C, GM v Police - [2007] SASC 310

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
C, GM v POLICE
[2007] SASC 310
Judgment of The Honourable Justice Sulan
23 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - EVIDENCE - COMPLAINTS
Appellant charged with three counts of indecent assault alleged to have occurred 30 years ago - appellant convicted of two counts and acquitted of one count - whether verdicts inconsistent - whether convictions unsafe and unsatisfactory - whether evidence of recent complaint properly admitted - appeal allowed, in part.
Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 42; Supreme Court Rules 2006 (SA) r 292(1), referred to.
Jones v The Queen (1997) 191 CLR 439; R v Gallagher (1986) 41 SASR 73; Taylor v Hayes (1990) 54 SASR 282, applied.
Coghlan v Cumberland [1898] 1 Ch 704; Crampton v R (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; Kubicki v Wylie (1979) 81 LSJS 349; Longman v The Queen (1989) 168 CLR 79; Police v Cadd (1997) 69 SASR 150; R v Blayney [2001] SASC 211; R v Freeman [1980] VR 1; R v GG (2004) 151 A Crim R 92; R v King (1995) 78 A Crim R 53; R v Mustafa (2005) 91 SASR 62; Tazroo v Police [2002] SASC 155; Wigg v Architects Board (1984) 36 SASR 111, considered.

C, GM v POLICE
[2007] SASC 310
Magistrates Appeal

SULAN J: The appellant was convicted by a Magistrate of two counts of indecent assault of NC, both committed between 1 February 1975 and 1 June 1975 at Richmond in South Australia. He was acquitted of one count of indecent assault of NC, alleged to have been committed during the same period. NC was five years of age at the relevant time.
The appellant appeals against the convictions.
Background
NC was born on 7 January 1970. Her mother, DO, and her father, KP, are now divorced. Her maternal grandmother, BW, is deceased.
In 1975, NC’s parents lived together at West Beach with NC and her younger brother. The marriage was difficult and they separated from time to time. On some of those occasions, DO and the two children lived with DO’s mother, BW, at her home. BW was in a relationship with the appellant, who was also living at BW’s house. NC first met the appellant when she was about four or five years of age, after her grandfather, BW’s husband, had passed away.
The prosecution case was that the offences took place at BW’s home at Richmond. The allegations came to light when NC reported them to the police in or about November 2004, almost thirty years after the alleged incidents occurred.
Count 1
It is alleged that between 1 February 1975 and 21 June 1975 at Richmond, the appellant indecently assaulted NC, a person of the age of five years, contrary to s 56 of the Criminal Law Consolidation Act 1935.
NC gave evidence that this incident occurred in the lounge room at Richmond, when she and her brother were watching television. She recalled the appellant had asked her whether she would like a “creepy”. That was a term that was used for tickling her back. She said:
… I remember the first incident occurring in the lounge room of nanna’s house where my brother and I were watching television and he came in and sat down on the couch and asked me if I would like a creepy and that is a term that was given to tickling your back. And as kids we used to love that and mum and dad, pop, it was something that was the common affection, a thing to do. So I sat on his lap and he gave me a creepy and I remember that it wasn’t just on my back this time. His hands went into my underwear and I didn’t like it, I got scared. My brother, he was in the room to begin with but I don’t remember seeing him. I don’t remember how it finished. I don’t remember what happened to [NP]. I don’t remember what was on television but I do remember that happening.
NC described how she sat on the appellant’s lap and he began to tickle her. She said that she recalled his hand in her underwear, and his fingers played with her vagina. She was scared. She said that it hurt in her vagina. She was unable to recall why the appellant stopped the act, but she said it may have been because her brother came back into the room. She made no complaint about the incident.
Count 2
Count 2 alleges that the appellant indecently assaulted NC between 1 February 1975 and 21 June 1975. NC described the incident as having occurred at bath time. NC described a shack at the back of the house to which the laundry was connected. She said that the appellant was bathing her in the laundry trough. He then laid her on a big table that was in the shack and dried her. She said that as the appellant was putting Johnson’s baby powder on her, he kissed her all over her body and on her vagina. When the kissing had stopped, he told her to put on her pyjamas. They then went into the kitchen. NC gave evidence that there was a bathroom in the house in which there was a bathtub. She was unable to recall why she was taken into the shack in order to have a bath. She thought the second incident may have occurred two or three days after the first incident. In cross-examination she was unclear of the exact interval between each event.
Count 3
The prosecution alleges that the appellant indecently assaulted NC between 1 February 1975 and 21 June 1975.
NC described that incident as occurring when she was walking from the kitchen to the lounge room to watch television. She said she was called into her grandmother’s bedroom by the appellant. She said:
I was walking – there was between the kitchen and the rest of the house, it is only a little house but there was a big heavy swing door between the kitchen and the bedrooms and the lounge room and I was walking up to go and watch TV and I left the kitchen and I was walking to the lounge room and it was dark and I remember being called into my grandmother’s bedroom by [the appellant] and it was dark and he called me into nanna’s room and he and I went in there and he said ‘here, suck this’ and he put his penis into my mouth.
She said that she was scared and she felt sick. NC did not recall saying anything to anyone about that incident.
As to that incident, NC was seen by her mother in the vicinity of the bedroom. DO gave evidence that she saw NC coming out of the area of her mother’s bedroom, and that NC had a look on her face which prompted DO to ask what was wrong. NC replied that the appellant had made her touch his “thing”. I will return to DO’s evidence in more detail later.
NC recalled that when they were living at Richmond she was attending Cowandilla Primary School. She returned to West Beach Primary School after having been at Cowandilla Primary School only for a short time. After West Beach Primary School, she attended school at Jamestown. She was able to recall that, at the time she was living at Richmond and attending Cowandilla Primary School, her parents were separated. She had previously been enrolled at West Beach Primary School, but was then removed to Cowandilla Primary School. She returned to West Beach Primary School in the latter half of the year. She recalled that she, her brother and her mother returned to live with her father, KP.
DO gave evidence that she had been married to KP in September 1968. When NC was born, she lived at West Beach with KP. She recalled that the family moved to Jamestown at the beginning of 1976. Prior to moving to Jamestown, she and NC lived in a caravan at Marino for a short time when she and KP had separated. She returned to live with KP at West Beach. After returning, there was a second separation when NC was four and one half years of age. She, NC and NC’s brother, were living for a time at Richmond at the home of DO’s mother, BW. The appellant was living there at the time.
DO gave evidence that she moved back from her mother’s home to West Beach. She gave the following evidence-in-chief:
Q.What prompted the move back to your husband at West Beach.
A.[NC] was a little girl and she told me that [the appellant] made her touch his thing.
HIS HONOUR
Q.[The appellant] made her touch his thing.
A.She came out of mum’s bedroom and she had a look on her face that I have never seen before. Her eyes were half the size that they normally were.
XN
Q.I want you to tell the court what prompted that conversation. Did you say something or did she say something first.
A.I said something first. I said ‘What’s wrong. Tell mummy’. She was coming out of mum’s bedroom too. She was only about three foot out of mum’s bedroom.
Q.What were the words that [NC] used.
A.I said ‘Tell mummy. What’s wrong. Tell mummy’. When she finally said something she said, I can’t remember whether she said [the appellant] or he made her touch his thing.
Q.Were they her exact words.
A.Yes, to the best of my ability because she didn’t say penis because she wouldn’t have known any other word so she just said thing.
Q.What did you say.
A.I asked her to repeat it because I wanted to be sure and she repeated it and I was sure then. I was positively sure. No question.
DO gave evidence that she told her mother, BW, what had happened. BW did not believe her. She said that she did not speak to the appellant. She decided that she had to get out of the house. She rang KP and, on the same night, she went to West Beach, spoke to her husband and eventually took the children back to West Beach about one or two days later.
She gave evidence that she did not contact the police because she thought it was NC’s word against the appellant. NC was very young. She said that the approach of the police to allegations of the nature of NC’s allegations were not treated as sympathetically in those days as they are today. She said that she did not see the appellant again after that, although she saw her mother from time to time. She never let the children stay with her mother. They stayed with her sister and her sister’s husband from time to time.
She said that there were occasions when the appellant bathed the children prior to the incident of which she spoke. She said that, to her knowledge, the children did not ever have a bath in the laundry. The only occasion they might have washed in the laundry was if they were very dirty and had to clean themselves before they had a bath.
The police interview
The appellant was interviewed by police on 15 June 2005. He admitted that, from time to time, he had given NC a “creepy”. He referred to that as tickling her up and down her back. When it was put to him that NC said that on one occasion he had put his hands underneath her knickers and placed a finger inside her vagina, he said he was unable to remember. In his interview with the police, the appellant was asked:
Q66.Okay. She [NC] talks about a time at that RICHMOND house where she was on her back and that you were giving her, ah, she was on your lap sorry, in the lounge room and you were giving her a creepy. And she says that um you’ve started to do that on her back and then she can remember that you’ve put your hands then up underneath her knickers.
A.I can’t remember, no.
Q67.Okay. She says in fact that you’ve put your fingers inside her underwear and you have used your fingers and in fact put a finger inside her vagina. What do you say to that?
A.I really can’t remember and honestly I don’t think I did.
Q68.Can you think of anything you may have done with [NC] that she might have thought later on in life was inappropriate?
A.No never ever.
Q69.Alright. And have you ever told her that’s [sic] something was a secret and not to tell any body.
A.No, not that I know of.
…
A140.Yep. And I just want to make sure that you understand that the allegations um, involve [NC] talking about, alleging that you’ve placed a finger in her vagina on an occasion.
A.I don’t think that’s right but, I can understand that’s what she said but I can’t remember.
…
Q143.What about going back one then, what about the finger in the vagina are you saying that you don’t think it’s right, in that you don’t think that this is something that you have done?
A.No I never done, I might have brushed it while we were playing those tickly things but I never ever put me finger in there I don’t think.
A144.So if you think you might have brushed it, how would that sort of come about?
A.I mean we used to do these things, you know, tickly things. But I honestly can’t remember ever doing anything like that.
As to the second incident, the appellant gave the following answers:
Q74.Okay, she said that you have given her a bath in that trough and then she says that you have carried her over and laid her down on a table in the shack.
A.No never ever done that. No can’t remember that.
…
Q98.Okay. Um, so she goes on to say that you have kissed her body and her vagina and she also is alleging that you have put your tongue inside her vagina whilst you’ve got her lying on the table.
A.N never ever, never ever, never ever. I can’t remember but never ever would I have done that. I respected the family.
…
Q100.Okay and she says that she’s walked past the room and that you’ve said to her ‘come here, come here’. And then she says that you’ve gone into that bedroom, as she’s walked into that bedroom sorry, you’ve closed the door behind her and she says that as soon as she’s gone in there she [sic] said to her ‘here suck this’ and she says the next thing she knows is that you have forced your penis into her mouth.
A.Never ever, never ever. No never ever, no that, that’s not right.
…
Q141.Yep and she talks about um, she’s saying that you have um, kissed and licked her vagina on another occasion. Do you understand that.
A.I can’t remember that and I don’t think that’s right.
Q142.When you say that you don’t think that’s right, do you mean that you don’t think that that is the right thing to do or you don’t thing that is something that you would have don’t?
A.I don’t think it’s something that I would have done and I really can’t remember.
As to the third charge, he denied that he had ever called NC into a bedroom and asked her to suck his penis, or that he had forced his penis into her mouth.
The defence case
The appellant gave evidence. He recalled a period when DO, NC and NC’s brother were living at BW’s home. He told the Magistrate he is now 72 years of age and that he has a number of health problems, including having suffered three heart attacks and a stroke. He described himself as an alcoholic. He said that his relationship with BW commenced in about 1972 or 1973, and lasted for about six and one half years. He lived at the Richmond home.
He denied that he had ever put his finger into NC’s vagina. He said that he cannot ever recall giving NC a bath. He said that he was unable to recall whether there was a trough in the laundry, nor could he recall whether there was a table in the laundry area. He denied that he had ever licked NC’s vagina.
As to the third incident, he denied that any such incident had ever occurred.
The evidence of complaint
Counsel for the appellant at trial objected to the evidence of DO relating to the evidence of complaint. I have set out the detailed evidence earlier in my reasons. Counsel submitted that the complaint was not made at the first reasonable opportunity, was not spontaneous and was not capable of supporting the credit of NC.
The Magistrate overruled the objection and admitted the evidence. The Magistrate referred to the decision of R v Mustafa.[1] Besanko J, with whom White J agreed, observed that:
In considering if a complaint in relation to a sexual offence is admissible, a Judge is required to decide if it was a complaint as distinct from a narrative, if it was made at the first reasonable opportunity and if it was spontaneous.[2]
He continued:
I cannot see any reason to distinguish the requirement of spontaneity from the requirement that a complaint be made at the first reasonable opportunity. I think I should follow R v Gallagher and R v Freeman and hold that the question for the Judge in relation to the requirements of first reasonable opportunity and spontaneity is whether there is evidence which is capable of being regarded by the jury as making out these requirements. In a number of subsequent cases that is the approach which has been taken.[3] [citations omitted]
[1] (2005) 91 SASR 62.
[2] Ibid, 76 [56].
[3] Ibid, 77 [60]. See also R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG (2004) 151 A Crim R 92.
The Magistrate was satisfied that the statement which NC had made to her mother amounted to a complaint as distinct from a narrative. He was also satisfied on the balance of probabilities that the evidence was capable of being regarded by the fact-finding tribunal as satisfying the requirements of the first reasonable opportunity and spontaneity. The Magistrate directed himself that the evidence is admitted as evidence of consistency which buttresses the credit of NC. He warned himself that it was not admitted as evidence of the facts in issue and cannot be used for that purpose.
The appellant contends that the learned Magistrate erred in admitting the evidence of recent complaint with respect to Count 3. Particulars of this ground of appeal are:
2.1There was no cogent or reliable evidence that the victim made a spontaneous complaint to her mother at the first reasonable opportunity.
2.2There was no cogent or reliable evidence connecting the complaint with the act of fellatio and the events associated with Count 3.
2.3The victim had no memory of making a complaint to her mother and the mother did not assert that her daughter made a complaint of fellatio intercourse.
2.4The evidence of the mother was so inherently improbably and unreliable it was incapable of being used as a means of assessing the victim’s credit as a witness.
2.5The Learned Magistrate’s finding that the mother’s “subsequent behaviour was consistent with her having been told about the complaint”, and that “she responded promptly by moving” the victim out of the house, was factually incorrect and unsupported by the evidence.
2.6In admitting the evidence of complaint the Learned Magistrate erred in failing to give sufficient weight to the real danger that the mother had concocted her evidence of complaint to assist the victim.
In R v Gallagher,[4] the appellant was convicted of indecent assault of a girl of the age of six yeas and ten months. In that case, the complainant’s mother gave evidence that she asked the complainant what she had been doing. At first, the complainant said “Nothing” to which her mother said, “People are never doing nothing, what were you doing?” The mother gave evidence that the complainant became agitated and again denied doing anything. The mother again asked what was she doing, to which she said, “I don’t want to tell you”. Her mother continued questioning her. The complainant became very upset. Her mother then lifted up the girl’s dress, touched her pants and said, “Have you been doing something you shouldn’t?” The complainant then replied, “Tom took my pants down”. Her mother then told her that she should not tell lies, and asked what Tom had done and whether he had touched her. The complainant said, “Yes, and he put his bottom on my bottom”. Her mother asked, “Did he take his willie out?” The complainant said, “Yes, and put it on my bottom”. The mother said that the term “willie” was used by her daughter to describe a penis.
[4] (1986) 41 SASR 73.

The Court of Criminal Appeal held that the complaint was admissible. King CJ, with whom Millhouse J agreed, said:
Evidence of a complaint made by the alleged victim at the earliest reasonable opportunity is admissible on a trial of a sexual charge, not, of course, as evidence of what occurred, but as evidence of consistency of the account of the incident given by the alleged victim: Reg. v. Lillyman; Kilby v. The Queen, per Barwick C.J. at p. 466 and per Menzies J. at pp. 473-474. By reason of the purpose for which the evidence is admitted, there has been emphasis in the decided cases upon the need for spontaneity of complaint as indicating consistency. …[5] (citations omitted)
[5] Ibid, 76-7.
King CJ concluded that the ultimate question must always be, “Does the ‘complaint’ in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness?”[6]
[6] See R v Freeman [1980] VR 1, 5.
In determining whether evidence of a complaint should be admitted, the circumstances of each case must be considered. Factors such as the age of the complainant, the relationship the complainant has with the person to whom she complained, the nature of the questions asked by the person to whom the complaint was made, and the responses are relevant in determining whether the statements are capable of showing consistency of the account and buttressing the credit of the alleged victim as a witness. As King CJ observed, in the case of a young child it is natural and inevitable that a mother might question that child if the mother perceives from the circumstances that something may have occurred to the child and the child may be reticent in speaking of what had occurred. The question for the Court is: Do the answers demonstrate spontaneity, and are they capable of demonstrating consistency of account and of supporting the complainant’s credit as a witness?
Zelling J agreed that the complaint was admissible. He concluded that the questions asked by the mother were not suggestive or leading in character, but merely had the effect of persuading the complainant to tell her unassisted and unvarnished story.[7]
[7] R v Gallagher (1986) 41 SASR 73, 82.
NC’s statements to her mother were made in not dissimilar circumstances to those in Gallagher’s case. DO’s questions of NC were nothing more than one would expect from a mother who has observed her young child who appears to be distressed. The questions were not suggestive and NC’s response was as one might expect of a five year old child who had just been the subject of an indecent act upon her. The fact that NC did not describe what had occurred in graphic detail does not render the complaint inadmissible.
The complaint was spontaneous. It demonstrated consistency of her account. The Magistrate was correct in admitting it.
Are the convictions on Counts 1 and 3 unsafe and unsatisfactory?
The appellant complains that the verdict of guilty in respect of Count 1 and Count 3 are inconsistent with the Magistrate’s verdict of acquittal on Count 2. He complains that the Magistrate failed to give proper and due weight to the long delay between the offending and the reporting of the matter to the police. The appellant contends that the verdicts of guilty on Counts 1 and 3 are unsafe and unsatisfactory.
It is convenient first to consider the nature of an appeal pursuant to s 42 of the Magistrates Court Act 1991.
Section 42 of the Act, provides that an appeal lies from any judgment in a criminal action given in respect of a charge of a summary or minor indictable offence, but not from a preliminary examination. Appeals from judgments of the Magistrates Court lie to a single judge of the Supreme Court (s 42(2)(b)). Section 42(4) provides:
… the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
Rule 292(1) of the Supreme Court Rules 2006 provides that an appeal is by way of re‑hearing (unless the law under which the appeal is brought provides to the contrary).
It is settled law that an appeal pursuant to s 42 is not an appeal confined to the material presented before the lower court. Nor is it an appeal de novo.[8] A re-hearing is to determine whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal.[9]
[8] See Police v Cadd (1997) 69 SASR 150, 189.
[9] See Wigg v Architects Board (1984) 36 SASR 111, 113.
The court is required to arrive at its own decision, having regard to the evidence and after making its own assessment of the evidence. In so doing, the court should have regard to the findings of the Magistrate, in particular as to questions of credibility, having regard to the Magistrate having seen and heard the witnesses.[10]
[10] See Tazroo v Police [2002] SASC 155.
In Taylor v Hayes,[11] Perry J examined the duties of an appellate court on the hearing of appeals from a magistrate. The right of appeal in Taylor’s case was given pursuant to s 172 of the Justices Act, which was in different terms to s 42 of the Magistrates Court Act 1991. Nevertheless, the principles applicable to an appeal are the same as expressed by Perry J in Taylor’s case. Perry J referred to a passage from the judgment of Lindley MR, Rigby and Collins LJJ in Coghlan v Cumberland,[12] which was approved by Sangster J in Kubicki v Wylie:[13]
The case was not tried with a jury, and the appeal from the judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.[14]
[11] (1990) 53 SASR 282.
[12] [1898] 1 Ch 704.
[13] (1979) 81 LSJS 349.
[14] Taylor v Hayes (1990) 53 SASR 282, 290.
The duty of the appeal court is to examine the evidence and to arrive at its own opinion as best it can upon that material. That does not mean that a magistrate’s decision or findings are to be ignored, but it requires this Court to form its own views upon the material. That is not an easy task when issues of credit are central to the determination. Due regard must be given to the conclusions of the magistrate who had the advantage of seeing and hearing the witnesses.
The Magistrate’s reasons
The Magistrate referred to the significant features of the case which required him to give himself directions and warnings concerning the evaluation of NC’s evidence. He reminded himself that those features include the age of NC at the time of the alleged offences, the nature of the allegations, the absence of any complaint by NC in relation to the acts the subject of Counts 1 and 2, the delay of about 29 years in reporting the allegations to the police, and the consequential delay in the prosecution. He reminded himself that the trial took place some 32 years after the time of the alleged offences.
The Magistrate had regard to the decision of the High Court in Longman v The Queen.[15] He reminded himself of the serious forensic disadvantages and difficulties facing the appellant in presenting his case so long after the alleged offences. The Magistrate noted that, had the allegations been made soon after the alleged offences, it would have been possible to explore in detail the alleged circumstances attendant upon their occurrences, and perhaps to adduce evidence throwing doubt upon NC’s story, or confirming the defendant’s denial. He had regard to the decisions of Crampton v R,[16] and the observations of Kirby J in Doggett v The Queen.[17] He reminded himself that the length of delay and extensive delay can result in errors of recall. He reminded himself that a long period of delay between a formal complaint and the occurrence of the alleged events can raise significant questions as to whether the complainant’s recollection could be acted upon safely.
[15] (1989) 168 CLR 79.
[16] (2000) 206 CLR 161, 209.
[17] (2001) 208 CLR 343, 374-5.
The Magistrate directed himself that NC’s failure to make a complaint, or her delay in making a complaint, does not necessarily mean her allegations are false, as there may be many reasons why people do not make complaints.
The Magistrate was satisfied beyond reasonable doubt that DO stayed at the premises at Richmond with her two children during the period of separation from her husband, KP. The Magistrate was satisfied beyond reasonable doubt that NC was staying at the premises during the period from 3 February 1975 until about 27 March 1975.
I shall return to the question of delay later in these reasons.
The Magistrate concluded that NC was an impressive witness. He had no doubt that she was an honest witness endeavouring to give a truthful account of events within her knowledge, to the best of her ability and recollection. He acknowledged that NC’s memory was impaired in that she had an incomplete recollection of the events surrounding each incident. He was satisfied that NC was not motivated by ill-will or malice.
In respect of the first count, the Magistrate was satisfied beyond reasonable doubt that the appellant placed his hand underneath NC’s underpants and used his finger to play with her vagina and penetrated her vagina.
As to the first count, the evidence which the Magistrate was required to consider was NC’s evidence and the appellant’s evidence. In assessing the appellant’s denial that any act or acts as described by NC had occurred, the Magistrate had regard to the appellant’s statements to the police. The Magistrate concluded that the appellant’s emphatic denials in his evidence were difficult to reconcile with the equivocal responses he gave to the police during the police interview. He said that his confidence in the appellant’s credibility and in the appellant’s reliability was seriously undermined because of the perceived differences between the appellant’s responses to the police and his evidence. He therefore rejected the appellant’s evidence where it conflicted with the evidence of NC.
The Magistrate was satisfied beyond reasonable doubt about the honesty and accuracy of NC’s evidence.
As to the second count, the Magistrate noted that the prosecution relied on the uncorroborated evidence of NC. DO had given evidence that she was unaware of any occasion when the appellant bathed NC in the laundry. She also gave evidence that she could never recall a table in the laundry. The Magistrate concluded:
As a result of my assessment I have no doubt that NC was a truthful witness in the sense that she honestly believed that what she said was true. However, the evidence of her mother and of the defendant did call into question the reliability and accuracy of her memory of events. NC’s recollection that she had the bath in the laundry was quite specific. However, the evidence of her mother and of the defendant suggested that, if the defendant did bath NC with her mother’s consent, (which the defendant denied) it was improbable that he bathed her in the laundry.
I have to pay heed to the warning that it would be dangerous to convict the defendant on NC’s evidence alone, unless I am satisfied of its truth and accuracy. Given the state of the evidence I am not satisfied beyond reasonable doubt that her evidence was accurate in all respects. To put it in another way, I cannot rule out the reasonable possibility that her memory of events may have been unreliable. Her evidence, therefore, provided an inadequate foundation for a finding that the defendant’s guilt of the alleged offence charged in Count 2 had been proved beyond reasonable doubt.
Counsel for the appellant contended that the conclusion of the Magistrate in respect of NC’s evidence as to the second count leads to the inevitable conclusion that the convictions in respect of the first and third counts cannot stand together with an acquittal in respect of the second count.
The conviction in respect of Count 1
As to the first count, I consider that the Magistrate gave undue weight to the discrepancies between the appellant’s evidence and his response to the police questions. The appellant denied to the police that the conduct the subject of the first count took place. The appellant was interviewed about that conduct approximately 30 years after it had occurred. The appellant was about 72 years of age, suffering from ill-health and, on his own admission, an alcoholic. When he was confronted with the allegations by the police, the fact that he did not make an emphatic denial when the allegations were first put to him is understandable. I do not consider that any inference can be drawn against him because his first response to the allegation was that he could not remember. He said that the incident did not occur. The fact that he was not emphatic in his response is not a reason to criticise him. It does not justify the conclusion that there is a basis for lacking confidence in his credibility. To suggest that the reliability of his evidence was seriously undermined because his responses to the police were not emphatic denials in the same terms as his evidence was an unduly harsh assessment of the appellant’s evidence.
That leads to the question of whether the conviction on the first count can stand with the acquittal on the second count. In Jones v The Queen,[18] Mr Jones was charged with three acts of sexual intercourse with a female child. The child was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the act the subject of the first count. The complainant was aged 11 during the periods mentioned in the first two counts and 12 during the period mentioned in the third count. She made no complaint against the accused until more than four years after the first alleged act. She gave evidence that the acts of sexual intercourse took place when there was nobody present but herself and the accused. She gave evidence that she would attend classes on Tuesdays and Thursdays after school, and sometimes on Saturdays.
[18] (1997) 191 CLR 439.
The first incident occurred during the week after the other students had left the class. She said that the appellant massaged her and, during the course of giving her a massage, he had sexual intercourse with her. The second occasion was after a Saturday class when the same conduct took place. The act the subject of the third count took place at the appellant’s home after school. That act occurred on the appellant’s bed when he was massaging her.
The jury convicted Mr Jones of the first and third counts, but acquitted him of the second count. It was submitted that the verdicts were unsafe and unsatisfactory, because the verdicts could not stand together. Gaudron, McHugh and Gummow JJ considered the effect of the acquittal on Count 2 and the impact it had upon the jury’s verdict in respect of Counts 1 and 3. They said:
The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.[19]
[19] Ibid, 453.
They concluded that the verdicts of guilty were unsafe and unsatisfactory. In so concluding they had regard to the credibility factor, combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in making the complaint.
The Magistrate was satisfied that NC was an honest witness. I have no reason to conclude otherwise. I have reviewed the evidence and I have had regard to the fact that the Magistrate saw and heard the witnesses. I am satisfied that NC related the events as best she could recall them over 30 years after they had occurred. However, if her reliability in respect of her recall of the incident relating to the second count is in question then there is no basis for concluding that her reliability in respect of the first count is to be treated differently. There is nothing in the evidence of NC in respect of the first count which would give rise to a conclusion that the quality of her evidence in regard to that count was higher than in respect of the second count. I consider that the Magistrate was in error in distinguishing between the two counts. I would, therefore, allow the appeal in respect of the first count and direct an acquittal.
Count 3
As to the third count, there is a distinction in the surrounding circumstances relating to that count which gives a basis for concluding that the Magistrate could be satisfied beyond reasonable doubt of the appellant’s guilt.
Counsel for the appellant submits that the Court should place no weight upon the evidence of DO relating to NC’s complaint. In her evidence‑in‑chief, DO said that NC had said that the appellant made her touch his “thing”. In cross‑examination she said that the appellant asked NC to hold his “thing”. She agreed that when she spoke to the police she said she could not recall the words NC used to describe the appellant’s penis. Counsel submits that the evidence of NC that the appellant put his penis into her mouth is materially different from the complaint she is alleged to have made to DO. Counsel contends that far from buttressing the credit of NC, the evidence of DO as to the detail of the complaint is inconsistent with the evidence of NC at trial. Counsel submits that there is a significant issue as to the reliability of NC’s evidence.

Counsel submits that, having regard to the extraordinary delay in reporting the allegations to the police and the prejudice to the appellant in him being required to recall details of events some 32 years ago, and his inability to explore in detail the alleged circumstances surrounding the allegations, and perhaps adduce evidence throwing doubt upon NC’s version, the Magistrate erred in concluding that he was satisfied beyond reasonable doubt of the appellant’s guilt.
I reject the submission that DO’s evidence was unreliable. The Magistrate concluded that DO was an honest witness. The Magistrate saw and heard her give evidence. I have considered her evidence. I note that there were some inconsistencies in her evidence-in-chief and cross-examination. In my view, those inconsistencies were immaterial. The fact that when DO spoke to the police she said she could not recall the expression NC had used in describing the appellant’s penis is not of such significance as to conclude that she is unreliable. Given the time lapse in this case, it is not surprising that DO’s recollection about some of the detail is not consistent. Nevertheless, she recalled that, as a result of the complaint, she returned to live with her former husband. She recalled that NC and her brother returned to live at West Beach and that they changed schools. It is this kind of detail that one might expect her to recall.
NC made a spontaneous complaint about the appellant’s conduct. The evidence of complaint is not corroborative of NC’s evidence. However, it is evidence of consistency of her evidence. DO said that, as a result of the events which had occurred and the complaint, she and the children left BW’s house and returned to live with her then husband. The Magistrate accepted DO’s evidence. I have had regard to the lengthy delay, but I am satisfied that DO would have recalled the incident accurately. The fact that DO left BW’s home and removed the children and the fact that she has had little or no contact with the appellant since the incident support her evidence.
As to the submission that NC’s evidence is inconsistent with her statements to DO some 32 years ago, it is not surprising that a five year-old girl did not describe in detail that the appellant had placed his penis in her mouth. The statements she made to DO at the time were as might be expected of a five year‑old child when confronted with questions about the appellant’s conduct.
The long delay was explained by NC’s mother, who did not report the incident because she was concerned it was a child’s word against an adult. I have considered the evidence and the submissions of counsel. The Magistrate carefully assessed the evidence. The Magistrate accepted the evidence of DO. That evidence enhanced the credibility of NC’s evidence. It was open to the Magistrate to accept NC’s evidence beyond reasonable doubt. It was open to the Magistrate to reject the appellant’s evidence. The Magistrate had regard to the decision of Longman. The Magistrate was aware of the dangers inherent in convicting the appellant after such a long delay. He gave himself the necessary warnings and he had regard to them. Nevertheless, he was satisfied beyond reasonable doubt of the accuracy and honesty of NC’s evidence. No error in his reasoning in respect of the third count has been demonstrated.
The surrounding circumstances, that is, the conduct of DO, her observations and the complaint, are sufficient to justify the Magistrate’s conclusion that the evidence of NC was more reliable in respect of the third count when considered and compared to the first and second counts.
I am satisfied, having reviewed the evidence, that there was sufficient evidence upon which the Magistrate could be satisfied beyond reasonable doubt of the appellant’s guilt in respect of the third count.
I dismiss the appeal in respect of Count 3.
The orders of the Court are that as to Count 1, the appeal be allowed and as to Count 3 the appeal be dismissed.