C, GM v Police

Case [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

  1. 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. 

  2. The appellant appeals against the convictions. 

    Background

  3. NC was born on 7 January 1970.  Her mother, DO, and her father, KP, are now divorced.  Her maternal grandmother, BW, is deceased. 

  4. 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. 

  5. 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

  6. It is alleged that between 1 February 1975 and 21 June 1975 at Richmond, the appellant indecently assaulted NC,…

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C, GM v Police [2007] SASC 310
Case
[2007] SASC 310
Decision Date

CaseChat Overview and Summary

The appellant appeals against his conviction on two counts of indecent assault against his then girlfriend's daughter, NC, who was five years old at the time of the alleged offences in 1975. The appeal was heard in the Supreme Court of South Australia, with the Honourable Justice Gray presiding. The primary issue before the court was whether the verdicts were inconsistent and whether the convictions were unsafe and unsatisfactory. The court was also required to determine whether the evidence of a recent complaint made by NC was properly admitted.

The court found that the evidence of the recent complaint was not properly admitted as it did not satisfy the requirements of being made at the first reasonable opportunity and being spontaneous. The court found that the evidence of the mother, DO, was not reliable and was not capable of supporting the credit of NC. The court found that the evidence of the mother was so inherently improbable and unreliable that it was incapable of being used as a means of assessing the victim's credit as a witness. The court also found that the Magistrate had failed to give sufficient weight to the real danger that the mother had concocted her evidence of complaint to assist the victim.

The appeal was allowed in part, and the convictions on Count 1 and Count 2 were quashed. The orders of the court were that the convictions on Count 1 and Count 2 be quashed, and the appellant be discharged. The appeal against the conviction on Count 3 was dismissed. The court found that the evidence of NC was credible and that the appellant was guilty of the offence on Count 3.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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