AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Supreme Court of South Australia - Court of Appeal
You are here:  AustLII >> Databases >> Supreme Court of South Australia - Court of Appeal >> 2022 >> [2022] SASCA 72

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Context] [No Context] [Help]

JGS v THE QUEEN (No 2) [2022] SASCA 72 (28 July 2022)

Last Updated: 28 July 2022

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.

JGS v THE QUEEN (No 2)

[2022] SASCA 72
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

28 July 2022

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against convictions.

The appellant was tried by a jury of eight counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). He was convicted of six of those counts and acquitted of the other two.

The complainant is the appellant’s niece. The prosecution case was that the appellant started to abuse her sexually when she was 13 and continued to do so until she was 18. The alleged offending occurred in the context of a group living arrangement, described by its members as the ‘Ideal Human Environment’. The group included the extended family of the appellant; the prosecution case was that the appellant was the leader of the group.

The issues on appeal are:

Held (by the Court), allowing the appeal on Ground 2 only, quashing the convictions and remitting the matter for retrial:

  1. It cannot be said that the jury, acting rationally, ought to have had a reasonable doubt notwithstanding its acceptance of the complainant’s evidence.
  2. A document authored by the complainant’s cousin, purporting to record what the complainant said to that cousin by way of initial complaint was inadmissible hearsay. Its admission could not be justified or excused by reason of the complainant’s adoption of its accuracy in oral evidence. The document was erroneously admitted under s 34M of the Evidence Act. That erroneous admission constituted a miscarriage of justice.
  3. The jury was not directed inadequately as to the elements of the offences required to be proved beyond reasonable doubt, the prosecution case with respect to the charges or the defence attacks.
  4. The directions as to the burden and standard of proof, considered in context, did not have the effect of inverting the burden of proof or misleading the jury with respect to the correct application of the burden of proof.

5. The evidence of RB and MS was relevant and admissible.

  1. The trial judge did not fail to direct the jury adequately in accordance with s 34R of the Evidence Act as to the permissible use of uncharged acts that post-dated the charged acts.
  2. The conduct of the juror in question occurred a month after the verdicts were returned. No part of it occurred during the trial. The expressed sympathy was consistent with the verdicts. The conduct did not give rise to a reasonable apprehension of bias on the part of the juror.
  3. The hearsay document admitted into evidence that was the subject of Ground 2 had the potential to interfere markedly in the jury’s assessment of the complainant’s credibility and reliability. Given the importance of the contest of credibility, it was not possible for this Court to assess whether guilt was proved to the criminal standard, notwithstanding the erroneous admission of the document. It was not open to conclude that the proviso should apply.

Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34M; Criminal Procedure Act 1921 (SA) ss 158(1)(a), 158(2), referred to.

JGS v The Queen [2020] SASCFC 48; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Pell v The Queen (2020) 268 CLR 123; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308; Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507; R v Smart [2018] SASCFC 123; R v Place (2015) 124 SASR 467; R v Maiolo (No 3) [2014] SASCFC 89; R v Usher (2014) 119 SASR 22; Boyle (a Pseudonym) v The Queen [2022] SASCA 50; Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595; Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193; Schulz v The Queen (2016) 126 SASR 476; R v Garner; R v Webb [2021] SASCA 68; Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595; R v Golubovic [2016] SASCFC 144; Bauer v The Queen [2018] HCA 40; (2018) 266 CLR 56; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; Quist v The Queen [2021] SASCA 106; Cant v The Queen [2002] NTCCA 8; (2002) 12 NTLR 133; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Boyle (A Pseudonym) v The Queen [2022] SASCA 50; Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449; Collins v The Queen  [2018] HCA 18 ; (2018) 265 CLR 178; GBF v The Queen [2020] HCA 40; (2020) 384 ALR 569; Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62; R v H, T (2010) 108 SASR 86; R v J, JA [2009] SASC 401; (2009) 105 SASR 563, considered.

JGS v THE QUEEN (No 2)
[2022] SASCA 72

Court of Appeal – Criminal: Doyle, Bleby and David JJA

  1. THE COURT: The appellant was tried on information, before a jury, on eight counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). On 28 October 2021, he was convicted of six of those counts and acquitted of the other two. This was a retrial, the appellant having previously appealed successfully against his conviction on these charges.[1]

The issues arising on appeal

  1. The appellant abandoned Grounds 4 and 5 of his Amended Grounds of Appeal. The remaining issues raised on appeal are, broadly described:
  2. The information particularised the eight counts of unlawful sexual intercourse as having occurred over various periods, all commencing on 24 October 2003 when the complainant was 13. The longest period of time specified on the information within which an act of unlawful sexual intercourse was alleged to have occurred was between 24 October 2003 and 26 April 2006.
  3. The complainant gave evidence that the appellant started to abuse her sexually when she was 13 and continued to do so until she was 18, when she was able to remove herself from the living arrangements that had facilitated the abuse. The instances charged are necessarily described in the context of these living arrangements, aspects of which were in dispute at trial. The prosecution led evidence of these arrangements from the complainant, her mother and two other witnesses.

The prosecution case about the circumstances of the offending: the group

  1. The complainant, HG, is the appellant’s niece. She spent her first 10 years in Adelaide with her parents, VS and BS. In 2000, when HG was 10, the family moved to a cattle station near Kununurra in Western Australia, to participate in what came to be described as ‘Project 2000’. This was an experimental project involving a group of people comprising the extended family of the appellant and some other families. Its aim was to create what was described as the Ideal Human Environment, or IHE. The appellant had researched and developed this concept following his return from the Vietnam war. The intention was to create an environment where people lived together harmoniously and without conflict.
  2. After about a year, the group relocated to the Adelaide Hills and in 2001 bought a large estate at Aldgate with several buildings. The significant buildings for the purpose of the prosecution case were a large house, known as ‘the Mansion’ and a separate, dormitory-style accommodation block, known as ‘the Barracks’.
  3. The appellant lived in the master suite on the upper floor of the Mansion. Certain other members of the group also lived in the Mansion. Others, including HG and her parents, lived in the Barracks.
  4. On the prosecution case, two prominent features of the social organisation of the group were the ‘Wisdom Bank’ and the ranking of members. The Wisdom Bank was comprised of members of the group to whom any member would go for advice in resolving conflicts. HG’s evidence was that the Wisdom Bank was comprised of all the adults, including the older teenaged members. Not all members of the Wisdom Bank had to be present when it made a decision.
  5. The Wisdom Bank would determine the ‘ranking’ of each member of the group. Rankings could change. Lower-ranked members would defer to higher‑ranked members. The decisions of higher-ranked members would bind lower‑ranked members. A key determinant of ranking was the extent to which the thoughts of members aligned with those of the appellant. The appellant had assumed the moniker ‘Taipan’; this thought-alignment was routinely described as having ‘Taipan’s intent’. To not have Taipan’s intent was to be ‘inebriated’ in one’s own thoughts.
  6. The prosecution case was that the appellant was always ranked highest in the group. He was the unchallenged leader. For the most part, his four children held the next-highest ranks. His daughter, ES, who was six or seven years older than HG, had Taipan’s intent the most and was routinely the next-ranked member of the group.
  7. On the prosecution case, these two features of the group, the Wisdom Bank and the rankings, had a number of effects. A member’s loyalty was to the group over their immediate family. The Wisdom Bank or higher-ranked members were responsible for disciplining children, rather than a child’s parents.
  8. This extended to physical discipline. HG gave evidence of an occasion when ES ordered her to hit her father, BS, over the head with a stick, as punishment for BS disrespecting his own son, HG’s brother. BS was, on HG’s evidence, always ranked very lowly in the group. On another occasion, HG’s other brother had kicked a ball into her face at the Burnside pool. In response, she called him an arsehole. A couple of weeks later, the brother (who was higher ranked than HG) raised with the appellant, in the company of the other children, that HG had called him an arsehole. The appellant had them all stand in a circle and instructed the brother to knock HG down. He described HG as a disgrace and disrespectful and sent her to the Barracks.
  9. Another feature of the group dynamics was that members would pool their financial resources. Members did not have access to their own income; they were given an allowance from their pooled resources. The appellant did not earn an income; his costs were paid by the group. The prosecution led evidence that the appellant enjoyed a lifestyle of considerable luxury when compared to other members of the group. He would fly first class when others flew economy. Some of the appellant’s children were schooled at private colleges and at a private university interstate.
  10. A further manifestation of these social pillars was that there some women and girls within the group who assumed roles of service to the appellant. On HG’s evidence, this included putting his clothes away, running him baths to precise specifications, cooking him food, making him coffee, giving him massages, performing ‘healings’, brushing his hair, manicuring his nails and drying him.
  11. HG gave evidence that she had served the appellant’s daughter ES from the age of 12, doing her nails, cooking her food and putting her clothes away. ES’s daughter, T, was born in 2006 and over time HG would also have to look after T.
  12. HG said that her last year of school was year 7, when she was 13. From then, and in contrast with the education afforded to the appellant’s children, she was home schooled in a ‘haphazard’ fashion, in what was described within the group as the ‘School of Success’. It was after HG stopped going to school at the age of 13 that she began serving the appellant. She was taught how to do so by two others, DHS and AS, mainly DHS. HG said that it was common for her to be alone with the appellant in his room when she was serving him in this fashion.
  13. On the prosecution case, HG’s role of service to the appellant enabled the offending. Moreover, HG performed this role within the strict dynamics of a group structure that was hierarchical to the point of being atavistic, with the appellant as the unchallenged leader. The evidence as to the structure and dynamics of the group was relevant, on the prosecution case, to explain why the appellant was emboldened to commit the offences in an apparently brazen manner with a prospect of detection. It also explained HG’s ongoing submission and acquiescence to the offending over an extended period of time. In the absence of that evidence, HG’s account may have appeared unrealistic. This context, on the prosecution case, lent that account plausibility.
  14. The prosecution called evidence from other former members of the group in support of its case about the group dynamics and manifestations of its power structure. VS was HG’s mother. She left the group in 2013, five years after HG had left. She gave evidence that the appellant, known as Taipan, was the leader of the group, that he was always deferred to and that he usually ran the regular meetings. She knew the phrase ‘to have Taipan’s intent’ and said that the meetings were all focused on the members aligning their thoughts to the way Taipan would see things. She also gave evidence of the concept of being ‘inebriated’ in one’s own thoughts, that is, to be having thoughts different from those of the rest of the group.
  15. VS explained the ranking system as ‘a bit like the army runs the rank system’, with higher ranks attracting more respect and greater privileges. Ranking was determined by the Wisdom Bank, according to criteria written down by the appellant and referred to as a person’s ‘emotional quotient’ or EQ. The appellant’s children were of a high rank, particularly ES, who was known as ‘E- the Great’. VS’s husband, BS, was ranked lowly and did menial jobs around the estate.
  16. VS confirmed the requirement that income be pooled. She gave evidence about the residential arrangements in the Mansion and the Barracks. She said that Taipan had special food separately from the other members of the group; it was part of DHS’s job to make sure that there was always special food for Taipan in his cupboard, to which no-one else was allowed to go. On discipline within the group, she gave an example of when she had been punished by being made to sleep in a shed outside the Barracks for three nights, when heaters had been turned on too early.
  17. VS gave further evidence of meetings between Taipan and the females of the group, which occurred in Taipan’s bedroom. She had seen DHS and HG serving Taipan; she recalled going to the bedroom and seeing HG doing Taipan’s toenails and hearing the bath running. She had heard from DHS that Taipan’s requirements for his bath were very specific. DHS slept downstairs in the Mansion.
  18. VS also gave evidence that when HG was 13, she was required to start serving Taipan. This started as a couple of times a week and became more frequent, three to four times a week. HG would be summoned by a two-way radio that was kept in VS’s bedroom in the Barracks. The requests would come mainly at night.
  19. In further support of the prosecution case about the structure and dynamics of the group, the prosecution tendered through HG, as Exhibit P6, a letter that HG received after leaving the group. This letter purported to be authored by HG’s parents, but VS said in evidence that following a conversation between them and Taipan, DHS (who performed secretarial work for Taipan) gave them the letter and instructed them to send it if they agreed with it. The letter included the following passages:

My intent is to be with Taipan in assisting him in creating IHE. This means that wherever the IHE is that is where you will find me. As [BS] stands for unity, then where ever [sic] there is unity that is where you will find him.

...

If you wish to fool yourself, you should not try to fool us as well. You are out there because you were insubordinate. You are therefore in a state of insubordination and against the laws of the IHE and therefore against [BS] and I...

...don’t talk to me as though we are friends because the reality is that we are on different paths and soon enough we must fight.

...

Do not fool yourself into thinking you are out there having an experience for this family because that is not the truth. The truth is that you are against us because you are not with this family and you are not trying to create the IHE.

...

... You are ... in a state of inebriation like everyone else out there. You should fit in well there, everyone is trying to rob energy from everyone else.

  1. The prosecution called RB and MS after the trial judge ruled against an objection to them giving evidence.
  2. RB’s evidence was that she joined the group in late 2008. She did not know HG; the evidence was that HG had left by then. She was in a relationship with GHS, the son of DHS. She described the appellant as the highest-ranking member of the family and referred to him as Taipan.
  3. RB described nightly meetings where conflicts and grievances were discussed. Taipan would sit on a chair and the rest of the group would sit around him on the floor. Within a few weeks of RB arriving, she was welcomed at a meeting. Her role as a female within the family was a topic of discussion. Taipan said that she was to follow the rules. This included being submissive to men at all times, to undertake domestic household duties, be obedient and never speak back to men. She also described a compulsory exercise regime.
  4. On one occasion, another high-ranking member, NP, gave RB a task of sweeping leaves. It was a windy day. Before her work was checked, the leaves had blown back but she had to go to work. At the meeting that night, NP reported RB had undertaken her duties with a poor attitude. DHS and ES spoke about the importance of undertaking duties to serve the family. ES spoke of a ‘common family motto’ that ‘If you’re not with us you’re against us’ and that if she was not performing her duties, she was against them. She heard this motto often.
  5. RB also gave evidence of an incident when Taipan had screamed at GHS and called him an idiot. She asked why he had been talking about the importance of treating people with respect and then treated GHS in that way. Taipan said she was out of line for speaking back, that it was ‘banter’ amongst men and if she wanted to be treated like one of the boys, she had to act like one. She was given a task of clearing land for 12 hours a day in consequence, which she did for three days.
  6. RB also gave evidence about the rankings within the group, which was consistent with the evidence of HG. She gave evidence of the special treatment given to the appellant, including by DHS, which extended to preparing his meals separately. The appellant often ate separately.
  7. MS was the appellant’s former wife. She and the appellant married in 1970. They had two children, ES and CS, and separated and divorced in 1981. In 1986, she moved with the children to live with the family at the cattle station near Kununurra. She gave evidence that there were meetings most nights, led by the appellant. He was treated as the leader. People mostly agreed with what he said. She did not, and this became a regular topic at the meetings. MS said she saw certain women in the group doing the appellant’s nails.
  8. The evidence of both RB and MS concerned periods of time when HG was not living with the group. However, the judge admitted the evidence of these women, saying:

I am satisfied that the evidence of [MS] and the evidence of [RB] as to the nature of the organisation and the role of [the appellant] within the organisation is relevant to the facts in issue in this case. They are examples of how the organisation operated and the role that he played within them and the role that others were expected to play towards him within this organisation.

  1. The admission of this evidence is the subject of Ground 6 of the appeal. For present purposes, this summary serves to mark out the prosecution case on the dynamics of the group that assisted in enabling the offending. Before coming to the evidence of the offending itself, it is also helpful to summarise the nature of the contest over the group dynamics.

The challenge to the prosecution case about the group

  1. The defence challenged the prosecution case on the group dynamics at a fundamental level. This challenge featured some key elements. The concept of having ‘Taipan’s intent’ was not in use within the group, nor were the other claimed mottos. The appellant was simply a senior figure in a large Italian family; within the group he was nothing more than a figurehead and advisor. Corporal punishment was not used in the group. The incidents recounted by HG never happened. The concept of ‘ranking’ was situational, rather than hierarchical. There was no hierarchy by which women were held to be inferior to men and it was not true that women would serve Taipan by running his baths, massaging him or giving him manicures. DHS never slept upstairs.

The evidence of the appellant

  1. The evidence of the appellant at the previous trial was read to the jury. He gave evidence that on his return from the Vietnam War, he began to research how to create the opposite environment to that of war, being the IHE. This formed the basis of his lifestyle. He described the name ‘Taipan’ as a nickname he was given in the war, a nickname that stuck and which his kids started to use.
  2. He gave evidence about the embryonic stages of the group and its development to the acquisition of the property in 2000 or 2001. Around 30 people lived there, and they were always coming and going. DHS performed secretarial work for him, mainly typing the books he wrote.
  3. He said NP had a chiropractic practice for which she had a room at the estate, the ‘healing room’. She treated him for a back injury he received in the war. They had been in a relationship for a couple of years and had two children, AS and NS.
  4. The appellant gave extensive evidence of his development of ideas about the IHE and a process of trial and error in attempting to create it. This included the idea of the Wisdom Bank. He confirmed its existence and general function. However, his evidence was that physical punishment was not a part of the IHE at all, as pain did not resolve problems, and rejected the accounts of punishment with a stick. He said that this rule had been well established before 2000.
  5. He denied that HG had any role in doing his nails, performing massages, or running his bath, or that he ever had candles in his bathroom or bedroom, claiming an aversion to them.
  6. He confirmed the existence of a ranking system, with lower-ranked people deferring to higher ranked people. Ranking changed from time to time. He said that his role was that of an advisor. He denied that he held the top rank and said that he would defer to the person with the top rank. He disagreed that no-one would challenge him. He admitted that he flew first class on one occasion.
  7. As to the pooling of money, he had received tax accounting advice to the effect that the research he was undertaking could be done through a ‘tax-free enterprise’. An incorporated body was set up and called the Study and Prevention of Psychological Disease, or SPED. All income was pooled into this organisation, the idea being that all members of the group were doing research into themselves, all the time. Members of the group would receive a salary from SPED. The appellant’s own costs of living were part of the research. Similarly, the education of some of his children, which included their attendance at Scotch College and Bond University, were paid for by SPED.
  8. He confirmed the existence of healing meetings when he was sick, but denied that they took place late at night. He denied that anyone other than his then wife, KS, would do his laundry, and said that she would do his nails.
  9. As to the letter P6, he said that BS, HG’s father, had come to him saying he wished to write the letter, and that he assisted with the spelling and paragraphs. As to the sentence, ‘My intent is to be with Taipan in assisting him in creating the IHE’, he said that was not how he would normally write. He again denied he was the leader of the group. He also denied that a person was either with the IHE or against it. He denied that the letter was consistent with IHE law. He assisted BS with the letter because they were brothers, not because he agreed with it.

The evidence of members of the group called by the defence

  1. The defence called several witnesses who were, or had been, members of the group, to give evidence about the group structure and dynamics. These witnesses gave evidence broadly consistent with that of the appellant in the previous trial, contradicting the evidence of HG and the other prosecution witnesses. These witnesses were:
  2. These witnesses, NP most extensively, gave broadly consistent evidence on the following topics. Each gave evidence about the Wisdom Bank, the concept of EQ and ranking. Ranking was not that relevant day to day, it was more a concept of ranking by EQ, in the sense of finding the best person for a particular job or situation. Contrary to the evidence of HG, BS was held in high regard in the group.
  3. The appellant was a senior member within the family. He was not regarded as the leader. He was simply well respected as the head of an Italian family but did not receive any special treatment.
  4. The name ‘Taipan’ was just a nickname, mostly used just by the children. NP said that the phrase ‘to have Taipan’s intent’ was not used in the group. OS said that having another person’s intent, or Taipan’s intent, was not something they spoke about, but then said that it might come up in conversation. OS said he had never heard the phrases, being in a ‘state of insubordination’, or ‘inebriated in one’s own thoughts’. The phrase, ‘If you are not with us, you are against us’ was not used.
  5. Only KS would run baths for the appellant. DHS was the appellant’s secretary. DHS did not manicure or massage the appellant. It was not true that various women of the group looked after the appellant’s personal needs by doing his nails or giving him massages. DHS lived downstairs in the Mansion. DHS never occupied any of the upstairs bedrooms. The appellant’s study adjoined the master suite. The walk-in-robe marked on the plan did not store clothes, but pipes.
  6. The appellant would eat with everybody else. He would eat the same food as everyone. He had no special dietary requirements.
  7. Meetings were held in the evenings, in the master suite or the study before the appellant moved into them, and then in the library. All the adults would often be there, but not always. Sometimes people would phone in.
  8. No member of the extended family would ever use a stick to discipline a child. Physical punishment was against the principles of IHE. NP did not recall any meeting that RB attended, or where there was any discussion about RB’s performance of domestic tasks. OS denied that the disciplinary events recounted by HG had occurred.
  9. HG was close to her parents, VS and BS. However, when HG came back to Kununurra in 2010, there were signs of strain, with HG complaining she was not being financially supported.
  10. A number of specifics of the prosecution case about the dynamics and structure of the group were therefore in issue, in particular rankings, the status and special treatment of the appellant in various ways, particularly by women being required to serve him, and punishment. The prosecution case, heavily contested, was that these dynamics enabled the offending both by reason of the practical arrangements they engendered, with HG being required to serve the appellant at night and prepare his bath on many occasions, and by reason of the highly structured, and enforced, social stratification they entrenched.

The evidence of the offending

  1. HG said that when she finished school she was taught mainly by DHS, to look after the appellant by putting his clothes away, running him baths, cooking him food, making him coffee, doing his nails, massaging him, brushing his hair and drying him. On one occasion, she was in the kitchen when the appellant told her to come for a walk. They walked around the deer paddock. On their way back, he put his arm around her and said that in Aboriginal culture it was the father’s role to teach his nieces how to become a lady. He asked if she want to become a lady and she said yes. She suggested that SHS, DHS’s daughter, could as well, but the appellant said she was too young.
  2. That night, at around 11:00pm, DHS told her that Taipan wished to see her. She went to his bedroom. He was in a La-Z-Boy chair in the room, wearing a maroon robe that sported the family crest. He told her to lock the door into the study and come back, which she did. He then told her to lock the doors every time she came into his bedroom, and then said again that she was ready to become a lady. He asked who was around, and what time her mother VS, who was an agency midwife, finished work. She told him VS would come home ‘soon’, as she usually came home at 11:30pm or 12:00. He then told her to meet him at 11:30pm the next night at a specific room in the Barracks, and to take a blindfold, oil, candles and music.
  3. The next night, HG went to the room in the Barracks as instructed. Importantly, her evidence was that there were not many people in the group around at the time, as a lot of them had gone to Blackwater, which was a building project in Queensland that members of the group were working on. She saw no-one on the way to the room. The room had a futon mattress on the floor. The appellant arrived, knocked on the window and asked if anyone had seen her. She said ‘no’. He came in and locked the door. He told her to take off her bra and top and lie down as he was going to give her a massage. She heard him taking off his pants and then took off hers. His penis penetrated her vagina partially and he told her to relax as she would enjoy it more. At some point, he stopped and said they would try again later. He told her to wait a couple of minutes after he left, before leaving. This was the subject of Count 1.
  4. The next morning at about 5:00am, the appellant came to HG’s bedroom and woke her up. He told her to meet downstairs in the same room, which she did. Again, he told her to take off her top so he could give her a massage. He took off both of their pants and said they would try again. He penetrated her vagina with his penis. It went in further than the previous night and he told her to relax. After it stopped, he told her to go back and, if anyone saw her, to say that she had seen the dogs inside the Barracks. She went to the toilet and saw blood on her knickers. That night after she had put the appellant’s clothes away, she asked him about that. He said it was normal and not to worry. This incident was the subject of Count 2.
  5. A couple of weeks later, on an afternoon after the group had been out for coffee, DHS told HG that the appellant wished to see him in his bedroom for a massage. She went to his bedroom and locked the door. He was wearing his robe and was sitting in the La-Z-Boy. She retrieved the massage oil and started massaging his calves. He took her hand and placed it on his erect penis. He said he liked his balls and penis being played with. He then pulled her head towards him and made her perform oral sex on him. This was the subject of Count 3.
  6. He then told her to take off her clothes and hop onto her bed. He came over, lay on the bed, and she started massaging his legs. He told her to hop on top of him. His penis penetrated her vagina and he manipulated her up and down. He then rolled her over and told her how to act more responsively. This went on for about five minutes, following which he ejaculated on her stomach. This was the subject of Count 4.
  7. HG gave evidence that DHS instructed her how to run the appellant’s bath to his specific requirements. HG then prepared his bath on occasions. No-one else was present on those occasions, nor in the other bedroom adjacent the bathroom. She said that Taipan required quiet when having a bath, and no-one else was allowed upstairs. Her preparation of the appellant’s bath sometimes led to sex. On the first of these occasions, she prepared the bath. Once he had gone in, she waited for five minutes as instructed, and then went in to check on him. When she came back in, he told her to hop in. She started massaging and washing him as instructed. He then told her to get out and come back in 10 minutes.
  8. When she came back in, the appellant got out of the bath. She dried him as instructed. His penis was erect, and he forced her to masturbate him. He then told her to meet in his room. She did so, then locked the doors as instructed and they had vaginal sex. He ejaculated on her stomach. This incident was the subject of Count 7. After it was over, the appellant told her to speak to NP about her period and to work out when she could and could not get pregnant.
  9. HG said that she spoke with NP the following day. Her evidence was that she said to NP she wanted to know more about periods and when you could and could not get pregnant. She recalled NP saying something to the effect that you could not get pregnant for 14 days after your period. That conversation took place in the healing room in the Mansion.
  10. There was then an occasion after that when sex occurred in the appellant’s bedroom, on his bed. He asked her where she was in her cycle. She said it was 14 days after her period. On that occasion, he ejaculated inside her. This incident was the subject of Count 8.
  11. HG estimated that sex following the bath routine happened on over 50 occasions. She said that the abuse lasted until she turned 18 and left the group. She estimated that it could occur as many as one to three times in a day.
  12. HG also gave evidence of two occasions when the appellant had sexual intercourse with her on camping trips at Woodside Reserve. Her evidence was that the group would go there often for training exercises. On the first occasion of offending at Woodside Reserve, she went with the appellant, SHS who was a few years younger than her and DS, who was four. BS took them and helped them set up Mozzie Domes. She shared one with DS. The appellant had driven there in a blue Landcruiser Sahara. Over time he had had a blue one and a silver one.
  13. After BS had left, it was getting dark. The younger children went to sleep. She went into the back of the Landcruiser to give the appellant a massage. He told her to take off her clothes and they had vaginal sex. This was after the first incident in the bath. This incident was the subject of Count 5.
  14. A couple of weeks later, HG again went to Woodside Reserve, this time with the appellant and no-one else. She took a swag and a Mozzie Dome. They went for a walk in the reserve. The appellant put his hand over her shoulders and played with her breasts. They got back to the campsite, got in the car and had sex. After that, HG went to her swag to sleep. This was the subject of Count 6.
  15. HG gave further evidence that the group left the Adelaide Hills in 2006 and relocated to two properties near the Gold Coast. Her role of service to Taipan continued there, as did the incidents of sex. She had to travel between the properties for this.
  16. HG was, at this stage, 16 and had a boyfriend, LH. She said members of the group were not supposed to have relationships unless Taipan had given permission. After some months, on an occasion after she had looked after the appellant, he said he thought she was ready for a relationship with LH. He told her not to tell LH about them because he would not understand. The appellant set the rules of the relationship. She did not follow them. After she first had sex with LH, against those rules, she confessed to the appellant. He said she was not allowed to see LH anymore and had to break it off. The appellant was having sex with her every time she served him at this stage. He later renewed his permission for her to see LH. This did not last, after the women who served the appellant and the appellant himself, agreed at a meeting that she did not have Taipan as a priority.
  17. The group later moved to a place at Packsaddle near Kununurra in Western Australia. They also had a townhouse in Kununurra. HG was still required to serve Taipan and sex continued at the Packsaddle house. When HG was 18, her brother OS moved to Queensland. HG recalled Taipan talking badly about OS, and of how he was inebriated in his own thoughts. She felt she then had somewhere to go. There was a plan that HG would go back to the townhouse that night, but Taipan said she had to stay at the house. She knew that this meant sex.
  18. HG said she then built up the courage to call ES and said she wanted to leave the group and be with OS. The appellant then accused her of being inebriated in her own thoughts and told her to go. She was picked up and taken into town. She had signed a contract saying that if she ever left the group, she would be given $500, so the next day she organised with ES to receive that sum. She then worked to save money for a fare to go to Queensland and eventually did so. A few weeks later she received the letter P6.

The defence case with respect to the offending

  1. The defence case was that HG had fabricated her accounts of the offending. The extensive defence evidence about the structure and dynamics of the group, summarised above, was said to undermine the plausibility of the allegations. For example, the defence case that only KS would run the appellant’s bath challenged the veracity of HG’s evidence that on more than 50 occasions, her function of preparing the appellant’s bath led directly to sex. The defence also led evidence directed at undermining the account of HG that went beyond the group structure and dynamics and challenged many important aspects of HG’s accounts of the offending.
  2. First, HG had said that the first two counts occurred about six months after she had turned 13. This would place the offending in the first half of 2004. She also said that there were not many people around, as they had gone away to work on the Blackwater project in Queensland. However, there was undisputed evidence that the Blackwater project had commenced in January 2005 and lasted for six months.
  3. Similarly, the defence cross-examined HG to the effect that at the first trial, HG had said that the first act of abuse occurred after HG had spent time serving ES and had helped with ES’s baby, T. However, T was not born until 2006, long after the offending commenced on HG’s account. The defence case at trial was that HG had revised her evidence from the first trial, to accommodate the fact that her original evidence could not have been correct.
  4. Next, the defence attacked HG’s account of Counts 3 and 4, which she said had occurred a couple of weeks after the first acts. This raised the same credibility issues as her account of the timing of Counts 1 and 2.
  5. There was a similar difficulty with respect to Counts 5 and 6. HG’s evidence was that these occurred when she was 13, and when the appellant was driving and slept in a blue Toyota Landcruiser Sahara. However, independent evidence showed that the appellant did not acquire the blue Landcruiser Sahara until 2005.
  6. Further, HG’s evidence about Count 5 was that this occurred when she was 13 and when DS was about four years old. However, independent evidence established that DS was born on 29 June 2003. He could only have been a baby when HG was 13.
  7. In addition to giving evidence about the structure, dynamics and practices of the group which contradicted the evidence of HG, NP gave evidence that she had no conversation with HG when HG was 13 about menstrual cycles and how to avoid getting pregnant. Her evidence was that she had a conversation with HG about her menstrual cycle in the second half of 2008, in Queensland, when HG was in a relationship with LH. HG told NP that she was starting a sexual relationship with LH and wanted to know how not to get pregnant. She said that had any 13-year-old come to her with such a request, she would have gone to the family or HG’s parents.
  8. LH gave evidence that when he and HG started a sexual relationship, one or two months after they started dating in about May 2008, HG told him that she was a virgin. When she expressed concerns about getting pregnant, he suggested that she speak either to her mother or to NP. On the first act of penetration he felt pressure. Afterwards, he noticed flecks of blood on his penis. The next day or the day after, HG told him that it had been a bit painful.
  9. The defence case was that the combination of all this evidence, including the evidence of the group structure and dynamics, precluded acceptance of HG’s evidence beyond reasonable doubt.

The verdict

  1. The jury unanimously convicted the appellant of Counts 1-4, 7 and 8 and unanimously acquitted him of Counts 5 and 6, being the counts concerned with the camping trips at Woodside Reserve.

Whether the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence (Ground 1)

  1. The appellant pointed to a total of eight matters that he submitted either singly or in combination warrant the conclusion that the verdicts of guilty are unreasonable or cannot be supported. It is convenient first to set out the principles applicable to a complaint of this nature. In M v The Queen, the plurality said:[2]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

(Footnotes omitted)

  1. In Libke v The Queen, Hayne J elucidated the test:[3]

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

(Footnote omitted)

  1. The High Court in Pell v The Queen[4] unanimously approved of this formulation of the test as another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of guilt.[5]
  2. In submitting that this test was satisfied in the present case, the appellant emphasised some further foundational principles. First, it is the beginning, not the end of the Court’s jurisdiction to acknowledge that the jury saw and heard the witnesses. Obviously enough, in this matter, the jury accepted the evidence of the complainant in relation to the conduct of which he was convicted. Secondly, it is insufficient for the jury simply to have preferred one group of witnesses over another.[6] As a part of that, the question is whether, as a whole, the evidential material did not permit the dispelling of a reasonable doubt.
  3. To this end, the appellant submitted that the evidence led by the prosecution as to the structure and dynamics of the group, and other evidence directly referable to the complainant’s account, had a close to indispensable function in the Crown case. However, the defence led a considerable amount of evidence, from several different witnesses, of circumstances that were quite impossible to reconcile with that case. If these witnesses raised a reasonable possibility that such contrary circumstances pertained, then that would cast doubt on the complainant’s account, there being so many matters of circumstance that were effectively indispensable to the complainant’s narrative.
  4. The matters identified by the appellant extended to inconsistencies, discrepancies and contradiction by other evidence. The appellant submitted that certain of these, and certainly the accumulation of those matters raised in defence, did not permit the dispelling of a reasonable doubt about HG’s credibility and reliability. To that end, it would be an error to engage in speculation as to how the jury may have reasoned away those inconsistencies; the evidence created a ‘massive detraction’ from the reliability and credibility of HG such that there could have been no proof beyond reasonable doubt.
  5. To identify that there was a path open to guilt is not necessarily to speculate as to the reasoning that the jury must have undertaken. Neither does the volume of evidence led in defence guarantee a reasonable doubt. Further, if a complainant is proved wrong on a matter of detail, that does not necessarily require a reasonable doubt. What is or is not required in a given case can only be approached at the level of contextual detail.

Inherent plausibility and lack of corroboration

  1. HG gave evidence that the abuse would occur up to three times in a day, ‘pretty much daily’ and that there were over 50 occasions when she would run a bath for the appellant, and this would lead to sex. No contraceptives were used; the only step preventive of pregnancy was her asking NP, at the behest of the appellant, about her cycle.
  2. The appellant urged the implausibility of these allegations first by reference to the living arrangements. Several defence witnesses contradicted HG’s account that DHS slept upstairs, and that HG had herself slept in an upstairs bedroom. The witnesses said that the room HG said she had slept in when serving the appellant was in fact occupied by AD, the partner of the appellant’s son HS. The appellant submitted that, at the very least, the number of people occupying the upstairs floor of the Mansion rendered implausible the allegation of sex up to three times a day. Similarly, the number of people who occupied the Barracks at any one time rendered implausible HG’s accounts of sex in that building.
  3. For this reason, the appellant submitted, HG’s evidence that the offending took place during the time of the Blackwater project could not be ‘dismissed as a mere imperfection in chronology’; it was integral to the plausibility of her account. Blackwater not having been on foot in 2003, the appellant submitted that it is quite improbable that other members of the group would not have become aware of the abuse, given its alleged frequency and duration. Further, the alleged frequency was inconsistent with HG’s account of her daily regime, which she explained:

It was horrible. We would have to get up, we would have to do a list of exercises before we’d had breakfast, we’d have to do the chores, then we’d do line-up and then after line‑up we were just sent to do jobs. After we’d finished our jobs we’d get lunch and then back to jobs and then it would be generally bath, shower, dinner, meeting, repeat it the next day.

  1. The appellant also submitted that it was inherently improbable that he would take the risk of asking HG to speak to NP about when she could and could not get pregnant, given that she was 13, and this could easily expose the abuse. The risk would be that NP would report such a conversation at least to HG’s parents. NP denied that such a conversation ever took place. Moreover, it was inherently improbable that pregnancy would not occur if the abuse occurred with such frequency and duration.
  2. These complaints of inherent implausibility and lack of corroboration tend to decontextualise the evidence of HG. HG’s evidence was that the offending and its frequency occurred in the context of her role in serving the appellant. This occurred in the context of a hierarchical structure in which the appellant was the undisputed leader; his word was not to be contradicted. It was open to the jury to consider the plausibility of HG’s account of the abuse in the context of the evidence that she, VS, RB and MS gave about the structure and dynamics of the group, and the appellant’s unchallenged role as the leader of the group.
  3. As described above, significant aspects of this evidence were in dispute. Nevertheless, the appellant, NP and OS all accepted that there was a ranking system, even if they disputed its quality and ubiquity. In any event, it was open to the jury to accept the prosecution case about the structure and dynamics of the group. Similarly, it was open to the jury to accept HG’s general account of the daily regime of which she was a part, and her evidence about abuse which occurred in the context of her serving the appellant within that regime.
  4. As to the inherent improbability of HG not becoming pregnant given the frequency and duration of the abuse, HG gave evidence of the appellant not ejaculating inside her, and otherwise ejaculating inside her when he had ascertained the state of her cycle. It was open to the jury to have regard to that evidence when considering the ‘inherent improbability’ of her not becoming pregnant.

Inconsistences between HG’s evidence and her evidence in the first trial and in police statements; inconsistency with other evidence

The birth of ES’s daughter T

  1. HG’s evidence was that prior to looking after the appellant when she was 13, she had looked after ES when she was 12. She then gave the following evidence:
    1. Were there any other things that you did for [ES] over time.
    2. Over time I had to look after her daughter, [T]. During the night I had to sleep on the floor in [ES’s] room and when [T] would wake up, if she didn’t want a feed then I would have to take her, either play with her, change her while [ES] slept.
    3. Were you looking after [ES’s] baby, [T], before or after you started looking after the accused.
    4. I started looking after Taipan first.
  2. In both her police statement and her evidence at the first trial, HG had said that she had been looking after ES prior to being required to look after Taipan. She listed the jobs required of her when looking after ES, and without differentiation included looking after the baby. That is to say, her statement and evidence tended to indicate that she had been looking after the baby when she was 12. However, T was not born until 2006, when HG was 15, well after the offending was said to have commenced.
  3. It was put to HG in cross-examination that she had changed her testimony to account for the fact that T had not been born until 2006. HG denied this. In re‑examination, she offered the following explanation of her previous evidence:

So when I was asked what I did for [ES], I listed everything that I did for [ES] and then later on when I was cross-examined I clarified that I later looked after [ES]. But when I was asked the question, I listed everything that I did for [ES], including looking after [T]. But I didn’t start off with looking after [T]. That came later, when I was starting to look after Taipan.

  1. The discrepancy is a matter of characterisation of HG’s earlier evidence and statement. Obviously enough, on HG’s own account she could not have been looking after T before the abuse began. It was open for the jury to accept her explanation as to the ambiguous character of her earlier evidence, and that she had been listing all of the tasks she had performed for ES over time.

The Blackwater project

  1. As set out above, HG gave evidence that when the abuse commenced, there were not many people around as they were in Queensland working on the Blackwater project. Independent evidence established that the Blackwater project occurred later, in the first half of 2005. It could not have been occurring at the commencement of the offending on HG’s account, nor when Counts 3 and 4 were committed.
  2. The significance of this to the appellant’s case is not simply that it demonstrated an error on the part of HG. As set out above, HG said that when she went to the room in the Barracks on the first occasion of the offending, there were not many people around, as a lot of them had gone to Blackwater. That is to say, the appellant submitted, the timing of the Blackwater project was integral to HG’s account of the offending.
  3. The cross-examination of HG on this topic included the following exchange:
    1. Do you now know or do you accept that the Blackwater project occurred between January and June 2005.
    2. I don’t remember what years it was. I just remember there not being a lot of people around at the time.
    3. Because as you’ve said, they were participating in the Blackwater project.
    4. Yes.
  4. The respondent submitted that the import of HG’s evidence was that there were not many people around at the time, and that she believed this was because they had gone to Blackwater. Having regard to her age at the time, the fact that people did go to Blackwater eventually and evidence that people were often absent, this was not significant. In particular, there was evidence that there were other projects in New South Wales, prior to Blackwater, including a project in which OS participated when he was 14, which would have been in 2003. The respondent also pointed to HG’s evidence that the first two counts occurred late at night and early in the morning.
  5. HG expressly linked the commencement of the abuse to the time of the Blackwater project. However, having regard to the totality of the evidence, it was open to the jury to conclude that HG’s error about people being away on the Blackwater project did not affect the reliability of her evidence that the abuse commenced when she was 13.

Inconsistent verdicts

  1. As identified above, the jury acquitted the appellant on Counts 5 and 6. These counts concerned the allegations of incidents at Woodside Reserve, when HG said she went camping with the appellant, SHS and DS, and then alone with the appellant a couple of weeks later. Her account was inconsistent with independent evidence that the appellant did not acquire the blue Landcruiser Sahara until 2005, and that DS was only a baby in 2003, not four years old as recounted by HG. HG’s evidence was that these trips had occurred when she was 13. Further, some defence witnesses gave evidence that Mozzie Dome tents, which HG had said were used on these trips, were only used when the group moved to Queensland.
  2. The jury acquitted the appellant of these two counts. The appellant complained that these inconsistencies between HG’s evidence and independently proved facts undermined the credibility of HG. He further submitted, however, that there was no rational basis upon which the jury could have differentiated between the significance of these errors and those relating to Counts 1 and 2 (and, by extension, 3 and 4). The source of the doubt they experienced on Counts 5 and 6 was indistinguishable from the source of the doubt they must have experienced on those other counts.
  3. Specifically, the appellant submitted that the jury was prepared to use objective evidence to find that HG’s evidence was not reliable in respect of Counts 5 and 6. That submission extended to saying that they must have found her not to be credible with respect to those counts, and that this ought to have damaged her credit more generally. The appellant here fell into the trap against which he repeatedly cautioned this Court. It is likely that the jury found the evidence about the blue Landcruiser Sahara and the age of DS raised a reasonable doubt about the commission of those offences in the circumstances alleged. However, it is not for this Court to speculate as to the reasoning process engaged in by the jury, such as whether the jury concluded that the evidence went to HG’s credibility generally (as opposed to, for example, her reliability in relation to the occasion or circumstances of the conduct the subject of Counts 5 and 6). It can only be said that they were not satisfied beyond reasonable doubt of those counts.
  4. To say that the jury then must have had a reasonable doubt about Counts 1-4 is illogical and reductionist. The jury’s conclusion with respect to each set of offending was different. That does not mean that the jury’s approaches were inconsistent. The objective evidence pertinent to each set of offending was different. Each was capable of affecting differently the offending to which it was directly relevant.

The Complainant’s evidence conflicted with and was undermined in material respects by evidence of defence witnesses

  1. The contradictions between witnesses called by the prosecution and defence, respectively, about broad topics concerning HG’s time within the group are recited above. The appellant submitted that on a number of these topics, the defence evidence was not shaken and not capable of being dismissed as not reasonably possible. In this regard, the appellant identified:

Structure and operation of the group

  1. With respect to the structure and operation of the group, the appellant emphasised the evidence of each witness called by the defence. He submitted that their evidence was not ‘weakened’ in cross-examination and presented a ‘significant impediment’ to important aspects of HG’s evidence as to the dynamics of the group.
  2. The considerable volume of evidence that contradicted the prosecution case as to group structure and dynamics did not preclude the jury from accepting HG’s account. Each defence witness continued to maintain living or working relationships with the group. By contrast, VS, RB and MS, called by the prosecution, were all effectively estranged from the group. Their evidence (subject to Ground 6 in the case of RB and MS) broadly supported HG’s evidence as to the structure and dynamics of the group.

Living arrangements

  1. The contests between the evidence about the living arrangements were in some instances absolute. In others, there were differences in descriptive breadth, so as to be not necessarily absolute. HG said:
  2. By contrast, the defence evidence encompassed the following:
  3. It was put to HG in cross-examination that AD had occupied the upstairs guest room. She said she did not remember AD being there but clarified that she was not saying that AD was not there. She remembered AD being on the lower level in the guest living and sunroom area. Rather, she remembered sleeping in the upstairs guest room when DHS had it, and that AS slept there as well. These were the women who, on her account, served the appellant.
  4. The defence case that AD occupied the upstairs guest room was not wholly inconsistent with the prosecution case. The jury was faced not only with different recollections of who occupied where, but differences, at least in emphasis, in the evidence called by the defence. In the first instance, HG did not deny that AD occupied the upstairs guest room, at least at times, although her own recollections did not extend to this. Her memory that AS slept in that room on occasion was consistent with the appellant’s evidence at the first trial. As for the defence evidence, some of the evidence had AD in the guest room upstairs, some had her in the Mansion without greater specificity, and some had her in the Barracks on occasion.
  5. The defence evidence as to the living arrangements was not such as to require a reasonable doubt about the circumstances that on the prosecution case facilitated the offending.

Corporal punishment

  1. The evidence as to whether corporal punishment was a feature of the group dynamics split along the lines of prosecution and defence witnesses. The denials by the defence witnesses did not require the jury to have a reasonable doubt about HG’s account of the offending.

HG’s relationship with LH

  1. The evidence of LH about his and HG’s first sexual encounter is summarised above. As the respondent observed, it was not put to HG that she had told LH that she was a virgin. If she had said this, that would have been consistent with the appellant telling her not to tell LH about the sexual relations between them, because he would not understand. As to LH’s evidence about their first sexual experience, the prosecution at trial submitted that this did not amount to evidence that HG was in fact a virgin at the time, although the fact that HG told him she was a virgin may have contributed to LH’s belief that she was. It was open to the jury to accept that and not find that the evidence of LH created a reasonable doubt.

The conversation with NP

  1. HG’s evidence about having a conversation with NP about her menstrual cycle is related to the topic of HG’s relationship with LH. The first conversation occurred, on HG’s evidence, long before her relationship with LH, when she was 13 and soon after the abuse had commenced. In cross-examination about this evidence, she said that the topic of whether she was having sex never came up; neither had she said she wanted to get pregnant or not get pregnant. She said the questions around her cycle and pregnancy were more general than that. The following exchange then occurred:
    1. Can you remember exactly what you did say to [NP] on this occasion.
    2. Not word for word, no but I remember asking about how periods worked, how long they were, when you could and couldn’t get pregnant but I don’t remember specifically word for word what I actually said. I never heard her say ‘Are you having sex or anything?’. She didn’t ask questions. She just answered with what she knew.
    3. At no stage did she say anything to you that indicated that she thought you were concerned about getting pregnant.
    4. No.
    5. Or how to avoid pregnancy.
    6. She just told me 14 days after.
    7. After what.
    8. After your period you can’t get pregnant.
  2. NP, by contrast, gave evidence that she had a conversation with HG in 2008, in Queensland, in the context of the developing relationship with LH. She denied any conversation with HG on this topic when HG was 13. She said that if a 13‑year‑old asked her about pregnancy she would go to her parents, at least. It was put to her that she was lying about this, to protect the accused.
  3. It was open to the jury to accept the evidence of HG on this topic. It is not necessary to speculate on the approach taken by the jury in reaching this conclusion. NP was the mother of two of the appellant’s children. She remained associated with the group. HG’s evidence was of a general conversation about the facts, not that she was asking how not to get pregnant. A conversation in those general terms may not have been particularly memorable.

Evidence of defence witnesses not challenged adequately, or at all

  1. The appellant submitted that on a whole reading of the evidence of the defence witnesses, there was no dent to their credibility or reliability when it came to the many matters crystallised as contests between the prosecution and defence cases. That is a different proposition from saying that the prosecution did not challenge those defence witnesses’ evidence. The appellant did not specify precise failures of the prosecution in this regard. A review of the evidence shows that the prosecution did challenge those witnesses with respect to material facts in issue.
  2. The appellant observed in oral argument that the prosecution never put to any defence witness that they had collaborated to present a united front, or suchlike, in the defence. That was not necessary for the prosecution to discharge its obligation or otherwise establish its case. It was open to the jury to reject those aspects of the defence witnesses’ evidence that were inconsistent with the essential features of the prosecution case.

It was not open to the jury to reject the appellant’s sworn testimony from the first trial as not reasonably possibly true

  1. The appellant submitted that the evidence he gave at the first trial was ‘logical, measured and internally consistent’. In circumstances where he was only challenged by a global proposition that he had committed each of the offences charged, his denials could not be ‘swept aside’ as not reasonably possibly true. To this end, he relied on a statement by Kourakis CJ in R v Smart:[7]

Only in the rarest of cases could a Court of Criminal Appeal be satisfied beyond reasonable doubt of the commission of offences which were denied by the appellant on oath. This is such a case because the appellant’s explanations for his admitted and/or objectively proved conduct are fanciful beyond belief and because of the strength of the corroborating evidence.

  1. Kourakis CJ made that statement in the context of considering the application of the proviso in the event of an established error or miscarriage of justice.[8] It is not a statement of general principle directly applicable to the inquiry required by s 158(1)(a) of the Criminal Procedure Act 1921 (SA). As Lovell J observed on the appeal following the first trial in this matter, the appellant was cross-examined about many of the matters in issue, including elements of the structure and dynamics of the group that, on the prosecution case, enabled the offending.[9] It was open for the finder of fact to reject the appellant’s evidence. The fact that the appellant was only asked a global question about committing the acts the subject of the charges does not alter that conclusion.

Collusion between HG and VS

  1. The defence at trial alleged that VS and HG had colluded in giving their evidence, on the basis that each had, in their respective witness statements, referred to HG serving ES prior to serving the appellant, and indicating that those duties included looking after ES’s baby, T. As set out above, HG gave an explanation in cross-examination for the discrepancy in her evidence.
  2. VS denied, in cross-examination, that she had ever read or looked at HG’s witness statements before providing her own witness statement to police. It was then put to her that at the first trial, she had said that she did read part of HG’s statement. She not only maintained her denials, but also said that she did not recall that exchange in cross-examination at the previous trial. She denied that she had incorporated into her statement issues that arose on HG’s account, in order to assist her.
  3. It was for the jury to decide the impact that this evidence had upon the reliability and credibility of HG and VS. It was not necessarily significant, let alone fatal, to the credibility or reliability of either HG or VS on the central issues in the case.

Conclusion on Ground 1

  1. The jury, obviously enough, assessed HG’s evidence to be credible and reliable in respect of the counts on which it returned verdicts of guilty. The appellant has identified, exhaustively, inconsistencies, discrepancies and claimed inadequacies in HG’s account, both internal to her evidence and by reference to other evidence. Having regard to all of those matters, both individually as set out above and collectively, and on reviewing the totality of the evidence, we do not accept that the jury, acting rationally, ought to have had a reasonable doubt notwithstanding its acceptance of HG’s evidence.[10] We dismiss this ground of appeal.

Whether the trial judge erred in admitting evidence of HG’s communications with her cousin, JS, as evidence of initial complaint within the meaning of s 34M of the Evidence Act (Ground 2)

  1. The primary judge admitted, as evidence of initial complaint pursuant to s 34M of the Evidence Act, an edited portion of a document that purported to record statements HG made to her cousin, JS, in June 2012, over an online chat program called MSN. The statements in the document were generally referable to HG’s allegations at trial of sexual abuse by the appellant.[11]
  2. HG did not retain a copy of the electronic exchange. On HG’s evidence, JS produced the document (either by copying and pasting or typing out the messages) and sent it to her via email, two weeks after their online chat. That is to say, the document did not comprise the original messages themselves; it was a reproduction by JS. The prosecution did not call JS to give evidence.
  3. The appellant applied to exclude the document. The primary judge ruled in the following terms:

In this matter, I decline to exclude the evidence said to constitute the initial complaint as identified in the email sent from [JS] to [HG].

I am satisfied that understood in the context of the prosecution allegation of the charged offences, the evidence can be properly admitted as an initial complaint. It is referable in a general way to the unlawful sexual conduct as alleged by the complainant.

If the complainant gives evidence that the portion of the document constitutes an accurate record of the statements she made to [JS] as contained in that document, the document can be tendered as evidence of her statements to [JS] and thus admissible as evidence of initial complaint. I will give reasons for my decision in due course.

  1. The judge did not, in the event, give further reasons. That is not the subject of the challenge on appeal.
  2. HG gave evidence at the trial that JS was the first person to whom she disclosed that the appellant had sex with her, and that she told him this in 2012, via MSN. JS was living in Canada. She did not save the MSN chats to her computer; JS subsequently emailed her the document. She said that the edited document contained everything that she wrote to JS on MSN, word for word, with nothing left out, and that the date on the document, 20 June 2012, was accurate.
  3. Section 34M of the Evidence Act provides:

34M—Evidence relating to complaint in sexual cases

(1) This section abolishes the common law relating to recent complaint in sexual cases.

Note—

See Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460; Crofts v The Queen [1996] HCA 22; (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);

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).

  1. The appellant does not complain about the directions the judge gave the jury in accordance with s 34M(4), which were in orthodox terms. He challenges the admission of the document.
  2. In R v Maiolo (No 3),[12] Peek J observed:[13]

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.

  1. This Court has previously examined the abolition of the common law of recent complaint in sexual cases by s 34M and that section’s expansion of the circumstances of admissibility.[14] Section 34M(4)(a) and (b) nevertheless limit the purposes of evidence adduced pursuant to s 34M(3) so as to avoid admission for the truth of the statements. That limitation of purpose has particular significance when the evidence is given by a person who is not the complainant. Further, when read together with s 34M(3), those purposes make considerable inroads into the prohibition against prior consistent statements.[15]
  2. Section 34M does not, however, otherwise address the mode of proof of statements that may be admitted under this statutory regime. In the present case, evidence of HG’s initial complaint could have been given orally by HG herself, which it was, or by JS, which it was not. There may have been scope to tender the original record of the MSN messages, subject to proof of authenticity, had those messages been available. There was no such tender.
  3. The document was inadmissible. It was a hearsay statement, attributed to JS, to the effect that HG had, in terms, made a complaint to him. JS was not made available to affirm the accuracy of that documentary statement or to be cross‑examined. The document, apparently authored separately by JS, was not real evidence of the exchange.
  4. All that was left was the adoption by HG of the statements in the document in her oral evidence, as recording what she said. However, that did not dispose of the difficulty. HG adopted a hearsay statement of what she said. The significance of that adoption can be tested in this way. Section 34M permitted HG to give evidence of what she said to JS, in oral evidence, by way of initial complaint. HG did so. However, to posit that her adoption of the document addresses the hearsay difficulty requires an assumption that the forensic utility of the documentary evidence could not rise any higher than HG’s own oral evidence that she made an initial complaint to JS.
  5. That assumption elides the necessary evidentiary function of the document. On any analysis, the purpose of admitting the document was to add evidential weight to the prosecution case that HG made an initial complaint to JS or, put differently, to bolster HG’s credit on this topic. What weight the jury gave the document is imponderable. However, any weight that might have been attributed to it separately from HG’s oral evidence that she made the complaint, can only have been a function of its hearsay character, derived from its authorship by JS and its untethered documentary form.
  6. The respondent’s ultimate submission was that there was no risk that the jury might have misused the document or placed undue weight on it in circumstances where, in general terms, its content reflected closely HG’s oral evidence. The difficulty with this submission is that the only relevance of the document was to support HG’s evidence that she made a complaint in 2012. Whether or not she did so was potentially significant, given the critical importance of HG’s credibility to the prosecution case. To seek to justify or excuse the admission of this hearsay evidence of complaint by reference to HG’s own adoption of its accuracy is to perpetuate the mischief caused by its tender. The erroneous admission of the document constituted a miscarriage of justice.

Directions as to burden of proof, standard of proof, charged events and circumstances of the offending charged (Grounds 3 and 8)

  1. Ground 3 complains that the judge erred in failing to direct the jury adequately that they could not convict the applicant of any charge unless they were satisfied beyond reasonable doubt of the particular occasion or event to which the charge related, and that the occasion or event occurred at the time, and in the circumstances, alleged by the prosecution. In submissions, the appellant narrowed the focus of this ground to the prosecution case that the charged acts occurred when HG was 13, but also occurred at the time of other ascertainable events or occasions, being the Blackwater project, the presence of a four-year-old DS or the use of the blue Landcruiser Sahara.
  2. To this end, the appellant pointed first to the following passage in the summing up:

In relation to each of the charges on the Information, they allege a span of dates. For example the first count is alleged to have occurred between 24 October 2003 and 26 October 2004. It is important to realise that it is not necessary that you find that the alleged offence occurred within that range of dates. What is important is that you are satisfied beyond reasonable doubt that the event, the subject of the charge, occurred as [HG] alleged.

  1. The jury later asked a question, ‘Do we have to go by the age stated in the witness’s testimony or the date range in relation to the counts?’.
  2. The judge answered that question as follows:

You will recall when I summed up to you and looked at the individual counts, I said that Count 1 is a count that on the prosecution case is alleged to have occurred when [HG] was about 13 and a half years, and as it happens of course when she’s 13 and a half years falls within that date range that is on Count 1 and Count 2. Then it flows on from there.

The defence has been conducted in this case on the basis of evidence that has been presented to you that the Blackwater Project occurred in 2005. The relevance of that is that at the time that [HG] gave her evidence, she tied the fact of the first event to the fact that people were away on the Blackwater Project and that the Blackwater Project on the evidence that you’ve heard in this case could not have been at a time when she was 13 and a half. So therein lies the inconsistency, one of the inconsistencies relied on by the defence in respect of this matter.

In this regard, the prosecution say that Count 1 is a count that occurred when she was 13 and a half, it occurred in the barracks and that is their case in respect of it. It has never been their case that she was 14 and a few months, of course she turned 14 on 25 October 2004, that is not their case. If you were considering that it was related – I will leave it at that. That’s the prosecution case that has been presented to you in relation to the matter.

  1. The appellant submitted that this did not answer the question, and that it had to be made clear to the jury that if they had a doubt that HG was abused in the Barracks when she was 13, raised by the difficulties associated with the timing of the Blackwater project and HG’s evidence about looking after T, the appellant had to be acquitted.
  2. The direction extracted above emphasised the prosecution case that the initial offending occurred when HG was 13. Elsewhere, the judge gave orthodox directions as to the task of the jury with respect to the specific charges, the onus and burden of proof and the relationship between the evidence and the charges. She directed the jury closely on the defence case with respect to the inconsistencies. Defence counsel did not take issue with the direction now complained of, which must be considered in the context of the whole of the directions given.[16] That context leaves no scope for a conclusion that the jury were directed inadequately as to the elements of the offences required to be proved beyond reasonable doubt, the prosecution case with respect to the charges or the defence attacks. The judge directed the jury specifically that:

If there is other evidence that is given and it calls into question the credibility and reliability of the complainant, unless you could exclude that evidence as a reasonable possibility, then you could not be satisfied beyond reasonable doubt of [HG]’s assertions. Much will depend in this case on the evidence and the significance of the evidence in relation to the reliability and credibility of the complainant in respect of the evidence she gives in relation to the sexual offences with which the accused is charge. It is a matter for you to resolve the issues that arise in relation to factual matters in this case.

  1. The complaint that the judge failed to direct the jury adequately with respect to the occasion, event or time as alleged is not made out. Ground 3 fails.
  2. Ground 8 complains that the judge misdirected the jury as to the burden and standard of proof in three separate instances. First, the appellant pointed to two sentences in the summing up, which he termed the ‘belief direction’:

Consider all of the evidence in the case. Use what you believe and reject what you do not believe.

  1. The appellant submitted that this direction was apt to mislead with respect to the correct application of the burden of proof as the judge had previously explained it. It tended to detract from the important difference between a positive belief on the one hand, and a reasonable doubt on the other, as explained in Liberato v The Queen.[17] A jury might be disinclined to believe an accused’s denials, yet still not be prepared to discard it as a reasonable possibility.
  2. As the appellant acknowledged, the judge had elsewhere directed the jury on this topic in unexceptional terms. He submitted that the impugned direction tended to undo the effect of those directions.
  3. If this direction had simply stood alone, the mischief now complained of would be clear. However, it came at the end of a detailed direction as to how the jury was to assess the evidence of the witnesses, including with respect to their truthfulness and reliability, the intrinsic likelihood or otherwise of their evidence, the manner in which it was given, how it stood up to cross-examination and how it fitted in with other evidence found to be convincing. It was part of a descriptive exercise in discussing how to assess a witness’s evidence. It did not purport to qualify the clear, earlier directions as to the burden and standard of proof. The direction cannot reasonably be taken to have intruded into this area or qualified those directions.
  4. Second, the appellant complained of the following direction, which he termed the ‘truthfulness direction’:

It is important to realise that even if you do not accept the accused’s evidence as truthful in some aspects, that does not mean you would necessarily find that the prosecution have proved their case. If you do reject his evidence then you must return to the evidence of the prosecution witnesses and consider whether the elements of the offence you are considering have been proven beyond reasonable doubt, notwithstanding the evidence that was given by the accused and the defence witnesses in this case.

  1. The appellant complained only about the first part of this direction, on the basis that it implied a burden on the part of the appellant to satisfy the jury that his evidence was truthful. Again, when regard is had to the context in which this sentence appears, this contention relies on an artificial decontexualisation of the remarks. The direction, read as a whole, made it clear in sufficiently orthodox terms, consistent with Liberato v The Queen,[18] that it was for the prosecution to prove the charges beyond reasonable doubt, and that non-acceptance of the appellant’s evidence was insufficient for satisfaction of the elements of the offences beyond reasonable doubt. The form of language used in the first sentence did not detract from that.
  2. Third, the appellant complained of a direction that he termed the ‘accept direction’, which concerned the evidence about who slept in the upstairs guest room:

If you do accept the evidence that [AD] stayed in that room the majority of the time, perhaps with the exception as she said on the odd occasions she stayed with [her partner, HS] in the barracks, then you may find that it undermines the evidence of [HG] in relation to an important aspect of this trial.

  1. In respect of this direction, the appellant called in aid decisions that had deprecated use of the word ‘accept’ when referring to the evidence of an accused, such that tended to relieve the prosecution of the burden of proving the case beyond reasonable doubt.[19]
  2. The vice identified in those cases lay in the language deployed tending to detract from the burden of proof, such as to suggest to the jury that the task could be reduced to preferring one version of events over another. That vice is not confined to treatment of evidence of an accused person. Here, the context of the direction was the judge’s discussion of the capacity of other evidence to undermine the evidence of HG as to the sleeping arrangements. As the respondent conceded, it may have been preferable for the judge to direct in terms of ‘if you cannot exclude as a reasonable possibility the evidence that AD stayed in that room...’. However, in the context of the whole summing up, including the specific directions as to the burden of proof, we do not consider that this was capable of being understood as a direction that had the effect of inverting the burden of proof. We dismiss Ground 8.

Whether the trial judge erred in admitting the evidence of RB and MS (Ground 6)

  1. The effect of the evidence of RB and MS, who were associated with the group at times other than the period of HG’s membership of the group, is set out above. The appellant submitted that the evidence of each of these witnesses lacked a sufficient connection to HG’s allegations to be logically capable of assisting the jury to resolve the issues in dispute.
  2. To this end, the appellant emphasised the different periods of association in each case. However, the submissions went further and highlighted aspects of the matters in dispute to which each of these witnesses did not speak and the topics on which they did give evidence. Thus, the appellant complained that RB’s observations of how the group operated a year and a half after HG had departed did not shed light on the operations of the group during HG’s time. Further, only an ‘illogical process of reasoning’ could link her evidence about the occasion when she was disciplined for not attending to her household duties with the proposition that it was more likely that the appellant sexually abused HG.
  3. In the case of MS, the appellant submitted that the asserted links were even more tenuous, given that MS’s observations related to a period of 17 years before the matters the subject of HG’s allegations.
  4. These complaints rely on a selective view of the prosecution case. That case depended on the existence of an established hierarchical structure and practices that, in numerous material respects, were said to enable the offending the subject of the allegations. The evidence of RB and MS concerned aspects of the structure and dynamics of the group both before and after the period the subject of the allegations. It was broadly consistent with HG’s own evidence on these topics.
  5. Evidence supporting the continuity of the asserted social structure bore on the probability of the existence of circumstances that, on the prosecution case, made it possible for the offences to have been committed at the relevant time.[20] The evidence of RB and MS was relevant and admissible. The weight to be given to these accounts, given the different periods with which each was concerned, was a matter for the jury. Ground 6 should be dismissed.

Whether the trial judge failed to direct the jury adequately in accordance with s 34R of the Evidence Act as to the permissible use of uncharged acts that post‑dated the charged acts (Ground 7)

  1. Section 34R(1) of the Evidence Act requires the judge to identify and explain the purpose for which discreditable conduct evidence, admitted pursuant to s 34P, may and may not be used:

34R—Trial directions

(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

  1. It is well-established that the content of what s 34R requires depends on the circumstances of the case and the real forensic issues between the parties.[21]
  2. As identified above, HG gave evidence of the sexual abuse continuing from the first occasion (the subject of Count 1) through until she was 18. The trial judge directed the jury about this evidence as follows:

You also heard evidence in this trial that the accused had sexual dealings with [HG] over a number of years. On her evidence these started about six months after her 13th birthday and continued on until she left Kununurra when she was about 18 years old. You know the accused is charged with eight counts of unlawful sexual intercourse, each of which is a specific event that [HG] has given evidence that she can recall. When you come to consider the counts separately, as I have already directed you to do so, you can take into account, if you accept her evidence, the evidence that sexual events occurred on other occasions as well. This evidence is before you for two specific purposes. I will firstly direct you as to how you may use the evidence and then as to how you may not use the evidence.

If you accept the evidence, then you are entitled to reason in the following ways; firstly, that this evidence shows the accused had a sexual interest or had a sexual attraction to [HG] and that he acted on that interest on other occasions. You may use the evidence to find that the accused was inclined, therefore, to act on the interest again. If so, you may think that it makes it more likely that he acted on that interest by committing the charged offences. Of course, you will need to consider all the evidence when deciding whether each charge is proved beyond reasonable doubt.

The second way you can use the evidence is to help you understand and assess the direct evidence of the charges. In particular, you can use the evidence to show that [HG] is not saying that after the first incident, the offending occurred out of the blue. Without the evidence that it continued on a regular basis and for many years, you might think it implausible that the accused would have had sexual intercourse with her at the house or at the campground or in The Barracks with no lead-up. It might also explain why she reacted as she did. Again, without this evidence, you might think it implausible that after the accused had had sexual intercourse with her or caused her to perform an act of fellatio upon him, she did not complain to her mother or father or tell her mother or father what was happening or tell anyone else what was happening; rather, she behaved as if nothing unusual had happened to her.

It may also show why the accused felt he was able to act as he did and not fear that [HG] would report the offending to anyone. This is because, on [HG]'s evidence, it became such a regular event about which she had been warned not to tell anyone, in addition to her status within the group or her ranking and the fact that she had been selected to serve the accused, in her mind that this was an extension of her service in relation to the other tasks that she was required to perform for him.

These are the only ways that you may use the evidence of the other acts of sexual intercourse that are alleged by [HG]. You must not use it for any other purpose. In particular, you must not use the evidence to reason simplistically that merely because the accused had done bad things in the past he is a bad person and is, therefore, more likely to have committed these crimes. Reasoning in that way would be wrong and unfair. You must also not allow this evidence to distract you from the need to consider whether for each charge the prosecution has proved that charge beyond reasonable doubt. You cannot reason that the accused has done something similar before or after, so that is enough to prove that he committed these crimes. As I said, that reasoning is wrong and it is unfair.

You have heard Mr Hill say that the accused demonstrated his sexual interest in [HG] by performing many sexual acts upon her and by ensuring that he could have time with her on his own and controlling her behaviour. You heard the arguments from Mr Edwardson in respect of her reliability as a witness and I will come to them again shortly. These are matters for you to take into account.

If you accept the evidence, it may demonstrate that the accused had a sexual interest in [HG] at the time and was prepared to act on his interest and if so, it makes it more likely that he acted on that interest by committing the charged offence that you are considering. However, as I have said, you cannot reason simplistically that he is a bad person and is, therefore, more likely to have committed these crimes for that reason nor that he must have had sex with her somewhere along the way. So without being satisfied of the individual charges you are prepared to find him guilty. Neither of those lines of reasoning are permitted.

  1. By the second, third and fourth paragraphs extracted above, the judge identified three permissible uses. In the fifth paragraph and following, the judge directed the jury as to how the evidence may not be used.
  2. The appellant’s challenge focused on the circumstance that the uncharged acts in evidence were subsequent to the charged acts. He contrasted this circumstance with what he submitted was the ordinary case, where evidence said to show a sexual interest was closely connected in time and circumstances, giving the example of Bauer v The Queen.[22] Here, by contrast, the uncharged sexual activity continued to when HG was 17 and 18. The appellant complained that the judge did not explain the process of reasoning that might bridge the gap, such that a sexual interest in a 17- or 18-year-old could be used to infer the existence of a sexual interest in that person at the age of 13. The logic of reasoning backwards is not as obvious as reasoning forwards, in particular given the significance of the change in age of HG.
  3. The appellant did not submit that no reasoning was available (and thereby challenge the admission of the uncharged acts at all). Further, at a certain level of abstraction, the directions the judge gave about the three uses that could be made of uncharged acts were orthodox. The complaint is best seen as one of sufficiency in explaining the available reasoning process when the uncharged acts post-date the charged acts and extend to HG having become significantly older.
  4. We do not think that the directions were inadequate in this regard. In the first instance, the complaint must be considered against the background that the uncharged acts constituted a continuum of offending from when HG was 13 to when she was 18. The appellant’s emphasis on the period when she was 17 and 18 tends to obscure the relevance of the appellant’s alleged sexual interest in HG.
  5. Thus, the first use the judge identified was to show that the appellant had a sexual interest in HG, had acted on that interest on other occasions, and was therefore more likely to act on it again. That asserted interest, extending through to the age of 18, was relevant to the question of whether the appellant had any sexual interest in HG at all. The direction incorporated this.
  6. The instruction on the second use, being that the evidence was to help the jury understand and assess the direct evidence of the charges, was even more express with respect to uncharged acts having occurred subsequently. The judge said:

In particular, you can use the evidence to show that [HG] is not saying that after the first incident, the offending occurred out of the blue. Without the evidence that it continued on a regular basis and for many years, you might think it implausible that the accused would have had sexual intercourse with her at the house or at the campground or in The Barracks with no lead-up. It might also explain why she reacted as she did.

  1. That is to say, the judge instructed that the evidence of the continuum of offending over many years, which on the very terms of the direction extended to the years after the charged acts, could be used to assess the plausibility of the balance of HG’s evidence. On the third use, the commencing pronoun incorporated the description of the uncharged acts in the previous paragraph, before identifying that the evidence was relevant to combat what might otherwise be assessed as being the implausibility of the appellant’s actions.
  2. That most of the uncharged acts occurred after the subject offending did not require these uses to be further explained. The significance to be accorded to the evidence by reference to each of the identified uses, on account of most of the uncharged acts occurring after the charged acts, was a matter for the jury. That had to be assessed in the context of all the evidence, including the evidence relating to the structure and dynamics of the group. The judge was not required to map out further the possible reasoning processes and significance of the evidence to the uses she identified. We dismiss Ground 7.

Whether the trial miscarried on account of apprehended bias of a juror (Ground 9)

  1. Approximately a month after the verdicts, a juror sent a message to the witness RB via Instagram to the effect that she ‘felt for’ HG and wanted to ‘reach out’ to her. She attached to the message a poem which may reasonably be interpreted as the author expressing sympathy for, and possibly identifying with, girls who have been subjected to sexual abuse.
  2. The appellant complained that by expressing sympathy for HG and asking a prosecution witness to forward to her a poem in such terms, the fair-minded observer might apprehend that the juror was not capable of bringing an independent and impartial mind to the resolution of the issues at trial. That apprehension could not be cured in circumstances where no inquiry had been conducted into the juror’s conduct.
  3. In Webb v The Queen, Mason CJ and McHugh J expressed that:[23]

...the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some case, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

  1. Brennan J expressed the test in materially the same terms.[24]
  2. In Quist v The Queen, this Court observed:[25]

Whether a reasonable apprehension of bias exists in a particular case will require consideration of the nature of the identified irregularity associated with the jury’s function and the likely effect of any direction given by the judge.

  1. It is not in dispute that at the commencement of summing up, the judge gave orthodox directions on the principle of jury impartiality. At the outset of the summing up, the judge said:

You alone are the judges of the facts, including the ultimate question of whether it has been proven that the accused is guilty of any of the charges. It is also your duty to bring an unprejudiced mind to bear on the case and to base your verdicts solely on the evidence given in this court. You should dismiss from your minds anything that you may have read, seen or heard about the case, or indeed about cases like this one from the media or elsewhere. In other words you are to keep an open mind, you are to make your decision without sympathy, without prejudice or fear and you are not to be influenced by public opinion.

  1. The appellant emphasised authorities that concerned the conduct of a juror prior to verdict, in particular Cant v The Queen,[26] where it became apparent that a juror had made comments on the accused’s criminal history. The judge had not made any inquiry into the facts and to ascertain whether the juror should be discharged. The Northern Territory Court of Criminal Appeal held that there remained a real suspicion that the juror was biased and set aside the conviction.
  2. Here, the appellant pointed to the fact that the juror had gratuitously approached RB, a prosecution witness, and expressed sympathy for and sought to ‘reach out’ to HG by sending her poetry that concerned sexual abuse of children. The combination of these matters, he submitted, gives rise to the appearance of bias on the part of the juror which is now unable to be resolved.
  3. The starting point for considering this contention is the observation by the High Court in Dupas v The Queen that:[27]

It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.

  1. Nevertheless:[28]

What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, 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.

  1. Absent any inquiry by the trial judge, the event having occurred a month after the verdict, the task for this Court is an evaluative one, on the limited information available. Had the contact been made prior to verdict, the apprehension of juror bias may have been irresistible in that it would have been difficult to conclude other than that the juror had prejudged the matter.
  2. However, the conduct occurred a month after the verdicts were returned. No part of it occurred during the trial. The expressed sympathy was consistent with the verdicts. Further, that sympathy was expressed in abstract terms, such that it provides no insight into the jury’s or juror’s discharge of their function.
  3. It is, perhaps, understandable that conduct of this kind, post-trial, should invite speculation that a juror brought to the trial a mind tainted by sympathy. However, absent any connection of that expression to the occasion of the deliberative process, that is nothing more than speculation. It is not necessary to engage with what might constitute a sufficient connection in another case; here there was none. We dismiss Ground 9.

Application of the Proviso

  1. We uphold the complaint the subject of Ground 2, that the judge erred in admitting the document purporting to record the initial complaint by HG to JS. The question that remains is whether, notwithstanding that error, no substantial miscarriage of justice has actually occurred.[29] That requires consideration of whether the Court can be satisfied that the same verdict would have been returned in any event. The Court must review the whole of the record of the trial, make its own assessment of the evidence and determine whether, making due allowance for the limitations applying to an appellate court proceeding on the basis of the record, the appellant was proved guilty beyond reasonable doubt.[30]
  2. The prosecution case depended heavily on the contested credibility and reliability of the evidence of HG. In Boyle (A Pseudonym) v The Queen,[31] this Court said:[32]

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.[33] In Kalbasi v Western Australia,[34] 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”.[35]

(Footnotes in original)

  1. HG was able to give evidence of her initial complaint to JS, and to be tested on that evidence. However, for the reasons discussed above, the document apparently prepared by JS had the potential to interfere markedly in the jury’s assessment of HG’s credibility and reliability. This Court said in Boyle:[36]

The purpose and relevance of complaint evidence in a prosecution case is to “boost” the credibility of a complainant. As Kourakis J (as his Honour then was) explained in R v H, T:[37]

The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak, of its occurrence.

As Duggan J observed in R v J, JA,[38] consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency between the wording of the complaint and the conduct alleged.

(Footnotes in original)

  1. Given the importance of the contest of credibility in this case, it not possible for this Court to assess whether guilt was proved to the criminal standard, notwithstanding the erroneous admission of the document.

Conclusion

  1. Ground 2 raises a question of law and is brought by way of right. We grant permission to appeal on Grounds 1, 3 and 8. We allow the appeal on Ground 2 only. We make an order quashing the convictions and remitting the matter for retrial.

[1] JGS v The Queen [2020] SASCFC 48.

[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

[3] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing).

[4] (2020) 268 CLR 123.

[5] Pell v The Queen (2020) 268 CLR 123 at [45]. See further, R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [65]- [66].

[6] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

[7] [2018] SASCFC 123 at [9].

[8] R v Smart [2018] SASCFC 123 at [1].

[9] JGS v The Queen [2020] SASCFC 48 at [335]- [338].

[10] Pell v The Queen (2020) 268 CLR 123 at [39].

[11] R v Place (2015) 124 SASR 467.

[12] [2014] SASCFC 89.

[13] R v Maiolo (No 3) [2014] SASCFC 89 at [76] (Peek J).

[14] See, e.g., R v Usher (2014) 119 SASR 22 at [38]ff (Kourakis CJ).

[15] Boyle (a Pseudonym) v The Queen [2022] SASCA 50 at [27]- [29].

[16] See Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 at [60] (Kiefel, Bell and Keane JJ).

[17] [1985] HCA 66; (1985) 159 CLR 507 at 515 (Brennan J).

[18] [1985] HCA 66; (1985) 159 CLR 507.

[19] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 at [23] (Gaudron J), [57] (Gummow and Hayne JJ); Schulz v The Queen ( 2016) 126 SASR 476 at [30] (Vanstone J).

[20] R v Garner; R v Webb [2021] SASCA 68 at [26].

[21] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 at [51], [53]; R v Golubovic [2016] SASCFC 144 at [80].

[22] [2018] HCA 40; (2018) 266 CLR 56 at [60], [62].

[23] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J).

[24] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 57 (Brennan J).

[25] Quist v The Queen [2021] SASCA 106 at [61].

[26] [2002] NTCCA 8; (2002) 12 NTLR 133.

[27] [2010] HCA 20; (2010) 241 CLR 237 at [26].

[28] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [29].

[29] Criminal Procedure Act 1921 (SA) s 158(2).

[30] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [39], [42]- [45].

[31] [2022] SASCA 50.

[32] Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [145].

[33] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 at [68]; Collins v The Queen  [2018] HCA 18 ; (2018) 265 CLR 178 at  [36] ‑[37]; GBF v The Queen [2020] HCA 40; (2020) 384 ALR 569.

[34] [2018] HCA 7; (2018) 264 CLR 62.

[35] Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 at [15].

[36] Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [25]- [26].

[37] (2010) 108 SASR 86 at [106].

[38] [2009] SASC 401; (2009) 105 SASR 563 at [95].

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SASCA/2022/72.html