Angus (a pseudonym) v The King
[2024] SASCA 101
•15 August 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ANGUS (A PSEUDONYM) v THE KING
[2024] SASCA 101
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
15 August 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was charged with two counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). After a trial by judge alone, the appellant was found guilty of both counts.
The appellant is the great-uncle of the complainant. The offending occurred on 21 April 2018, following the wedding of the appellant’s daughter. The complainant was eight years of age.
Following an initial complaint to a school friend, AKR, the complainant disclosed the offending to her school counsellor who notified her parents, and a report was made to the police. The complainant conducted two prescribed interviews with police and gave evidence in court.
The complainant said that at the end of the wedding celebrations, and after most guests had left, the appellant approached her and said that he wanted to “show [her] a trick”. He got down on his knees in front of the complainant. He lifted her shirt and “used his mouth on [her] nipple area” (count 1) and touched her on top of her pants on her vagina (count 2). The complainant said that after this, she tried to get away by telling the appellant that she needed to go to the bathroom. He initially stopped her but then let her go and said, “don’t tell anybody” and “it’s okay”.
On amended grounds of appeal, the appellant raises six grounds identifying various errors of law and fact including that the trial Judge reversed the onus of proof; gave an inadequate significant forensic disadvantage direction; made various factual findings not open on the evidence; erred in her use of the evidence of initial complaint and distress; and that the verdict was unreasonable or could not be supported having regard to the evidence.
Held, by the Court, granting permission to appeal on grounds 3, 4, 5 and 6, but dismissing the appeal on all grounds:
1. The trial Judge did not erroneously reverse the onus of proof.
2.Section 34CB of the Evidence Act 1929 (SA) is not intended to apply to a judge sitting without a jury. In the circumstances of this case, the trial Judge did not give inadequate reasons as to the significant forensic disadvantage suffered by the appellant, and appropriately brought that forensic disadvantage to account when assessing whether the prosecution had proved the charged offences beyond reasonable doubt.
3.The impugned factual findings were open on the evidence and the trial Judge’s reasons for making those findings were not inadequate.
4.The admissibility of the evidence of the complainant’s distress was not challenged at trial. Accordingly, there can be no ground of appeal brought on the basis that there was an error of law in the trial Judge admitting the evidence. The trial Judge after admitting the evidence of distress, and giving directions as to its use, did not, in fact, rely on the evidence in reasoning to guilt.
5.Notwithstanding the inconsistencies between the complainant’s account of the offending, and the evidence of AKR as to the terms of the initial complaint, it was open to the trial Judge to find that the evidence demonstrated consistency of conduct and supported the complainant's credibility.
6. The verdicts were not unreasonable or unable to be supported having regard to the evidence.
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 34CB, 34M, referred to.
Dansie v The Queen (2022) 274 CLR 652; De Silva v The Queen (2019) 268 CLR 57; DES v The Queen [2020] SASCFC 32; Fergusson v The King [2024] SASCA 63; Fox v Percy (2003) 214 CLR 118; R v Dhir [2019] SASCFC 55; R v T, WA (2014) 118 SASR 382, discussed.
Chidiac v R (1991) 171 CLR 432; Jones v The Queen (1997) 191 CLR 439; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Murray v R (2002) 211 CLR 193; R v CD [2023] SADC 96; R v Livingstone (2011) 109 SASR 380; R v Mitrovic [1999] SASC 478; R v P, S (2016) 261 A Crim R 329; R v Place (2015) 124 SASR 467; R v SDD (2010) 109 SASR 46; R v Thompson [2018] SASCFC 104, considered.
ANGUS (A PSEUDONYM) v THE KING
[2024] SASCA 101Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT: The appellant was charged with two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The aggravating factor in relation to both offences was that the complainant was under the age of 14 years at the time of the offending.
After a trial by Judge alone, the appellant was found guilty of both counts. The appellant now appeals his conviction. On amended grounds of appeal, the appellant raises six grounds identifying various errors of law and fact, including that the verdict was unreasonable or could not be supported having regard to the evidence. More specifically, the appellant complains:
· The trial Judge erred as to the onus of proof, by using the word “satisfied” in connection with both excluding a reasonable doubt and an explanation consistent with innocence.
· The trial Judge gave inadequate directions as to the significant forensic disadvantage suffered by the appellant because of the delay in the matter proceeding to trial.
· It was not open to the trial Judge to make various factual findings and/or inadequate reasons were provided for making those findings.
· The trial Judge erred in her use of the evidence of distress.
· The trial Judge erred in her use of the evidence of initial complaint.
Circumstances of the offending
The appellant is the great-uncle of the complainant. The offending allegedly occurred on 21 April 2018, following the wedding of the appellant’s daughter. The wedding reception, which the complainant attended with her family, was hosted at the appellant’s home.
The complainant was born on 2 November 2009, and was aged eight years of age at the time of the alleged offending. She was 13 years of age at the time of the trial.
The complainant participated in two prescribed interviews with police. The first interview occurred on 28 July 2021, after she disclosed the offending to her school counsellor, who told her parents, whereupon a police report was made. The complainant was 11 years of age at the time of the first interview. A video-record of this interview was tendered at the trial.
The second interview occurred on 20 February 2023, about a month before the commencement of the trial. During this interview, the complainant was primarily questioned about the circumstances of her initial complaint. A video‑record of the second prescribed interview was tendered at the trial.
The complainant also gave evidence at the trial and was cross-examined on various topics.
In her first interview, the complainant recounted the alleged offending. She said that at the end of the wedding celebrations, and after most guests had left the appellant’s home, the appellant approached her and said that he wanted to “show [her] a trick”. The appellant got down on his knees in front of the complainant. He lifted her shirt and put his mouth on her “private area” (count 1). The appellant then “attempted to go in [her] pants” and was “touching it on top of the pants” (count 2). Initially, the complainant didn’t feel comfortable saying where the appellant had touched her, but later said that “he used his mouth on [her] nipple area” and touched her on top of her pants on her “vagina area”.
The complainant said that she then tried to get away by telling the appellant that she needed to go to the bathroom. The appellant initially stopped her, but then let her go and said, “don’t tell anybody” and “it’s okay”.
The complainant said the incident occurred in the alfresco area at a location “between the heater and the fridge’. During the first prescribed interview, she drew a floorplan and identified where the alleged offending took place. Also tendered were floorplans of the appellant’s house marked by the complainant’s father and mother, along with plans of the relevant areas drawn by the complainant and the appellant’s son-in-law.
The complainant said that after the offending she “didn’t feel comfortable” and “felt like … throwing up”. She went to the bathroom. When she came out, the appellant and her father were both there.
As to the timing of the offending, the incident allegedly occurred after midnight and at a time when few guests remained at the appellant’s home. By about 10:30pm, most guests were in the process of leaving the event. The complainant and her family, along with several other family members, stayed to assist the appellant’s family with cleaning up, which involved, among other things, packing up the tables and chairs from the alfresco area. At that point, there were around 15 to 20 people still present.
Once most of the packing up was completed, a table was set up in the garage area. Some of the remaining men, including the appellant and the complainant’s father, were drinking alcohol at the table. The complainant’s father recalled that there were three other men drinking at the table with him, including the appellant.
While the men were drinking in the garage area, the remaining women, including the complainant’s mother and the appellant’s wife, went into the lounge room area inside the house. This occurred after 11:30pm. The complainant’s younger sisters went inside with her mother. During this time, the complainant was outside, playing with another child in the alfresco area. The complainant’s mother gave evidence that she saw the appellant in the alfresco area. At some point, the complainant went inside to show her mother something she had found, and her mother asked her to go and tell her father that it was time to go home.
The complainant then went outside through the alfresco area to the table in the garage area where her father was drinking and relayed the message from her mother. Her father said he was not ready to go home yet and asked the complainant to go back and tell her mother this. The complainant went back through the alfresco area to the lounge room to relay the message. Her mother then told her to go back out again to her father and insist that they leave because it was getting late, and the younger children were asleep.
The complainant went out to her father a second time, through the alfresco area to the garage area. She relayed the message to her father who again told her to tell her mother that he was not ready to leave. It was after the complainant left the garage area through the alfresco area for a second time that the offending conduct allegedly occurred.
The complainant’s mother gave evidence that on the first occasion, the complainant returned very quickly to the lounge room and “was gone for less than a minute”. However, on the second occasion, she was gone for about 20 or 30 minutes.
The complainants’ parents next saw her as she left the bathroom. Both described her as appearing upset. The evidence of the complainant’s distress is the subject of appeal ground 4 and discussed in more detail later in these reasons. The complainant’s father said that he tried to joke around with her or hug her, but she attempted to avoid this. The complainant’s mother said that she appeared upset and when she questioned her, the complainant said that she was tired and wanted to go home. The complainant described leaving the house that night as follows:
Then we were going home. And I was like hiding behind my mum, because I was scared and stuff. Then he leaned over, like that, to look at me, and he’s like “don’t tell anybody”, like that.
The complainant’s mother gave evidence that as they were leaving, the complainant was holding on to her so tightly that it made it difficult for her to walk.
Initial complaint
There was also evidence adduced as to the complainant’s initial complaint. The trial Judge’s use of this evidence is the subject of appeal ground 5. The complainant said she first disclosed the offending to a school friend, AKR, when they were about seven or eight years old, and in grade two or three at school. The complainant said that she made her initial complaint to AKR a few weeks after the alleged offending in 2018. That being so, it is common ground that the complainant must have been eight or possibly nine at the time of her initial complaint. She did not tell anyone else until she moved schools several years later. There, she told another friend, who encouraged her to speak with the school counsellor. It was at this point, in 2021, that the school counsellor told the complainant’s parents who reported the matter to police.
In her second prescribed interview, the complainant said that she told AKR that she was “at a wedding and someone started touching [her] inappropriately.” In evidence, the complainant said that AKR was the first person she told and that she told AKR “that someone had touched [her] inappropriately on [her] chest area and like down there” but couldn’t recall if those were the exact words she used. During cross-examination, the complainant was questioned about what she told AKR. Specifically, she was asked whether she told AKR that the appellant had hugged her, touched her thighs, touched her back and ‘bum’, and whether he did this over her dress, all of which she denied.
AKR gave evidence that she was playing with the complainant at school when she noticed her getting upset. They moved to the steps out the front of their classroom, whereupon AKR asked the complainant what was wrong. AKR said that the complainant told her the following:
[the complainant] said that when she was six years old at a wedding her great-uncle came up to her and was like pushing – like forcing himself on her and that he was like rubbing his hands like up and down her back, her bum and her thighs and then he moved his hands around her waist … and he moved his hands to the front of her body and was rubbing his hands up and down her waist area and near her vagina.
AKR was then asked if she recalled the exact words that were used by the complainant. She replied that the complainant used “her hands to show [her]” before indicating with hand motions the areas where the complainant said [she had] been touched. AKR explained that the complainant was not touching her body but just moving her arounds around in front of her while she was telling AKR what happened. The prosecution relied on the evidence of initial complaint as demonstrating consistency of conduct by the complainant. On the other hand, defence counsel emphasised the inconsistencies between AKR’s evidence, and the complainant’s account in relation to her age at the time of the offending, and where the appellant had allegedly touched her. Defence counsel submitted that the evidence in fact undermined the complainant’s credibility.
Layout of the appellant’s premises
During the trial, there was considerable evidence as to the general layout of the area where the offending allegedly took place. Defence counsel relied on this body of evidence to suggest that the offending was implausible for the following reasons. First, it was submitted that it was unlikely the appellant would be so brazen as to commit the offence in such an exposed area; and secondly, had he done so, it was unlikely that the offending would have gone undetected by other wedding guests.
As outlined above, the complainant gave evidence that the offending took place in an area referred to as the ‘alfresco area’. The complainant alleged that the offending occurred after the formalities had concluded, the cleaning up was largely completed, and at a time while some men were drinking at a table set up in the ‘garage area’.
The alfresco area and the garage area adjoin, but are separated by, a wall containing both a hinged door and further down, a roller door. On the night of the event, there was a walkway between the alfresco area and the garage areas through the open roller door. The hinged door between the rooms was not accessible during the event because a chest freezer (referred to by the complainant as a fridge) that was usually in the alfresco area was stored in the garage area in front of the door.
The main house was only accessible through the alfresco area. There was a sliding door between the family/meals area of the house and the alfresco area, and another sliding door between the laundry and the alfresco area. There were no doors that directly connected the garage area and the main house. The alfresco area was the only thoroughfare between the main house and the garage area.
The view between the two areas was partially visible in several photographs tendered during the trial. A view from the alfresco area into the garage area can be seen in one of the images taken during the event.[1] However, this image was not taken from the precise location where the offending was said to have occurred. There were also photographs tendered of the view from the approximate location of the garage table where the men were drinking into the alfresco area. [2] The complainant’s father gave evidence that the alfresco area, generally, was within view of those seated at the garage table.
[1] Exhibit D9, page 9.
[2] Exhibit P7 at page 1 and D8, top-most image.
There was also evidence that there was a toilet with a window through which the alfresco area could be seen.
The appellant did not give evidence at trial. The appellant called evidence from his wife, as to the number of persons at the event, and the layout of the alfresco area at the time of the alleged offending. She also gave evidence that the chest freezer (or fridge) was not in the position described by the complainant.
There was an agreed fact that the appellant had no criminal antecedents.
Ground 1 – onus of proof
The appellant complained that the trial Judge misstated the onus of proof. This contention arose out of her Honour’s directions at the beginning of her summing up as to the onus and standard of proof. Her Honour said:[3]
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words “proved,” “established,” or “satisfied,” in each case I mean to an extent which excludes a reasonable doubt.
If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and accordingly, the accused is not guilty.
(Emphasis added.)
[3] R v CD [2023] SADC 96 at [9]-[11] (‘Reasons for Verdict’).
The appellant submitted that the trial Judge’s use of the word ‘satisfied’ in the last paragraph of these directions amounted to a reversal of the onus of proof. It required the appellant to establish that any explanation consistent with innocence is proved beyond reasonable doubt. The appellant said that her Honour erroneously directed herself that she must be satisfied beyond reasonable doubt that there was an explanation consistent with the innocence of the accused before finding the appellant not guilty.
The appellant contended that the onus of proof was reversed, and the principle laid down in De Silva v The Queen[4] that the onus and standard of proof in a criminal trial is proof of the offence by the prosecution beyond reasonable doubt, was misstated. The appellant contended that an erroneous application of the standard of proof is a fundamental breach of principle and occasioned a substantial miscarriage of justice.[5]
[4] (2019) 268 CLR 57 at [9] per Kiefel CJ, Bell, Gageler and Gordon JJ (Nettle J dissenting).
[5] Murray v R (2002) 211 CLR 193.
The appellant’s submissions must be considered in the context of the reasons read as a whole. The trial Judge was clearly cognisant of the fact that she was required to be satisfied beyond reasonable doubt of the complainant’s account of events before finding the appellant guilty of the offences, and that she was required to exclude any hypothesis consistent with innocence as a reasonable possibility. Following her general statements as to the standard and onus of proof, her Honour gave comprehensive and detailed reasons for her analysis of the evidence and the conclusions she drew.
It is clear from those reasons that the trial Judge applied the correct onus and standard of proof and excluded all reasonable hypotheses consistent with innocence as a reasonable possibility, before finding the offences proved beyond reasonable doubt. In her reasons, her Honour expressly addressed the critical importance of the complainant’s evidence and reminded herself that it was not for the accused to prove that the complainant was lying. Her Honour summarised defence counsel’s submissions as to why the prosecution had not proved the charged offences beyond reasonable doubt. Her Honour then provided an assessment of the witnesses and made various findings of fact, before reaching her ultimate conclusion, which was expressed in the following way:[6]
I am satisfied that [the complainant] is a credible witness and was reliable in respect of the charged acts. I do not think there is a reasonable [possibility] that the accused did not commit the charged offences.
I accept the evidence of [the complainant] as to the sexual assaults upon her by the accused. I am satisfied that the events took place as she described. I am satisfied that the offences were committed when an opportunity arose at the end of the wedding when most of the guests had left and the balance were either in the house or not in the alfresco area where the accused opportunistically sexually assaulted [the complainant].
I am satisfied beyond reasonable doubt that the accused put his mouth on her nipples and touched her vagina on the outside of her clothing. I am satisfied beyond reasonable doubt that both acts are indecent when committed against an eight year old girl in these circumstances. I am satisfied beyond reasonable doubt that [the complainant] was eight years old at the time the offences were committed.
[6] Reasons for Verdict at [162]-[164].
It is evident from the passage cited above that the trial Judge expressly found that it was not a reasonable possibility that the appellant did not commit the charged offences.
It may be accepted that on a literal reading of the impugned passages of the reasons, the trial Judge appears to have imported the wrong standard of proof and thereby reversed the onus of proof. However, that passage does not stand alone and, upon a reading of the reasons as a whole, we are satisfied that her Honour, in finding each count proved beyond reasonable doubt, excluded any rational hypothesis consistent with innocence as a reasonable possibility, and did not erroneously reverse the onus of proof.
For those reasons, we reject this ground of appeal.
Ground 2 – significant forensic disadvantage
The appellant complained that the trial Judge erred as a matter of law by providing inadequate reasons when dealing with the significant forensic disadvantages suffered by the appellant by reason of the delay in the allegations proceeding to trial. In particular, the appellant contended that her Honour failed to identify and apply the significant forensic disadvantages when assessing the material facts and when considering the reliability of the complainant’s evidence.
The trial Judge said:[7]
There was no disclosure in respect of the allegations in this matter to the authorities until 2021. The trial was conducted over 2 days in May 2023. There was no request for a direction in respect of forensic disadvantage. However, I consider that given the nature of the allegations and the circumstances in which they were alleged to have occurred, a significant forensic disadvantage has occurred to the accused. I will therefore take the disadvantage that the accused has had when scrutinising the evidence from the prosecution witnesses. The passage of time is also relevant when I come to assess the evidence of SD, the accused’s wife, as she was asked about the events of the day in some detail. The detail of the day was said to be important in the presentation of both the prosecution and defence cases.
[7] Reasons for Verdict at [17].
The trial Judge did not again refer explicitly to the significant forensic disadvantage in her reasons for verdict. The appellant contended that the impugned direction was inadequate as her Honour failed to apply the direction to the material facts or provide adequate reasons about the complete effect of the significant forensic disadvantage upon the appellant.
More specifically, the appellant submitted that there were two important aspects of the significant forensic disadvantage occasioned by the delay. First, the appellant lost the ability to gather evidence from others present at the wedding ceremony, in particular those men drinking in the garage at the relevant time. On the defence case, this material was potentially relevant to support the purported implausibility of the complainant’s account and the appellant’s lack of opportunity to commit the offence. Secondly, it was submitted that the delay in the matter proceeding to trial resulted in a loss of physical evidence. That is, an opportunity was lost to conduct a physical examination of the complainant as to the detection, or absence, of saliva on her chest (relevant to count 1). Given the delay, there was no utility in conducting such a medical examination. The appellant submitted that the absence of saliva on her chest was capable of undermining the cogency of the complainant’s reliability.
Section 34CB of the Evidence Act 1929 (SA) (the ‘Evidence Act’) provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
This section is not intended to apply to a judge sitting without a jury. In R v T, WA[8] the Court of Criminal Appeal held that s 34CB of the Evidence Act does not require a judge to replicate a “charge to the jury” on the issue of forensic disadvantage. As Kourakis CJ explained:
On its own terms, s 34CB(2) of the Evidence Act confines the giving of the direction it prescribes to a jury. Moreover, the “rule of law or practice” as to Longman warnings abrogated by s 34CB(1) concerned a trial judge’s charge to a jury.
In R v Bakhuis, Kelly J doubted that s 34CB of the Evidence Act applied to a trial by judge alone. In R v Haak, I held that s 12A of the Evidence Act did not apply in a trial by judge alone.
Section 34CB of the Evidence Act abrogates rules of law or practice requiring judges to warn juries of the dangers of convictions where there has been a substantial delay in bringing a complaint. The rationale of those rules was that the delay might impair the fairness of the trial in ways which a jury might not understand. The premise underpinning the common law requirement to give a Longman direction was that judges did understand the forensic disadvantages and the purpose of the rule was for judges to impart that understanding to the jury.
Accordingly, having regard to both its text and context I would hold that s 34CB of the Evidence Act does not require a judge to include within his or her reasons a direction of the kind that that section prescribes. That construction of s 34CB of the Evidence Act does not entail a conclusion that a judge presiding over a criminal trial without a jury does not need to pay close attention to any forensic disadvantage arising from a delay in bringing a complaint. A judge is required to give reasons for his or her verdict. As Kelly J observed in Bakhuis, if delay is a material issue in a trial, a judge’s reasons must adequately deal with that issue. Whether or not a failure to adequately deal with the issue amounts to an error of law or whether, for any other reason, it results in a miscarriage of justice, will depend on the particular circumstances of each case and a reading of the judge’s reasons as a whole. However, a judge’s reasons need not replicate a judge’s charge to a jury.
The delay in this case was great. There was a delay of more than 30 years before JT reported the matter to police and when the matter was first drawn to the appellant’s attention. JT was 50 years of age when she gave evidence.
(Citations omitted.)
[8] (2014) 118 SASR 382 at [19]-[23] per Kourakis CJ (Sulan and Stanley JJ agreeing).
Depending on the extent of the delay, and the nature of any forensic disadvantage suffered by the appellant by reason of the delay, it may well be necessary for a trial judge to give a significant forensic disadvantage direction or, at least, comment on the way any significant forensic disadvantage has been brought to account in an assessment of the prosecution case. In that kind of case, a trial judge sitting alone will generally be required to deal with the matter as part of the obligation to give adequate reasons. Even so, there is no requirement that the direction be given in the mandatory terms prescribed by s 34CB.
In the present case, there was no request by defence counsel at trial for the trial Judge to give a significant forensic disadvantage direction. The submissions put before this Court, as to the specific nature of the forensic disadvantage suffered by the appellant, were not put to the trial Judge, nor the subject of any submissions. Nevertheless, her Honour in her reasons considered that the appellant had suffered a significant forensic disadvantage due to the delay in the matter proceeding to trial and gave a direction which broadly reflected the requirements of s 34CB.
In her reasons, the trial Judge explicitly referred to the length of the delay and indicated that she took the significant forensic disadvantage suffered by the appellant into account when scrutinising the evidence of the prosecution witnesses and the defence case (which consisted of only the evidence of the appellant’s wife), noting that the “detail of the day” was of importance.
Whilst the trial Judge did not articulate the precise nature of the forensic disadvantage (as articulated before this Court but not at trial), her Honour referred to the fact that the ‘detail of the day’ was of importance. It is implicit in the reasons that her Honour was cognisant of the fact that the delay resulted in the appellant losing his ability to test the detail of the allegations. In addition, there was no evidence before her Honour that the appellant was now precluded from adducing evidence from the men drinking in the garage. Whilst it is to be accepted that the ability of other guests at the ceremony to recall the relevant events would be adversely affected by the delay, this feature of the case was taken into account by her Honour. Her Honour referred generally to the passage of time resulting in a significant forensic disadvantage, and the importance of the detail of the day, which would necessarily include the impact of delay on the memory of other guests.
As to the submission that the opportunity to obtain physical evidence was lost, it is difficult to see that there was any real forensic disadvantage to the appellant in that regard given the offending consisted of a single incident of the appellant placing his mouth on the complainants’ nipples, and there was no material before the trial Judge as to whether the alleged offending, in the circumstances of this case, would likely result in any forensic material being deposited from which it was capable of extracting a DNA result.
We do not consider that the trial Judge was required to say anything further about either of these matters in her reasons.
Contrary to the appellant’s submissions, it was not necessary for the trial Judge to make specific reference to the significant forensic disadvantage suffered by the appellant during her assessment of each witness. Having already given a direction in the terms cited above, before she came to assess the evidence of the prosecution witnesses, we consider that it was necessarily implicit in her reasons that her Honour scrutinised the prosecution evidence with reference to the significant forensic disadvantage suffered by the appellant. As much is evident from her Honour’s acknowledgement of the dangers of reconstruction by the prosecution witnesses in circumstances where they were recounting events which occurred many years ago.
In the circumstances of this case, we are satisfied that the trial Judge did not give inadequate reasons as to the significant forensic disadvantage suffered by the appellant, and her Honour adequately addressed the way in which she brought that forensic disadvantage to account in assessing whether the prosecution had proved the charged offences beyond reasonable doubt.
Ground 3 – factual findings not open on the evidence
The appellant challenged three factual findings made by the trial Judge in reasoning to guilt. The appellant contended that the findings were not reasonably open on the evidence; and her Honour provided inadequate reasons for making those findings. The impugned factual findings concerned matters which countered the appellant’s submissions at trial as to the implausibility of the alleged offending. The appellant contended that each of the findings was ‘glaringly improbable’ and contrary to other uncontested evidence.
In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said:[9]
There are cases where findings are glaringly improbable or contrary to other evidence or inferences. These cases are set apart from findings based largely on impressions of witnesses and this court is not restrained from reviewing and intervening if certain findings should not have been made.
[9] (2003) 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ (Callinan J contra).
In the present case, the appellant submitted that the impugned findings were not based on the trial Judge’s impressions of witnesses but rather inferences drawn from uncontested evidence. Consequently, the appellant submitted that her Honour had no identifiable advantage over this Court in considering whether the factual findings were open on the evidence.
Turning now to consider the three impugned factual findings and the evidence relevant to those findings.
First, the trial Judge in her reasons said:[10]
Although there were other people in the vicinity, the area in which the events were said to have occurred was away from other guests. Most of the guests had left the wedding by this time. I accept that the toilet window had a net curtain, and if a person had been standing in the toilet and looking out of the window at the time they may have been able to see any interaction between the accused and complainant.
[10] Reasons for Verdict at [155].
The appellant challenged the trial Judge’s finding that “the area in which the events were said to have occurred was away from other guests”.
The complainant gave evidence that the offending occurred in the alfresco area alongside the wall perpendicular to the gas heater. She agreed that this wall had a toilet window. As outlined above, there was also evidence that the “alfresco area” was adjacent to the garage area, and there were other men drinking at a table in the garage area towards the end of the evening. Moreover, the appellant relied on evidence that when seated at the garage table, the alfresco area was within view as shown by the tendered photographs, and there was “constant foot traffic” through the alfresco area into, and from the house.
The appellant submitted that the only finding open to the trial Judge on this topic was that the alleged offending occurred in the close vicinity of the men seated in the garage area; and it was not reasonably open to her Honour to find that the offending took place “away from other guests”.
In considering the evidence as to the number of persons present in the alfresco area and garage area at the end of the evening, it is not clear how many persons were in fact present in the vicinity of where the offending allegedly occurred.
The complainant said that her “mum was inside with all the ladies”. She said that her father was “in the actual garage area on the side, and he was drunk with all his friends and stuff. So, I don’t think he would have seen me”. She thought there was no one else in the area at the time of the offending “because all my friends and cousins, they already went home”. The complainant said, “[w]e were like the last ones there.” In cross-examination, the complainant agreed there were up to 10 men drinking with her father in the garage, although it is not clear whether she agreed that all the men were still present at the time of the alleged offending.
The complainant’s mother gave evidence that she left the home at about 1am, at which time she “only saw (the appellant’s wife) briefly in the kitchen, [K] and her husband, two kids ... And some other men that I didn’t pay attention to when I walked past the table”. In cross-examination, she said that her husband was in the garage at a table drinking with three men.
The complainant’s father gave evidence that after cleaning up the alfresco area, he was seated at a table in the garage area drinking with three other men: the appellant, [R] and [V]. Other men were drinking with them but left before 11:30pm. He said that his wife was in the house, and the complainant was playing with another child in alfresco area.
The appellant’s wife gave evidence that she was inside her lounge room after 11:30pm, and the appellant was outside in the garage with three other men including the complainant’s father.
After considering the evidence, briefly summarised above, we are satisfied that it was open to the trial Judge to find that “the events were said to have occurred away from the other guests”. The location where the complainant alleged that she was indecently touched by the appellant was in a distinct area in the alfresco area away from the garage area where the men were drinking. There was in fact some distance between the relevant part of the alfresco area, and the garage area.[11] The evidence supported a finding that there was no one present in the alfresco area at the relevant time given that most of the bride’s family, female guests and children had gone inside the house. Whilst it is to be accepted that if any of the three men looked directly towards the relevant part of the alfresco area at the time of the alleged offending, they may have seen it occur, that fact does not detract from her Honour’s finding that the offending occurred “away from other guests”.
[11] Referring to an annotated floorplan identified as ‘P6’ at trial, which, although not to scale, gives an estimate of approximately 5 to 10m between the location of the alleged offending in the alfresco area and the location of the table in the garage area.
Moreover, in reaching this finding, the trial Judge properly acknowledged that the “accused having behaved in the manner alleged does seem to be very brazen and opportunistic”. Her Honour also referred to the fact that at the time of the alleged offending, there were other people in the vicinity and, if a person had been in the toilet and looking out of the toilet window, that person may have been able to see any interaction between the appellant and the complainant. Bearing in mind that her Honour, earlier in her reasons, summarised the evidence on this topic, as well as counsels’ addresses, and specifically acknowledged defence counsel’s submissions as to the implausibility of the alleged offending given that there were men drinking in the garage and the presence of the toilet window, we do not consider that her Honour’s reasons for making this factual finding were inadequate.
Secondly, the trial Judge made a factual finding that the other men were not paying much attention to what else was happening. Her Honour said:[12]
I also find that at the time of the alleged offences there were some other people present but that the wedding was over, the alfresco area packed up and most of the women and children inside. Any men who were left were for the most part in the garage and some were drinking alcohol and not paying much attention to what else was happening. It was in this context that the opportunity for the interaction between the accused and SND arose. The offending that she described would have taken a very short period of time. The accused was in a position of power to her and her family being an older and respected relative. He took advantage of an opportunity that presented itself.
[12] Reasons for Verdict at [148].
The appellant contended that it was not open for the trial Judge to make this finding. The appellant relied on evidence that the complainant’s father was not particularly intoxicated and was able to give evidence about his observations that night which suggested he was aware of those events occurring around him. In particular, the complainant’s father gave evidence that immediately before entering the garage area, he observed the complainant playing in the alfresco area with another child. While in the garage area, he said that the complainant asked him to leave, and he later observed her return to again request that they leave. Finally, he observed the complainant exiting the toilet. The accuracy of these observations was not in dispute. The appellant contended that her Honour’s finding that other guests were “not paying much attention” to their surroundings and other happenings at the relevant time was contrary to the evidence, and that her Honour did not provide adequate reasons as to how she reached her impugned finding.
We do not agree with those contentions.
The point being made by the trial Judge in this part of her reasons was that the men who were guests and remained at the wedding after cleaning up were seated in the garage area and some were drinking alcohol. Those were uncontested matters. There was an inference to be drawn from that uncontested evidence that their attention was not focused on the alfresco area but rather on each other and their conversation, such that they were not paying close attention to anything that may have been taking place in the alfresco area. The observations by the complainant’s father related, in most part, to matters that were brought to his attention, namely the complainant passing on a message from her mother that she was ready to leave. In those circumstances, we are satisfied that it was reasonably open to her Honour, to make the impugned factual findings, and her Honour’s reasons were not inadequate. Her Honour sufficiently explained the basis upon which she found that the men who were drinking around the table in the garage would not be “paying much attention to what else was happening”. Her Honour earlier summarised the evidence and counsels’ addresses, did expressly referred to the fact many guests had left, and the men were drinking amongst themselves at the table.
Thirdly, the appellant contended that the trial Judge’s finding that the alleged acts occurred over “a very short period of time” (in the passage cited above) and were “both very quick” was not open on the evidence.
The trial Judge in her reasons made the following factual finding as to the commission of the offence:[13]
He put his mouth on her nipples. He also touched her on the outside of her clothing near her vagina. Both actions were very quick.
(Emphasis added.)
[13] Reasons for Verdict at [161].
The appellant contended that this finding is contrary to the complainant’s evidence that there were multiple, sequential steps involved in the offending, namely the appellant lifting her shirt and arms up above her head, the appellant bending down to kneel on his knees, licking her nipple and then licking her other nipple, trying to reach beneath the waistband of her pants without success, and telling her not to tell anybody. In those circumstances, the appellant submitted that the alleged acts could not be described as “quick” or fleeting.
The fact there were multiple sequential steps involved in the alleged offending did not detract from a finding that it was “very short” in duration or that “both actions were very quick.” Such a characterisation of the offending reflected the complainant’s evidence. This was not a drawn-out incident. While it is to be accepted that there are other examples of the offence of indecent assault which are shorter in duration, it does not follow that it was not open to the trial Judge to find the appellant’s alleged offending was “very quick” or occurred over a “very short period”.
As to the complaint that the trial Judge’s reason were inadequate, having summarised the relevant evidence and characterised the offending as “very quick”, it is difficult to discern what more was required in her reasons.
For those reasons, we reject this ground of appeal.
Ground 4 - distress
Under this ground of appeal, the appellant complained that the trial Judge erred by using the evidence of the complainant’s distress to demonstrate consistency of conduct in support of her credibility.
The complainant gave evidence that at some point after the alleged offending, she went to the bathroom. She agreed that when she exited the bathroom her father tried to joke around with her, and she brushed him off “because she was too tired”.
The complainant’s mother gave evidence about the complainant’s behaviour and demeanour after she came out of the toilet. She said:
A. I saw [the complainant] come out of the toilet and I looked up to see [the complainant’s father] hugging and – [the complainant’s father] was loud about it, like 'What's the matter?' to [the complainant] and [the complainant] was trying to push [the complainant’s father] away. I visually could see that [the complainant] was distressed at that point and I said out loud to [the complainant’s father]. 'Leave her alone, she's tired'.
Q. What is the next thing you recall happening.
A. [The complainant] came and sat behind me and she was - I could see that something was wrong, she was teary. I asked her at that point if something was wrong. She briefly replied saying 'I want to go home, I'm tired'.
The trial Judge gave herself the following direction in relation to the use of the complainant’s distress:[14]
There was evidence that the complainant was upset at the time she left the wedding with her mother. I accept that this evidence is of limited use but can be used when assessing consistency of conduct. It cannot be used as evidence of guilt.
[14] Reasons for Verdict at [20].
Defence counsel did not challenge the admissibility of this evidence of distress. Accordingly, there can be no ground of appeal brought on the basis that there was an error of law in the trial Judge admitting the evidence. The question for this Court is whether the admission of the evidence resulted in a miscarriage of justice, or her Honour erred in her use of the evidence. It is the latter contention that is emphasised by the appellant.
The principles applicable to the admission of evidence of distress were considered in R v Dhir.[15] Kourakis CJ (with whom Stanley and Doyle JJ agreed) relevantly said:
Evidence of distress, like evidence of torn or damaged clothing or a generally dishevelled appearance, is circumstantial evidence of involvement in a physical altercation. The weight of the evidence will vary greatly depending on its contemporaneity, proportionality to the alleged offending, and the opportunity or motive to fabricate the allegation.
It is not a condition of the admission of evidence of distress as circumstantial evidence that all other explanations for the distress be excluded.
[15] [2019] SASCFC 55 at [61]-[62].
More recently, in Fergusson v The King,[16] this Court explained that evidence of distress can be admissible for two purposes:
In a trial of a sexual offence, evidence of a person’s observations of a complainant’s distressed appearance following an alleged offence can be admissible for two purposes. First, it may be admissible to show consistency of conduct on the part of the complainant. This is because there is a general expectation that a victim of a sexual offence will exhibit signs of distress following the commission of the offence. Therefore, observations of a complainant’s distressed appearance may be considered consistent with an alleged victim’s account that a sexual offence occurred. In this way, evidence of distress is relevant to support a complainant’s credibility. Secondly, evidence of distress may, in some cases, be used as independently supportive of guilt.
[16] [2024] SASCA 63 at [26].
In relation to the second potential use of evidence of distress as independently supportive of guilt, the Court said:[17]
Whilst a person’s observations of the distressed condition of a complainant in a sexual case is capable of being used as independent evidence supportive of guilt, the circumstances in which it could be used for that purpose will be relatively rare and confined to those cases where the evidence of distress is unequivocal, causally linked to the alleged offending, incapable of other explanation and observed immediately after the alleged offence. A warning about the limited weight of such evidence will usually be required.
[17] Fergusson v The King [2024] SASCA 63 at [32].
Once admitted, evidence of distress can only be used to show consistency of conduct or as evidence of guilt if a jury, or trier of fact, is satisfied that any alternative explanation for the distressed behaviour has been excluded.[18]
[18] R v Mitrovic [1999] SASC 478 at [27] per Duggan J (Debelle and Williams JJ agreeing).
In the present case, the trial Judge considered that the evidence of the complainant’s distress, in the aftermath of the alleged offending, was only relevant to demonstrate consistency in the complainant’s conduct in support of her credibility. Her Honour considered that it was not admissible as evidence of guilt. As explained in R v Dhir, it is not a condition of the admission of evidence of distress as circumstantial evidence that all other explanations for the distress be excluded. In any event, there was no challenge to the admissibility of the evidence as relevant to the complainant’s credibility and we are satisfied the evidence of the complainant’s distress was admissible for this purpose.
The focus of the appellant’s challenge under this ground of appeal related to the trial Judge’s use of the distress evidence in reasoning to guilt. The appellant contended that her Honour erred in using the evidence to support the complainant’s credibility because there was another plausible explanation for her distress, namely that she was tired. Under cross-examination, the complainant agreed with the proposition that after leaving the toilet towards the end of the evening, she brushed off her father because she was “too tired”. She also agreed that she told her mother that she was “far too tired to stick around any longer”. The appellant submitted that it was not open to her Honour to use the evidence of distress given there was another explanation for the complainant being upset, namely she was a young child who was tired. Furthermore, the complainant expressly accepted that this was the reason she was upset at the end of the evening.
In considering this ground of appeal, it is necessary to examine the parties’ approach at trial to the evidence of distress. The prosecutor, in her written closing address, referred to the evidence of the complainant’s mother that she observed the complainant trying to push her father away and that she appeared “visually ... distressed.” The prosecutor also quite properly referred to the complainant’s explanation that her reaction to her father was because she wanted to go home because she was tired. At no stage did the prosecutor submit to the trial Judge that she should rely on the evidence of the complainant’s distress as demonstrating consistency of conduct which supported her credibility, nor as evidence of guilt.
Defence counsel in his written closing address emphasised that “on the complainant’s very own evidence she wanted to go home because she was tired.” Nothing further was said by defence counsel on this topic.
Throughout the trial, it was common ground that the complainant was visibly upset at the end of the evening. The use of that evidence was given little emphasis on the prosecution case and was only briefly referred to by the prosecutor and defence counsel in their written submissions.
It was in this context that the trial Judge, in the passage cited above, said that the “evidence is of limited use but can be used when assessing consistency of conduct. It cannot be used as evidence of guilt.” We consider that at this stage of her reasons, her Honour was addressing the admissibility of the evidence, which was not the subject of challenge, and instructing herself as to its potential use on the prosecution case. In other words, in this part of her reasons, her Honour found that the evidence was admissible as being capable of demonstrating consistency of conduct and was admissible in support of the complainant’s credibility, but not as evidence of guilt. Her Honour was not, at this part of her reasons, saying that she had in fact used the evidence of distress for that purpose. Nor was her Honour saying that she intended to do so.
After summarising the evidence, and the parties’ written closing addresses, the trial Judge turned to her assessment of the witnesses. When considering the credibility and reliability of the complainant, her Honour did not refer to the evidence of distress. Her Honour ultimately made a factual finding that ‘the complainant was upset when she left the wedding to go home.’ As outlined earlier, that fact was not in dispute. Her Honour did not at this point, or at any stage in her reasons, say that she had actually used the fact that the complainant was upset as evidence of consistency of conduct or to support her credibility. We are satisfied that it is apparent from a reading of the whole of the reasons, considered in the context of the undisputed evidence at trial and the parties’ written closing addresses, that her Honour did not actually use the evidence of distress in reasoning to guilt.
For those reasons, we reject this ground of appeal.
Ground 5 – initial complaint
The appellant contended that the trial Judge erred in finding that the complainant’s initial complaint to AKR was evidence of consistency of conduct.
In her first prescribed interview, the complainant said that the first person she spoke to about the alleged offending was a close friend, AKR. She said that she thought she spoke to AKR a couple of weeks after the alleged offending occurred and when she was six or seven years of age, and in grade three.
In her second prescribed interview, the complainant said she spoke to AKR in grade three at school, and told her that “we were at a wedding, and someone started touching me inappropriately … he was related to me … when we were there, I told my dad that I wanted to leave but he wouldn’t listen so if he left then that wouldn’t happen …”.
In evidence, the complainant said that she told AKR that “someone had touched me inappropriately on my chest area and like down there” but she could not recall the exact words she used.
In cross-examination, the complainant denied that she told AKR that her great-uncle hugged her and touched her on the thighs, back and “bum” over her dress. She accepted that she told AKR that she had disclosed the offending to her parents, when she had in fact not done so but explained that she was concerned AKR would tell them.
AKR also gave evidence at trial as to her conversation with the complainant. She said that in grade three, the complainant told her that when she was six years old and at a wedding, her great-uncle came up to her and was pushing and forcing himself on her, rubbing his hands up and down her back, her “bum” and her thighs, and then he moved his hands to the front of her body and was rubbing down her waist. AKR described the complainant using her hands to demonstrate the appellant’s actions. AKR said she was moving her hands from in front of her face, down to her waist or knee level (when saying she was touched on her back and bum) and down a little to the front (when saying she was touched to the waist to the front) and then moving both her hands in a circular motion.
In her reasons, the trial Judge gave a direction as to the complaint evidence in the following terms:
There is evidence as to initial complaint in this matter. This evidence cannot be used for a testimonial purpose. It can however be used to explain how the matter first came to light and to allow me to consider the degree of consistency of conduct on the part of the complainant. I must also take into account that there may be many reasons why she told her friend, AKR, about the alleged offences at the time that she did and why she told AKR rather than another person. Bearing these directions in mind, it is for me to decide what weight I give to this evidence in the circumstances of this case.
In assessing the complaint evidence, her Honour reasoned:[19]
I accept the evidence of AKR that [the complainant] told her about a sexual assault that occurred at a wedding and find that she was the first person that [the complainant] told about the events the subject of the charges. I accept that the complaint was made at a time when the complainant was very upset. I accept that AKR was doing her best to recall what she had been told by [the complainant]. However, the way in which [the complainant] communicated involved not just a verbal description but also hand movements. It was from a combination of these activities that AKR drew inferences and made assumptions about the complaint that [the complainant] was making. I also find that she made an assumption that [the complainant] was wearing a dress rather than SND having said that to her. The evidence of AKR must be assessed as evidence given by a young child who was recounting events that occurred many years ago.
I am satisfied that the substance of the complaint was consistent with the events that were described by [the complainant], and in particular, that the events occurred at a wedding and that the offender was her great uncle who touched her in a sexual way. I also find that [the complainant] told AKR at that time because she was upset about what the accused had done to her. I have considered the submission that the complainant did not give details about the accused having put his mouth on her nipples at that stage. I do not consider that renders the complaint inconsistent from the charged act. [the complainant] was describing generally the fact that the accused had sexually interfered with her. There may be many reasons why a person, especially an eight year old does not give specific details about the assault nor is there any requirement to do so. The essence of the complaint is that it was the accused who sexually interfered with her at a wedding and she was upset about it.
[19] Reasons for Verdict at [149]-[150]
The trial Judge found that “the substance of the complaint was consistent with the events that were described by [the complainant], and in particular, that the events occurred at a wedding and that the offender was her great uncle who touched her in a sexual way”.
The appellant contended that AKR’s evidence as to the complainant’s account of the alleged offending was markedly different from the complainant’s evidence. AKR said that the complainant described the appellant touching her on the bottom and front, while the complainant’s evidence included an allegation that the appellant licked each nipple and rubbed the complainant’s vagina over her clothing. Given those differences, the appellant submitted that it was erroneous for the trial Judge to use the evidence of initial complaint to demonstrate consistency of conduct on the part of the complainant in support of her credibility. Rather, her Honour should have used the inconsistency between the complainant’s evidence as to the alleged offending, and the evidence of AKR as to terms of her initial complaint, as adversely affecting the complainant’s credibility.
Section 34M of the Evidence Act governs initial complaint evidence, and relevantly provides:
34M—Evidence relating to complaint in sexual cases
…
(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.
…
It is well-established that to meet the threshold for admissibility, the details of an initial complaint need not be entirely consistent with the offence charged. Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge.[20]
[20] R v Place (2015) 124 SASR 467.
Complaint evidence “need only be referrable in a general way [to an offence] as it would ‘“be unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity’”.[21] In DES v The Queen,[22] Kourakis CJ stated:
Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse. That is not surprising. The circumstances which strike a child as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults. …
… on an appeal on the unreasonable verdict ground an appellant need not establish that the inconsistencies necessarily render his or her account incredible or unreliable. An appellant need only show that the inconsistencies are such that, notwithstanding the acceptance of a complainant’s testimony as honest and credible, no reasonable jury could have taken the further step of being satisfied beyond reasonable doubt of the commission of the offence.
[21] R v P, S (2016) 261 A Crim R 329 at [23] per Nicholson and Lovell JJ (Parker J agreeing) citing R v SDD (2010) 109 SASR 46 at [101] per Peek J.
[22] [2020] SASCFC 32 at [3]-[4].
A question of degree is involved when determining whether a proved inconsistency in a witness’s evidence will lead to doubt as to their credibility or reliability.[23] The question is whether the inconsistency gives rise to a doubt about the evidence of the charged act.[24]
[23] R v Livingstone (2011) 109 SASR 380 at [23] per Vanstone J.
[24] R v Thompson [2018] SASCFC 104 at [87]-[88] per Peek J.
In the present case, the trial Judge explicitly considered defence counsel’s submissions as to the inconsistencies between the complainant’s evidence, and AKR’s evidence as to the terms of her initial complaint, and the differences between the initial complaint as recounted by AKR and the complainant’s account of the alleged offending. Her Honour referred to the differences as to the areas on the complainant’s body where the appellant allegedly touched her and the failure of the complainant to mention that the appellant put his mouth on each nipple. Her Honour ultimately rejected the submission that those inconsistencies materially undermined the complainant’s credibility and reliability and found that “the substance of the complaint was consistent with the events that were described by [the complainant].”
Notwithstanding the obvious inconsistencies between the evidence of AKR, as to the terms of the initial complaint, and the complainant’s evidence of the alleged offending, we are satisfied that it was open to her Honour to find the initial complaint evidence demonstrated consistency of conduct on the part of the complainant and supported her credibility. It is important to bear in mind that the complainant was only eight years of age, and in grade three, at the time of the initial complaint. She was speaking to another young child and describing the alleged offending both verbally and with hand gestures. There was room for confusion. In those circumstances, and notwithstanding the inconsistencies, we are satisfied that it was open to her Honour to find that the evidence demonstrated consistency of conduct on the part of the complainant. As her Honour expressly found, according to AKR, the substance of the complainant’s disclosure was that a relative had indecently touched her at a wedding which was consistent with the complainant’s account of the charged offending in her prescribed interviews and in court.
We reject this ground of appeal.
Ground 6 – unreasonable verdict
Under this ground of appeal, the appellant complained that the verdicts are unreasonable or cannot be supported having regard to the evidence. The appellant relied on the following features of the evidence in support of his complaint.
First, the appellant emphasised the inconsistencies between the complainant’s evidence as to the charged offences and the evidence of AKR as to the terms of her initial complaint, as outlined above.
Secondly, the appellant submitted that the complainant’s young age combined with the delay in the matter proceeding to trial, meant there was a real risk that the complainant and other prosecution witnesses had reconstructed their evidence.
Thirdly, the appellant submitted that the alleged offending was so brazen and opportunistic as to be implausible (for the reasons outlined in relation to appeal ground 3). The appellant asserted that the fact that most of the wedding guests had left did little to reduce the riskiness of his behaviour given that there were other men in the immediate vicinity of the area where the offending allegedly occurred including the complainant’s father.
Fourthly, there was no evidence of previous grooming by the appellant of the complainant, and without any grooming, it is unlikely that the appellant would be confident that a child would not yell or resist or attract the attention of others. In those circumstances, the risk of detection was significant. The appellant quite properly accepted that an absence of grooming does not mean a complaint must necessarily be false, but submitted that in the circumstances of this case, the absence of grooming rendered the complainant’s account implausible.
Finally, the appellant has no criminal antecedents, and, accordingly, it was not in his nature to commit these offences such that it was less likely he did so.
The appellant contended that this Court, upon an independent assessment of the whole of the evidence, should have a reasonable doubt as to his guilt.
In considering an unreasonable verdict ground of appeal, the task for this Court is to “ask itself 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 … 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.”[25]
[25] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
In Dansie v The Queen, the High Court considered the correct approach to an unreasonable verdict ground following a trial by judge alone, and said:[26]
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial.
[26] (2022) 274 CLR 652 at [16]-[17] per Gageler, Keane, Gordon, Stewart and Gleeson JJ.
The Court must consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[27] To succeed on this ground, the appellant must demonstrate that the verdict was not reasonably open, and that the tribunal of fact must, as distinct from might, have had a doubt.[28]
[27] M v The Queen (1994) 181 CLR 487 at 492-3 per Mason CJ, Deane, Dawson and Toohey JJ; Jones v The Queen (1997) 191 CLR 439 at 450-1 per Gaudron, McHugh and Gummow JJ (Brennan CJ agreeing; Kirby J dissenting); Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, 452-3 per Dawson J and 462 per McHugh J.
[28] Libke v The Queen (2007) 230 CLR 559 at [113] per Hayne J (Gleeson CJ and Heydon J agreeing) citing M v The Queen (1994) 181 CLR 487 at 492-3 per Mason CJ, Deane, Dawson and Toohey JJ.
It is to be accepted that there were inconsistencies between the complainant’s evidence as to the charged offences, and her initial disclosure to AKR, as recounted by AKR. However, for the reasons outlined in relation to appeal ground 5, we do not consider those inconsistencies necessarily rendered her account incredible or unreliable. The fact the complainant made a relatively timely complaint to her friend, AKR, that a relative indecently touched her at a wedding, was capable of demonstrating consistency of conduct on her part such as to support her credibility, notwithstanding the inconsistencies in the detail of her disclosure.
As to the appellant’s submission that the delay in the matter proceeding to trial gave rise to a real risk of reconstruction on the part of the complainant, the complainant gave a detailed account of a specific and isolated incident which countered any suggested reconstruction. In addition, she made appropriate concessions about matters of which she did not have a clear memory, such as the number of men who remained drinking in the garage area.
This was not a matter where, for example, the defence case was that there had been an accidental touching which had been misconstrued or where it was suggested that another person was responsible for the offending and the complainant was confused as to the identity of the offender. In light of the complainant’s detailed account, and notwithstanding some inconsistencies between her evidence and AKR’s account of the initial complaint, and the delay in the matter proceeding to trial, we do not consider there was any real risk of reconstruction when she gave evidence as to the appellant indecently touching her. As to the possible reconstruction by other witnesses, there were appropriate concessions made by the prosecution witnesses which undermined any such suggestion.
It is also true that the alleged offending, as recounted by the complainant, occurred in an open setting where there was a real risk of detection. However, we do not consider this fact rendered the complainant’s evidence as to the offending implausible. As discussed in relation to appeal ground 3, there was evidence that most guests had left the event by the time of the alleged offending.
In addition, the appellant’s family and several guests had moved inside the home. The complainant’s father and other men remained in the garage area drinking. It is to be accepted that had they looked or focused their attention on the relevant area in the alfresco area, then the alleged incident would have been within view. However, the men were positioned in a different room, at a distance from where the complainant alleged the offending took place, and the incident would have occurred relatively quickly. We do not think the evidence supported a finding that the men would necessarily have seen the alleged incident had it occurred. Whilst the presence of the men in the garage was an important consideration to take into account, particularly in relation to whether it was likely that the appellant would have committed these offences so brazenly and with such a high risk of detection, we do not consider that it rendered the complainant’s account implausible.
As to the submission that there was no evidence of previous grooming, such that the appellant would have realised that there was an increased risk of detection because the complainant was likely to yell or resist at the time of the offending, it is important to emphasise that the appellant is the complainant’s great-uncle. He held a position of authority in relation to her. She was a very young child aged only eight years at the time of the alleged incident. The complainant gave evidence that he told her not to say anything. The appellant may well have been confident that she would not resist him, disobey him or disclose the alleged offending.
After undertaking an independent assessment of the whole of the evidence, we are satisfied that it was open to the trial Judge to find the complainant was a credible and reliable witness and, on the basis of her evidence, find the offences proved beyond reasonable doubt. In reaching this conclusion, we have taken into account the agreed fact that the appellant has no criminal antecedents, which rendered it less likely that he committed these offences as it was not in his nature to do so. We also acknowledge that there were aspects of the complainant’s evidence which were open to criticism. As discussed earlier, on the complainant’s account, the appellant’s offending was committed in brazen circumstances with a high risk of detection. However, notwithstanding those matters, we are satisfied, on our own independent assessment of the whole of the evidence, that the evidence was sufficient in nature and quality to eliminate any reasonable doubt, and the verdicts were not unreasonable or unable to be supported having regard to the evidence.
We dismiss this ground of appeal.
Conclusion
We grant permission to appeal on grounds 3, 4, 5 and 6, but dismiss the appeal.
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