DANIEL WILLIAM BAPTISTE v THE KING [2023] SASCA 70

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) DCCRM-21-1333 Appellant: DANIEL WILLIAM BAPTISTE Counsel: MR B ARMSTRONG WITH MS O FANTIS - Solicitor: OLIVIA FANTIS LEGAL Respondent: THE KING Counsel: MS L BOORD SC WITH MS M ROCCA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 05/06/2023 File No/s: SCCRM-22-014448 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. BAPTISTE v THE KING [2023] SASCA 70 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton) 29 June 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 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD Appeal against conviction. On 22 November 2022, a jury convicted the appellant of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was, at all relevant times,14 years old. The appellant was the complainant’s stepfather. Towards the end of 2020, the complainant told her best friend at school, HC, about the offending. That conversation was repeated to other school friends. One of the other friends told their mother what had been said, who reported the allegation to the school principal on 8 February 2021. On the same day, the school principal made a mandatory report to the authorities. The first trial commenced in the District Court on 7 June 2022. The jury was unable to deliver a verdict and was discharged. At the second trial, the complainant’s evidence consisted of the record of a prescribed interview that had been conducted on 10 February 2021, the complainant’s recorded evidence at the first trial and further limited cross-examination. -- 1 of 15 -- The applicant now appeals against the conviction on the second trial, on the grounds that: 1. The trial judge erred in failing to allow the appellant to cross-examine the complainant with respect to certain social media material (Ground 3); 2. The trial judge erred in failing to direct the jury in the mandatory terms described by s34M(4)(c) of the Evidence Act 1929 (SA) (Ground 4a); 3. The trial judge erred in directing the jury by describing discreditable conduct evidence as evidence of uncharged acts (Ground 5); and 4. A miscarriage of justice occurred by reason of the judge failing to give adequate directions on the complainant’s motive to lie (Ground 6). Held (by the Court) allowing the appeal on Ground 6, quashing the conviction, and remitting the matter for re-trial: 1. There is no reason to think that the failure to give the direction required by s 34M(4)(c) of the Evidence Act 1929 (SA) could have interfered with the jury’s assessment of the complaint evidence to the detriment of the appellant. No substantial miscarriage of justice has actually occurred in respect of this failure. 2. The failure to give an explicit direction against impermissible reasoning, with respect to the absence of any motive for the complainant to lie, caused a miscarriage of justice. It is not appropriate to apply the proviso in respect of this failure. 3. It is not necessary to determine the remaining grounds of appeal. Evidence Act 1929 (SA) ss 13BA(5)(c), 13D(4), 34M(4), 34M(5), 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; GBF v The Queen (2020) 384 ALR 569; Kakule v The King [2023] SASCA 51; Kalbasi v Western Australia (2018) 264 CLR 62; Palmer v The Queen (1998) 193 CLR 1; R v Botten [2017] SASCFC 73 ; R v B, AM (2015) 124 SASR 176; R v Place (2015) 124 SASR 467; R v PS (2016) 261 A Crim R 329; R v Smith [2013] SASCFC 128; SPC v The Queen [2020] SASCFC 43, considered. -- 2 of 15 -- BAPTISTE v THE KING [2023] SASCA 70 Court of Appeal – Criminal: Kourakis CJ, Bleby JA and Dalton AJA 1 THE COURT: On 11 November 2022, following a trial by jury, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). By an Amended Notice of Appeal against Conviction filed on 3 February 2023, the appellant raised eight grounds of appeal. At the hearing of the appeal, the appellant abandoned four of those grounds. The remaining grounds raise the following issues: • whether the trial judge erred in failing to allow the appellant to cross-examine the complainant with respect to certain social media material (Ground 3); • whether the trial judge erred in failing to direct the jury in the mandatory terms prescribed by s 34M(4)(c) of the Evidence Act 1929 (SA) (Ground 4a); • whether the trial judge erred in directing the jury by describing discreditable conduct evidence as evidence of ‘uncharged acts’ (Ground 5); • whether a miscarriage of justice occurred by reason of the judge failing to give adequate directions on the complainant’s motive to lie (Ground 6). 2 On 20 February 2023, Livesey P granted permission to appeal on Grounds 4a and 6. His Honour referred the balance of the grounds for consideration by this Court. 3 For the reasons which follow, we would allow the appeal on Ground 6 and remit the matter for retrial. It is strictly unnecessary to consider the balance of the grounds. However, having regard to this Court’s recent decision in Kakule v The King1 and the submissions made by the parties in respect of that judgment, it is appropriate also to address Ground 4a. Background 4 The appellant is the stepfather of the complainant. In about April 2012, the appellant and the complainant’s mother commenced a relationship. They married in February 2014. In February 2019, the appellant, the complainant’s mother, the complainant and her two sisters moved to a residential property in regional South Australia. 5 The prosecution case was that the alleged offending commenced in the second school term of 2020, in the following circumstances. The complainant, who was 14 years old, was home from school, sick. The appellant and the complainant were lying together on the couch while watching a movie. The appellant put his 1 [2023] SASCA 51. -- 3 of 15 -- [2023] SASCA 70 The Court 2 hands under the complainant’s clothing and touched her breasts and her vagina. The appellant then inserted his finger into the complainant’s vagina. 6 The prosecution case was that after this first incident, similar incidents of touching occurred frequently, on a number of occasions. On one occasion, not long after the first incident, and again when the complainant was home from school sick, the complainant went to the appellant’s bedroom to say good morning after being told to do so by her mother. The appellant grabbed the complainant’s hands and said that her hands were cold. The appellant placed the complainant’s hands near his erect penis, over his underwear. 7 On a further occasion, the complainant woke in her bed to find the appellant lying behind her. The appellant was breathing and kissing her down her neck. The complainant’s evidence was that she recalled two specific incidences of this nature but that it had also occurred on other occasions. 8 One of the last incidents the subject of complaint was said to have occurred when the complainant and appellant were watching television. They were alone. The other family members were in bed. The appellant pulled the complainant’s pyjama shorts loose, moved her underwear to one side and put his mouth on her vagina. 9 The offending was alleged to have occurred between 23 March 2020 and 8 February 2021. The complainant was 14 years old throughout this period. Towards the end of 2020, the complainant told her best friend at school, HC, about the offending. That conversation was repeated to other school friends. One of the other friends told their mother what had been said. The mother reported the allegation to the school principal on 8 February 2021. On the same day, the school principal made a mandatory report to the authorities. 10 The first trial commenced in the District Court on 7 June 2022. The jury was unable to deliver a verdict and was discharged. The complainant’s evidence at the first trial was recorded. At the second trial, from which this appeal is brought, the complainant’s evidence consisted of the record of a prescribed interview that had been conducted on 10 February 2021, the complainant’s recorded evidence at the first trial and further limited cross-examination. Failure to give a direction in accordance with s 32M(4)(c) of the Evidence Act 1929 (SA) (Ground 4a) 11 The prosecution led evidence of the complainant’s complaint to her friend, HC, as evidence of ‘initial complaint’ pursuant to s 34M of the Evidence Act 1929 (SA). 12 The complainant gave evidence that she told HC about the offending towards the end of year 9 in 2020. She said that she told HC because she was not sure what was happening was normal. She said that she did not tell an adult at that stage because she felt she would not be believed. -- 4 of 15 -- [2023] SASCA 70 The Court 3 13 The complainant was cross-examined on the making of this complaint. The cross-examination did not extend to why the complainant had made the complaint to a particular person at a particular time. Rather, it was directed to the complainant’s fear that she would not be believed. It was put to her that she had lied, on at least two occasions. In closing submissions, counsel for the appellant when addressing the evidence of complaint, focused on inconsistencies between the evidence of HC and the evidence of the complainant as to what was said. 14 Subsections 34M(4) and (5) provide as follows: 34M—Evidence relating to complaint in sexual cases … (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). 15 The judge in summing up gave directions on initial complaint as follows:2 Ladies and gentlemen, I now give you direction on what we call evidence of complaint. You have heard the evidence of [the complainant] that she told her friend [HC] something of what she said her stepfather was doing to her, and you have heard evidence from [HC] herself. The complainant said that she told [HC] that the accused had been fingering her. [HC] said that the complainant asked her if it was normal for her stepdad to be fingering her and touching her in that way, and she said it was not. I direct you now on how you approach the evidence of complaint. There are several reasons why the evidence of complaint is given. The first is to tell you how the allegations first came to light; that gives you a fuller picture of the account of the complainant. The second is so that you can judge whether the complaint that is made is consistent with the conduct that you have heard about in court. Third, the evidence of complaint is not before you to demonstrate the truth of what was complained about; you rely on the evidence that you've heard in court, about the allegations, to see if you are satisfied that they occurred. 2 Appeal Book at [37]-[38]. -- 5 of 15 -- [2023] SASCA 70 The Court 4 Instead, the evidence of complaint is led, so that you can judge the consistency between the complaint that was made and the conduct that is alleged in court. Does the manner of making the complaint seem consistent with what the complainant says the accused was doing to her? Are the terms of the complaint consistent with what she says the accused was doing to her? It is a matter for you, to make what you will of the evidence of complaint with those directions in mind. 16 It can be immediately seen that the judge did not direct the jury in the terms required by s 34M(4)(c). Indeed, the respondent conceded that the judge failed to give that direction and that this failure amounted to an error of law. The respondent submitted, however, that this failure was not one that has resulted in a substantial miscarriage of justice. This was particularly so in the circumstances of this case, where there was no forensic contest over the reasons why the complainant made the complaint to HC, when she did. 17 In Kakule, this Court made the following observations about the purposes served by s 34M(4).3 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. 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.4 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. 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. 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. (Footnote in original) 18 As the Court in Kakule went on to observe,5 the direction that s 34M(4)(c) requires not only provides an educative function to the jury in directing them away 3 Kakule v The King [2023] SASCA 51 at [27]-[30]. 4 R v Place (2015) 124 SASR 467 at [11]. 5 Kakule v The King [2023] SASCA 51 at [31]. -- 6 of 15 -- [2023] SASCA 70 The Court 5 from engaging in prohibited reasoning. It can also provide a forensic protection to the defendant, at least in circumstances where a defence is raised that attacks the reasons for the timing of the complaint and the identity of the person to whom the complaint is made. 19 Sub-section s 34M(4)(c) requires that the Court’s imprimatur be given to the need to consider all potential reasons why an alleged victim has made a complaint at a particular time or to a particular person (other than via the prohibited reasoning). This does not mean that it is a requirement of law to direct the jury’s attention to any particular circumstance which would validly undermine a complainant’s credit, and which does not contravene the prohibition in s 34(M)(2). The failure to do so may result in a miscarriage of justice in a particular case, but it would not be an error of law to fail to include a reference to those circumstances and that reasoning in the statutory direction. 20 In Kakule, a case was raised that the circumstances of the complaint of rape to a triage nurse were potentially explicable by the complainant being concerned about pregnancy and the risk of having contracted a sexually transmitted infection. The complainant in that case confirmed that in her culture it was shameful for a woman to have sex with a man who was not her husband and that she was very ashamed to have had sex with the appellant. The Court held that a direction pursuant to s 34M(4)(c) would have offered a degree of protection to the appellant. 21 In the present case, the initial complaint occurred in circumstances of a 14-year-old girl telling her best friend at school, at a time when it was alleged that the offending was becoming more frequent. There was no forensic challenge in respect of the reasons why the complainant complained to HC, when she did. As identified above, the defence case focused on the inconsistencies between the accounts of the complaint in evidence by the complainant and HC respectively. 22 The direction was mandated by the section. However, in the absence of any forensic contest surrounding the circumstances of the complaint, it is difficult to see what disadvantage the appellant suffered by reason of the direction not being given. The credibility of the complainant was certainly in issue. However, there was no colourable case raised as to the complainant’s reasons for making the complaint at the time she did and to the person she did. 23 Further, Senior Counsel for the appellant did not take issue with the failure to give a direction under s 34M(4)(c) at trial. While that is not determinative, as Kourakis CJ commented in SPC v The Queen:6 … 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. 6 [2020] SASCFC 43 at [38]. -- 7 of 15 -- [2023] SASCA 70 The Court 6 24 In the present matter, senior counsel’s failure to seek a direction in the terms mandated by the section is understandable. The failure to give the direction did amount to an error of law. However, in the absence of any attack on the relevant circumstances of the complaint, the judge’s failure to give the direction benefited the appellant, if anyone, in not inviting the jury to think further about the reasons why the complainant complained in the circumstances that she did. 25 The value of complaint evidence in boosting the credibility of a complainant can never be underestimated.7 However, in the circumstances of this case, there is no reason to think that the failure to give the direction could have interfered with the jury’s assessment of that evidence to the detriment of the appellant. Unlike in Kakule, the potentially protective function of s 34M(4)(c) was not engaged. 26 In the circumstances of this case and the forensic contest at trial, we consider that notwithstanding the error in failing to give the direction required by s 34M(4)(c), no substantial miscarriage of justice has actually occurred. Subject to consideration of the other grounds of appeal, we would apply the proviso and dismiss this ground. Whether a miscarriage of justice occurred by reason of the judge failing to give adequate directions on the complainant’s motive to lie (Ground 6). 27 The respondent accepted that there was sufficient evidence from which it might be inferred that the complainant had a motive to lie, requiring the trial judge to give a direction. The judge directed the jury in the following terms: I now direct you on what I loosely describe as motive to lie. The defence does not suggest explicitly that the complainant had a motive to lie about the accused, but some attention during the trial was directed to her resentment towards the chores that she and her sisters were required to carry out. I give you a direction of law about that. While it is perfectly proper for you to consider whether the complainant has a motive to lie, it is important that you bear in mind that the accused has no obligation to suggest a motive to lie, much less to prove it. The burden of proving the case always rests on the prosecution. Even if you did not find that the complainant had a motive to lie, you must bear in mind that lies can be told for no discernible reason. 28 Then, when summarising the prosecution case, the judge said: Ms Andersen asked you to reflect on the suggestion that would be made or would possibly be made that the complainant had a motive to lie because of her being upset on perhaps her own and her sisters’ behalf about the chores that they had to do. Is it really likely that that is a motive for a 14-year-old to make up the detailed allegations of which you have heard? 29 Then, when summarising the case for the appellant, the judge said: 7 Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [31]. -- 8 of 15 -- [2023] SASCA 70 The Court 7 Correctly as a matter of law, Ms Abbey told you that the prosecution bears the onus of proving its case to you beyond reasonable doubt. And correctly, as a matter of law, she said that, while there might be a motive for the complainant to lie, the fact of the matter is, you can never know why it is that a person comes to the court and lies. They might lie for a number of reasons, it does not matter that you are not able to detect what the motive is and in any event, as I have directed you as a matter of law, the prosecution bears the onus of proving its case and even if you rejected the suggestion of any motive to lie, the prosecution still bears the onus of proving its case. 30 In Palmer v The Queen, the plurality explained that:8 … a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is of that extent diminished. … The correct view is that absence of proof of motive is entirely neutral. 31 For that reason, it has been accepted that where it is necessary to give a direction on the absence of a motive to lie, it is necessary, but not sufficient, for the direction simply to emphasise that the burden of proof always lies with the prosecution. It is also necessary to direct the jury away from reasoning intuitively that if no motive to lie is shown, that makes it more likely that the accused is guilty. Thus, in R v PS, this Court said:9 There is a material difference between a direction that a rejection of any motive to lie does not of itself prove the prosecution case and a direction that the rejection of any motive to lie is entirely neutral and cannot be used to strengthen the prosecution case. It was important for the latter to be explained to the jury. Simply stating that the accused bears no onus of proving a motive or anything else and that an absence of a motive does not prove the prosecution case was insufficient, particularly given that this case was oath against oath and with a positive defence. A standard direction often given in this State is in these terms. You will have to consider the possibility of a motive for the complainant to lie. A motive to lie is relevant to the credibility of the complainant. However, even if you reject the alleged motive for the complainant to lie, that does not mean that you would find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complainant was telling the truth. (Emphasis in original) 8 Palmer v The Queen (1998) 193 CLR 1 at [9] (Brennan CJ, Gaudron and Gummow JJ). 9 R v PS (2016) 261 A Crim R 329 at [94]-[95]. -- 9 of 15 -- [2023] SASCA 70 The Court 8 32 In that case, the emphasised portion was omitted from the direction. The appeal was allowed on other grounds. It was not necessary to decide whether that omission may have affected the verdict.10 33 The judge’s directions in the present case omitted to include that same direction, to the effect that an absence of a motive to lie does not strengthen the prosecution case. 34 The respondent submitted that the Court in R v PS did not prescribe the words to be used in giving the direction. That much is so. It submitted that in the present case, the judge made it plain to the jury at several points during the summing up, that a person may lie for a number of reasons and ‘for no discernible reason’. The jury would have understood as a matter of logic that the absence of evidence of a motive to lie does not strengthen the prosecution case. 35 In support of this submission, the respondent relied on two appellate applications of the principle by this Court. In R v Smith,11 the trial prosecutor had asked the jury rhetorically, ‘Do you think [the complainant] has concocted some elaborate story of sexual abuse by the accused, exposed herself to you in a very sad and intimate way out of some weird motive to get the accused?’12 The judge directed the jury in the following terms:13 You see when raised that way it has a tendency to reverse the onus of proof. I direct you that [the defendant] does not have to give any explanation as to why the complainant may have given a false account. You must always remember, as the accused, [the defendant] does not have to prove anything at all. It is important I say that to you. The prosecution bears the onus of establishing that the complainant gave a truthful and a reliable account of the events. A person like [the defendant] could not possibly know what was going on in the mind of the complainant and in those circumstances, he could not possibly prove or attempt to prove any motive to lie. I direct you that the complainant’s evidence gains no credibility from the absence of a proved explanation or motive to lie. You must not even think about that. An accused person could not possibly know what was going on in the mind of the complainant. There could be all sorts of reasons as to why someone might say something at a particular time but you must not think for one moment that it falls upon the accused to prove anything. 36 The respondent observed that while this direction did not extend to saying that the absence of a motive to lie is neutral, the Court found that the direction was sufficient to overcome any possibility arising from the address by the prosecution. 37 Accepting that there is no prescribed form of direction not to reason that a complainant’s credibility is enhanced by the absence of any motive to lie, there is an immediately apparent difference between the direction in R v Smith and the direction presently under consideration. In Smith, the jury was directed explicitly 10 R v PS (2016) 261 A Crim R 329 at [97]. 11 [2013] SASCFC 128. 12 R v Smith [2013] SASCFC 128 at [7]. 13 R v Smith [2013] SASCFC 128 at [11]. -- 10 of 15 -- [2023] SASCA 70 The Court 9 ‘that the complainant’s evidence gains no credibility from the absence of a proved explanation or motive to lie’. In the present case, the direction emphasised, correctly, that the burden remained with the prosecution. However, it did not address the prohibited reasoning from an absence of any identified motive to lie. 38 The respondent also referred to R v Botten.14 In that case, it was put to the complainant that she had made up the allegations in order to obtain benefits from Centrelink, so she could move out of home. The complainant denied this. The trial judge directed the jury in the following way:15 Ladies and gentlemen, you will have to consider the possibility of a motive for the complainant to lie. A motive to lie is relevant to the credibility of [the complainant]. However, even if you were [to] reject the alleged motive for her to lie, that does not mean that you would find that she is being untruthful. The absence of evidence of a motive does not strengthen the prosecution case, it is neutral. Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for [the complainant] to lie. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that [the complainant] was telling the truth before you can find the accused guilty of any of the offences with which he is charged. 39 The Court held that nothing more was required in this case, as these directions made it plain that there was no onus on the appellant to prove any motive to lie. The direction in that case extended, however, to saying that the absence of evidence of a motive to lie did not strengthen the prosecution case and was neutral. 40 The need for a direction in respect of the absence of a motive to lie is grounded in the burden of proof on the prosecution. However, to direct a jury that even if they reject the existence of a motive to lie, the prosecution still bears the onus, while correct, does not address fully the mischief to which the direction is necessarily addressed. That mischief lies in the risk of reasoning intuitively that if a complainant has not been shown to have a motive to lie, she must be telling the truth. The necessary direction is a direction for the jury to reason against intuition. 41 The highlighted part of the standard direction set out in R v PS16 would be sufficient, in the ordinary course, to achieve what is required. It is necessary to make clear to the jury that, as a matter of reasoning, an absence of evidence of motive does not assist the prosecution case. 42 To say that the absence is ‘neutral’, when attached to such an explicit direction about how not to reason may, like the reiteration of the burden of proof in this context, help explain why the jury must not so reason. However, without more, it would likely be insufficiently explicit as a direction against impermissible, intuitive reasoning. 14 [2017] SASCFC 73. 15 R v Botten [2017] SASCFC 73 at [67]. 16 (2016) 261 A Crim R 329. -- 11 of 15 -- [2023] SASCA 70 The Court 10 43 In the present case, the trial judge’s direction did not extend to directing the jury explicitly against impermissible reasoning. It went so far as to reiterate the burden of proof notwithstanding rejection of evidence of a motive to lie, which was a necessary but insufficient guard against impermissible reasoning. In our view, this gap in the direction caused a miscarriage of justice. 44 We would not apply the proviso. The error in this case meant that the jury did not receive a necessary direction on how to assess the evidence of the complainant in the absence of any motive to lie. As this Court said in Boyle (A Pseudonym) v The Queen:17 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.18 In Kalbasi v Western Australia,19 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”.20 (Footnotes in original) 45 The error in this case went to the heart of the assessment of the complainant’s credibility. Against that, this Court is unable to assess whether guilt was proved to the criminal standard notwithstanding the error. 46 We would allow the appeal on Ground 6. The remaining grounds 47 The remaining grounds are: • whether the trial judge erred in failing to allow the appellant to cross-examine the complainant with respect to certain social media material (Ground 3); and • whether the trial judge erred in directing the jury by describing discreditable conduct evidence as evidence of ‘uncharged acts’ (Ground 5). 48 Ground 5 concerns what is said to be a description of discreditable conduct evidence by the judge in prejudicial terms. This conduct took the form of text messages sent by the appellant to the complainant and sexualised conversations 17 [2022] SASCA 50 at [145]. 18 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. 19 (2018) 264 CLR 62. 20 Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. -- 12 of 15 -- [2023] SASCA 70 The Court 11 the appellant had with the complainant. As the matter is to be remitted in any event, it is not necessary to consider this complaint further. 49 Ground 3 raises a question about the respective spheres of operation of ss 13BA and 13D of the Evidence Act 1929 (SA). As identified above, the complainant’s evidence consisted of the record of a prescribed interview that had been conducted on 10 February 2021, which was admitted pursuant to s 13BA, the complainant’s recorded evidence at the first trial, which was admitted pursuant to s 13D, and further limited cross-examination. 50 The appellant applied for leave to cross-examine the complainant in respect of two ‘TikTok’ videos she had posted. Ground 3 concerns the refusal of leave in respect of one of those videos, which the applicant posted eight months after the initial complaint. The appellant argued that the complainant’s presentation in this video was inconsistent with her evidence about her state of mind shortly before and when she was interviewed. Counsel at the first trial, where the complainant gave oral evidence, had not been aware of the existence of the video. 51 Section 13BA(5)(c) of the Evidence Act provides that a witness cannot be further examined, cross-examined or re-examined on the evidence admitted under s 13BA without the permission of the Court, on application by a party: (c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined. 52 The appellant submitted that the question of permission to cross-examine on the TikTok video was, however, properly a question of cross-examination on the official record of the complainant’s evidence in the earlier trial, admitted under s 13D. Section 13D(4) provides: (4) If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings. 53 The appellant emphasised the comments of this Court in R v B, AM21 about the importance of the right to cross examine when considering whether to admit evidence under s 13D. He submitted that the judge erred in importing a more restrictive test in s 13BA(5)(c), where the question of whether to allow cross- examination was properly to be considered under s 13D(4). 54 It is not clear from the transcript whether, when refusing to allow cross- examination on the TikTok video, the trial judge was proceeding on the basis that s 13BA(5) or s 13D applied. Senior Counsel for the appellant took the general position that s 13D applied. The prosecutor took the position that s 13BA applied. The judge allowed the application to cross-examine on a different topic, expressly applying s 13BA(5)(c), although he expressed some uncertainty about the applicable test. The TikTok video was then played, and the judge ruled against 21 (2015) 124 SASR 176 at [32]-[35] (Sulan and Peek JJ). -- 13 of 15 -- [2023] SASCA 70 The Court 12 cross-examination on it, without further comment. Earlier, and before any discussion about the applicable section, the judge had indicated provisionally that he considered the video to be insufficiently relevant to show an inconsistency with the complainant’s account of her state of mind at the time of being interviewed. This was on the basis that eight months had elapsed between the interview and the video being posted. 55 The respondent submitted that s 13BA(5) provided the test for permitting further cross-examination, in that to allow cross-examination under a potentially different test, under s 13D, would undermine the purpose of s 13BA(5) when evidence in the form of a record of a prescribed interview is admitted under s 13BA. The respondent also submitted that in any event, the TikTok video did not undermine the complainant’s evidence. As already identified, the video was posted eight months after the complaint. In that time, the complainant had cooperated with the police investigation and the appellant had answered the charge. The respondent submitted that the judge was correct to refuse to allow the cross-examination in the interests of justice. 56 The question of the appropriate course to be taken on an application to cross-examine when evidence of a prescribed interview is admitted under s 13BA, and an official record of evidence taken in earlier proceedings is also admitted under s 13D, requires a careful exercise in statutory construction. That exercise would extend to considering how, if at all, s 13BA(5) informs s 13D(4) when both have been applied in adducing evidence in a trial. Further, the significance of the interaction between the two sections in a given case may depend on the course of the trial, the subject matter of the proposed topic of cross-examination, and its importance to the defence. 57 It is not clear whether the judge was proceeding under s 13BA(5)(c) or s 13D(4) when he refused permission to cross-examine on the TikTok video. It is likely, given the exchanges with counsel that preceded the ruling, that he was proceeding under s 13BA(5)(c). The video was not in evidence. It appears from the trial transcript that the video was only relevant to the collateral credit of the complainant, although counsel on the appeal did not rule out some further relevance. 58 The interrelationship between s 13BA(5) and s 13D is potentially complex. Where evidence has been admitted under both sections, an application to cross-examine may require resolution not only of the relationship between the two sections, but also careful consideration of the scope and purpose of the proposed cross-examination. In the present matter, it is not clear which of these sections the judge proceeded upon. Counsel for the appellant did not convince us that the view the judge took of the video’s relevance was incorrect or suggest any meaningful line of cross-examination about the video. In those circumstances it is not necessary to determine this ground of appeal. -- 14 of 15 -- [2023] SASCA 70 The Court 13 Conclusion 59 We would allow the appeal on Ground 6, quash the conviction and remit the matter for retrial. -- 15 of 15 --