B, VN v Police - [2011] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
B, VN v POLICE
[2011] SASC 151
Judgment of The Honourable Justice Gray
27 September 2011
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - ACCEPTANCE
Appeal against conviction - defendant charged with three counts of indecently assaulting a child under the age of 14 years alleged to have occurred against three separate complainants between 1958 and 1966 - where complainants sisters - whether the Magistrate had failed to direct or properly direct himself on the operation of section 34CB of the Evidence Act 1929 (SA), adequacy of directions relating to delay where a defendant is forensically disadvantaged - whether the Magistrate in error in finding that a statement of the defendant to a psychiatrist that the defendant "pleaded guilty at the first case", amounted to an admission of guilt.
Held: appeal allowed - a number of matters raised a significant forensic disadvantage to the defendant, however, not shown that the Magistrate failed to have regard to these matters - Court record demonstrates that there was no admission of guilt when the matter was first before the Court - Magistrate proceeded under a misapprehension of fact in reaching his conclusions as to guilt - order that convictions be set aside - direction that the matter be remitted for retrial.
Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 34CB, referred to.
R v Cassebohm (2011) 109 SASR 465, considered.

B, VN v POLICE
[2011] SASC 151
Magistrates Appeal
GRAY J:

This an appeal against conviction.[1]
[1] Pursuant to section 42 of the Magistrates Court Act 1991 (SA).
Introduction
VB, the defendant and appellant, was charged with three counts of indecently assaulting a child under the age of 14 years alleged to have occurred between 1958 and 1966. Each count related to a different complainant, all of whom were sisters.[2] It was the prosecution case that the defendant had committed each of the offences in a room at the rear of a shop which he ran in rural South Australia. On each occasion, it was said, the victim had been sent on her own to run an errand and collect an item from the defendant’s shop. The defendant was 90 years of age at the time of trial.
[2] Count 1
[The defendant] between the 1^st day of January 1958, and the 31^st day of December 1958 at [a rural town in South Australia] indecently assaulted DLP a child under the age of fourteen years.
Count 2
[The defendant] between the 1^st day of January 1961, and the 31^st day of December 1962 at [a rural town in South Australia] indecently assaulted VR a child under the age of fourteen years.
Count 3
[The defendant] between the 1^st day of January 1964, and the 31^st day of December 1966 at [a rural town in South Australia] indecently assaulted ZT a child under the age of fourteen years.
Each of these charges were brought pursuant to section 56 of the Criminal Law Consolidation Act 1935 (SA).
The defendant made application for severance of the counts. This application was refused and the counts were heard together. At trial the consequences of the passage of time were raised. The Magistrate directed himself at some length as to this issue, which I shall return to shortly.
The prosecution led evidence from the three complainants and the husband of one. The defendant did not give evidence. A psychological report of Richard Balfour was tendered by the defendant by consent.
The Magistrate concluded that each count had been proved beyond reasonable doubt:
The defendant is presumed to be innocent unless and until his guilt has been proved beyond reasonable doubt. The plea of not guilty amounts to an outright denial of the allegations and he was not obliged to prove anything. The burden of proving each element of the offences lay wholly with the prosecution. After careful consideration of the evidence of each complainant I am satisfied that they were witnesses of truth. They made concessions in cross-examination that there were some inconsistencies between their statements to the police and their evidence in court, but these were entirely reasonable given the passage of time. However, overall the evidence as to the occurrence of the sexual acts committed by the defendant against them was unequivocal and convincing. I accept the evidence of each complainant as to the incidences constituting the charged offences. In reaching my conclusion I have determined each verdict on the basis of the specific evidence relating to each count.
I am satisfied beyond reasonable doubt that the specific acts alleged by the complainants occurred. Thus I find that each element of each charge of indecent assault has been established beyond reasonable doubt and I find the defendant guilty on each count.
The Appeal
On the hearing of the appeal a number of grounds were abandoned, leaving two complaints for consideration.
Forensic Disadvantage
It was submitted that the Magistrate had failed to direct or properly direct himself on the operation of section 34CB of the Evidence Act 1929 (SA), a section concerning directions relating to delay where a defendant is forensically disadvantaged.
There was a delay of between 47 and 53 years from the date of the alleged offences to the date of trial. The Magistrate concluded that this gave rise to a “significant forensic disadvantage” to the defendant and in this respect observed:
However, as has been observed the lapse of time is such that the defendant has suffered a forensic disadvantage. There is the potential that the defendant has been deprived of the opportunity to adequately test the allegations. In particular he may not be as well placed to call evidence, if he chose to do so, to counter the allegations as he would have been closer to the time the offences are said to have happened. In those circumstances, and as the case against the defendant essentially consists of each complainant’s unsupported evidence, I must approach each charge on the basis that I should give close scrutiny to the complainants’ evidence. I bear in mind that in a case as here involving lengthy delay the defence will frequently consist of outright denials because the passage of time denies the necessary forensic weapons that contemporaneity provides (Crampton v The Queen 2000 206CLR16).
These observations of the Magistrate demonstrate that the forensic disadvantages suffered by the defendant included an inability to call evidence to counter allegations when such evidence would have been available closer to the time of the alleged offending.
Section 34CB of the Evidence Act, enacted in 2008, is in the following terms:
(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 provision was the subject of extensive review and the following concluding observations of Doyle CJ in Cassebohm:[3]
I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant's ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.
Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered "a significant forensic disadvantage". This is a decision for the trial judge.
[3] R v Cassebohm (2011) 109 SASR 465, [28]-[29].
Although Cassebohm concerned instructions to a jury, it is to be understood that the provision has relevance to the approach to be taken by a Magistrate, or for that matter, a Judge sitting without a jury. In the present proceeding, the enlivening circumstance was made out; namely, that the defendant was at a significant forensic disadvantage. In these circumstances, the Magistrate was obliged to take that forensic disadvantage into account when scrutinising the evidence. In my view, the earlier extracted observation of the Magistrate demonstrated that he intended to do so.
On the appeal, it was contended that one particular disadvantage suffered by the defendant was the inability to call as witnesses the complainants’ parents and in particular their mother. This evidence was said to be potentially relevant to test the complainants’ explanation as to why they had not disclosed the alleged offending earlier, their suggestion that they had resisted returning to the shop after the alleged assaults and, in respect of count 2, the presence or otherwise of the complainants’ brother at the shop.
It was further said that records which may have helped to discredit the complainants’ evidence by showing that the defendant was interstate for lengthy periods of time during the months in which the offending was alleged to have occurred were not available. Finally, it was complained that as a consequence of the defendant’s age and medical conditions his memory and ability to instruct his solicitors was impaired.
I accept that each of the above matters raised a forensic disadvantage to the defendant that can be fairly characterised as significant. Each of the matters was drawn to the attention of the Magistrate by defence counsel. I do not accept the submission that the Magistrate failed to have regard to these matters. His finding that there had been a significant forensic disadvantage would suggest that he had regard to each of the above matters and his express reference to the inability to call evidence provides further confirmation. I do not consider that the Magistrate was bound to identify each of these matters in the course of his reasons.
Admission of Guilt
The defendant submitted that the Magistrate was in error in finding that a statement of the defendant to Richard Balfour, a psychologist, amounted to an admission of guilt. The alleged admission was that the defendant asserted that “I pleaded guilty at the first case” referring to his first appearance before the Court in respect of the charges the subject of the within proceedings.
The Magistrate addressed the so-called admission of guilt as follows:
The defendant was psychologically assessed at the request of … the defendant’s lawyer and Mr Balfour submitted his findings in his report, dated 23 March 2010. The report was tendered in evidence by consent. The report covers the defendant’s background and the fact that he had an uneventful upbringing. He has been a loner for most of his life, never married, has no children, and he was born in [a rural town] and has lived and worked in the small community for all his life. He has never had any issues with alcohol or drugs and apart from some trouble for not having a second-hand dealers license and another occasion for driving an uninsured motor vehicle, some 50 years ago, he has been of good character and a hard working member of the community. The prosecution have submitted that the court should have regard to page 9 of that report and in particular the following passages:
I asked Mr B. questions to ascertain his understanding of what the police said to him when they arrested him and obtained the following responses:
No, they accused me first, then they took me over to the business, and accused me of molesting a girl on a bed, and questioned me whether I had intercourse with them. They said the mattress upstairs was evidence in the bed and the bed frame downstairs was connected with this rape business.
I asked Mr B. questions to ascertain his understanding of his legal rights at the time of being arrested and obtained the following responses:
Police never mentioned any legal rights to me, no I pleaded guilty at the first case and then the Magistrate said that I should have a lawyer to represent me, I don’t know whether I was arrested or I was just ordered to appear in court and have had [my solicitor] represent me since.
The prosecution submit that the defendant’s statement, “I pleaded guilty at the first case’ refers to his first appearance before the court in March 2009. He was of course correctly advised by the Magistrate to seek legal advice. Prosecution contend that his offer of a plea of guilty in March 2009 and his confirmation of that to Mr Balfour in March 2010 was a voluntary admission of guilt by the defendant.
…
Thus it would follow that the mandatory requirement is that the person in authority has some connection with the police or prosecution authorities or plays some influential role in whether charges are laid or proceeded with. As in R v Cocks, there was no evidence that Mr Balfour was in anyway connected with the police or prosecuting authorities nor was there any evidence that the defendant had that perception. The defendant was referred to Mr Balfour by his lawyer … for a neuro psychological assessment and the defendant was well aware of that. Mr Balfour described the defendant as a jovial individual, did not experience any difficulty in comprehending his questions and spoke in a normal manner and without reluctance. Thus there was no evidence to suggest that the defendant spoke to Mr Balfour other than in the exercise of his own free will. [Counsel] for the defendant, submitted that the phrase, ‘I pleaded guilty at the first case’ referred to the first case being the occasion when the defendant’s car was uninsured and that the prosecution had totally misconstrued his statement. I do not agree with this interpretation because from reading the contents of the report, on pages 8 and 9, it was very clear that they were discussing the defendant’s understanding of his arrest and charging with respect to the current offences.
[Emphasis added.]
On the hearing of the appeal, attention was drawn to the Court Record. That Record disclosed that there were many hearings in Court before the matter proceeded to trial. On 30 March 2009, the first hearing date, the Record discloses that the defendant appeared unrepresented and that no plea was taken to the three counts of indecent assault. The Record records that one charge was to be amended to “major indictable” and that the defendant was to seek legal advice.
On ensuing occasions, the defendant was represented by legal counsel. The Record discloses that no plea was entered until the trial when a plea of not guilty to each of the counts was entered. On 6 May 2010, the notation on the Record of a pre-trial conference hearing indicates that each of the charges were contested.
It appears that the significance of the Court Record was overlooked by the prosecutor, defence counsel and the Magistrate. The Record establishes that there was no admission of guilt when the matter was first before the Court. The prosecutor’s submission as emboldened above was incorrect.
Following the lodging of the appeal, an addendum report was sought from Mr Balfour. He reported as follows:
I also explained to [VB] that I was interested in his understanding of the police allegations. I am not seeking a confession of his guilt or innocence of the current offences. His responses to my questions occurred in the context of this understanding. I believe this is important to keep in mind when interpreting his statements to me to ensure they are not misinterpreted as confessions of his guilt.
My role is not to extract legally incriminating information from defendants as occurs in a formal police interview. I am only interested in their understanding of the police allegations and the evidence upon which they are based. However, in assessing their understanding of the allegations, a defendant may still make self-incriminating statements. Again, I emphasise even in this situation, my over riding duty is to the court and not the defendant.
He is a vulnerable defendant. He is elderly. He has a hearing impairment which can increase the potential for misunderstandings. He had to recall events which had allegedly happened many years ago. The assessment represented the first time he had travelled to Adelaide, and been in an aeroplane, in many decades. I believe he may have felt somewhat over awed by the experience of coming to Adelaide for the assessment.
…
On page 9 of my initial report, the relevant section referred to in the Magistrate’s report is:
“Police never mentioned any legal rights to me, no. I pleaded guilty at the first case and then the Magistrate said that I should have a lawyer to represent me. I don’t know whether I was arrested or I was just ordered to appear in Court and have had [my lawyer] represent me since.”
I believe that the above answer was referring to the current historical sexual charges and not the old non-sexual charges. I would agree with His Honour’s interpretation of the statements as outlined in his Judgement. I believe [VB’s] reference to the “first case” refers to the current historic sexual charges.
Counsel for the Police on the appeal, following discussion with Mr Balfour, accepted that there had been no admission of guilt that was relevant or probative that could be used by the prosecution and in the manner addressed by the Magistrate.
Counsel for the Police accepted that if the Magistrate had acted on the so-called admission of guilt as evidence, the convictions should be set aside. However, it was submitted that when close regard was had to the Magistrate’s reasons, this Court should conclude that the Magistrate had made no use of the so-called admission. Were this so, the Court, it was said, should be satisfied that the Magistrate had reached a verdict open on the evidence.
In my view, a plain reading of the Magistrate’s reasons establishes that he proceeded under a misapprehension of fact in reaching his conclusions as to guilt. I consider that the Magistrate proceeded on the basis that in his initial interview with Mr Balfour, the defendant had acknowledged admitting guilt of the alleged offence of indecent assault on 30 March 2009. The Magistrate spent some time in discussing the issue and at no point suggested that he reached his conclusions without regard to the so-called admission.

Both counsel agreed that if I reached this conclusion, I should set aside the convictions and direct a re-trial. I am satisfied for the reasons expressed above that the convictions should be set aside. Regrettably, however, I have also concluded that there is no alternative but to order a re-trial. It is not possible for this Court to reach any conclusion as to guilt on a simple reading of the evidence. Much turned on the credibility of each of the complainants. Although the defendant did not give evidence, no inference is to be drawn against him on that account. Without the evidence of the so-called admission, the Magistrate may have concluded that a reasonable doubt arose. There is a risk of a miscarriage of justice.
For these reasons, the convictions recorded are set aside. The matter is to be remitted for a retrial before a differently constituted court. I will hear the parties as to costs.