CARR (A PSEUDONYM) v THE KING [2024] SASCA 69

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-23-006759 Appellant: CARR (A PSEUDONYM) Counsel: MR N HEALY - Solicitor: ECKERMANN LAWYERS Respondent: THE KING Counsel: MS T COSTI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/05/2024 File No/s: SCCRM-23-042922 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. CARR (A PSEUDONYM) v THE KING [2024] SASCA 69 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle) 30 May 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES This was an appeal against conviction on the sole ground that the trial judge had failed to direct the jury in accordance with s 34R(1) of the Evidence Act 1929 (SA). Following a trial by jury, the appellant was convicted of one count of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant of that indecent assault was the appellant’s biological granddaughter. During the course of her examination-in-chief, the complainant testified that, before the occurrence of the charged incident, there had been two other occasions on which the appellant had indecently assaulted her, each of which bore factual similarities to the charged incident. Counsel for the appellant at trial took no objection under s 34P of the Evidence Act to the admission of that evidence, and both the appellant and the Crown proceeded on the common basis that the trial was to be conducted as if an order for admission under that section had been made. Notwithstanding that common basis, the trial judge’s summing up to the jury contained only a passing reference to the complainant’s evidence of prior uncharged acts of indecent assault, and no direction under s 34R(1) of the Evidence Act as to the permissible and impermissible uses of that evidence. -- 1 of 12 -- On appeal, the appellant contended that the trial judge’s failure so to direct the jury had occasioned a miscarriage of justice that had deprived him of the chance of an acquittal. Conversely, while the respondent conceded that the failure to direct the jury in accordance with s 34R(1) of the Evidence Act had given rise to a miscarriage of justice, the respondent submitted that any such miscarriage was not substantial and that the proviso ought to be applied so as to confirm the appellant’s conviction. Held (per Curiam), allowing the appeal, quashing the appellant’s conviction, and remitting the matter for a new trial: 1. Although a formal order had not been made admitting the complainant’s evidence of prior uncharged indecent assaults under s 34P of the Evidence Act, the parties had conducted the trial as if an order for admission had been made. In those circumstances, the trial judge erred in not giving a direction under s 34R(1) of the Evidence Act, and such error amounted to a miscarriage of justice. 2. As this was not a case in which the Court could find, on the face of the transcript, that the complainant’s evidence was incontrovertibly truthful and reliable, it was not open to the Court to confirm the appellant’s conviction by application of the proviso. Criminal Law Consolidation Act 1935 (SA) s 56(1); Evidence Act 1929 (SA) ss 34P, 34R(1), referred to. R v C, CA [2013] SASCFC 137; R v Ibrahim (2003) 7 VR 141; R v Lowe [2016] SASCFC 118; R v Maiolo (No 2) (2013) 117 SASR 1; R v Taheri [2017] SASCFC 92 ; Willingham v The Queen [2022] SASCA 3, applied. Hofer v The Queen (2021) 274 CLR 351, distinguished. Castle v The Queen (2016) 259 CLR 449; Orreal v The Queen (2021) 274 CLR 630, discussed. Bates v The King [2023] SASCA 65; JGS v The Queen [2020] SASCFC 48; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered. -- 2 of 12 -- CARR (A PSEUDONYM) v THE KING [2024] SASCA 69 Court of Appeal: Criminal – Kourakis CJ, Lovell and Doyle JJA 1 THE COURT: The appellant, Mr Carr (a pseudonym), appeals against his conviction on one count of indecent assault committed between 1 January 2003 and 1 December 2004 contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). 2 The complainant (C) was born in December 1995 and is the biological granddaughter of Mr Carr. C testified that the offence was committed when she was in primary school, between the ages of eight and nine, on an occasion close to Christmas when C and her grandfather were seated on a sofa in the loungeroom watching greyhound racing on the television. Mr Carr was said to have placed his hand ‘over the top’ of her vagina. C testified that that was the third occasion on which her grandfather had placed his hands down the front of her pants whilst seated on the loungeroom sofa. 3 Mr Carr did not object to the admission of the evidence of the first two occasions and does not complain of its admission on appeal. The single ground of appeal is that the Judge did not direct the jury in accordance with s 34R of the Evidence Act 1929 (SA) (Evidence Act). The Director concedes that the Judge failed to direct the jury as to the permissible and impermissible uses of the evidence of the first two occasions but contends that there has not been a substantial miscarriage of justice, that the proviso should be applied, and that the appeal should be dismissed. The Evidence 4 C’s evidence-in-chief about the three occasions was brief: Q. I want to come to another topic. Did [the appellant] ever touch you in inappropriately (sic) when you were younger. A. Yes. Q. Did he touch you inappropriately more than once. A. Yes. Q. What do you remember about the first time [the appellant] touched you inappropriately. A. Not too much, just that it happened in the lounge room while we were watching TV. Q. This was in the lounge room of which house. A. Of the main house. … -- 3 of 12 -- [2024] SASCA 69 The Court 2 Q. Can you remember what happened when he touched you inappropriately. A. He - the first time I just remember he had his hands down my pants. Q. Do you remember what hand he was using. A. His left hand. … Q. And do you remember what happened after his hand was in your pants. A. Not really for the first time. Q. What about the second time that [the appellant] touched you inappropriately. … A. I can just remember him taking his hands out of my pants the second time. Q. Thank you, and where were you on that second time. A. In the same lounge room again. Q. Do you remember anything else about what you were doing on that second time. A. No. … Q. Do you remember what hand it was that he used on that second time. A. Left hand again. Q. Were there any other times that [the appellant] touched you inappropriately. A. Only once more that I can remember. Q. What happened on that - so that’s a third time that [the appellant] touched you. A. Correct. Q. What happened on that third time that [the appellant] touched you inappropriately. A. We were in the lounge room watching a greyhound race and I was sitting on his left and he put his arm around the back of me and put his hands in my pants. And then he touched me and when he finished he took his hand out, patted me on the hip and said ‘Good girl’. … Q. You’ve told us a bit of information there, I just want to ask you some more questions about that third time that [the appellant] touched you. Do you remember how old you were at the time. A. Not specifically, no. -- 4 of 12 -- [2024] SASCA 69 The Court 3 Q. Do you remember if you were in high school or primary school. A. Primary school. Q. Do you remember why you were at [the appellant’s] house on that third occasion. A. It was, I believe, Christmas. … A. He said ‘Good girl’. Q. What did - what, if anything, did you understand that to mean. A. I’m not sure, really, that it was meant to stay secret or something. Q. What happened after that. A. I can’t remember, I think we just continued to watch TV. 5 On its terms, s 34P of the Evidence Act excludes evidence of discreditable conduct unless the trial Judge is satisfied that it meets the probative standard prescribed thereby and therefor admits the evidence. That did not occur here. However, it can be accepted that, in the circumstances of this trial, the failure to object to the evidence of the prior occasions, which on well established principles was incontrovertibly admissible,1 was an acceptance, by both the prosecution and the appellant, that the trial was to be conducted as if an order for admission had been made. That is an accurate reflection of both ‘the reality of the trial, and … the issues on which battle was joined’,2 each of which retains significance generally on appeal.3 6 Mr Carr resided on a farm close to a regional South Australian town centre. It was an agreed fact that C lived in that town with her mother and siblings between 14 January 2002 and 18 January 2004 and that they visited Mr Carr’s home regularly. 7 Mr Carr did not give evidence. The defence case was that he never indecently touched C and that she was lying. The cross-examination ranged over the surrounding circumstances of the offence and family relationships. It was put to C, and she accepted, that her recollection of the first two occasions was vague. The Legislation 8 Section 34R(1) of the Evidence Act mandates the following direction: 1 See, eg, R v C, CA [2013] SASCFC 137, [77] (Kourakis CJ, Anderson and Nicholson JJ agreeing). 2 R v Ibrahim (2003) 7 VR 141, 154 [50] (Eames JA, Vincent JA and Ashley AJA agreeing). 3 See generally R v Lowe [2016] SASCFC 118, [12]-[15] (Peek and Doyle JJ, Nicholson JJ agreeing). -- 5 of 12 -- [2024] SASCA 69 The Court 4 (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. For the reasons given in [5] above the evidence of the prior occasions must be taken to have been admitted under s 34P, and, therefore, s 34R(1) applied. Addresses 9 In his address, the prosecutor reminded the jury that C said she could remember very little about the first two times the accused had put his hands in her pants. 10 The prosecutor then explained the relevance of the first two occasions in these terms: The seventh topic, or a point which I want to make, is that on [C]’s evidence, that this third incident did not come completely out of the blue. [C] gave evidence about three separate occasions: the first two where she had relatively little memory about them, and then the third where she had a much more significant memory which comprises the charged offence. You might think that accepting there were two prior incidents where the accused had his hands down [C]’s pants before he committed that third act, that this suggests that that third incident, the charged incident, did not come completely out of the blue. There’d been some sort of inappropriate touching prior, you might think. You might think, accepting that those first two incidents did occur, that the accused perhaps thought by this stage, he could get away with it and that [C] wouldn’t indicate to any one about such acts. 11 The permissible use of the earlier incidents pressed by the prosecutor, and the explanation of the otherwise obscure reference to the charged offence ‘not coming out of the blue’, was that the appellant was emboldened to do what he did because he believed he would, once again, ‘get away’ with his offending. 12 In his address to the jury, defence counsel asserted that the prosecution case was that Mr Carr had a proclivity to act on his sexual interest in C. On that false premise, he further argued that the prosecution must fail because it left unexplained why the indecent touching was not repeated after the third occasion, and because there was no evidence of any ‘grooming’ by Mr Carr: There is not a shred of evidence in this trial, ladies and gentlemen, of Mr Carr grooming [C], grooming, buying her gifts, giving her preferential treatment over the other children, to make her more amenable to the proclivities, on this case, the prosecution say is a sexual interest. Not a shred of evidence. 13 Counsel gave examples of the evidence which might have been, but was not, adduced if Mr Carr had had a sexual interest in C, and continued: So on the prosecution case, Mr Carr must have a sexual interest in his granddaughter to the point where he’s putting his hand inside her underpants. What, that just stops, does it? That just stops in circumstances where she’s not complained to anyone, no-one’s aware of it? If he did have this sexual proclivity towards his granddaughter, why would he stop? She’s not telling anyone. You might think the behaviour or, indeed, the conduct might, if anything else, increase. You might think from that point on, ‘Well, she’s not telling anyone so I want -- 6 of 12 -- [2024] SASCA 69 The Court 5 to create all these opportunities to be alone with her’. Nothing. You might find that very unusual. And I ask you to consider that before you accept what [C] told you. 14 The summing up was very brief. The directions on the prosecution and defence cases, and the relevance of the evidence of the prior offending, was limited to the following: Given [C] is the crucial witness in this case, it is unsurprising that the arguments made by counsel this morning were mostly concerned with whether she was honest and reliable. As I have just explained, you should first consider whether [C] was honest, that is was she trying to tell you the truth. If you are satisfied [C] was honest, you should next consider whether her evidence was reliable and accurate. Mr Meegan said [C] was an honest and reliable witness for eight reasons: first [C]’s memory was of the main points of what happened, as you would expect of an adult recounting something that had happened as a child about 20 years before. Second, the demeanour of [C] was not of a woman who was lying or creating a fiction. Third, the evidence established the accused had opportunity to commit this offence. Fourth, [C] did not embellish her account by saying, as she easily could have, the accused put his finger in her vagina. Fifth, the evidence did not establish the accused had come into some money. Sixth, it would be an unusual memory for [C] to have unless the act had actually occurred. Seventh, the offending was not out of the blue, it followed two earlier occasions. And eight[h] and finally, [C]’s behaviour after, in continuing to go to the accused’s house, reflected her age, her confusion, and she nonetheless took steps thereafter to never be in the room alone with him again. Mr Healy said [C] was not an honest witness. He said she was lying. In considering that submission keep in mind there can be many reasons a witness may lie and you must not speculate about those. You must not treat [C]’s evidence as more credible or more believable just because there is no evidence that provides a reason why she might be lying. You must not conclude from the absence of any such evidence that [C] had no reason to lie and, therefore, is telling the truth. That line of reasoning would be wrong and unfair. You must always bear in mind it is for the prosecution to prove its case beyond reasonable doubt. In your consideration of the submission of Mr Healy that [C] was lying, keep in mind that the accused does not have to prove anything. While it is not for the defence to show [C] is wrong or is lying, Mr Healy asked you to consider several things about [C]’s evidence and other evidence which he submitted to you diminished her honesty and reliability. He said you have just a vague bold allegation from [C] with not a shred of evidence to support her. He said there is no evidence of grooming, gifts, preferential treatment, including, in hindsight, from [C]’s parents. He said there was no evidence of the accused creating opportunities to be alone with [C]. Mr Healy said there was no evidence of initial complaint and asked you to consider why the conduct had stopped because if it had happened it had gone unreported and you might expect it to have continued and to have escalated. Lastly, Mr Healy said there was no evidence from others of any reluctance of [C] to be around the accused. What you heard, said Mr Healy, was of normal behaviour of a teenager less inclined to visit her grandparents. … -- 7 of 12 -- [2024] SASCA 69 The Court 6 You will soon be sent out. In reaching your verdict in this case use your common sense and life experience in assessing the evidence and the witnesses. Always keep in mind it is the duty of the prosecution to prove the accused is guilty, it is for the prosecution to prove each of the five elements of indecent assault beyond reasonable doubt. The accused does not have to prove anything. [C] is the critical witness. The prosecution must convince you [C]’s evidence is true and accurate. It is not for the defence to show [C] is wrong or is lying, the prosecution case is reliant on your acceptance beyond reasonable doubt of the evidence of [C] as to what happened. To find the accused guilty you must accept beyond reasonable doubt [C]’s evidence about the indecent assault. If you are satisfied beyond reasonable doubt of the five elements, you will return a verdict of guilty. If you are not satisfied beyond reasonable doubt of any of the five elements, you will return a verdict of not guilty. 15 The Judge invited submissions on the directions which should be given to the jury. Neither counsel sought a direction in accordance with s 34R of the Evidence Act. The single underlined sentence is the only mention of the uses of the evidence in respect of which s 34R of the Evidence Act mandates judicial directions. It will be observed, however, that it is merely a reference to the prosecutor’s submission. Moreover, even that reference fails to explain explicitly the permissible use pressed by the prosecutor. 16 This Court was given no satisfactory explanation for the glaring failure, by both counsel and the Judge, to comply with the directions mandated by s 34R, which have been explicated by this Court over many years and in many decisions.4 This was not a case where there is scope for argument over whether a direction given by a trial judge under s 34R(1) conforms to that required by the Evidence Act; it is, instead, one where a direction mandated by law has not been given at all.5 In those circumstances, it is clear that the appellant’s trial miscarried. The only extant question on this appeal is, thus, whether, notwithstanding the trial Judge’s occasioning of a miscarriage of justice, this Court should confirm the appellant’s conviction by application of the proviso. The Proviso 17 In Hofer v The Queen,6 the High Court considered the application of the proviso on an appeal against convictions for sexual offences against two young women over the course of two days. The complainants had responded to an online advertisement offering a bedroom of a one-bedroom house for rent ‘preferably to a female aged between 21 and 35’. Each complainant met the appellant to discuss the offer but, by the time he showed them the room, they were intoxicated because the appellant had plied them with alcohol. Sexual intercourse was admitted but 4 See, eg, R v Maiolo (No 2) (2013) 117 SASR 1, 26-8 [68]-[74] (Kourakis CJ); R v C, CA [2013] SASCFC 137, [96] (Kourakis CJ, Anderson and Nicholson JJ agreeing); R v Taheri [2017] SASCFC 92, [38]-[40] (Vanstone J, Parker and Lovell JJ agreeing); Willingham v The Queen [2022] SASCA 3, [53]-[63] (Livesey P, Doyle and David JJA). 5 Cf Perara-Cathcart v The Queen (2017) 260 CLR 595, 617 [53] (Kiefel, Bell and Keane JJ); JGS v The Queen [2020] SASCFC 48, [95] (Lovell J, Peek and Bampton JJ agreeing); Bates v The King [2023] SASCA 65, [76] (Livesey P, Bleby and David JJA). 6 (2021) 274 CLR 351. -- 8 of 12 -- [2024] SASCA 69 The Court 7 the appellant gave evidence that he believed that they had consented. The only issue at trial was whether the appellant believed each complainant consented to having sex with him or whether he was reckless as to their consent. A miscarriage of justice was caused by the prosecutor’s cross-examination of the appellant, which suggested recent invention in respect of aspects of his evidence which were not put to the complainants. 18 Chief Justice Keifel, Keane and Gleeson JJ applied the proviso without having regard to the jury’s verdict of guilty, because the appellant’s evidence was glaringly improbable in that it was so obviously false that it carried no weight:7 [55] The conclusion of Fagan J that the appellant's guilt was proved beyond reasonable doubt was reached, as his Honour said, “upon the whole of the evidence at trial and taking into account the jury's verdict”. As will be explained, that conclusion could be reached without needing to rely upon the jury's verdict as the determinant of whether the evidence of the appellant on the crucial issue should be rejected because greater weight should be accorded to the evidence of the complainants. The evidence of the appellant on the crucial issue was “so obviously false that it carrie[d] no weight at all”. [56] No complaint as to counsel's competence was made by the appellant in relation to this aspect of the conduct of the trial. If one looks at the evidence that is common ground between the complainants and the appellant and takes into account the glaring improbability of the aspects of the appellant's evidence material to his belief as to the consent of each of the complainants, there can be no reasonable doubt that the appellant was, at the least, reckless as to whether he acted with her consent. [57] True it is that the appellant was not obliged to give evidence, and that the tribunal of fact need only have had a doubt about this element for the appellant to have been acquitted; but the point is that, absent evidence from the appellant, there was simply no reason for the tribunal of fact to entertain a doubt about this element of each offence. It was necessary for the jury, as it was for the Court of Criminal Appeal, to consider whether the appellant's evidence might “reasonably possibly” be true. (footnotes omitted). 19 Importantly, as the last underlined sentence shows, despite the rejection of the appellant’s testimony as carrying no weight, the conviction could only be affirmed because there was no other reason to doubt that the elements of the offence were established. 20 The plurality contrasted the application of the proviso in Hofer from the decision in Castle v The Queen8 in this way:9 [61] Contrary to the view of Macfarlan JA in the Court of Criminal Appeal, this is not a case where the issue - as to whether the Crown had proved that the appellant did not believe that the complainants consented to having sex with him or was reckless in that regard - turned upon the rejection of the appellant's evidence simply because of 7 Ibid 368-70. 8 (2016) 259 CLR 449. 9 Hofer v The Queen (2021) 274 CLR 351, 370-1. -- 9 of 12 -- [2024] SASCA 69 The Court 8 a preference for the evidence of each of the complainants. It is instructive to refer, in this regard, to this Court's decision in Castle v The Queen. In that case, Kiefel, Bell, Keane and Nettle JJ distinguished between a case which turns on the jury's preference for the evidence of one witness over another witness and a case, like the present, where it is apparent to an appellate court that the evidence of a witness is glaringly improbable. In the latter case, the appellate court is not usurping the function of the jury in rejecting evidence that is so glaringly improbable as to be incapable of belief. [62] In Castle, the plurality accepted that it was open to the Court of Criminal Appeal to conclude that the evidence of the accused was, in light of the objective evidence, glaringly improbable, and so not a reason to refrain from applying the proviso. The obstacle to the application of the proviso in that case was, however, that proof of guilt depended on acceptance of the disputed evidence of the Crown witness “M”. M's veracity and reliability were challenged because her drug and alcohol abuse had resulted in psychotic episodes and auditory hallucinations. (Underlining added and footnotes omitted). 21 It was the inability to accept M’s evidence on the face of the transcript which precluded the application of the proviso. Similarly, here, it is not possible on the face of the transcript alone to accept the complainant’s credibility and reliability to the degree necessary to be satisfied beyond reasonable doubt that the appellant indecently assaulted her. 22 In Orreal v The Queen,10 the High Court allowed an appeal from the Queensland Court of Appeal and set aside convictions for sexual offences which had been affirmed in that Court by the application of the proviso. At trial, evidence was admitted by consent that both the appellant and the complainant had tested positive for the presence of herpes simplex virus (HSV-1), notwithstanding the evidence of a specialist paediatrician that it was not possible to say when the appellant or the complainant had acquired HSV-1, and that it was not possible to say from whom the complainant had acquired it. The Judge directed the jury that it could take that evidence into account in determining whether the prosecution had proved the charges beyond a reasonable doubt. It was accepted on the appeal that the evidence had no probative value and that the jury may have reasoned irrationally, or speculated, that the common presence of the virus supported the complainant’s evidence of sexual offending. Accordingly, the appeal proceeded on the premise that there had been a miscarriage of justice. 23 The reasons of Kiefel CJ and Keane J on the application of the proviso was as follows:11 [20] An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case. As explained in Kalbasi v Western Australia, this is 10 (2021) 274 CLR 630. 11 Ibid 640-2. -- 10 of 12 -- [2024] SASCA 69 The Court 9 because some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. The examples there given include cases which turn on issues of contested credibility or cases where there has been a wrong direction on an element of liability in issue. What they have in common is that the appellate court cannot be satisfied that guilt has been proved. [21] … The nature of the evidence, that both the complainant and the appellant tested positive to HSV-1, combined with the jury being told that it was able to be taken into account, gave rise to a significant possibility that the evidence could be misused by the jury to support acceptance of the complainant’s account, as McMurdo JA in dissent held. [22] His Honour also correctly pointed out that although an appellate court has the record, from which it may make some assessment of the prosecution’s case, there are “natural limitations” when proceeding wholly or substantially on the record. This is not a case like Hofer v The Queen where it may be apparent to an appellate court that the evidence of a witness is glaringly improbable. In such a case the court is not usurping the function of a jury in rejecting evidence that is so improbable as to be incapable of belief. This case is one which turns on the jury’s acceptance of the evidence of the complainant. In such a case the appellate court should not seek to duplicate the function of the jury, because it does not perform the same function in the same way nor have the same advantages. [23] The respondent submits that the impugned evidence was neutral and logically incapable of assisting the jury in support of their ultimate determination as to the guilt or otherwise of the appellant. This submission mirrors what was said by the majority in the Court of Appeal. It may be accepted that, logically, the evidence could not assist the jury, but often the nature of prejudicial evidence means that it may not be rationally applied. Uninstructed by the trial judge, the jury may well have reasoned that the test results were no coincidence and pointed to the complainant having contracted the virus from the appellant. Had the jury been directed to disregard the evidence, such prejudice would almost certainly have been overcome, but that did not occur. (Underling added and footnotes omitted). 24 Adapting that reasoning to this case, it must be accepted that this is not a case in which the Court could find, on the face of the transcript, that the complainant is incontrovertibly truthful and reliable. The underlined passages, in their application to the error in this case, therefore, preclude the application of the proviso. 25 Justices Gordon, Stewart and Gleeson explained:12 [41] While there is no single universally applicable description of what constitutes “no substantial miscarriage of justice”, an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt. … [42] Where proof of guilt is wholly dependent on acceptance of the complainant’s evidence, and a misdirection may have affected that acceptance, the appellate court cannot accord the weight to the verdict of guilty which it otherwise might . The 12 Ibid 648. -- 11 of 12 -- [2024] SASCA 69 The Court 10 majority of the Court of Appeal erred in placing weight on the verdicts because, as McMurdo JA observed, those verdicts might have been affected by the misuse of the impugned evidence in the absence of a direction to disregard that evidence. [43] The majority of the Court of Appeal’s assessment that the impugned evidence did not impact upon the credibility or reliability of the complainant’s evidence ignored the significantly prejudicial nature and effect of that evidence, as do the respondent’s submissions that the evidence was “neutral” and “incapable” of affecting the jury’s assessment. It could only have been the potentially prejudicial effect of the impugned evidence that made it a miscarriage of justice for the trial judge to have failed to direct the jury to ignore that evidence. (Footnotes omitted). 26 So, too, in this case, it must be accepted that the jury might have reasoned that evidence of the first two occasions enhanced the credibility and reliability of the complainant’s testimony. Conclusion 27 The error of law conceded by the Director is a material one. The failure to give the directions mandated by s 34R of the Evidence Act left the jury without any directions, having the authority of the Judge, on how to permissibly use the probative substance of the evidence of the first two occasions, and on how to put aside its inherently prejudicial effect. The materiality of that error may best be explained in the following way. The purpose of such a direction is, primarily, to ensure that the jury is apprised of both the permissible and impermissible uses of such evidence, and that it does not misuse such evidence, particularly in cases where the crime charged attracts fervid opprobrium, in a way that is unfair to those to whom the presumption of innocence applies. 28 The jury’s acceptance of the complainant’s evidence, and its verdict, may have been influenced by prejudicial and unsound reasoning. This Court cannot, therefore, rely on the jury’s verdict. Without it, this Court cannot be satisfied on the face of the transcript alone that the offence was proved beyond reasonable doubt. The appeal must be allowed, the conviction set aside, and a new trial ordered. -- 12 of 12 --