Burton v Police - [2005] SASC 308

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURTON v POLICE
Judgment of The Honourable Justice Vanstone
11 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against findings of guilt of sexual offences by magistrate - complaint that decision unsafe and unsatisfactory - appeal dismissed.
Evidence Act 1934 s 34(i)(6a), referred to.
M v R (1994) 181 CLR 487; R v Corrigan (1998) 74 SASR 454; R v Keyte (2000) 78 SASR 68, considered.

BURTON v POLICE
[2005] SASC 308
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against findings of guilt by a Magistrate, of six charges of indecent assault committed upon a girl, whom I shall call “E”.
The appellant has not yet been convicted by the Magistrate. His right of appeal is against “any judgment given in the action”: s 42 Magistrates Court Act 1991. The appellant was presented on an information charging a further two counts, those being allegedly committed against E’s sister “H”, but he was acquitted of those counts. E was 11 years of age at the time of the offences and just short of 14 years at the time she gave evidence. The complainant H was about two years younger.
All the charges arose from events during the Easter weekend of 2002. On that weekend E and her sister and parents had travelled from the country and were staying at the home of the appellant and his partner, who was a relative of the family. It was alleged that all the incidents giving rise to the charges occurred in a room used as a bedroom by the sisters, in which was located a computer owned by the appellant and used, during that weekend, by the sisters. It was not suggested by either of the girls that she had witnessed any assault upon the other. Neither girl complained until after their return home and on the following Thursday. There was evidence from the girl’s mother that she had observed some touching of the girls by the appellant which, though not indecent, gave her cause for concern. She thought it was inappropriate.
The appellant was interviewed by police about three weeks after the Easter weekend and denied any offence. A transcript of that interview was before the learned Magistrate. Also before him was a transcript of evidence given by the appellant at a previous trial of the charges. He did not give evidence at the trial from which this appeal arises.
As I read the grounds of appeal they amount to one ground that the findings are unsafe and unsatisfactory, together with particulars of that ground, separated under discrete headings. The various complaints raised do not give rise to any misgivings in my mind about the findings of the Magistrate. Many of the matters agitated are simply arguments on the facts which were, no doubt, made the subject of submissions to the Magistrate. I consider that the Magistrate made no error of law in relation to the way he approached the matter, nor in his analysis of the factual material. As required by M v R (1994) 181 CLR 487, I have made an independent assessment of the evidence before the Magistrate. On my reading, the evidence of E is reasonably compelling. When allowance is made for the fact that the offences were essentially similar, in terms of where they occurred and how they occurred, together with the fact that E was being asked to relate events which occurred about two and a half years previously, the evidence amounts to a cohesive and persuasive account. I consider that none of the appellant’s complaints have been made good. I find that the appeal must be dismissed. In deference to the argument presented, I propose to give relatively brief reasons for that finding.
The first matter highlighted by counsel for the appellant concerned the use made by the Magistrate of two exhibits, namely the transcript of police interview and a transcript of the appellant’s evidence at the first trial. As I understand the ground, the complaint is that whilst material found within those exhibits was used against the appellant, little weight was given to his denials of having committed the offences.
It is true that the Magistrate found some aspects of the transcripts to be of significance. He made these observations in his reasons for decision:
35At the first trial, at page 322, it was the defendant’s sworn evidence that each girl sat on his knee from time to time and it was his sworn evidence, at page 376 of that transcript, that he touched the girls and rubbed them in a circular manner but he also denied the touching of [E] on the breast, the chest and below the belt line. This evidence given at the first trial in my opinion is of considerable significance. It establishes that Mr Burton was in close proximity to the children in the computer room in the manner which is alleged particularly by [E]. It is an acknowledgement by Mr Burton that there was physical contact between himself and particularly the child [E] in that computer room.
36It is appropriate to find that in the record of interview (P 11) Mr Burton was attempting to downplay the extent of the time he spent with children in the computer room.
I agree with the Magistrate that the admission of having each girl sit on his knee and the touching of them as described was a matter of significance. The appellant was not a man who was wellknown to either child. The fact that this evidence was common ground between prosecution and defence does not rob it of that significance. In my view the Magistrate’s assessment that the appellant was, in his interview, attempting to “downplay” time spent with the two girls was open to him. The Magistrate referred to the fact that in his earlier sworn evidence the appellant denied any indecent touching. Because the appellant did not repeat that evidence before him, he was not in a position to assess the force of that evidence for himself. The plain fact is that evidence given on other occasions is not to be compared with evidence given before the trier of fact. It is to be afforded such weight as is considered appropriate, bearing in mind the manner in which it came into evidence: R v Corrigan (1998) 74 SASR 454, 463‑464, per Doyle CJ, Millhouse and Nyland JJ agreeing. In my view the Magistrate’s treatment of this material was unexceptional.
The appellant’s counsel made various criticisms of E’s evidence. It was suggested that the Magistrate had used the “consistency between the complainant’s descriptions in her evidence and the particulars on the Information to in effect bolster the complainant’s credibility”. I consider that that criticism is unfair. The Magistrate was obliged to ensure that each charge was indeed supported by evidence from the complainant. In the paragraph of the Magistrate’s reasons referred to, he did no more than that. In the course of evaluating E’s evidence, the Magistrate made specific reference to certain criticisms of her evidence by counsel then acting for the appellant, including the fact that she did not immediately complain of the appellant’s conduct, the danger of “suggestion” said to be inherent in the way in which the complaints were elicited and the danger of “contamination” as between the allegations of E and H. I consider that these matters were simply factors to be taken into account in the Magistrate’s overall assessment of E’s evidence. A minute explanation of each step taken and the reasoning process and detailed findings on all issues of fact are not required of a judge or magistrate sitting alone: R v Keyte (2000) 78 SASR 68, [48] and [54].
A specific ground directed to the failure to complain to her parents on the very weekend of the incidents and the Magistrate’s finding that the failure did not undermine the complaint’s evidence was withdrawn upon the appeal, counsel’s attention having been drawn to s 34(i)(6a) Evidence Act 1934. It was argued however, that the fact that E continued to play computer games in the bedroom, throughout the weekend, even when the appellant was present, tended to undermine her evidence that she found the appellant’s conduct “disgusting”. Although this was a matter which properly formed the basis of argument to the Magistrate, I do not consider that it is of much significance at this point. The dynamics of sexual abuse are complex and there are often apparent inconsistencies in the behaviour of young victims. This was very much a matter for the trier of fact. Much the same answer applies to the argument that the lack of distress or unhappiness exhibited by the complainant during the period spent at the appellant’s home was inconsistent with the occurrence of the events she described.
Counsel also adverted to what he said were discrepancies between the evidence of the complainant E and her sister H. Particularly where the Magistrate was not prepared to act on the evidence of H, it is difficult to see that much could be made of the suggested inconsistencies. In any event, these related essentially to a comparison of descriptions of the way in which the appellant touched each child. Little could be made of those in circumstances where the appellant had admitted in his previous evidence a degree of unnecessary physical contact which was noticed by the children’s mother.
The appellant complained that the Magistrate was in error in failing to direct himself that it would be unsafe to convict the appellant in the absence of corroboration. My reading of the matter does not suggest there were features of the case which would have justified the Magistrate in directing himself in terms of the need for corroboration. Features which might have led to such a need would be matters over and above the fact that the allegation was of a sexual nature and the fact that E was a young girl. In particular, I note that E was not cross-examined to suggest that she had previously made statements inconsistent with her evidence, there was no suggestion of ill-feeling or vindictiveness towards the appellant arising from these or any other events and E’s evidence was uncontradicted in the court by any other sworn evidence.
A further complaint that the evidence of E was inconsistent with suggestions put to the appellant in his interview was abandoned upon the appeal. As mentioned, in cross-examination of E, no suggestion of any prior inconsistent statement was made.
For these reasons the appeal must be dismissed.