JASON BYRON BURGOYNE v THE KING [2024] SASCA 143

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) DCCRM-22-005289 Appellant: JASON BYRON BURGOYNE Counsel: MR A RICE - Solicitor: COATES LAWYERS Respondent: THE KING Counsel: MS T COSTI WITH MS L O’DONNELL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 25/10/2024 File No/s: SCCRM-24-011291 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. BURGOYNE v THE KING [2024] SASCA 143 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice S Doyle) 12 December 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES This was an application for permission to appeal, and an appeal, against a conviction on one count of having unlawful sexual intercourse with a person under the age of 17 years. Following a trial by jury in the District Court, the appellant was found guilty of, and convicted on, one count of having unlawful sexual intercourse with a person under the age of 17 years, namely, W. The appellant was acquitted of a second count of unlawful sexual intercourse said to have been committed shortly after the first count. By the time of the appellant’s trial, W had died, such that the only direct evidence of the charged acts were certain video files said to depict the appellant engaging in the offending conduct with W. Those video files were, on the prosecution’s case, extracted from W’s smartphone, following its confiscation by police for investigation into unrelated offending. At trial, the audiovisual record of the interview during which W’s smartphone was confiscated was admitted into evidence. That record depicted both W’s physical control of the smartphone during the interview and her consequential distress at its confiscation by investigating officers. It also recorded W’s answers to certain questions, including her name and date of birth, which were relied upon by -- 1 of 32 -- the prosecution to establish that the child depicted was, in fact, W. Also admitted into evidence was the testimony of a police witness, Brevet Sergeant Johnson, regarding the investigation of the appellant’s criminal offending. During the course of his examination-in-chief, Brevet Sergeant Johnson testified that he had arranged for the appellant to be photographed after comparing the appearance of the male depicted in the video files with photographs of the appellant on SAPOL’s Shield system. No objection was taken to the question eliciting that response, and no consequential direction was sought regarding the answer from the trial judge. On appeal, the appellant contended that, inter alia: the audiovisual record of the interview of W had been improperly admitted pursuant to s 34KA of the Evidence Act 1929 (SA); the trial judge had erroneously failed to direct the jury of the dangers posed by the video files, in circumstances where the appellant had supposedly lost his procedural right to cross-examine W; and the evidence elicited from Brevet Sergeant Johnson was irrelevant and in the nature of inadmissible opinion evidence and not corrected by a direction to the jury from the trial judge. Held, by Lovell JA, Doyle JA agreeing, Kourakis CJ dissenting, finding that a miscarriage of justice had been occasioned by the trial judge’s failure to direct the jury to disregard Brevet Sergeant Johnson’s opinion evidence: 1. For evidence to be admitted at trial, it must be relevant. Brevet Sergeant’s opinion evidence, that he had formed the suspicion that it was the appellant in the video and photographs, was not evidence that could rationally affect the jury’s assessment of that material, such that it was irrelevant, inadmissible, and prejudicial to the appellant. Further, Brevet Sergeant Johnson’s advertence to accessing the Sheild system raised the possibility that the jury would understand that the appellant had a criminal record. Held, by Doyle JA, Kourakis CJ agreeing on the application of the proviso, Lovell JA dissenting, granting permission to appeal and dismissing the appeal: 2. An error or miscarriage affecting the jury’s consideration of a central issue at trial is not necessarily a matter that is fundamental in the sense that it goes to the root of the trial, or operates to deprive the defendant of a proper trial, such as to prevent the application of the proviso. In the present case, the documentary and circumstantial evidence adduced by the prosecution proved the appellant’s guilt beyond reasonable doubt, such that any miscarriage of justice was not substantial in nature. Further held, by Kourakis CJ, Lovell and Doyle JJA agreeing: 3. The audiovisual record of the interview of W was not adduced as testimony that W would have given but for her death, but rather as direct evidence of W’s possession of the smartphone upon which the video files were discovered. That fact circumstantially supported the prosecution’s case that the appellant had engaged in the charged acts with a person under the age of 17 years. To this extent, the challenge to the admission of the audiovisual record under s 34KA of the Evidence Act 1929 (SA) was unmaintainable. 4. The statement made by W in the audiovisual record of the interview as to her name and date of birth was not improperly admitted into evidence. That statement accorded with the circumstances surrounding the interview and with the facts agreed by the parties at trial. 5. The appellant had not lost a procedural right to cross-examine W in circumstances where, owing to her death, she had not been called as a witness. The possibility that, had W been able to be called, she might have given exculpatory evidence for the appellant was purely speculative and, accordingly, there was no error in the trial judge not directing the jury to that end. 6. A defendant in a criminal trial does not suffer forensic unfairness merely because the police have not procured and adduced, or made available, all of the evidence of the events in dispute which could have been obtained, nor because direct evidence of those events has been lost or cannot otherwise be adduced. There was, thus, no forensic disadvantage suffered by the appellant by reason of the fact that W could not be called as a witness. -- 2 of 32 -- Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) ss 34KA(1), 34KA(2), 34KB, 34KC, 34KD, referred to. BBH v The Queen (2012) 245 CLR 499; Dupas v The Queen (2010) 241 CLR 237; Dyers v The Queen (2002) 210 CLR 285; Orreal v The Queen (2021) 274 CLR 630; Police v Pakrou (2008) 103 SASR 124; R v Garner (2021) 140 SASR 454; TKWJ v The Queen (2002) 212 CLR 124, applied. Ali v The Queen (2005) 79 ALJR 662; De Silva v The Queen (2013) 236 A Crim R 214; Nudd v The Queen (2006) 80 ALJR 614; R v Birks (1990) 19 NSWLR 677; Wilde v The Queen (1988) 164 CLR 365, discussed. Driscoll v The Queen (1977) 137 CLR 517; Police v Sherlock (2009) 103 SASR 147; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; R v Sahlstorfer [2024] SASC 55, considered. -- 3 of 32 -- -- 4 of 32 -- BURGOYNE v THE KING [2024] SASCA 143 Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA 1 KOURAKIS CJ: The applicant, Jason Burgoyne, seeks permission to appeal against his conviction on a charge of having unlawful sexual intercourse with W, a person under the age of 17 years, by engaging in an act of fellatio with her on 15 December 2021 at Port Lincoln. He was acquitted of a second charge of unlawful sexual intercourse with W, said to have occurred on the same day and at the same place, by engaging in penile-vaginal intercourse. Shortly before Mr Burgoyne’s trial before a jury in the District Court commenced, another man, Mr Ralph Burgoyne, with whom he had been jointly charged, pleaded guilty to similar offences against W, committed on the same occasion. 2 The only direct evidence of the charged acts of sexual intercourse were video files extracted from a smartphone found in the possession of a young woman about a fortnight after the offending, when police visited her at her residence in Whyalla to speak to her about a traffic matter. That visit, and ensuing interview, were recorded. The young woman gave ‘W’ as her name, and also gave her date of birth. The day and the month of her birthday are not audible on the recording, but the last numeral in the year of birth given by W was six. At trial, there were agreed facts that: the person from whom the smartphone was taken was known as W; that person was born on 1 February 2006; and that person had died on 21 June 2022. 3 The video files extracted from W’s smartphone feature a young woman and two men. One shows that fellatio was performed by a woman, who bore a resemblance to W, on a male who, in his general appearance, resembled Mr Burgoyne, but with whom Mr Burgoyne also shared two more distinctive features. The first, was that the middle finger of the right hand of the male depicted in the video appears to be fixed anatomically at more than 90 degrees at the proximal interphalangeal joint. A photograph taken of Mr Burgoyne on his arrest for the offence against W shows a similar feature. Secondly, both the offender and Mr Burgoyne bear tattoos in similar positions on their upper bodies. 4 Furniture is visible in the background on the video which is similar to furniture in Mr Burgoyne’s home. 5 Mr Burgoyne seeks permission to appeal against his conviction on the following grounds: Grounds of appeal 1 The Judge erred by admitting [W’s] interview to the police (Exhibit P1). 2 The Judge’s directions concerning the limits of Exhibit P1 and Exhibit P7 were inadequate and caused a miscarriage of justice. Particulars -- 5 of 32 -- [2024] SASCA 143 Kourakis CJ 2 2.1 The admission of P1 meant that the prosecution could link the videos recovered from the phone (Exhibit P7) to [W]. Exhibit P7 was the only evidence capable of proving the physical element of counts 1-2. 2.2 The jury were not directed that the applicant had suffered a significant forensic disadvantage because the applicant had lost his procedural right to cross- examine [W] about the identity of the people depicted in P7. 2.3 The absence of a forensic disadvantage direction meant that the jury were not warned about the limitations of both pieces of evidence. 3 The Judge’s directions about positive identification were inadequate and caused a miscarriage of justice. Particulars 3.1 The prosecutor erred by leading inadmissible opinion evidence of Brevet Sergeant Johnson to support the positive identification of Jason Burgoyne (T105-107). 3.2 The opinion was influenced by the hearsay opinion of another officer. 3.3 The jury were not directed that they could not use Johnson’s evidence as a factor to reason that one the men was Jason Burgoyne. 4 The verdicts on counts 1-2 are unreasonable and not supported by the evidence. 6 In brief, I would grant Mr Burgoyne permission to appeal on, but nonetheless dismiss, each of the grounds of appeal. 7 It is not contended on appeal that the statement of the person from whom the phone was taken as to her name and date of birth was properly received pursuant to s 34KA of the Evidence Act 1929 (SA) (the Act). That evidence had no prejudicial effect beyond its probative weight. In any event, the trial was ultimately conducted on the basis that the smartphone was seized from the person W, whose birth certificate was received by consent. There was, therefore, no miscarriage of justice in receiving her statement in which she gave her name and date of birth. Ground 1 must be dismissed. Mr Burgoyne did not suffer the forensic disadvantage of losing a right to cross-examine W, because, W having died before the trial, she could not be called in the prosecution case. The possibility that she might have given exculpatory evidence for the defence is speculative in the extreme. There was no miscarriage of justice occasioned by failing to warn the jury that Mr Burgoyne had suffered a forensic disadvantage. Ground 2 must be dismissed. 8 The Judge carefully warned the jury on the dangers inherent in the process of identifying the participants in the video by comparing them to photographs of W and Mr Burgoyne respectively. The opinion evidence of Brevet Sergeant Johnson was admitted without objection. The decision of Mr Burgoyne’s trial counsel not to object to the evidence, whilst unorthodox, was within the range of tactical decisions which might be made by competent counsel. Mr Burgoyne is, therefore, -- 6 of 32 -- [2024] SASCA 143 Kourakis CJ 3 bound by the conduct of his trial counsel. It cannot be said that it cost Mr Burgoyne an opportunity for acquittal which was open to him. The jury were instructed that it was their function to determine whether the persons depicted in the video were W and Mr Burgoyne. There was no miscarriage of justice. Ground 3 must be dismissed. 9 Mr Burgoyne’s counsel pressed Ground 4 on the premise that there was no evidence of the identity or age of the woman from whom the smartphone was taken. On the dismissal of Ground 1, so, too, must Ground 4 be dismissed. 10 I explicate my reasons below. Ground 1 – the s 34KA statement 11 Ground 1 can be dealt with summarily. The ground is founded on the false premise that the interview — that is, the entirety of the audiovisual record of the conversation with W about the traffic offence and the seizure of her phone — was admitted pursuant to s 34KA(1) of the Evidence Act 1929 (SA) (the Act). The audiovisual record, and, indeed, the testimony of Brevet Sergeant Johnson, who seized it, was not adduced as the testimony that W would have given but for her untimely death. It was adduced as direct evidence of W’s possession of the phone. The audiovisual record shows W holding and using the phone throughout the entire interview until Brevet Sergeant Johnson seizes it. It also shows W disclosing a pin number to Johnson with which he successfully unlocked the smartphone. It also shows W protesting loudly when Johnson informed her that the phone would be taken for forensic investigation. All of that was direct evidence of her control of the smartphone within weeks of the taking of the video depicting the charged acts. That fact circumstantially supported the prosecution case that W was the young woman shown on the video files engaging in the charged acts. 12 The only statement made in the interview which was admitted pursuant to s 34KA(1) of the Act was the young woman’s statement that her name was W, and that her date of birth was in a year which ended with the numeral six. The preconditions to the admission of the statement were satisfied. In particular, the Judge was satisfied that the person to whom the police were speaking was W.1 The evidence on which the Judge could be so satisfied included: • the circumstances attending the conversation between Brevet Sergeant Johnson and the young woman; • the young woman’ protestation when she was asked for her name that Brevet Sergeant Johnson knew who she was; • the young woman’s demeanour when she gave the name W and her date of birth; 1 T 44-45. -- 7 of 32 -- [2024] SASCA 143 Kourakis CJ 4 • the nature and content of the conversation; and • the fact that the young woman gave a year of birth which coincided with W’s year of birth. 13 Mr Burgoyne accepts that the statement of W’s age and date of birth was admissible pursuant to s 34KA of the Evidence Act but appeals only against the failure to exclude the evidence pursuant to s 34KD of the Evidence Act. The prejudice to Mr Burgoyne is said to be his inability to cross-examine W. For the reasons given in respect of Ground 2, that complaint is without any merit. 14 In any event, at trial, W’s birth certificate was received without objection, and her date of birth, 1 February 2006, and the date of her premature death, were agreed facts. The birth certificate could only have been received as evidence of a relevant fact if it were common ground that the young woman from whom the smartphone was seized was W. 15 Moreover, evidence was given that the young woman from whom the smartphone was seized was shown a photographic display which included a photograph of Mr Burgoyne. It was an agreed fact at trial that, when shown the folder, the young woman claimed that she did not recognise anyone in it. On the strength of that agreed fact, Mr Burgoyne’s counsel argued in her address to the jury that W could not have been the woman depicted in the video because, if she were, she would have recognised Mr Burgoyne. Indeed, Mr Burgoyne’s counsel expressly invited the jury to find that the woman in the video looked too old to be W. Of course, alternatively, if W were the young woman depicted on the video, then it could be argued that the male on whom she performed the act was not Mr Burgoyne, because she did not recognise him. 16 Notwithstanding the conduct of trial by Mr Burgoyne’s then-counsel, counsel for Mr Burgoyne on the appeal argued that the identity of the young woman from whom the phone was seized was in issue. That contention must be rejected. In his charge to the jury, the Judge described the issue joined in the trial to be: … whether the prosecution has proved beyond reasonable doubt that it was the accused who had sexual intercourse with the complainant, [W]. The issue is the identity of the two participants. The prosecution must prove the identity of both participants and ‘prove it beyond reasonable doubt’. 17 It follows that Mr Burgoyne was not prejudiced by the receipt of the statements of the young woman as to her identity and the date of her birth because that evidence was the subject of agreed facts. Ground 2 – forensic disadvantage 18 The burden carried by ground 2 is to demonstrate that the untimely death of W caused Mr Burgoyne a significant forensic disadvantage because he had thereby lost his procedural right to cross-examine W about the identity of the people depicted in the video file. -- 8 of 32 -- [2024] SASCA 143 Kourakis CJ 5 19 The very statement of that ground reveals the misconception on which it rests. W was not called as a witness. Mr Burgoyne, therefore, did not lose his procedural right to cross-examine her. The evidence of the act of which he was convicted was the video file. Mr Burgoyne contested the prosecution case that the persons depicted in the video were him and W. His counsel pointed to the poor quality of the video file and argued that the jury could not positively identify either the male or female depicted therein. The death of W meant only that Mr Burgoyne was unable to obtain a statement from W, and perhaps call her, in the hope that she might say that the woman depicted was not her, or that the male depicted was not him. That possibility is purely speculative. Moreover, it is not uncommon for real evidence to be lost, or for a witness not to be found before the trial is heard. Such an eventuality, in itself, is not a forensic disadvantage. 20 The decision in Police v Pakrou,2 which was approved by the Full Court in Police v Sherlock,3 establishes that a defendant in a criminal trial does not suffer forensic unfairness merely because the police have not procured and adduced, or made available, all of the evidence of the events in dispute which could have been obtained. In particular, it was held that there is no forensic disadvantage in defending or circumstantial prosecution case merely because direct evidence of those events has been lost or cannot otherwise be adduced.4 21 In any event, the other man depicted on the video was known to be Ralph Burgoyne. He was also the driver of the car in the traffic matter about which W was interviewed. He pleaded guilty to acts of unlawful sexual intercourse with W alleged against him before Mr Burgoyne’s trial commenced. He was, therefore, a witness to the events who was available to, but was not called by, Mr Burgoyne. 22 The death of W has not been shown to have caused Mr Burgoyne any forensic unfairness. The Judge could not logically have told the jury that Mr Burgoyne was disadvantaged by not being able to cross-examine a witness who could not be called by the prosecution. Nor was there any basis on which he could properly have directed the jury to consider that, but for her early death, W might have been given evidence exculpating Mr Burgoyne. Juries must be directed to return a verdict on the evidence before them. It is wrong to ask a jury to speculate about all of the evidence which might have been put before them but was not.5 Ground 3 – identification direction and opinion evidence 23 I set out below that part of Brevet Sergeant Johnson’s testimony in which his opinion that Mr Burgoyne was depicted in the video was given: 2 (2008) 103 SASR 124. 3 (2009) 103 SASR 147. 4 Police v Pakrou (2008) 103 SASR 124, 142-6 [59]-[74] (Kourakis J). 5 See, eg, Dyers v The Queen (2002) 210 CLR 285, 291 [6], 293 [13] (Gaudron and Hayne JJ). -- 9 of 32 -- [2024] SASCA 143 Kourakis CJ 6 A So obviously from just initially reviewing the device and those videos it became apparent to me that [W] had engaged in what I considered USI and therefore trying to seek to establish the identify of said persons involved. Q When you say USI are you saying that you suspected the offence of unlawful sexual intercourse at that time. A Yes, that’s correct. Q Did you form a suspicion in relation to who might be the accused in this matter. A Yes I did. Q What was that based on. A Having had my colleague Detective Brevet Sergeant Wallwork review the footage, and having viewed the footage obviously myself, I was able to utilise some search procedures on the Shield systems and in conjunction with conversations I had with Brevet Sergeant Wallwork was able to deduce that Mr Burgoyne was considered a person of interest in relation to said offending. HIS HONOUR Q Which Mr Burgoyne. A Sorry your Honour, Mr Jason Byron Burgoyne. XN Q In the course of reviewing the footage, did you notice any particular features about the males that are featured within the video. A Yes. So from video 1 it showed clearly the faces of two males involved. It also showed the surrounds of the bedroom and the gentleman on the left-hand side of the frame in the video clearly had a bent middle right finger that was clearly visible at the time as well. Q With reference to exhibit marked P5, is that the male we see wearing a hat. A Yes, that’s correct. Q What particular features of that, what appears to be right-hand did observe. Q Whilst holding the phone, it appears as though the right middle finger is bent back in towards the palm whilst the other fingers are relatively outstretched. Q I’ll now move to video 2 that we’ve just watched. Was there anything featured in that particular video that you investigated in order to determine who your suspect may have been in this case. A So during video 2, the camera is largely in a still position to begin with, however the camera pans to its right and only in a freeze frame picks up the forearms of who I believe to be the male involved. And in freezing that image, I was able to identify some tattoos that were on the lower left and upper left forearm and the upper left outer side of the arm. -- 10 of 32 -- [2024] SASCA 143 Kourakis CJ 7 … MS PARK: Your Honour, I was at a point where, if your Honour pleases, that we would pay that short clip again, after having had the witness identify the particular positioning of the tattoos. I’ll just play that file now. That is the file ending at 721. VIDEO SHOWN VIDEO CONCLUDED XN Q As a result of the information that you had gained, did you form a suspicion in relation to the accused that is now before the court in relation to this matter. A Yes, that’s correct. Q And as a result of that, was a forensic procedure conduct. A It was, yes. 24 I observe here that the last two questions and answers reveal the apparent purpose for the earlier questions put to Brevet Sergeant Johnson. The traditional way in which evidence of that kind has been adduced is to ask: Did you subsequently arrange for photographs of the accused to be taken? A question so framed leaves some room for speculation on the part of the jury as to why the accused was selected as the subject of the photographs. In particular the jury might speculate that the accused was suspected to be the offender because of his prior criminal history. That difficulty is usually addressed by a direction that they should not speculate. The orthodox approach is, admittedly, imperfect, but generally is less prejudicial than leading evidence of the investigator’s reasoning in reaching a reasonable state of suspicion which may include explicit reference of the accused’s prior criminal history. By disclosing that Brevet Sergeant Johnson’s suspicion was based on the similarity of those anatomical features, speculation about more prejudicial reasons, such as a history of like offending, are somewhat dispelled. 25 Importantly, Brevet Sergeant Johnson’s testimony went no further than explaining the grounds for his suspicion which enlivened the power to take the photographs. He did not give evidence purporting to identify Mr Burgoyne as one of the males in the video files. 26 The examination continued: Q And in this case did you arrange for photographs to be taken of the accused. A Yes, that’s right. Q Were those photographs taken on 23 February 2022. -- 11 of 32 -- [2024] SASCA 143 Kourakis CJ 8 A Yes, I believe so. Q Were they taken by Crime Scene Investigator Brevet Sergeant Stephanie Boyd. A Yes, that’s correct. MS PARK: I ask that the witness please be shown this photo booklet. XN Q Brevet Sergeant, do you recognise these photographs to be those taken of the accused on 23 February 2022 A Yes, that’s correct. 27 The photographs which were received as P8 included photographs of Mr Burgoyne which focussed on his right hand and the tattoos on his neck. Jurors are likely to have appreciated that those were the features which led Brevet Sergeant Johnson to Mr Burgoyne even if he had not expressly testified to that effect. Later Brevet Sergeant Johnson was asked about obtaining an earlier photograph of Mr Burgoyne: Q Did you obtain a further image of the accused at any stage. A No, not at that time. MS PARK: May the witness please be shown this document. XN Q Do you recognise this image. A Yes. Q Is this an image that you obtained of the accused. A Yes. Q What date was this photograph taken. A 9 December 2021. The photograph had the unmistakable appearance of an arrest photograph. 28 As we have seen, Mr Burgoyne’s counsel at trial made no objection to the questions which elicited the evidence that Mr Burgoyne, through his counsel on the appeal, now complains is prejudicial. It was largely inadmissible. In the absence of any other explanation, it can only be inferred that Mr Burgoyne’s counsel was not concerned that Brevet Sergeant Johnson’s opinions might prejudice the defence case in any material way. 29 There are grounds on which counsel might have taken that view. Brevet Sergeant Johnson had not purported positively to identify Mr Burgoyne. -- 12 of 32 -- [2024] SASCA 143 Kourakis CJ 9 The video was to be admitted for the jury to form its own conclusion on whether it depicted W and Mr Burgoyne. Counsel would have the opportunity to address the jury on that identification. The Judge could be expected to instruct the jury that it was for them to decide whether they were satisfied beyond reasonable doubt that the video depicted W and the applicant. Counsel may have taken view that it was preferable that the jury hear an explanation for the police picking Mr Burgoyne instead of leaving them to speculate that he may have committed similar offences in the past. 30 The prosecution and defence addresses show that both the prosecutor and the defence counsel approached the case as from the perspective that even though Brevet Sergeant Johnson’s disclosed why Mr Burgoyne was a suspect and why photographs of his hands and tattoos were taken that the issue for the jury was whether they could be satisfied and that he was the male offender depicted in the video file. 31 The prosecutor’s arguments in her address were: I now move to the topic of the accused, and how you might go about identifying him, and what the prosecution’s case is to say that you can find it was him beyond reasonable doubt. When you come to consider the footage closely, as was the case with [W], I suggest that we do have a starting point of known pictures. We’ve got the photographs of him in P8 and P9. The image in P9 was taken on 9 December – that’s a fact that has been agreed – so that was a matter of days before the 15th. So I suggest to you that you may prefer that image to the other exhibit. It will be a matter for you, but I suggest it might be a factor to consider … As part of that, he of course became aware of some particularly unique features about the accused, and I propose now to play the disc and identify just a couple of points within that footage that might assist you. So please bear with me while I set this up again, I’m sorry. VIDEO SHOWN … Members of the jury, I ask you compare that with the still image that was prepared by the investigating officer in this matter. Sometimes printer quality doesn’t quite do it justice. When you observe a still such as this from the footage itself, you may assist you with identifying what the prosecution say is a particular, distinct finger that is visible in my submission on the screen at the moment. You also have before the photographs taken during the forensic photograph exercise, which show you a clear closeup of the accused in this matter, and I submit to you that they are quite clearly consistent, and this – I encourage you to watch this video – watch the movement of his hand, and indeed freezeframe, for want of a better phrase. I’ll just continue to play from there. VIDEO SHOWN -- 13 of 32 -- [2024] SASCA 143 Kourakis CJ 10 MS PARK: I’ve just paused at the 13-second mark. Now, you do have some images before you that heard from Brevet Sergeant Johnson about, and he produced a still image quite similar to what’s on the screen now. Members of the jury, I ask that you take particular note of what appears to be the black bars, and indeed the drawers, that appear behind the bars that are in the foreground of the image. In my submission, you should also refer to the photographs that were taken by Ms Kylie Miller during the inspection of January 2022, and in my submission this is consistent with the furniture located inside that property, and is supportive of the fact that this was indeed the accused’s house, and therefore it is one piece of circumstantial evidence that you might take into account in determining whether the identify of the man in question is indeed the accused. … 32 Counsel for Mr Burgoyne commenced her submissions: Ladies and gentlemen, you have heard that the reason my client, Mr Jason Byron Burgoyne, became a suspect was basically because of his fingers and his tattoos. I ask you to question is it likely that Mr Burgoyne is the only male Aboriginal person with a deformed finger or fingers? Think about how easily accidents and injuries can occur, whether it be in the football field or elsewhere. I ask you to question for a moment is it likely that Mr Burgoyne is the only Aboriginal male person with tattoos in his arms? This about how common it is for males, and indeed females, to have tattoos on their arms, think about the usual place that tattoos are placed on a person’s arm. So, at first glance if you stop and think for a moment about those two points of similarity alone, you might well think ‘Well, yes, it’s certainly possible that Jason Byron Burgoyne is the male in the videos’, but let’s just look at those two points critically for a moment as no doubt you would like to have done if it were your brother or your father sitting over there. … 33 Mr Burgoyne’s counsel then addressed the jury as to why they should doubt that the male offender depicted in the video file was Mr Burgoyne: Now, you’ve heard that at the time of his arrest it was recorded that his finger was permanently deformed due to a tendon injury, but ladies and gentlemen what you don’t know, even though you’ve got that picture of his fingers in the forensic procedure photographs, you don’t know whether he can move that finger or not, there is no evidence in this case about whether or not that finger can be moved or whether it can’t. There is no medical opinion in this case to confirm in fact that suggestion that the finger is permanently deformed because of a tendon injury, you don’t know the cause of the injury, you don’t know whether it can move or not, and ladies and gentlemen I am not in any way suggesting that it doesn’t look like what the prosecution say, you may well think it does, but what I’m asking you to do is look critically at the lack of other evidence which helps you to make that determination, because we can all look at the same photograph or the same picture, the video, and see different things. -- 14 of 32 -- [2024] SASCA 143 Kourakis CJ 11 If that finger of Mr Jason Burgoyne cannot move, then I suggest to you that it looks inconsistent with what’s in the video, because if you look at the video it looks like the finger is moved into a different position than it appears in the forensic procedure photographs. So, one way of looking at it is that it doesn’t look like that finger disability on the photos is the same as what we have in the video, and if that’s the case and you are prepared to accept4 that or entertain a doubt about that, then, ladies and gentlemen, I suggest that the evidence in this case does not support the prosecution case with respect to identity, that is that it is Mr Jason Byron Burgoyne in that video. Again, perhaps ask yourself when you’re looking at the video again, is the picture, the video footage of fingers, equally consistent with a person simply holding a phone… 34 It could not have been made clearer to the jury that it was for them to decide on the basis of their close scrutiny of the video file and careful comparison with photographs of Mr Burgoyne whether Mr Burgoyne was the offender. 35 As a general proposition, an accused is bound by his counsel’s conduct of the trial.6 In Nudd v The Queen, Kirby J explained:7 There are legal and pragmatic reasons why a great deal of latitude must be accorded to counsel appearing in a criminal, or indeed any, trial. Ordinarily, a party is held to the way in which his or her counsel has presented that party’s case. This is not merely because the relationship between lawyer and client is grounded in the law governing agency and apparent authority. There are other, highly pragmatic, reasons for this approach that cannot be ignored. The adversarial system of trial (including its variant of the accusatorial criminal trial) could not operate effectively without according a high measure of deference to the multitude of decisions necessarily made by a legal representative in the course of conducting a trial. The appellate approach is thus a practical one, influenced by the realities of our trial process. 36 For completeness, Mr Burgoyne does not contend that it is the case that his counsel acted so ineptly, or displayed such ‘flagrant incompetence’,8 at trial so as to have occasioned a substantial miscarriage of justice. He contended only that because the failure to object was not obviously an opportunistic attempt to gain a collateral forensic advantage, the leading of the strictly inadmissible evidence occasioned a miscarriage of justice. 37 As regards incompetence or ineptitude by failure to object to the admission of evidence, such as the evidence referred to above at [23], it is well-settled that if ‘the failure is explicable as a legitimate forensic choice, then generally an appellant will be bound by counsel’s choice’.9 In this context, the observations of Hayne J, with which McHugh J agreed, in Ali v The Queen10 are apposite. The appeal in Ali v The Queen was brought on the ground of the flagrant incompetence of counsel in, amongst other failings, not objecting to the admission of evidence 6 Nudd v The Queen (2006) 80 ALJR 614, 618-20 [9]-[12] (Gleeson CJ). 7 (2006) 80 ALJR 614, 632 [79]. 8 R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ, McInerney J agreeing). 9 De Silva v The Queen (2013) 236 A Crim R 214, 220 [28] (Priest, Coghlan JJA and Lasry AJA). 10 (2005) 79 ALJR 662. -- 15 of 32 -- [2024] SASCA 143 Kourakis CJ 12 adduced by the prosecution. I first observe that, Hayne J framed the relevant question in this way:11 [18] As McHugh J pointed out in TKWJ v The Queen, “[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred”. The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel’s conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice. Next, Hayne J turned to the evaluation of counsel’s conduct of the trial:12 [23] Showing that objection could have been taken to some questions that were asked by other counsel during the course of a trial does not show that trial counsel was incompetent or show that there has been a miscarriage of justice. Counsel is not bound to take every objection that is open. Objecting to the form in which evidence is led, or objecting to evidence on a subject about which other evidence has been or is to be heard, may convey an impression of obstructionism detrimental to the interests of the party for whom counsel is appearing. Demonstrating that counsel could have objected to certain evidence does not demonstrate that counsel should have made that objection. [24] Where it is alleged, as here, that there has been a miscarriage of justice because counsel did not object to the reception of evidence, it is necessary to exercise considerable care when considering whether counsel should have objected. There are at least two reasons why that is so. First, it is necessary to put aside the benefit of hindsight. Whether counsel not only could have but should have objected, must be judged, as far as possible, having regard both to the state of evidence at the time the question was asked and to what might then reasonably have been expected to be the likely future course of the matter. So, in a matter like the present, it is necessary to take account of the possibility (perhaps even the then known probability) that the appellant would not give evidence on his own behalf. If it was possible, even probable, that the jury would not hear from the appellant, it would ill serve his cause to have the jury form the impression that he feared the facts of the matter being fully elicited. [25] An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred. [26] Secondly, when considering whether a failure to object to evidence has brought about a miscarriage, it is necessary to consider the effect of the evidence which it is said trial counsel could have adduced in a different form or could have prevented being led. It is important to recognise that this question is separate from the question 11 Ibid 665 [18]. 12 Ibid 666 [23]-[26]. -- 16 of 32 -- [2024] SASCA 143 Kourakis CJ 13 whether there has been any want of proper instruction of the jury about the use of the evidence led at trial, including the evidence which is now said should not have been before the jury. In the present case, therefore, one important premise to be accepted in considering the effect of the evidence which it is said should not have been led must be that the trial judge gave a proper separate consideration direction instructing the jury to differentiate between evidence relevant to the guilt of the appellant and evidence relevant to the guilt of the co-accused. (underlining added) 38 Justice Hayne dismissed the appeal for the following essential reasons:13 [37] It is not necessary to examine in any greater detail the other matters of evidence upon which the appellant relied in this appeal. For present purposes, what is important is that none of the evidence which the appellant now says that his trial counsel should have attempted to exclude was evidence that created any new issue for the jury to consider, or put before the jury any information of any importance which otherwise would not have been before them. [38] I do not find it necessary to reach any concluded view about whether trial counsel for the appellant acted incompetently at the trial. I tend to the view that criticisms of his conduct which may now appear to have some foundation might be capable of deflection on the basis that to appear to obstruct the course of evidence would have damaged what little chance the appellant may have had of securing an acquittal. If trial counsel’s conduct of the trial does merit criticism, any irregularity which occurred in the trial was immaterial and there is no possibility that it affected the outcome. 39 It follows from the general statements of principle in Hayne J’s judgment, and the concluding paragraphs, that failure by counsel to object to the admission of evidence is only a defect or irregularity which is capable of occasioning a substantial miscarriage of justice if there is no valid explanation for it other than incompetence. Counsel for Mr Burgoyne has eschewed any contention that trial counsel’s failure to object was inept. Accordingly, what might otherwise have been characterised as a defect which detracted from a fair trial according to law has not occasioned a miscarriage of justice. The trial Judge directed the jury that they were in effect, the identifying witnesses and warned them about the dangers of any identification in the following passages: The direction is how you approach analysing that witness’ evidence. However, in this case, you are effectively the witnesses being asked to make the identification. I therefore have to refashion the usual direction that is given on this important topic. You do have to approach the identification evidence in this trial with caution. Evidence identifying another person can be unreliable. It can result in innocent people being convicted. You have probably all had the experience of seeing someone from a distance and thinking that you recognise them, then you realise you are wrong. The process of identifying someone can be difficult, even with people that we know. But in this case, you are being asked to identify someone you do not know. 13 Ibid 668 [37]-[38]. -- 17 of 32 -- [2024] SASCA 143 Kourakis CJ 14 You do have to bear in mind the fleeting nature of the footage that you have seen. You have to bear in mind the quality of that footage. You have to consider, carefully, suggestions that there are relevant similarities between the footage you have heard and the photographs you have seen of the accused, and what you have seen of him in court. You must take into account the challenges that have been made to the weight of the circumstantial evidence which is said to identify the accused. You have to bear in mind the criticisms that defence counsel has made about the adequacy of the identifying evidence. You must take these matters into account when you are deciding whether you accept that the evidence is sufficient to satisfy you beyond reasonable doubt that it is the accused who is pictured committing these offences. The same care has to be taken when considering the evidence suggesting that it was [W] who is depicted in the footage. You have to be satisfied of the identity of both participants; that is, both the accused and [W], in both sexual acts which you saw depicted. You also have to give separate consideration to each of the two charges. 40 I acknowledge that the Judge did not warn the jury against being influenced by Brevet Sergeant Johnson’s suspicion. On the other hand, neither counsel nor the Judge had suggested to the jury that they should have regard to it as evidence identifying Mr Burgoyne. On the contrary, the Judge had instructed the jury and the counsels’ addresses had proceeded, on the basis that the identification of Mr Burgoyne depended on its comparison of the offender depicted in the video file and the photographs of Mr Burgoyne they were required to undertake. 41 Neither the prosecutor nor counsel for Mr Burgoyne asked the Judge to direct the jury to ignore the evidence of Brevet Sergeant Johnson. They could hardly have done so, having adduced, and not having objected to, the evidence respectively. In that context, it would be odd to direct the jury to ignore the evidence of Brevet Sergeant Johnson, which was limited to explaining that he subjected Mr Burgoyne to the forensic procedure because he suspected (not believed) that he might be the offender. Importantly, I observe that the Judge also reminded the jury that they could rely on circumstantial evidence: The prosecution case is that the circumstantial evidence should satisfy you that [W] was the female. The sexual acts were both found on her phone. You saw the phone being taken from her’ by the police on 29 December 2021, which is a fortnight after 15 December, when these acts are alleged to have occurred. You saw her reaction when the phone was taken from her. You can see the similarities between her on 29 December, on the police recording, and the pictures on her phone - not just the footage of the sexual acts, but the other still pictures of her. The Judge also referred to the circumstantial support derived from the furniture visible in the video: One of the stills from the footage shown in Exhibit P12 shows furniture in the background which resembles furniture in the house at … Port Lincoln, which is the house that the accused was renting. The prosecution case is that, when you pull together these strands of circumstantial evidence, you can be satisfied beyond reasonable doubt that the accused is guilty of both charges. You can be satisfied that his guilt is the only rational inference you can draw from the combined effect of the evidence. -- 18 of 32 -- [2024] SASCA 143 Kourakis CJ 15 42 The Judge did not warn the jury about speculating prejudicially about Brevet Sergeant Johnson’s reference to ‘Shield’. The jury may or may not have known, and may or may not have speculated, that Shield was a police database which included details of persons convicted of other offences. It was best not to draw attention to it. The jury might also have speculated prejudicially about Johnson’s reference to the discussion with another police officer. Again, it was best not highlighted. I emphasise that counsel did not object to the evidence and did not seek the discharge of the jury after it was given. Counsel did not seek any corrective direction. 43 Finally, it should be noted that the earlier photograph was put into evidence because Mr Burgoyne’s appearance had changed significantly from the time of the alleged commission of the offence to when he was photographed some weeks later. As I observed, the earlier photograph is unmistakably an arrest photograph. In those circumstances, Brevet Sergeant Johnson’s testimony of which Mr Burgoyne now complains adds little by way of prejudice to that emanating from the admission of the earlier photograph. Indeed, as I have explained, the grounds for Brevet Sergeant Johnson’s suspicion were laid bare as the anatomical features which the jury themselves were subject to a comparison and not any prior record. 44 There was no miscarriage of justice. Ground 3 must fail. Ground 4 45 Ground 4 was argued on the premise of the inadmissibility of the evidence of W’s statement of identity and age. It must, therefore, fail. The proviso 46 I have compared the appearance of the male with the bent finger in the video file with photographs of Mr Burgoyne received into evidence. For the reasons given by Doyle JA, I am satisfied beyond reasonable doubt that Mr Burgoyne is that male. I have compared the appearance of the young woman in the video file with the audiovisual recording of the interview of W. For the reasons given by Doyle JA, I am satisfied beyond reasonable doubt that the young woman in the video file is W. If I were of the opinion that a miscarriage of justice by reason of the receipt of Brevet Sergeant Johnson’s evidence had occurred, I would nonetheless dismiss the appeal because there has not been a substantial miscarriage of justice. Conclusion 47 I would dismiss the appeal. -- 19 of 32 -- [2024] SASCA 143 Lovell JA 16 48 LOVELL JA: I have had the advantage of reading the draft judgment of Kourakis CJ. I gratefully adopt his summary of the facts. I agree with Kourakis CJ’s reasons in relation to Grounds 1, 2 and 4. Regrettably I am unable to agree with his conclusion in relation to Ground 3. I would allow the appeal on that ground and remit the matter to the District Court for retrial. My reasons follow. Ground 3 3. The Judge’s directions about positive identification were inadequate and caused a miscarriage of justice. Particulars 3.1. The prosecutor erred by leading inadmissible opinion evidence of Brevet Sergeant Johnson to support the positive identification of Jason Burgoyne (T105-107). 3.2. The opinion was influenced by the hearsay opinion of another officer. 3.3. The jury were not directed that they could not use Johnson’s evidence as a factor to reason that one [of] the men was Jason Burgoyne. 49 The ground of appeal is inelegantly drafted. As expressed, the ground of appeal alleges that the trial Judge’s directions were inadequate leading to a miscarriage of justice. Particulars 3.1 and 3.2 are simply factual matters. Particular 3.3 identifies the substance of the complaint. That is, the appellant submitted that the trial Judge was under an obligation to direct the jury to disregard Brevet Sergeant Johnson’s evidence, and the failure to give that direction has led to a miscarriage of justice. 50 As Kourakis CJ has pointed out, the appellant’s counsel at trial did not object to the evidence nor seek any directions from the trial Judge about how the evidence should be treated. This was common ground on appeal. There is no separate appeal ground alleging that the appellant’s counsel at trial acted incompetently, although in the context of this case, that is implied. The suggested failure of the trial Judge to give the proposed direction must be assessed against the failure of the appellant’s counsel to both object to Brevet Sergeant Johnson’s evidence and in failing to seek the direction. It is in that context that the question of counsel’s conduct of the trial comes into question. 51 Given the issue that arises under this ground, it is necessary to consider some basic principles of the law of evidence. 52 It is a fundamental principle of the law of evidence that for evidence to be admitted at trial it must be relevant. Relevance describes the relationship between the evidence to be adduced and the facts on which the charge depends.14 To determine relevance it is necessary to identify the issues at trial. The main facts in 14 Andrew Ligertwood, Australian Evidence (LexisNexis Butterworths, 4th ed, 2004) at [2.17]. -- 20 of 32 -- [2024] SASCA 143 Lovell JA 17 issue are those which the prosecution must prove in order to succeed, and this includes facts which exclude potential defences. 53 The question of admissibility of evidence was dealt with comprehensively by this Court in R v Garner.15 It bears repeating. The Court stated:16 Evidence is information which, according to certain governing general principles and more detailed rules, will be received by a court for the purpose of deciding issues of fact that arise for its decision. In South Australia, when considering questions of evidence and its admissibility, the applicable law is the common law supplemented by provisions of the Evidence Act 1929 (SA) (“the Act”). When dealing with the question of the admissibility of evidence, the first question is whether the evidence is relevant. Evidence is either relevant or it is not. If it is not relevant, no further question of admissibility arises. It is only if the evidence is relevant that questions of admissibility arise. Facts having rational probative value are relevant and admissible unless a specific rule prevents admission. There is no definition of “probative value” in the Act. The expression is to be understood in the way it is defined in the Uniform Evidence Acts 1995. Evidence is of probative value (relevant) if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. As the probative value of evidence will vary depending on the issue that it is adduced to prove, two interrelated questions naturally arise for consideration. First, for what purpose is the evidence led and, secondly, to what fact in issue, does the evidence go to prove (or disprove)? Not all evidence admitted in a trial is direct evidence of a fact in issue, or more particularly, a fact proving an element of the offence. Often evidence is indirect in its effect. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact. That is, the evidence increases, as a matter of human experience, the probability of the existence of that fact. In cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case. Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved. Thus, in a criminal case, attention must be directed to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of probability. Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. That is, it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something that a witness has said; or it may provide a context helpful, or even necessary, for an understanding of a narrative. This evidence may be relevant and admissible if it provides an explanatory framework for other evidence. (citations omitted) 15 (2021) 140 SASR 454 at [22]-[26]. 16 R v Garner (2021) 140 SASR 454 at [22]-[26]. -- 21 of 32 -- [2024] SASCA 143 Lovell JA 18 54 Brevet Sergeant Johnson’s evidence, as outlined in Kourakis CJ’s reasons, was apparently led to establish the reason for him conducting a forensic procedure. There was, however, no suggestion that the forensic procedure was conducted unlawfully or unfairly. Had there been such a submission, a voir dire would have to be conducted to determine the issue in the absence of the jury. At trial, the reason for conducting the forensic procedure was not a fact in issue, nor was it relevant to a subsidiary fact material to a fact in issue. While the result of the forensic procedure and the fact that it was conducted had relevance, the evidence of Brevet Sergeant Johnson’s state of mind and his opinion did not. 55 There was no suggestion that Brevet Sergeant Johnson was familiar with the appellant’s appearance before investigating this matter. Brevet Sergeant Johnson’s opinion evidence, that he formed the suspicion it was the appellant in the video and photographs (the same evidence the jury had), was not evidence that could rationally affect the jury’s assessment of that material. The evidence of his state of mind was inadmissible and prejudicial. 56 Brevet Sergeant Johnson’s evidence unfortunately went further than simply identifying the appellant from the video and photographs. He also stated that he had accessed the police ‘Shield’ system and had spoken to his fellow officer; both were matters that assisted him in reaching his suspicion. The jury were thus left with evidence from an experienced police officer that not only did he form the suspicion it was the appellant from the video and photographs, but that he had access to other information that assisted him in forming that suspicion. While the jury may not be familiar with the Shield system, they became aware the police had other supporting information. The possibility that the appellant had a criminal record arises from that evidence. That evidence was also inadmissible and highly prejudicial. 57 It is important to consider how the inadmissible evidence was dealt with at trial. Unfortunately, it was not simply ignored. 58 The prosecutor in her address to the jury stated: Brevet Sergeant Johnson told you about his role in reviewing footage and conducting inquiries to identify who may have been the suspect … It was the task of the investigating officer to identify what was relevant and interrogate the material, and in my submission, he did so very thoroughly, and explained that in his evidence to you. As part of that, he of course became aware of some particularly unique features about the accused, and I propose now to play the disc and identify just a couple of points within that footage that might assist you. (emphasis added) 59 Whether it was intentional or not, the prosecutor’s submissions encouraged the jury to consider the tendered videos and photographs against the background of Brevet Sergeant Johnson’s investigation and opinion. As discussed, not only was his opinion inadmissible, but it was formed on material other than just the video and photographs; the jury did not have the extra material. -- 22 of 32 -- [2024] SASCA 143 Lovell JA 19 60 As a general rule, counsel’s decisions at trial bind their client.17 As Kiefel CJ and Keane J observed in Orreal v The Queen:18 … Save for exceptional cases, in our system of justice, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding matters such as what evidence to lead or have excluded. It is usually only when an appellate court is persuaded that no rational forensic justification can be discerned for counsel’s decision that consideration will be given to whether it gave rise to a miscarriage of justice. (citations omitted) 61 However, the law does not pursue that principle at all costs recognising that justice may demand exceptions.19 62 The respondent accepted that no direction to ignore Brevet Sergeant Johnson’s evidence was given. The respondent submitted that the failure to request such a direction, coupled with the lack of evidence from counsel explaining why no direction was sought, should lead this Court to apply the principle that the appellant should be bound by the way counsel conducted the trial. I accept that they are relevant factors to consider. 63 The task for this Court is to consider whether there has been a miscarriage of justice. Where a decision or decisions taken by counsel contribute to a defect or irregularity in the trial, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.20 Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment.21 The test whether the course taken by counsel is explicable on the basis that it resulted or could have resulted in a forensic advantage is an objective one.22 As Gleeson CJ observed in Nudd v The Queen, it is the fairness of the process that is in question, not the wisdom of counsel.23 64 I have considered whether the failure to object to the evidence or seek a direction to ignore the evidence could be characterised as a forensic decision. Finding any justification for counsel’s approach eludes me. There is no forensic justification for not objecting to the evidence or not seeking a direction to ignore the evidence. 17 Nudd v The Queen (2006) 80 ALJR 614 at [9] (Gleeson CJ). 18 (2021) 274 CLR 630 at [16]. 19 Nudd v The Queen (2006) 80 ALJR 614 at [9] (Gleeson CJ). 20 TKWJ v The Queen (2002) 212 CLR 124 at [25] (Gaudron J). 21 TKWJ v The Queen (2002) 212 CLR 124 at [84] (McHugh J). 22 TKWJ v The Queen (2002) 212 CLR 124 at [27] (Gaudron J). 23 Nudd v The Queen (2006) ALJR 614 at [9]. -- 23 of 32 -- [2024] SASCA 143 Lovell JA 20 65 In BBH v The Queen,24 Heydon J identified four methods of dealing with inadmissible evidence. He stated:25 … A question can be permissible even though it may elicit inadmissible evidence, so long as it is capable of eliciting admissible evidence. If the actual answer is or becomes irrelevant, it is usually ignored, though if necessary various formal techniques for dealing with irrelevant evidence which may be prejudicial can be employed. One of those techniques is striking out the evidence. Another is telling the jury to ignore it. A third is telling the jury to treat the case as if the evidence had not been given. A fourth is discharging the jury. (citations omitted) 66 It cannot be said here that the evidence was irrelevant and could be simply ignored. None of the four techniques described above were considered. 67 The main issue at trial was the identity of the alleged offender. The prosecution relied on the jury’s assessment of photographs and video. Brevet Sergeant Johnson’s inadmissible evidence trespassed directly on that topic. Not only was his opinion prejudicial, he based his opinion, partially at least, on matters not before the jury. 68 The trial Judge directed the jury as to the dangers of identification evidence. However, he directed the jury that they must have regard to his warning when deciding whether the evidence is sufficient to prove the charges beyond reasonable doubt. This direction could have been interpreted by the jury to include the evidence of Brevet Sergeant Johnson rather than ignore it. 69 The trial Judge also reminded the jury, when summarising the prosecutor’s address, that the prosecutor had drawn their “attention to the unique features of the identifying evidence”. The prosecutor’s reference to unique features occurred when she discussed Brevet Sergeant Johnson’s evidence. As discussed earlier, the prosecutor stated “as part of that, he of course became aware of some particularly unique features about the accused”. 70 In the absence of a direction that the jury were to disregard his evidence on the topic, the potential for the jury to use, or in this case misuse, Brevet Sergeant Johnson’s evidence is manifest. 71 The failure to give a direction to the jury to ignore Brevet Sergeant Johnson’s evidence, evidence which was precisely on the issue the jury had to consider, has deprived the appellant of a chance of acquittal that was fairly open. I consider there has been a miscarriage of justice. 72 I turn to the question of whether it is appropriate to apply the proviso. I have found this a difficult issue to resolve. 24 (2012) 245 CLR 499. 25 BBH v The Queen (2012) 245 CLR 499 at [94] (Heydon J). -- 24 of 32 -- [2024] SASCA 143 Lovell JA 21 73 The possibility that the jury might acquire irrelevant and prejudicial information is inherent in a criminal trial. Lurking in the background of every jury trial are unstated facts that the police, the Director of Public Prosecutions and a Magistrate have all considered the evidence and formed a view, although using different criteria, that the evidence is sufficient to put an accused on trial. However, consistent with the presumption of innocence, their views are not relevant at trial. Trial judges are acutely aware that such views form no part of a trial. 74 As such, the law acknowledges that a jury may be aware of such unstated facts but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. There is a limit to how far that principle can be taken; much depends upon the prejudicial material and the effect it may have on jury deliberations. 75 What is vital is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.26 76 The proviso (s 158(2) of the Criminal Procedure Act 1921 (SA)) enables the Court of Appeal to dismiss an appeal not withstanding error at the trial if the court “considers that no substantial miscarriage of justice has actually occurred”. The subsection posits that not “every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice”.27 77 However, Wilde v The Queen (“Wilde”)28 established that there are some cases in which there is simply no scope for the proviso to operate. In Wilde, Brennan, Dawson and Toohey JJ observed:29 It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick C.J. in Driscoll v. The Queen (18)); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt (19); Reg. v. Henderson (20); Reg. v. Couper (21). 26 Dupas v The Queen (2010) 241 CLR 237 at [29]. 27 Driscoll v The Queen (1977) 137 CLR 517, 525 (Barwick CJ). 28 (1988) 164 CLR 365. 29 (1988) 164 CLR 365, 373. -- 25 of 32 -- [2024] SASCA 143 Lovell JA 22 There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol. 71 (1955) 100, at p. 128; Reg. v. Rose (22); and, in the House of Lords (23). But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances. (emphasis added) 78 While in the minority on the result of the appeal, Deane J observed:30 The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s. 6(1) — which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, “if it considers that no substantial miscarriage of justice has actually occurred” — does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been “no substantial miscarriage of justice” in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a “relevantly” fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought. (emphasis added) 79 Thus, there is no mechanical formula or rigid test to be applied when determining whether the accepted irregularity is such that there has been a departure from the essential requirements of the law; that is, whether the conduct of the trial was so irregular that no proper trial had taken place. The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law. 80 The starting point for analysis is that a misdirection as to the use or evaluation of properly admitted evidence by a jury does not ordinarily result in a finding that 30 Wilde v The Queen (1988) 164 CLR 365, 375-376. -- 26 of 32 -- [2024] SASCA 143 Lovell JA 23 an accused has not received a fair trial in the sense discussed in Wilde. A misdirection of such a kind is ordinarily one to be evaluated in light of the issues at trial. Generally, an appeal court, having regard to the error, would consider whether no substantial miscarriage of justice has actually occurred. Depending on the issues at trial, the improper admission of evidence would ordinarily be dealt with in a similar manner. An accused person is entitled to a fair trial, not a perfect one. 81 I accept that describing the error or miscarriage as one affecting a central issue at trial does not necessarily mean it is fundamental in the sense that it goes to the root of the trial or operates to deprive the defendant of a proper trial, preventing the application of the proviso. 82 However, there are a number of errors established here, none of which by themselves are necessarily conclusive, but their convergence leads me to conclude that the appellant did not receive a fair trial according to law. 83 From a practical point of view, there was only one issue in this case. Did the exhibits tendered by the prosecution, namely the videos and photographs, establish that it was the appellant who committed the offence? The task of the jury was to make their own assessment of those exhibits when determining the guilt or innocence of the appellant. There was no other admissible evidence in the case; the prosecution case depended entirely on the jury’s assessment of that evidence. 84 Brevet Sergeant Johnson’s evidence of his suspicion, as discussed, was simply irrelevant to the jury’s consideration of the evidence. Evidence of a police officer’s suspicion, while usually inadmissible, may not be a particularly important piece of evidence. Unfortunately, Brevet Sergeant Johnson’s evidence was not confined to the fact that he had a suspicion; he was asked to describe the features of the photographs and video which led to him forming his suspicion; the prosecution relied on the features identified as unique. 85 Unsurprisingly, the jury were given no assistance as to what was meant by the word ‘suspicion’. While lawyers and judges may understand what Brevet Sergeant Johnson meant by his use of that word in the context of being authorised to conduct a forensic procedure, the jury may not have been so restricted. When misunderstanding dwells, misuse often follows. 86 Unfortunately, Brevet Sergeant Johnson went even further in his evidence. He described that in reaching his suspicion, he had accessed the Shield system. The effect of that evidence cannot be underestimated in the context of the case. That Brevet Sergeant Johnson accessed a police system to assist in him forming his suspicion raises the spectre, if not the likelihood, that the jury would consider the appellant may have a criminal record. In such circumstances, the prospect of ‘bad person reasoning’, in the absence of a direction from the trial Judge, is manifest. -- 27 of 32 -- [2024] SASCA 143 Lovell JA 24 87 Brevet Sergeant Johnson also described that, in reaching his suspicion, he had discussed the matter with a colleague. What the jury would make of that is of course unknown. 88 The prosecutor in her closing address specifically referred to Brevet Sergeant Johnson’s evidence. The submission was prone to encourage the jury to impermissibly use Brevet Sergeant Johnson’s evidence in the course of their deliberations. 89 Despite the clear inadmissibility of the evidence, the trial Judge gave no directions to the jury as to how they should treat Brevet Sergeant Johnson’s evidence either in relation to his opinion on the features he relied upon, nor in relation to his use of the Shield system. Once the defence address had been completed, the lack of a forensic purpose or any advantage to the appellant in not objecting to the evidence was obvious. Indeed, the direction by the trial Judge that the jury consider the evidence at trial, without more, gave judicial imprimatur for the jury to use Brevet Sergeant Johnson’s evidence. 90 In my view, the inadmissible evidence corrupted the trial. Not only was the evidence on the only practical issue the jury had to decide, but it was highly prejudicial. There was no other evidence in the case which supported the verdict. When the jury retired to consider their verdict, the misuse of the inadmissible evidence was inevitable. The jury could not ‘unhear’ the evidence; the bell could not be ‘unrung’. 91 In my view, the combination of these matters totally compromised the jury’s capacity to only consider the admissible evidence and render a true verdict on that evidence. 92 The highly prejudicial nature of the inadmissible evidence and the absence of any proper directions from the trial Judge pervaded the trial to the extent that it ceased to be a fair trial according to law. 93 In my view, in these unusual circumstances, the proviso has no application. 94 I would allow the appeal on this ground. Ground 2 95 I agree with the reasoning of Kourakis CJ on this ground. I add the following remarks about the operation of s 34KA of the Evidence Act 1929 (SA) (“the Act”). 96 Parliament has provided a scheme whereby statements not normally admitted in evidence become admissible, subject to the criteria set out in s 34KA(2) of the Act. Parliament also retained the court’s general common law discretions to exclude evidence. However, when considering the discretions retained by s 34KD of the Act, the Parliamentary intention, encapsulated in s 34KA of the Act, cannot be ignored. That Parliament was aware of the potential unfairness to an -- 28 of 32 -- [2024] SASCA 143 Lovell JA 25 accused can be inferred from the enactment of ss 34KB and 34KC of the Act, which ameliorate that potential unfairness. 97 Thus, the forensic disadvantage in not being able to cross-examine the statement maker is mitigated, to an extent, by s 34KB of the Act. Section 34KB(2)(a) of the Act enables an accused to adduce evidence that is relevant to the reliability of the statement and the statement maker. Section 34KB(2)(b) of the Act enables an accused, with the court’s leave, to adduce evidence of any matter which could have been put to the statement maker in cross-examination as relevant to the reliability of the statement and statement maker, but which evidence could not have been adduced by the cross-examining party. The width of this latter right was not the subject of argument before this Court and it is not appropriate for me to attempt to define its limits.31 Order 98 I would allow the appeal and remit the matter to the District Court for retrial. 31 See Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; R v Sahlstorfer [2024] SASC 55. -- 29 of 32 -- [2024] SASCA 143 S Doyle JA 26 99 S DOYLE JA: I agree with Kourakis CJ’s reasons for rejecting Grounds 1, 2 and 4. However, in relation to Ground 3, I agree with Lovell JA’s reasons for concluding that there was a miscarriage of justice arising out of the trial judge’s directions in relation to the issue of identification, and in particular his failure to direct the jury to disregard Brevet Sergeant Johnson’s evidence as to his suspicion that the appellant was the offender shown in Videos 1 and 2 from Exhibit P7, and as to the basis for that suspicion. 100 However, in my view, this is an appropriate case in which to apply the proviso and nevertheless dismiss the appeal. 101 As identified in the reasons of Kourakis CJ, the only real issue in the context of the Count 1 allegation of unlawful sexual intercourse was the identity of the participants in the act of fellatio depicted in Video 1 from Exhibit P7. The prosecution case was that the female participant was the complainant, W, and that the male participant was the appellant. 102 In support of its case that the complainant was the female depicted in Video 1, the prosecution relied upon the connection between the complainant and the phone on which the video was located, and a comparison between various images of the complainant and the female in Video 1. 103 As to the former, the video recording of the police interview of the complainant (Exhibit P1) not only showed the complainant in possession of the phone on which the video was located, but also showed her concern and distress when the phone was seized from her. The complainant also knew the PIN for the phone. As to the latter, the evidence at trial included not only the depiction of the complainant during her record of interview, but also several other images of the complainant located on the phone. There is a clear similarity between the female shown in these images and the female in Video 1, including her facial structure, hair colour and distinctive eye make-up. 104 Having regard to the evidence at trial, I am satisfied that it was proved beyond a reasonable doubt that the female in Video 1 was the complainant. 105 In support of its case that the appellant was the male depicted in Video 1, the prosecution relied upon a comparison between Video 1 (and some still photographs taken from that video) and other images of the appellant and his bedroom. Those other images included: • a photograph of the appellant’s face taken on 9 December 2021 (Exhibit P9); • arrest photographs of the appellant taken on 3 March 2022 (Exhibit P8) which included photographs of the appellant’s face, torso and hands. His right middle finger appears in several of the photographs to be fixed in position with an approximately 90 degree bend at the knuckle. The adjacent knuckle -- 30 of 32 -- [2024] SASCA 143 S Doyle JA 27 on his right ring finger also has a distinctive swollen or bulbous shape. He has several tattoos on his left arm; and • two photographs taken of the bedroom of a house leased in the appellant’s name on 17 June 2022. The first photograph shows a bed with some black bars at the foot of the bedframe. The second photograph shows a white chest of drawers, with five rows of drawers (including split drawers in the top row) and a mirror on top of it, located across from the foot of the bed and next to the door. 106 There was evidence that Video 1 was recorded on 15 December 2021, at 9.03 pm. Having watched Video 1, I am satisfied that it was proved beyond a reasonable doubt that the male engaged in the act of fellatio shown in that video was the appellant. In the first section of the video, the man’s face can be seen (being the man in the same blue t-shirt as the man who is then fellated by the female). Whilst he is wearing a cap, and is more closely shaven, there is a strong resemblance between the face of the man in Video 1, and the photograph of the appellant’s face taken only six days earlier (Exhibit P9). Whilst the facial resemblance is not as strong with the photographs of the appellant taken a few months later upon the appellant’s arrest (Exhibit P8), this may be in part because of his significantly longer hair, including facial hair, in the arrest photographs. 107 In addition to the facial resemblance to the appellant in the Exhibit P9 photograph, the man shown in Video 1 is shown holding a phone, apparently filming. He is holding the phone in his right hand. The right middle finger is bent, and the right ring finger knuckle has a distinctive swollen or bulbous shape, consistent with the image of the appellant’s right hand in his arrest photographs (Exhibit P8). 108 Further, the video includes some footage of the location in which the act of fellatio is being performed. This includes footage of what appears to be a bed frame, which has the same black bars as the photograph of the bed in the appellant’s bedroom. It also includes footage of a chest of drawers which resembles the chest of drawers in the photograph from the appellant’s bedroom in that it is white, has five rows of drawers (including split drawers in the top row) and a mirror on top of it, and appears to be located across from the foot of the bed and next to the door. 109 Based on the above matters, I am satisfied that it was proved beyond a reasonable doubt that the appellant was the man engaged in the act of fellatio in Video 1. 110 For completeness, I note that Video 2 (which was taken a few minutes later) appears to show the same male, but also reveals that he has tattoos on his left arm. However, given that the jury returned a verdict of not guilty in relation to the sexual act the subject of Video 2, and the fact that vision of the tattoo is very fleeting, I have not placed any reliance upon this video in reaching my conclusion that the -- 31 of 32 -- [2024] SASCA 143 S Doyle JA 28 prosecution proved beyond a reasonable doubt that the man in Video 1 was the appellant. 111 In reaching this conclusion, I do not think this is a case in which the natural limitations which attend an appellate court’s review of the evidence at trial are of any significance. Put another way, I do not think the jury had any relevant advantage in carrying out the comparisons relevant to the issue of identification. Whilst the jury had the opportunity to observe the appellant in the dock, I do not think this would have formed any material part in their consideration of the issue. Certainly I do not think it could have provided any basis for undermining the identification that could be carried out through the comparison exercise I have described. 112 For completeness, I also mention the evidence to the effect that the complainant did not identify the appellant in the photographic identification procedure in which she participated on 24 February 2022. Even if her failure to identify the appellant is taken at face value (that is, as an inability to identify the person involved in the sexual acts, as opposed to a decision not to identify him), I do not regard this as undermining my conclusion that the prosecution proved that the appellant was the man in Video 1 through the evidence to which I have referred. 113 My satisfaction that the appellant’s guilt of Count 1 was proved beyond a reasonable doubt is a necessary but not sufficient condition for the application of the proviso. In determining whether it is appropriate to apply the proviso, it is also necessary to have regard to the nature of the error, and in particular whether there has been an irregularity or miscarriage which goes to the root of the trial, or has deprived the appellant of a proper trial. 114 The irregularity or miscarriage in the present case was a significant one in the sense that it involved a misdirection in relation to the main issue at trial, namely the identification of the appellant as the man engaged in the act of fellatio shown in Video 1. However, notwithstanding the weight which the criminal law attaches to the jury’s constitutional role as the trier of fact in serious criminal matters, I do not think that the nature of the error or miscarriage in the present case was such as to preclude the application of the proviso. An error or miscarriage affecting the jury’s consideration of a central issue at trial is not necessarily a matter that is fundamental in the sense that it goes to the root of the trial, or operates to deprive the defendant of a proper trial, such as to prevent the application of the proviso. 115 The issue of identification was not one affected by any issues of credit. Nor, for the reasons explained, do I consider that the natural limitations which may attend an appellate court’s review of the evidence have any significance in the present case. 116 For the reasons set out, notwithstanding the trial judge’s failure to adequately direct the jury in relation to the issue of identification, I would apply the proviso and dismiss the appeal. -- 32 of 32 --