JOHN KAKULE v THE KING [2023] SASCA 51

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-20-1536 Appellant: JOHN KAKULE Counsel: MR J POWELL - Solicitor: ANNELLS LAWYERS Respondent: THE KING Counsel: MS L BOORD SC WITH MS S HENNIGS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/05/2023 File No/s: SCCRM-22-004244 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. KAKULE v THE KING [2023] SASCA 51 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby) 25 May 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ATTEMPT AND ASSAULT WITH INTENT CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT Application against conviction. On 22 August 2022, a jury convicted the appellant, by majority, of one count of assault with intent to rape, contrary to s 270B of the Criminal Law Consolidation Act 1935 (SA) (CLCA); one count of indecent assault, contrary to s 56 of the CLCA; and two counts of rape, contrary to s 48 of the CLCA. The prosecution case was that on 4 December 2019, the appellant, who was known to the complainant as a friend of her brother, picked the complainant up early from TAFE and drove her to an isolated bush area. There, the appellant stopped the vehicle, got out, opened the complainant’s car door and reclined her seat. He then held her hands above her head with one of his hands while he tried to take her lower clothing off. The complainant tried to fight off the appellant, and he eventually stopped. On 6 December 2019, the appellant drove the complainant to his house after taking the complainant’s -- 1 of 12 -- son to kindergarten. He approached her to ‘play’ with her. The appellant crawled on top of the complainant, removed her lower clothing, including her underwear, pressed his penis against her lower backside and ejaculated onto that area. The appellant then engaged in penile-vaginal intercourse with the complainant while she was bent over a table or a bench, and then again after pushing her onto the couch. The complainant’s evidence, given pursuant to s 34M(4)(3) of the Evidence Act 1929 (SA),was that on returning home, she attended at hospital and complained to the triage nurse that she had been raped, and that she was concerned about pregnancy and diseases. The triage nurse also gave evidence of the complaint. In cross-examination, it was put to the complainant, and she accepted, that she felt shame for engaging in intercourse with someone not her husband. It was not put to her that she made a false complaint for that reason. Counsel elsewhere challenged the truth of the complainant’s evidence that the appellant had forced her to have sex. The appellant’s sole ground of appeal is that the trial judge erred in failing to direct the jury, as required by s 34M(4)(c) of the Evidence Act 1929 (SA), that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person. Held (by the Court), allowing the appeal and remitting the matter for retrial: 1. The summing up did not meet the requirements of s 34M(4)(c). 2. The Court cannot be satisfied that no substantial miscarriage of justice has actually occurred. Criminal Law Consolidation Act 1935 (SA) ss 48, 56, 270B; Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) s 34M, referred to. Boyle (a pseudonym) v The Queen [2022] SASCA 50; Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; Domican v The Queen (1992) 173 CLR 555; GBF v The Queen (2020) 384 ALR 569; Kalbasi v Western Australia (2018) 264 CLR 62; R v Maiolo (No 3) [2014] SASCFC 89; R v Place (2015) 124 SASR 467; R v T, S (2017) 128 SASR 66; SPC v The Queen [2020] SASCFC 43, considered. -- 2 of 12 -- KAKULE v THE KING [2023] SASCA 51 Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA 1 THE COURT: On 22 August 2022, a jury convicted the appellant, by majority, of one count of assault with intent to rape, contrary to s 270B of the Criminal Law Consolidation Act 1935 (SA) (CLCA); one count of indecent assault, contrary to s 56 of the CLCA; and two counts of rape, contrary to s 48 of the CLCA. This appeal against conviction, which is brought as of right, raises only one ground of appeal. This is that the trial judge erred in failing to direct the jury as required by s 34M(4)(c) of the Evidence Act 1929 (SA). Background 2 The prosecution case was as follows. The appellant was a friend of the complainant’s brother. In December 2019, the complainant had recently moved to Mount Gambier. She did not own a vehicle and did not drive. The appellant assisted her by driving her and her young son to various places. 3 On 4 December 2019, the appellant picked the complainant up early from TAFE and drove her to an isolated bush area. He said that he had brought her there so he could have sex with her. He stopped the vehicle, got out, opened the complainant’s car door and reclined her seat. He then held her hands above her head with one of his hands while he tried to take her lower clothing off. The appellant had already undone the zip on his pants and got on top of the complainant. The complainant, while struggling, managed to get her mobile phone out and typed triple zero to call the police. However, the appellant grabbed the phone and threw it into the back seat of the vehicle. The complainant was crying and continuing to fight off the appellant. The appellant eventually stopped. That offending was the subject of count 1. 4 Counts 2, 3 and 4 were alleged to have occurred on 6 December 2019. The appellant drove the complainant to his house after taking the complainant’s son to kindergarten and asked the complainant to cook him some breakfast. The complainant went to get some bread from the dining room and the appellant approached her to ‘play’ with her. The complainant crawled under the table in an attempt to get away. The appellant crawled on top of the complainant, managed to remove her lower clothing, including her underwear, pressed his penis against her lower backside and ejaculated onto that area. This was the subject of count 2. The appellant then engaged in penile-vaginal intercourse with the complainant while she was bent over a table or a bench, and then again after pushing her onto the couch. These incidents are the subject of counts 3 and 4. 5 The offending was interrupted by the appellant’s son attending at the house and telephoning the appellant to be let in. The appellant drove the complainant home. -- 3 of 12 -- [2023] SASCA 51 The Court 2 The evidence of initial complaint 6 The complainant gave evidence that on returning home, she spoke to her neighbour, requesting the details for a medical clinic. She did not disclose to her neighbour what had occurred. She attended at the hospital and complained to the triage nurse that she had been raped, and that she was concerned about pregnancy and diseases. 7 The complainant’s evidence was that when the triage nurse asked her name, the complainant started to cry. When she finished crying, the nurse asked what she could help her with, and the complainant said, ‘I been raped by a man, he performed sexual relationship [sic] without my consent’. 8 The triage nurse, Ms Williams, also gave evidence. She said that when she asked the complainant what had brought her to the hospital, the complainant’s answer was ‘kind of a little broken’. She said that the complainant’s initial answer gave her cause to think the situation was sensitive, so she moved closer, to make the conversation more private. Ms Williams asked what happened and the complainant said, ‘He forced me to have sex’. The complainant then elaborated to Ms Williams on the circumstances. 9 On each of these witnesses’ evidence in chief, this was squarely a complaint of rape. 10 In cross-examination, the complainant confirmed that she wanted to see a doctor because she was concerned about pregnancy and about the risk of having contracted a sexually transmitted infection. She further confirmed that in her culture, it was shameful for a woman to have sex with a man who is not her husband. She confirmed that she was very ashamed to have had sex with the appellant. The cross-examination on this topic did not go so far as to suggest that she made the complaint to cover for the shame that she felt, or otherwise that the complaint to Ms Williams was a lie. Earlier, however, the cross-examiner had put to the complainant that the appellant had not forced her to have sex. 11 Ms Williams was cross-examined briefly. She confirmed that it was apparent to her that English was the complainant’s second language and that her conversations were not conducted with the assistance of an interpreter. Relevantly for the purposes of matters considered below, it was not put to Ms Williams or to the complainant that there was any basis for doubting that the complainant had, in fact, made a complaint of rape. Section 34M of the Evidence Act 1929 (SA) 12 The prosecution led this evidence of the complaint to Ms Williams as evidence of initial complaint within the meaning of s 34M of the Evidence Act. That section provides: 34M—Evidence relating to complaint in sexual cases -- 4 of 12 -- [2023] SASCA 51 The Court 3 (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); -- 5 of 12 -- [2023] SASCA 51 The Court 4 initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 13 Section 34M abolished the common law with respect to the admissibility of recent complaint in sexual cases. Sub-section 34M(2) prevents any suggestion that delay in making a complaint is significant to the question of a complainant’s credibility or consistency of conduct. Section 34M(4) is then in mandatory terms. A trial judge is required to direct the jury as provided for by that sub-section when evidence of initial complaint is admitted pursuant to s 34M(3). 14 This appeal concerns the requirements of s 34M(4)(c). The trial judge’s direction on the evidence of complaint 15 There is no dispute that the trial judge directed the jury adequately in the terms required by s 34M(4)(a) and (b). The judge said: First, you heard the evidence to inform you as to how [the complainant’s] allegations came to light. The evidence was led to give you a more complete picture of her account. Second, it was led so that you can consider whether this evidence demonstrates consistency of conduct on her part. Here you may ask yourselves do the circumstances of this complaint appear consistent with the events that [the complainant] alleges occurred and told you about when she gave her evidence. 16 The judge did not then go on to direct in accordance with the terms of s 34M(4)(c). She explained what was meant by matters of consistency and directed again in the terms required by s 34M(4)(b). She then reminded the jury of the evidence given by the complainant and Ms Williams about the complaint. She summarised the prosecution and defence submissions with respect to the evidence of complaint. With respect to the submissions of defence counsel, she said: [Defence counsel] submitted that you could place little relevance on the conversation with Ms Williams in that [the complainant’s] conversation was brief and without the assistance of an interpreter. Wanting to prevent pregnancy or any illness is not something confined to non-consensual intercourse. 17 The judge then concluded her directions on the topic of the initial complaint by saying the following: Members of the jury, you will need to bear in mind all of the evidence regarding [the complainant’s] complaint and bear in mind the directions that I have given. It will, or course, be for you to determine the significance, if any, of the evidence of the complaint in the circumstances of this case. 18 The judge then turned to the topic of evidence of the complainant’s distress, reciting the submission of defence counsel that the complainant’s conduct ‘was just as consistent with someone who is ashamed of their conduct. She was going to have to disclose she had sex with a man who was not her husband’. She did not return, by way of directions, to the topic of the complaint to Ms Williams. -- 6 of 12 -- [2023] SASCA 51 The Court 5 However, in later summarising the submissions of prosecution and defence counsel, she said the following with respect to the defence submissions on the evidence of the complaint: You have, [defence counsel] submitted, an entirely plausible explanation for [the complainant] attending at the hospital. There was no dispute they had sex or that it was unprotected, which would explain her attendance. Maybe there was a miscommunication between [the complainant] and the nurse, the police became involved and it was like a freight train that just kept going. 19 This was a fair summary of the defence closing submission to the jury on the topic, but it requires some explanation. As noted above, defence counsel had cross-examined Ms Williams on it being apparent that English was not the complainant’s first language. In closing, counsel emphasised to the jury that this conversation had been conducted without an interpreter, in circumstances where the complainant had confirmed that she wanted to be tested for pregnancy and sexually transmitted diseases. Counsel submitted that the complainant’s conduct in going to the hospital was consistent with being ashamed of having had sex with a man who was not her husband. She then submitted: There is no dispute they had sexual intercourse, there is no dispute that it was unprotected and that would explain why she’s attended at the hospital. Maybe there was a miscommunication between her and the nurse, the police had got involved and it’s like a freight train that’s just kept going. 20 The judge’s summing up of the defence case was, as we have already observed, faithful to this address. However, this part of the defence address was surprising to say the least. Defence counsel had probed to some degree in cross-examination the fact that English was not the complainant’s first language. However, it was never put to either the complainant or Ms Williams that the complainant had not made the complaint of rape, or that somehow there had been a miscommunication between the complainant and Ms Williams. Failure to direct in accordance with s 34M(4)(c) 21 It is necessary to consider the challenge on appeal against this background. The trial judge did not address the subject matter required by s 34M(4)(c) in the part of the summing up directed to the topic of initial complaint. However, the respondent submitted that when the summing up is viewed in its entirety, the trial judge addressed defence counsel’s explanation of the complainant’s attendance at the hospital and thereby addressed the defence case about the conversation between the complainant and Ms Williams. 22 In this regard, the respondent emphasised s 34M(5), which dispenses with any necessity of the directions under sub-s (4) taking a particular form. The respondent submitted that the directions were sufficient for the jury to understand that there may be varied reasons why an alleged victim of a sexual offence has made a complaint of the offence at a particular time to a particular person. The -- 7 of 12 -- [2023] SASCA 51 The Court 6 judge directed the jury expressly that it was for them to determine the significance, if any, of the evidence of the complaint in the circumstances of the case. Did the directions conform sufficiently to the requirements of s 34M(4)(c)? 23 Section 34M constitutes a significant departure from the common law. In the first instance, s 34M(2) recognises and prohibits forensic deployment of the fallacy, which was permitted by the common law, that delay in making a complaint is probative of the complainant’s credibility. Sub-section 34M(3) then establishes an exception to the rule against the admission into evidence of prior consistent statements, by permitting evidence related to the making of an initial complaint. 24 The forensic use of that evidence is tightly controlled by s 34M(4). In R v Maiolo (No 3), Peek J said:1 Section 34M is the successor to the common law of recent complaint. It is not to be interpreted in a vacuum; its content remains confined to sexual cases and continues to be bordered, or encircled, by the two larger areas of the common law, the rules against reception of hearsay evidence, and prior consistent statements. It must be remembered that any unduly wide interpretation of s 34M has the necessary consequence of impinging upon one or both of these important exclusionary rules. Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. 25 That risk of imbalance in the law against the defendant is policed within the section by sub-sections 34M(4)(a)(ii) and (b), in particular. These subsections, together with s 34M(4)(a)(i), circumscribe the forensic use to which the evidence of initial complaint may be put. They provide a protection to a defendant by ensuring that the evidence is not used for the truth of the complaint. It is on account of this protection that in R v T, S,2 Hinton J said that these subsections, in particular, may require elaboration in the necessary directions to the jury:3 The directions given by the judge in this case address the requirements of each of s 34M(4)(a), (b) and (c). That said, in a case where evidence of initial complaint is admitted, to give a jury directions that do no more than repeat the content of s 34M(4) will rarely be adequate. A trial judge is expected to give effect to Parliament’s command by giving the jury whatever assistance is necessary to ensure it understands the mandatory directions and their application to the evidence. Section 34M(4)(a)(ii) and (b) in particular may require elaboration. 26 By contrast, s 34M(4)(c) facilitates, at least in part, the primary purpose of the modification to the common law made by s 34M. In R v Place, this Court said:4 1 [2014] SASCFC 89 at [76]-[77]. 2 (2017) 128 SASR 66. 3 R v T, S (2017) 128 SASR 66 at [149]. 4 R v Place (2015) 124 SASR 467 at [11]. -- 8 of 12 -- [2023] SASCA 51 The Court 7 Of course, it is accepted that the statutory policy is that delay in complaining should not be treated as adversely affecting the credibility of a complainant, that there may be various reasons why a truthful complaint may be delayed for a long time and that juries are to be directed that “there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person”.5 (Footnote in original) 27 The totality of the directions required to be given to the jury therefore serve several purposes. The evidence being admitted, directions are required to ensure the jury confines their use of the evidence to understanding how the allegations came to light, assisting with the credibility of the complainant, and not going to the truth of the complaint. The directions required by ss 34M(4)(a) and (b) are, to these ends, instructional in nature. 28 The purposes served by the direction required by s 34M(4)(c) require a different description. First, this sub-section has a function of educating the jury about the policy of the section, as described in R v Place.6 It guides the jury away from necessarily drawing any adverse inference on account of delay (where that is relevant) in making a complaint. That is, it provides guidance away from fallacious and prejudicial reasoning from any delay in the making of a complaint. 29 However, s 34M(4)(c) is not only concerned with delay. It is concerned with any circumstance of timing and the identity of the recipient of the complaint. It leaves to the jury whatever inference they may determine to draw on account of the complaint being made at a particular time or to a particular person, without placing the imprimatur of the court on any one such possible reason. 30 Where evidence of a complaint is admitted, it will generally be a feature of the defence case that the complaint is untrue. The defence will often posit reasons for why that is so, by reference to the timing of the complaint and the person to whom it is made. For example, the defence may urge a thesis that the complainant is covering for conduct which the complainant now regrets. In such a case, s 34M(4)(c) provides the court’s imprimatur to the need for the jury to consider any reasons for these circumstances of the complaint posited by the defence, without endorsing those reasons or the prohibited reasoning. 31 Thus, in addition to serving the primary statutory policy of s 34M, as recognised by the Court of Criminal Appeal in R v Place, the direction required by s 34M(4)(c) also provides a forensic protection to the defendant, at least where a defence is raised attacking the veracity of the complaint. This aspect of s 34M(4)(c) did not require consideration in R v Place. 5 Section 34M(4)(c) of the Evidence Act 1929 (SA). 6 R v Place (2015) 124 SASR 467 at [11]. -- 9 of 12 -- [2023] SASCA 51 The Court 8 32 Sub-section (5) confirms that no particular form of words is necessary. However, the direction is required to convey, at the least, the content of the sub-section. 33 We make a further observation. The importance of the imprimatur of the Court in giving the direction is not of the same nature as the importance of giving directions on identification evidence, as was discussed in Domican v The Queen.7 The importance of the directions on identification evidence arises because:8 … the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. 34 The direction required by s 34M(4)(c) does not serve a truly comparable purpose. First, the directions required by s 34M(4) are required by statute, not the accrued experience of the courts. Then, given that s 34M(3) permits the admission of evidence of initial complaint, it is Parliament that has prescribed, specifically in ss 34M(4)(a) and (b), the directions required to prevent misuse of that evidence. 35 The educative and protective purposes of s 34M(4)(c) are not of the same character, in that they do not address directly the risk of misuse of the complaint evidence. Rather, s 34M(4)(c) places the imprimatur of the court on the general use of the complaint evidence by guiding the jury away from prejudicial reasoning and then, in neutral terms, permitting the jury to consider any (non-prohibited) defence thesis relating to the timing and circumstances of the complaint. The court’s imprimatur to these ends cannot be said to be of the same importance to the integrity of the trial as that which is required with respect to identification evidence, or the directions required by ss 34M(4)(a) and (b). Nevertheless, Parliament has determined that it is required. 36 In the present matter, in the part of the summing up addressing the s 34M(4) requirements, the judge did not direct in any terms contemplated by s 34M(4)(c). However, as the respondent has submitted, she did faithfully sum up the defence case as to the circumstances of the complainant attending at the hospital and making the complaint. 37 While this summing up of the defence case did address the defence position in closing, it did not meet the requirements of s 34M(4)(c). It did not accommodate the statement that Parliament has mandated be made to juries with respect to the timing and circumstances of complaints of sexual offending, evidence of which is admitted pursuant to s 34M. Further, it did not purport to go beyond a summary of the defence submission and extend to a direction of law. 7 (1992) 173 CLR 555. 8 Domican v The Queen (1992) 173 CLR 555 at 561. -- 10 of 12 -- [2023] SASCA 51 The Court 9 38 In reaching that conclusion, we are not critical of the judge. The summing up was, with respect, cogent and comprehensive. Her Honour was placed in an unusual and difficult position. Defence counsel did not put squarely to the complainant that the complaint was false or that she had some reason for making a false complaint to Ms Williams at that time. Rather, when cross-examining on the topic of the complaint, counsel only went so far as to establish that the complainant felt shame for engaging in intercourse with someone not her husband. That proposition was, on the evidence, consistent with both rape and consensual sex. 39 In closing, however, counsel then suggested, referring to the complainant’s established shame and limited English skills, that there had in fact been a miscommunication between the complainant and Ms Williams. Counsel had not put that possibility to either the complainant or Ms Williams. The submission lacked foundation. However, it caused the judge to be faced with a defence case that did not suggest a reason why the complaint was made when it was and to whom it was, but a suggestion that the complaint had not been made at all. In those circumstances, it is understandable why the direction required by s 34M(4)(c) might have seemed redundant. It is certainly difficult to see how such a direction could have been contextualised to the circumstances of the case. 40 Having said that, on the broadest reading of the defence case as put in cross-examination, counsel challenged the truth of the complainant’s evidence that the appellant had forced her to have sex and put to the complainant that she was ashamed of having had sex with the appellant. A direction pursuant to s 34M(4)(c), even in relatively bare terms, would have offered a degree of protection to the appellant by inviting consideration of those matters when considering the evidence of the complaint to Ms Williams. 41 We reiterate that the judge’s approach to the s 34M directions, given the conduct of the defence case, was understandable. However, we are not persuaded that the judge’s summary of the defence case, as put by defence counsel in closing, achieved what the section required. It did not address the content required by the sub-section. Further, it was couched as a summary of the defence case. It did not carry the imprimatur of the Court that Parliament has required. Application of the proviso 42 As the respondent observed, defence counsel at trial did not take issue with the failure to give the direction required by s 34M(4)(c). As Kourakis CJ observed in SPC v The Queen:9 … on an appeal on the ground that a failure to give a direction has resulted in a miscarriage of justice, the Court will treat a decision by counsel not to seek a direction as a strong, albeit not conclusive, indication that no miscarriage of justice was occasioned by the omission. 9 SPC v The Queen [2020] SASCFC 43 at [38]. -- 11 of 12 -- [2023] SASCA 51 The Court 10 43 In this case, however, the failure was to give a mandated direction that is prescribed, in part, for the protection of defendants. Moreover, that protection exists in circumstances where the importance of initial complaint evidence in sexual offence cases cannot be underestimated. In any event, the failure to give the direction, as understandable as it was given defence counsel’s conduct of the case, constituted an error of law. The only question remaining is whether, notwithstanding that error, no substantial miscarriage of justice has actually occurred.10 44 In Boyle (A Pseudonym) v The Queen, this Court said:11 In many cases involving allegations of sexual misconduct, the prosecution case will only involve the evidence of the complainant, his or her evidence of complaint and the person to whom the complaint was made. In such circumstances, the value of complaint evidence in ‘boosting’ the credibility of the complainant should not be underestimated. 45 Then, on the application of the proviso, the Court in that case said:12 The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.13 In Kalbasi v Western Australia,14 Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.15 (Footnotes in original) 46 The jury’s assessment of the credibility of the complainant in this case was critical to its determination. We are not in a position to assess whether guilt was proved to the criminal standard, beyond reasonable doubt, notwithstanding the failure to give the direction mandated by s 34M(4)(c). Conclusion 47 The appeal must be allowed, and the matter remitted for retrial. 10 Criminal Procedure Act 1921 (SA) s 158(2). 11 Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [31]. 12 Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [145]. 13 Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]-[37]; GBF v The Queen (2020) 384 ALR 569. 14 (2018) 264 CLR 62. 15 Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. -- 12 of 12 --