial judge was not required to direct the jury in this way, particularly as this kind of direction was not sought at trial. There has been no miscarriage of justice. The standard directions given by the trial judge were adequate and appropriate. Permission to appeal ground 4 should be granted but this appeal ground dismissed. 137 Having determined that the appeal should be allowed on appeal grounds 2 and 3, but not on appeal ground 4, it is next necessary to address proposed appeal ground 1, so as to determine whether there should be an acquittal or an order for a retrial. Appeal ground 1: Verdict unreasonable or cannot be supported 138 The function of this Court in a case where it is contended that the verdict of a jury is unreasonable or cannot be supported having regard to the evidence was explained by the High Court in Pell v The Queen:89 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. 139 The important question is whether, following its independent review of the evidence, this Court has a reasonable doubt about the appellant’s conviction:90 In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the 89 Pell v The Queen (2020) 268 CLR 123, 145 [39] (citations omitted). 90 M v The Queen (1994) 181 CLR 487, 494; MFA v The Queen (2002) 213 CLR 606, [59]. -- 36 of 55 -- [2024] SASCA 36 The Court 33 evidence is capable of resolving a doubt ... that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility [or equally, it is submitted, reliability] for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 140 In this case the appellant submitted that the “presumptive starting point” that applies in many cases following conviction, namely, that it must be assumed that the evidence of the complainant was assessed by the jury as being both credible and reliable, must now be modified having regard to the terms of s 50(4) of the CLCA. That provision is in the following terms: However— (a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and (b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and (c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. 141 Accordingly, it was submitted that the requisite assumption can only be that the verdict of the particular jurors who agreed in the majority verdict must each have assessed the complainant’s evidence to be truthful and reliable on at least two of the alleged unlawful sexual acts, where the jury was not required to agree which two or more acts they were. 142 Given the way in which s 50(4) of the CLCA is framed it must now be accepted that the jury’s verdict of guilty does not demonstrate that they considered that the complainant’s evidence was, as a whole, both credible and reliable in respect of all of the unlawful sexual acts alleged. Moreover, it cannot be assumed that the jury reached any agreement as to which two or more acts were committed despite being satisfied beyond reasonable doubt that there was an unlawful sexual relationship within the meaning of s 50 of the CLCA.91 143 With this caveat in mind, can it be said that the jury, acting rationally, ought to have entertained a reasonable doubt about guilt, particularly having regard to evidence which is “not explained by the manner in which it was given”?92 That may arise from “inconsistencies” or “discrepancies” when compared with other objective or unchallenged evidence, as well as from “inadequacies” within the evidence itself. 91 Henry v The Queen [2022] SASCA 60 (Livesey P, Doyle and David JJA). 92 Pell v The Queen (2020) 268 CLR 123, 145 [39]. -- 37 of 55 -- [2024] SASCA 36 The Court 34 144 As will be seen, though there were real difficulties with aspects of the complainant’s evidence, the jury was not required to reject all of it and there remained a clear evidentiary foundation for the finding of guilt. The prosecution evidence 145 Before addressing the appellant’s case, it is first necessary to evaluate the prosecution case, particularly the evidence of the complainant, LP. 146 There were three different types of sexual offences alleged and relied upon by the prosecution. These were acts constituting indecent assaults, acts constituting sexual intercourse and acts constituting gross indecency. 147 When addressing the offending comprising indecent assaults, the prosecution case was that there were occasions when the appellant intentionally and unlawfully applied force to LP in circumstances where the conduct had a sexual connotation and was offensive against ordinary, contemporary standards of decency and propriety. The prosecution maintained that this occurred when the appellant touched LP on her breasts or on her vagina, whether over the top or underneath her clothing, as well as when he kissed her on the lips. The prosecution pointed to LP’s evidence that the appellant used his hand to place her hand on his penis and made her rub her hand up and down, as well as when he sat her on his erect penis and made her move up and down on it, as well as when he pressed his body against hers so that she could feel his erect penis. 148 So far as unlawful sexual intercourse was concerned, the prosecution case was that this occurred when the appellant inserted a finger into LP’s vagina, as well as when he inserted his tongue into her vagina. 149 As for the offending comprising gross indecency, the prosecution case was that this occurred when the appellant made the complainant watch pornography, both on a computer and on his mobile phone, which LP said occurred more than once. She described it occurring on the first occasion at the house at Price and she marked a plan of that house (exhibit P3) where the computer desk was in the hallway. The complainant disagreed with the proposition that there was no computer in the house at Price before 2007. The complainant said that the appellant also showed her pornography on his phone at the house at Price. 150 The second occasion where LP said that she was shown pornography by the appellant was at the house at Eva Street at Williamstown, north of Adelaide, where AM and their children lived. The prosecution case was that the appellant made the complainant watch pornography on a computer in the computer room which was TM’s old bedroom. LP identified that bedroom as bedroom 2, where TM stayed until he moved into the retreat located in the backyard. LP recalled an occasion at Eva Street when the appellant told her not to leave the room and she was required to wait until it was finished. There was an issue about whether LP could identify the kind of phone, for she described it as a brick phone rather than a flip phone and it had a small rectangular screen. -- 38 of 55 -- [2024] SASCA 36 The Court 35 151 The allegations about pornography were not put to the appellant during his record of interview. 152 During the course of her summing up, the trial judge reminded the jury about the evidence of EP, the appellant’s father, to the effect that there was no computer in the hallway at the Price house between 2004 and 2006. In addition, her Honour reminded the jury that AM and TM gave evidence that TM did not use the retreat until he was between 16 and 18 years of age. 153 In the course of her evidence, LP said that she was born in Tasmania on 17 October 1993 and that she and her family moved to Yettie Road in Williamstown in South Australia when she was three years old in 1996. After that, they moved to Eva Street in Williamstown. The complainant said that her father did not live with the family in that house but he came to visit. At that time he was living, she said, in the Virginia Caravan Park. 154 The complainant described visits to the appellant’s cabin at the Virginia Caravan Park on occasions when her mother was working. She described a two- bedroom cabin with curtains, as well as a TV in the lounge room area. 155 The appellant’s evidence of the first sexual contact between her and her father was when she was between three and four years.93 She recalled being in the cabin with her brother TM and her father, the appellant. She described the appellant walking her into his bedroom after which he lifted her onto the bed and closed the curtains. He shut the door. She described her father sending her brother outside. The complainant’s evidence was that he began touching her chest on the outside of her clothing and asking “What’s this?” before touching her underneath her clothing and then touching her vagina on top of her clothing.94 He then put his hand underneath her clothing and rubbed her vagina. 156 The complainant described the appellant removing her pants and underwear before touching her vagina with his finger:95 he touched my clitoris and put his finger inside of my vagina. I remember that because it felt sore, I didn’t know what was going on, I just laid there, looking around the room, and then he used his tongue on my vagina, on the inside and outside as well. 157 After this, the complainant said the appellant told her “Don’t tell anyone. This is our little secret”.96 93 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 27. 94 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 28. 95 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 28. 96 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 29. -- 39 of 55 -- [2024] SASCA 36 The Court 36 158 The complainant said that this was the only occasion of sexual contact at the Virginia Caravan Park that she could remember. She said there were other occasions of sexual physical contact at Eva Street, Williamstown, as well as at Price. 159 The complainant referred to photographs of the Williamstown property, as well as a sketch plan of the house which identified her mother’s bedroom, her brother’s bedroom and her own bedroom. The complainant said that there was sexual contact between her and the appellant in the lounge room, her mother’s room, in her brother’s room but not in her own bedroom. 160 The complainant identified that the next sexual contact occurred in the lounge room at Williamstown when she, the appellant and her brother were home. Her mother was out working. The appellant described it occurring a couple of months after the first incident at the Virginia Caravan Park. The complainant told the jury that she was on a three-seater couch in the lounge room, watching television when her father sent her brother outside before coming to sit next to her. She described the appellant touching her chest on the outside of her clothing and then touching her chest on the inside of her clothing before touching her vagina on the outside of her clothing. The complainant said that whilst the appellant was doing that, he was kissing her on the mouth with his mouth closed. The appellant then told the complainant to go onto the floor and she went onto the carpet next to the television where he laid next to her. He kissed her on the mouth and put his hands inside her underwear and rubbed against her vagina. The complainant said that the appellant stopped because TM came in through the back door. She said that the appellant stayed over that night. 161 The complainant described other occasions of sexual physical contact in the lounge at Williamstown. She recalled playing PlayStation when her father sent TM outside and then locked the door. Her mother was not home and he came to sit next to her and lifted her up onto him. They were sitting on a single-seater couch. They were both fully clothed. The complainant described being made to face the appellant, with her legs either side of him. She said that the appellant made her move up and down against his erect penis which remained inside his clothing. She described the appellant touching her so that her crotch was in his face. She was wearing blue basketball shorts without underwear but he moved her shorts and licked her vagina on the inside and outside. The complainant recalled the appellant saying, “You like this. You keep coming back for more”. Afterwards he said, “Don’t tell anyone”.97 162 The complainant described another occasion when just she and the appellant were home and he grabbed her hand and walked her to the bedroom of her mother. She described the appellant making her give him a massage before he gave the complainant a massage. The appellant touched the complainant on her chest, got 97 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 35. -- 40 of 55 -- [2024] SASCA 36 The Court 37 her onto the bed, underneath the sheets and again touched her chest on top of her clothing. The complainant described the appellant touching her underneath her clothing on her chest before putting his hand in her underwear and rubbing her vagina. She told the jury that the appellant took off his blue pants and black jocks and showed her his penis. LP said that the appellant grabbed her hand and put it onto his penis, getting her to move it up and down. She did not recall for how long that went on, but she said that he did not ejaculate. 163 The appellant said that after this occasion of offending in her mother’s home at Williamstown, the appellant acted like nothing had happened but started calling her “bitch and things like that”.98 She described his attitude towards her starting to change in a bad way. 164 The appellant then described her father moving from the Virginia Caravan Park to Price, about an hour and a half from Williamstown. Initially he lived with his parents, then he moved to a house in Price. She said that this occurred when she was 10 but she did not know the years. Nonetheless she said that she had moved from the Williamstown Primary School to the St Jakobi Primary School. 165 The appellant described more than one occasion of sexual contact at Price. She recalled on one occasion being in her bedroom whilst her brother was in the other bedroom at night-time. The complainant was shown a sketch plan of the house. Bedroom 3 was the complainant’s bedroom whereas bedroom 2 was her brother’s bedroom. Exhibit P3 depicted a computer on a desk. 166 The complainant described an incident in her bedroom at night-time when her father came into the room, woke her and crept into the bed. She described facing the other way and he pressed up against her. She could feel his erection and he tried to rub her vagina on the outside of her clothing. The complainant said that she told the appellant “No” but he kept insisting, trying to rub her vagina on the outside of her clothing. She described the appellant getting out of the bed and crying before going back into his own room. She said that she followed him into his own room “because I thought I did something wrong”.99 The complainant said that she was asked to get into the bed with the appellant and she did so. He then began touching her on the outside of her clothing, her chest and vagina. Whilst he was doing this the appellant said, “You like this, don’t you?”. The complainant said that the appellant turned her onto her side and pressed up against her, touching her vagina on the inside of her underwear. She recalled that he had an erection. 167 The complainant said that this was the last occasion of sexual contact between her and the appellant.100 98 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 36. 99 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 39. 100 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19- 1316, Schammer DCJ, 21 September 2022)39. -- 41 of 55 -- [2024] SASCA 36 The Court 38 168 The complainant said that she last saw the appellant at the time of her 18th birthday. She did not see him at the time of her 21st birthday. She described being telephoned after receiving a necklace and money but she didn’t want the necklace or the money.101 169 The complainant described watching pornography on a computer in the hallway at Price, as well as in the computer room at Williamstown.102 170 The appellant was asked to describe the complaint she made to AR when she was 13 or 14 years. She described that she was upset, crying and her friend asked her what was wrong. The complainant said that she “slightly mentioned that I had been abused sexually by my dad”. At the time she was self-harming on her arms and legs, cutting. 171 The complainant said that the first person to whom she gave any particulars was her former domestic partner, BW. She was 19. They were about to move in together and she said to him:103 I told him that I had something to tell him, as we moved in together and things were getting serious, I said I had been abused and I said that it was sexual abuse and I did mention that oral, oral happened. 172 At that point in her evidence the complainant was asked whether there were other occasions of sexual contact. She then described an occasion at Williamstown on the three-seater couch when the appellant made LP straddle him and get down on his penis. She then described masturbating the appellant more than once and the “oral stuff more than twice”.104 She described the appellant kissing her whilst these things were happening. The complainant said that sexual contact did not occur every time the appellant came to look after her. 173 When asked whether there was sexual contact more often than not when the appellant came and looked after her, the complaint said “It happened quite often”.105 174 The complainant described not telling her mother because she was scared, not knowing how her father would react. She said that he was “quite intimidating at the time”.106 101 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 40. 102 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 40. 103 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 41. 104 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 42. 105 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 42-43. 106 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 43. -- 42 of 55 -- [2024] SASCA 36 The Court 39 175 Whilst the complainant was cross-examined at some length, it is not necessary to address each and every of the points made because the significant points were covered in the address of counsel for the appellant and those criticisms are addressed in some detail later in these reasons. 176 By the time she gave evidence the complainant was 28 years. It is clear that she was describing events which had occurred around two decades previously. The complainant was cross-examined about the various statements that she had given to police, the first one being on 24 September 2018 and the most recent on 5 August 2022. 177 When pressed on how many occasions she visited the appellant’s cabin in the Virginia Caravan Park, the complainant could not say whether it was more than 10 or less than 10 visits. When asked to give any indication of the number of visits the complainant said, “I just remember that occasion, it was quite clear”.107 178 When pressed about the layout of the cabin, the appellant could not say, for example, whether the second bedroom was full of boxes and she couldn’t describe the other rooms.108 179 The cross-examiner asked the complainant about where it was she recalled being walked into the bedroom and lifted onto the bed in the cabin so she was referred to her statement dated 9 September 2021, where she described seeing a floorplan or the Williamstown house which helped her to recall other events.109 180 LP was asked about her grandfather’s 70th birthday before being questioned about her evidence concerning the Williamstown house and the incidents which LP had said occurred after watching television and playing on the PlayStation.110 It was put to LP that there was a large window near the front door, presumably adjacent the lounge. The cross-examiner put to LP that she made no reference to her shorts being pulled aside when she spoke with police on 24 September 2018, and that it was not mentioned until 5 August 2022, about a month before the trial.111 181 The complainant was asked whether she told police that the additional detail had come about through having therapy which caused her “to have unblocked memories”:112 107 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 46. 108 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 47. 109 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 49. 110 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 59-60. 111 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62. 112 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62-63. -- 43 of 55 -- [2024] SASCA 36 The Court 40 Q You told police that that had come about through you having therapy sessions which had caused you to have unblocked memories. A Yes. Q Can you explain to us how that comes about for you, that therapy will unblock your memories. A The type of memory that actually happened was actually through a nightmare to begin with and it was reoccurring and that was just joining on from the past memory that was already, I already spoke about, so I guess through talking. Q So when you said you had the recurring nightmare, what was that in relation to. A That memory I spoke about. Q It’s the case, isn't it, that you told the police that this memory had come about through therapy sessions that unblock your memories and that you believed these memories to be true and not made up. Do you agree you said to police you believed them to be true and not made up. A Yes. Q Would you accept the possibility that you are mistaken or confused and that those are not accurate memories. A No, because I've had the memories for so long and that the addition part is adding to that old memory, so it's not that I'm making it up. 182 The cross-examiner then pressed LP about whether the memories were not accurate to which she answered “no, that’s my truth”.113 183 LP told the cross-examiner that after the incidents at Williamstown, her next clear memories were at Price, when she was 10 years old in 2003, still in primary school.114 When the complainant was cross-examined about photographs of the house at Price, she admitted that she hadn’t recalled seeing the house as the 2003 photographs depicted it.115 LP was then asked about the stage at which various renovations were undertaken, to which she generally answered that she didn’t remember seeing it as the photographs depicted the house at Price.116 In particular, LP disagreed with the proposition that there was no computer in the hallway at Price before 2007.117 113 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 63. 114 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 64-65. 115 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 67. 116 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 68. 117 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 70-71. -- 44 of 55 -- [2024] SASCA 36 The Court 41 184 The cross-examiner taxed the complainant about the fact that she had drawn a shed in exhibit P3 when, in fact, there was no shed until much later than 2003.118 Indeed, LP admitted that what she had drawn may have reflected her memory of the house when she was 17 years.119 Nonetheless, LP denied that there were no bedrooms for her brother and the appellant before 2007.120 LP denied that the allegations she made as to what occurred at Price in 2003 simply could not have possibly happened in the way that she described.121 185 LP was cross-examined about the occasions she said the appellant showed her pornography, as well as her reference to “watching” photographs as distinct from videos. She eventually explained that she saw photographs on the phone but watched pornography on the PC.122 Nonetheless, she maintained that she had been made to watch photographs on the appellant’s phone.123 186 The complainant admitted that she had forgotten about her complaint to AR until AR reminded her about it.124 187 In re-examination LP was shown the exhibit P3, the sketch of the layout of the Price house. She said that she was uncertain as to the precise date of that layout.125 She told the jury that while she recalled the layout of the house at the time she was abused, there were three bedrooms, a kitchen, a bathroom and a laundry but some of the other areas were getting renovated, “but it wasn’t the whole house”.126 188 It was put to the complainant that she had given six separate statements to police and that she had been told that if she had thought of something, to tell the police, and that is what she had done.127 189 This review of the evidence of LP demonstrates that she had considerable difficulty identifying with any precision the dates on which she said the offending occurred. She was only able to do so in a broad way by reference to her own age 118 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 71. 119 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 72. 120 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 73. 121 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 73. 122 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 79-80. 123 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 81. 124 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 82-83. 125 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 89. 126 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 90. 127 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 91. -- 45 of 55 -- [2024] SASCA 36 The Court 42 and the places at which she said it occurred. Importantly, she described relevant offending occurring at each of the cabin in the Virginia Caravan Park, her mother’s house in Williamstown and her father’s house in Price. The cross-examiner’s attack focused on, though was not confined to, the allegations of offending at the house in Price. The attack on the allegations of LP was more muted in connection with the allegations of offending at Virginia and Williamstown. Nonetheless, there was a pronounced challenge to the complainant’s evidence regarding her “blocked” memories. The appellant’s case on appeal ground 1 190 The appellant’s case was essentially that the evidence of LP was so problematic that it could not be regarded as reliable and it could not furnish any basis for proof beyond reasonable doubt. 191 The appellant submitted that the complainant’s evidence was problematic in a number of areas. These may be summarised as the complainant’s young age, her reliance on “nightmares” and “flashbacks”, numerous inconsistencies in the complainant’s evidence (particularly regarding the layout of the house at Price and the showing of pornography on a phone), and ambiguities in the evidence of what was said to be the appellant’s consciousness of guilt. 192 It is convenient to address these criticisms in turn. The complainant’s young age 193 The appellant commenced with the proposition that LP’s evidence about the first instance of abuse occurred in the appellant’s cabin at the Virginia caravan park when she was only aged between “three and four” years.128 The last alleged instance occurred at Price when the complainant was around 10 years.129 This was soon after the appellant had moved to his house at Price, within a year of moving in late 2002. 194 LP’s clearest memories of the abuse were, she told the jury, not of the later abuse at Price but of the “first memory of Virginia caravan park and then the rest”.130 The submission of the appellant was that it was, at the least, unusual for the complainant to recall events when she was only three or four years old rather than the more recent events. 195 The effect of this criticism was that it was inherently unlikely that LP could have had a reliable memory of abuse from the age of three or four years. 128 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 27. 129 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 65. 130 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 65. -- 46 of 55 -- [2024] SASCA 36 The Court 43 The complainant’s reliance on “nightmares” and “flashbacks” 196 Another feature emphasised by the appellant is that some of the complainant’s evidence was based upon “nightmares” and “flashbacks”. A number of details of her allegations, some of which may have been thought to render her account compelling, were only given after therapy sessions which, she explained, had “unblocked” her memories.131 197 There was no evidence from any expert to explain whether these “recovered” memories were the result of “nightmares” or therapy or both, and could or should be regarded as accurate or otherwise. For example, there was no expert evidence led to explain whether what the complainant described conformed to a scientifically recognised pattern of behaviour in child sexual abuse cases.132 198 This issue arose in connection with LP’s evidence about an incident which she said occurred at Eva Street, Williamstown, which began when she was sitting on a one-seater couch playing on a PlayStation.133 199 This incident has been mentioned earlier. The appellant locked TM outside the house and he and LP were clothed. The appellant made LP face him with her legs either side of him. She was made to move up and down against the appellant’s erect penis which remained inside his clothing. The appellant then lifted LP up so that her crotch was at the level of his face. She was wearing blue basketball shorts. She did not recall wearing underwear. The appellant used his hands to move the basketball shorts across so that her vagina was exposed and “he used his mouth to lick my vagina on the inside and outside”.134 The appellant was alleged by the complainant to say, “You like this. You keep coming back for more.”.135 The appellant was then alleged to have said to LP, “Don’t tell anyone”.136 200 Whilst this account appeared vivid and apparently credible, in cross- examination, LP accepted that when she provided a statement to police on 24 September 2018 she had only mentioned “that he made me go up and down against him” and she had added “he didn’t touch me anywhere else this time”.137 131 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62-63. 132 See, for example, R v C (1993) 60 SASR 467, 479 (Duggan J) and R v E (1997) 96 A Crim R 489. A somewhat similar issue concerning “blocked” or “repressed” memory was considered by this Court in NBM v The Queen [2021] SASCA 105, [56]-[59] (Lovell JA), cf [140]-[145] (Doyle JA, with whom Kelly P agreed). 133 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 33-35. 134 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 35. 135 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 35. 136 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 35. 137 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 61. -- 47 of 55 -- [2024] SASCA 36 The Court 44 201 LP then accepted that she had first told the police about pulling her shorts aside on 5 August 2022, even though she had previously given three signed statements after her initial statement on 24 September 2018.138 The complainant also accepted that, on 5 August 2022 she told police for the first time that the appellant had closed the curtains of the lounge room. She explained how she came to remember the additional detail as follows:139 Q Can you explain to us how that comes about for you, that therapy will unblock your memories. A The type of memory that actually happened was actually through a nightmare to begin with and it was recurring and that was just joining on from the past memory that was already, I already spoke about, so I guess through talking. 202 LP rejected that she could be mistaken or confused, or that her memories were inaccurate. Her evidence was that she had “had the memories for so long and that the addition part is adding to that old memory, so it’s not that I’m making it up”.140 Her evidence under cross-examination was as follows:141 Q Can I just clarify that. So you’re saying you had the original memory for a long time of the sitting in front of the computer [sic: PlayStation] and being rubbed against him, is that the bit you mean you’d had for a long time. A Yes. Q And then you were having a recurring nightmare about the extra touching. A Yes. Q And that was then unblocked through your therapy sessions and talking about it. A Yes. Q And you said to police ‘I believe these memories to be true memories and not made up’. A Yes. Q I want to focus in on that word believe. What I'm asking you is: do you accept that it is possible that your memories are not accurate and that they have somehow been influenced or changed over time, through dreams, through television, through discussions with friends or with anything else. A No, because I’ve had the memory so long even before therapy. 138 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62. 139 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62-63. 140 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 63. 141 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 63. -- 48 of 55 -- [2024] SASCA 36 The Court 45 Q So, to be clear, you don’t accept that these memories are anything other than accurate. A No, that’s my truth. 203 The cross-examination established that LP came to believe that she had memories as a result of nightmares or flashbacks which were then discussed in therapy. She had come to accept those as genuine memories of actual events. Inconsistencies in the complainant’s evidence 204 The appellant pointed to what he described as a “striking feature of the evidence” which was the “looseness and inconsistency” of the complainant’s evidence about dates. Importantly: 1. LP claimed to be clear that the first incident of sexual abuse happened in the cabin at the Virginia caravan park when she was three or four years’ old, after her parents had separated. However, other evidence demonstrated that the appellant and AM separated in 1999, when LP was five years. 2. AM’s evidence was that she took her children to Price when TM was eight and LP was five.142 That is to say, around 1998 or 1999. This evidence was not consistent with the agreed fact and the transfer document proving that EP only purchased the Price property on 17 May 2002.143 Indeed, LP’s evidence was that the appellant began residing in Price during 2002 and EP’s evidence was that the appellant moved there in November 2003. 3. LP claimed that the last abuse occurred at 7 Clementina Street, Price, when she was aged around 10 years. Whilst that is consistent with the school she attended in 2004, it was not consistent with the layout and furnishing of the house being as she recalled it. The evidence she gave about the layout and furnishing of the house at Price was a critical element of her allegations of sexual abuse, particularly the room set up as a bedroom and a lounge room, together with the furniture in those rooms. It will be necessary to return to that evidence. 4. TM gave evidence that he did not go to 7 Clementina Street, Price, until he was 15 years, or perhaps 17 years.144 Indeed, TM’s evidence was consistent with the evidence of EP, his grandfather, together with photographs depicting the condition of the house from 2007 onwards. 142 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 140-141. 143 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 140-141; Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022), P1 [4]. 144 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 105. -- 49 of 55 -- [2024] SASCA 36 The Court 46 5. AM claimed that LP reported abuse to her shortly after her 21st birthday, soon after 17 October 2014, and that she then had two phone calls with the appellant. However, text messages relating to the payment discussed in the second phone call were only sent in January 2018. This suggests that the phone calls were years apart although that suggestion was, according to the appellant, evaded by AM.145 205 The appellant pointed to the fact that on the prosecution case there was little or no attempt to clarify the dates when events occurred whereas the defence, by contrast, repeatedly attempted to clarify dates by reference to objective facts. These objective facts included the date of the separation of the appellant and AM, the dates of transfers of property, as well as the dates of text messages exchanged between the appellant and AM. 206 The appellant emphasised that there were, in addition, inconsistencies in LP’s evidence which it was suggested demonstrated that some of the alleged incidents which she described could not have occurred in the places and at the times she recounted. 207 For example, the first incident which LP recounted occurred in the caravan park at Virginia. LP’s evidence was that she remembered the appellant lifting her onto the bed.146 By contrast, in her first statement to police she could not remember how she got onto the bed.147 That detail was only supplied in a later statement on 27 August 2019. During that same statement she first recalled the appellant closing the curtain. The additional detail came, as earlier mentioned, from recurring nightmares.148 208 The complainant’s evidence also featured pornography, which she said the appellant showed her. In her examination-in-chief, the complainant described being shown pornography by the appellant on computers as well as on his mobile phone. Her evidence was that the “phone had more pictures, the computer had more videos”.149 Under cross-examination, LP accepted that she had said in her signed police statement that she remembered her father showing her “pornography on his phone when I saw him in Price. He would make me watch it even though I told him that I didn’t want to watch it.”.150 145 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 143-144. 146 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 28. 147 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 48-49. 148 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 62. 149 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 41. 150 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 78-79. -- 50 of 55 -- [2024] SASCA 36 The Court 47 209 The appellant’s submission was that this evidence was not consistent or reliable because in 2002 the appellant was using a Nokia mobile phone of a “brick” type which could only display still images and not videos. Accordingly, it was submitted, the reference to the appellant watching pornography on the mobile phone could not refer to still images but, rather, only to videos which the phone could not accommodate. Moreover, the appellant submitted that the prosecution had failed to establish what kind of phone the appellant used and whether it was one which could have displayed colour images at a resolution capable of showing pornography.151 210 The last alleged instance of sexual abuse occurred at Price when, as has been mentioned, LP was around 10 years. LP’s evidence was that the abuse stopped when she reached puberty and nothing happened after the age of 12.152 The complainant turned 10 in October 2003 and she attended the St Jakobi School from the beginning of 2004.153 211 On LP’s account, the abuse at Price must have occurred no later than 2004. 212 EP gave evidence that his son, the appellant, moved into the house at Price in November 2003.154 213 The appellant’s contention was that the description given by LP of the layout of the Price house at the time she was allegedly sexually abused did not accord with its layout in 2003 or 2004, but only with its layout after renovations had been undertaken during 2006 or 2007, or later. 214 The appellant relied upon the evidence of EP about the way in which the house was renovated in the years preceding 2007. In summary, EP explained that when the house was purchased in May 2002 it was in a very poor condition and not fit for habitation. It was necessary to rebuild or renovate the bedrooms and bathroom to enable the appellant to move in during November 2003.155 However, when the appellant moved in during November 2003, the other rooms, apart from bedroom 3 and the bathroom, were in a very poor condition and it was necessary to put a fridge, table and chairs as well as cooking gear and a cupboard in the passageway, where the appellant ate his meals.156 151 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 78. 152 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 66. 153 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022), P1 [8]. 154 Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022), 211-217. 155 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 191-195. 156 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 194-195. -- 51 of 55 -- [2024] SASCA 36 The Court 48 215 EP gave evidence that after the appellant moved in the pantry and then the kitchen were renovated (as depicted in a photograph taken in 2005, together with an invoice for cornices in the kitchen dated 7 October 2005).157 216 EP could not recall seeing any computer in the house before the appellant’s second wife moved in with him at Price, though he was unsure.158 Despite LP’s evidence that there was a computer in the hall, no computer was depicted in the photograph at the bottom of page 11 of exhibit D6 which had been taken in late 2005 or 2006. Similarly, no shed was present until late 2006.159 217 Moreover, the beds depicted in exhibit D6 were given to the appellant by his parents only after they left their own house in Price in June 2007, just after the bedrooms were completed. Before then the only bed was the appellant’s queen- size bed in bedroom 3.160 218 The appellant submitted that, absent any objective evidence to contradict EP’s evidence and the evidence of the photographs and invoicing, there remained the reasonable possibility that the house at Price was not as LP described it at the time of the alleged sexual offending. The appellant emphasised that LP was evidently describing features of the Price house that only existed later in time, pointing out that the complainant had been there as late as 2010 or 2011.161 Evidence of consciousness of guilt 219 On the question of a consciousness of guilt, the appellant submitted that there was a reasonable alternative explanation for the payment of $1,000, namely, that AM simply required assistance for the treatment of their daughter and it did not indicate, unequivocally or otherwise, that the appellant was trying to “buy them off” or was otherwise acting out of a consciousness of guilt. The appellant pointed to evidence that he had made other payments of money in favour of his son during 2006 as well as assisted him with acquiring a car for his 18th birthday.162 This, said the appellant, tended to undermine the claimed significance of the $1,000 payment. 157 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 196-197; Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022), D6 8-9. 158 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 199-200. 159 Which was supported by invoices tendered at the trial, see Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022)201- 203, Trial Exhibits, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 19 September 2022), D614-15. 160 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 204-205. 161 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 64. 162 Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 109-111, 212-213. -- 52 of 55 -- [2024] SASCA 36 The Court 49 Summary 220 The appellant accepted that there is no universal principle that an acquittal on one count or a doubt about the commission of some alleged unlawful sexual offending must necessarily lead to an acquittal.163 Nonetheless, the many doubts open about the reliability of the evidence of LP concerned such a wide range of the unlawful sexual acts alleged that it ought, it was submitted, to have generated reasonable doubt about the complainant’s reliability generally. 221 In these circumstances, the appellant submitted that this Court should find that it entertains a real doubt about LP’s evidence and about the appellant’s guilt, generally. 222 The appeal court must not “disregard or discount” that the jury is the constitutional body entrusted with primary responsibility for determining guilt or innocence and that it had the benefit of having seen and heard the witnesses and was, as a result, in a position to evaluate the evidence in a manner that is denied to a court of appeal.164 223 It nonetheless remains necessary for this Court to examine the record to determine whether, notwithstanding the jury’s assessment, this Court is satisfied that the “jury, acting rationally, ought nonetheless to have entertained a reasonable doubt” and this may be determined “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence …”.165 224 The prosecution case and the appellant’s criticisms of it have been addressed at some length. It may be accepted that there will inevitably be difficulties with dates and places where a complainant is describing events which occurred around two decades before. The challenge made to the descriptions given by LP of the house at the time of the offending in Price appeared to be largely successful. The same may be said of the challenge to those memories which had until therapy been “blocked”. However, recognising these problems does not necessarily equate to a rejection of LP’s evidence in its entirety. As Kourakis CJ explained in DES v The Queen, the circumstances which strike children as significant and memorable are not necessarily the same as those which adults might regard as important.166 225 In addition, the jury was entitled to have regard to the way in which LP gave her evidence. The jury might well have thought that a number of the 163 Because an acquittal on one count in a sexual assault trial does not necessarily entail a rejection of the complainant’s account generally, so as to damage credibility with respect to the other counts, VP v The Queen [2021] NSWCCA 11, [88]; R v KET [1998] VSCA 73, [29]. See the earlier discussion of these issues by Spigelman CJ in Markuleski v The Queen (2001) 52 NSWLR 82, [31]-[32]. 164 M v The Queen (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJ). 165 Pell v The Queen (2020) 268 CLR 123, [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 166 DES v The Queen [2020] SASCFC 32, [3] (Kourakis CJ). -- 53 of 55 -- [2024] SASCA 36 The Court 50 inconsistencies were credibly explained by the combination of LP’s early age and the long time since the events had allegedly occurred.167 226 Acknowledging that it is important to keep in mind that the ultimate question is whether it is reasonably possible that the alleged conduct did not occur – rather than whether it is possible that it did occur – it was, on the whole of the evidence which we have found was admissible, reasonably open to the jury to find it proved beyond reasonable doubt that the appellant committed two or more sexual offences. 227 This is not a case where any doubts the jury may have experienced in relation to some aspects of the evidence given by LP must necessarily have translated into a rejection of her evidence in its entirety. Indeed, if properly instructed in the manner we have suggested, a jury might well regard LP’s evidence as appropriately bolstered by the complaint she made to AR, consistently with s 34M of the Evidence Act. 228 Whether the evidence is regarded as going solely to the appellant’s credit or as some evidence probative of guilt, the jury might well also have found that the statements attributed to the appellant in his conversation with AM during the first telephone call and the record of interview undermined the appellant’s denials. Indeed, whether or not the jury regarded the payment of $1,000 towards LP’s therapy as relevant to the determination of guilt ultimately depended upon the view taken of the evidence of AM and what she claimed was the context for her conversations with the appellant. 229 Ultimately, we do not have a reasonable doubt about the appellant’s guilt (leaving aside the memories which had been “blocked”). 230 Whilst some of the alleged offending involving pornography is rendered problematic by EP’s evidence concerning the absence of a computer until 2007, that does not affect LP’s evidence about seeing pornography on her father’s phone (even if it was only of still images) nor of watching pornography videos at Williamstown. 231 Finally, whilst LP’s recollection of the state of the Price house has been shown to be unreliable, we have no difficulty with the proposition that, notwithstanding, her account of the sexual abuse during that period remains credible and reliable. 232 Whilst there were undoubtedly a number of difficulties with the evidence of the complainant, this is not a case in which the jury must, as distinct from might, have entertained doubt about the appellant’s guilt.168 167 DES v The Queen [2020] SASCFC 32, [83] (Doyle J). 168 Libke v The Queen (2007) 230 CLR 559, [113] (Heydon J), followed in Pell v The Queen (2020) 268 CLR 123, [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). -- 54 of 55 -- [2024] SASCA 36 The Court 51 Conclusion 233 The appellant should be granted permission to appeal on all grounds of appeal, and the appeal should be allowed on appeal grounds 2 and 3. Appeal grounds 1 and 4 should be dismissed. 234 In consequence, there should be orders quashing the appellant’s conviction and remitting the matter to the District Court for retrial. -- 55 of 55 --