C, GM v Police (No 2) - [2008] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
C, GM v POLICE (NO 2)
[2008] SASC 45
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
29 February 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Indecent assault - defendant convicted on two counts of indecent assault in Magistrates Court - Judge allowed appeal from trial Magistrate and set aside conviction on one count, Judge upheld conviction on other count - defendant applies for permission to appeal to the Full Court from decision of single Judge of Supreme Court - whether Judge erred in failing to also set aside conviction on both counts.
Held: No indication of error on part of Judge - case does not raise issue of principle or general importance - criteria for grant of permission to appeal not satisfied - permission to appeal refused.
Supreme Court Act 1935 (SA) s 50(4); Criminal Law Consolidation Act 1935 (SA) s 56 and s 76; Supreme Court Rules 2006 (SA) r 292(1), referred to.
Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; Jones v The Queen (1997) 191 CLR 439; Longman v The Queen (1989) 168 CLR 719; Palmer v R (1989) 193 CLR 1; Rowland v Police (2001) 79 SASR 569; T v Medical Board of South Australia (1992) 58 SASR 382; Taylor v Hayes (1990) 53 SASR 282, considered.

C, GM v POLICE (NO 2)
[2008] SASC 45
Full Court: Doyle CJ, Bleby and Gray JJ

DOYLE CJ. GMC has applied for permission to appeal against a decision by a Judge of this Court.
GMC appealed against two convictions for indecent assault recorded by a Magistrate. A single Judge allowed the appeal in part, set aside one conviction but upheld the other conviction. GMC wishes to appeal against the decision of the Judge upholding the conviction.
Permission to appeal to the Full Court is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).
The application for permission was argued in full, on the basis that if the Court granted permission to appeal the hearing of the application would be treated as the hearing of the appeal.
The proposed appeal raises the question of whether, having regard to the acquittal, to suggested weaknesses in evidence relied upon by the Judge to distinguish the count on which he upheld the conviction from the count on which he set aside the conviction, to the long delay between the events in question and trial and to certain suggested errors by the Judge, the Judge erred in failing to set aside the conviction that he upheld.
Background and evidence
GMC was originally charged with three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) ((“CLCA”) as it was in 1975. Each offence was alleged to have been committed between 1 February 1975 and 21 June 1975. In each case the alleged victim was NC, then a child aged five years.
NC was born in 1970. I will refer to her mother as DO and to her father as KP. Their marriage experienced some difficulties, and there were some periods during which they separated. The difficulties preceded the events in question, and continued afterwards.
The Magistrate before whom the case first came was satisfied, on evidence that was not disputed, that between early February 1975 and late March 1975 DO was living apart from KP. DO was living with NC and her younger brother at the house of BW, DO’s mother and NC’s grandmother. The house was in the western suburbs of Adelaide. BW died some years before trial.
In 1975 GMC was in a defacto relationship with BW, and was also living at her house.
By the time of the trial NC was 37 years of age. GMC was then 72 years of age. In evidence he said that he had retired from employment in 1995. He was in poor health, and was waiting for a bypass operation. He said was an alcoholic and that his memory was poor. He said he had been in a relationship with BW for about six years, starting in about 1972 or 1973, and that he lived at BW’s house “off and on”. The alleged offences by GMC were first reported by NC to the police in November 2004.
Count 1 was said to have occurred on an occasion when NC and her brother were watching television at BW’s house. NC and her brother liked being tickled on the back. NC said that GMC asked her if she would like to be tickled. NC sat on GMC’s lap and he tickled her. NC said that GMC then put his hand inside her underwear, and touched her vagina with her fingers. NC was scared. In evidence she said she was not sure where her brother was when this happened. She made no complaint.
Count 2 was an incident when NC said that GMC bathed her. There was a laundry attached to the house and it had a large trough in it. NC said that GMC bathed her in the trough. There was a bathroom in the house, with a bath in it. NC did not know why the bath was not used. The laundry was connected to another room, referred to as a “shack”. NC said that GMC laid her on a table in the shack, dried her, and put powder on her. While powdering her, GMC kissed her on the body, “all over my chest and body”, and kissed her vagina. NC said nothing. Then GMC told her to put her pyjamas on. NC made no complaint.
Count 3 occurred on an occasion when NC was walking from the kitchen in BW’s house to the lounge room where the television set was. NC said it was dark. GMC called her into BW’s bedroom. She went into the bedroom and GMC said “here, suck this”. He put his penis into her mouth. NC said she was scared, and felt like being sick. She said it was disgusting. She said the room was dark, but not “pitch black”. GMC was between the bed in the bedroom and the door to the room, facing the door. NC did not really remember how the incident ended, but said she ran out of the room. She did not remember what happened next, and had no memory of having told anyone about the incident.
NC could not say how long passed between the three incidents. They could have been the same day, they could have been some weeks apart.
DO gave evidence. She said that she separated from KP when NC was about four and a half years of age. She lived at a caravan park for four or five weeks. The two children stayed with KP. Then DO moved to BW’s house, and the children came to live there with her. This was, on the prosecution case, the beginning of the period during which the offences were committed by GMC.
DO gave evidence of an occasion when she saw NC coming out of BW’s bedroom. NC was about three feet from the room. NC had a look on her face that DO had never seen before. NC looked “terrible”. She was pale and wide-eyed. DO asked NC what was wrong. She asked her again. Then NC said that GMC “made her touch his thing” or that GMC “asked me to hold his thing”. DO said that NC did not know the word “penis”. DO called out to BW, asking her to “come here”. BW came from the kitchen and DO spoke to her in a bedroom adjacent to BW’s bedroom, used by DO. DO was not sure where NC was. She might have put NC on the bed in her bedroom. DO told BW what NC had said, and BW said something like “don’t be silly” or “don’t talk nonsense”. It was a short conversation. BW returned to the kitchen, and DO said that she heard her say (presumably to GMC) something like “[DO] has just accused you …”. She heard no more. She did not speak to GMC about the incident then or later.
DO decided that she had to get out of the house. She rang KP that night, and visited him at their former home. She did not take the children with her. She did not want to tell KP what had happened. She pretended that she wanted to reconcile with him. She said she knew the children would be safe for one night. She stayed with KP that night. She and the children moved back to the former matrimonial home the following day, or the day after.
DO did not confront GMC, nor did she go to the police. She explained this by saying that attitudes differed in those days, and it was just NC’s word against GMC’s word.
Some support for DO’s evidence came from school records. They, together with other evidence, showed that NC attended Cowandilla Primary School from the beginning of first term of 1975 (3 February 1975). This school was conveniently located in relation to BW’s house. During the first term (on 27 March 1975) NC moved to West Beach Primary School, located conveniently close to the family home. The change of schools during the term, and the location of the two schools, was consistent with DO’s evidence that something happened, within a day or two before 27 March 1975, that caused her to move NC from one school to the other.
DO gave evidence that suggested that after the incident, the subject of count 3, she and her two children had little if any contact with GMC.
NC was cross-examined about her reasons for making a complaint to the police so many years after the incident. She said that until the law changed in 2003, with the enactment of s 76A of the CLCA to remove any immunity arising from a previous time limit on prosecutions, there was nothing she could do. After that, “media attention” to cases like hers made her think that she should do something “because people have to be accountable”.
GMC gave evidence. In a police interview on 15 June 2005 GMC admitted tickling NC on occasions, but denied each of the three alleged incidents.
In his evidence GMC said that he was living with BW when DO and NC stayed at BW’s house. He was unsure of the dates. He denied the allegations made by NC. He said that he had no recollection of giving either of DO’s children a bath on any occasion.
The Magistrate’s decision
The Magistrate gave detailed reasons for his decision.
The Magistrate referred to the significant disadvantages and difficulties facing GMC in light of the many years that had passed. He reminded himself of the “disadvantages and difficulties” facing GMC in presenting his case, and in testing NC’s evidence. He warned himself of the danger that after such an interval of time the memory of even an honest witness might become “contaminated”. He referred to decisions of the High Court in Longman v The Queen (1989) 168 CLR 719, in Crampton v The Queen (2000) 206 CLR 161 and in Doggett v The Queen (2001) 208 CLR 343. No criticism was made of the directions that the Magistrate gave to himself in this respect, although as will appear later, there is a complaint about his application of those warnings to the facts.
The Magistrate dealt with each count separately. He found NC to be a truthful and impressive witness. He accepted that she believed that what she said was true. On each count the issue was, in substance, whether her evidence was reliable and sufficiently reliable to establish the events that she related beyond reasonable doubt. As the Magistrate said, it was apparent that her memory of the three incidents was incomplete.
In relation to count 1 the Magistrate said that there was no indication that NC was motivated by “ill will or malice”. There was nothing to indicate that her account “might have been the product of child fantasy”: at [37]. The Magistrate reminded himself of the dangers of convicting GMC on NC’s uncorroborated evidence. He had reminded himself of the presumption of innocence in favour of GMC, of the difficulties that he faced in confronting the allegations after so long, and of GMC’s memory difficulties and poor health. The Magistrate said that GMC’s “emphatic denials” in evidence were difficult to reconcile with what the Magistrate considered to be equivocal responses given during his police interview. On a number of occasions during the police interview GMC had said that he could not remember things, or did not think he did things. The Magistrate said that this “undermined” the Magistrate’s confidence in GMC’s credibility and reliability, and led him to reject GMC’s evidence when it conflicted with NC’s evidence. The Magistrate said it did not necessarily follow that he should accept the evidence of NC as establishing the events in question beyond reasonable doubt. But in light of his assessment of her he was satisfied that the events, the subject of count 1, were proved beyond reasonable doubt. Accordingly, he convicted GMC on that count.
As to count 2, DO said in evidence that she did not remember GMC bathing the children in the laundry. She said he had bathed them in the bathroom. She could not remember a table in the laundry. In the police interview GMC denied ever bathing NC in the laundry. In his evidence he denied ever bathing her. The Magistrate said that the evidence of GMC and DO suggested that if GMC bathed NC, contrary to his denials, he did not do so in the laundry. He reminded himself of the warnings that he had given himself. In light of the evidence just referred to, he was not satisfied beyond reasonable doubt that NC’s evidence was “accurate in all respects”. He was not prepared to find GMC guilty of count 2 on the basis of her evidence, and acquitted him.
On count 3 the Magistrate admitted DO’s evidence of NC’s complaint. At trial the Defence attacked the reliability of the evidence of DO, relying in particular on asserted inconsistencies within her evidence and with other evidence in the case, and on asserted weaknesses in her evidence. The Magistrate accepted that there were a number of inconsistencies in DO’s evidence, but said they were “explicable in terms of frailty of memory”. Subject to the inconsistencies, he accepted DO’s evidence as reliable. He was influenced by the evidence of DO relating to her decision to move out of BW’s house and to return with the children to live with KP. What she did was consistent with her evidence about NC’s complaint. The Magistrate accepted DO’s evidence about the complaint, and about the words used by NC. The Magistrate repeated his finding that NC was an impressive witness, and was honestly trying to tell the truth. Again the question was whether her evidence was sufficiently reliable to support a finding beyond reasonable doubt. He said there was nothing to indicate ill will or malice, or fantasy, in relation to her evidence about count 3. He accepted that her evidence was truthful and reliable. This led him to reject the evidence of GMC when it conflicted with the evidence of NC. He found count 3 proved beyond reasonable doubt.
The Judge’s decision
The Judge rejected a challenge to the admissibility of the complaint. He found that the complaint was, in the circumstances, spontaneous. He found that NC’s answer to her mother demonstrated consistency.
The Judge noted that by r 292(1) of the Supreme Court Rules 2006 (SA) the appeal to him was by way of rehearing, and that he had to make his own assessment of the evidence, making proper allowance for the fact that the Magistrate had the advantage of seeing the witnesses when that circumstance could affect a decision whether or not to accept particular evidence. The Judge referred to the decision of Perry J in Taylor v Hayes (1990) 53 SASR 282 at 291 in particular, to T v Medical Board of South Australia (1992) 58 SASR 382 at 389-391 Matheson J, at 407 Olsson J, at 423 Debelle J, and to Rowland v Police (2001) 79 SASR 569 at 574 Perry J.
As to count 1 the Judge said that the Magistrate gave “undue weight” to the discrepancies between GMC’s evidence and his answers to the police. The fact that GMC’s denials were not emphatic when he was first interviewed was not surprising, in the circumstances. The Judge said that having made his own review of the evidence, and allowing for the fact that the Magistrate saw and heard the witnesses, there was no reason to differ from the Magistrate’s conclusion that NC was an honest witness. But, the Judge said, there was no basis for treating her evidence on count 1 as being more reliable than her evidence on count 2. He considered that the Magistrate erred in taking a different approach to the two counts. He allowed the appeal in respect of count 1 and directed an acquittal. The Judge applied the reasoning of the High Court in Jones v The Queen (1997) 191 CLR 439.
As to count 3, the Judge rejected a submission that the evidence of DO was unreliable. He referred to some but not all of the criticisms of the evidence of DO. He said that he had considered DO’s evidence, and regarded the inconsistencies in her evidence as immaterial. He was also influenced by DO’s evidence about removing the children from BW’s house. It is clear that the Judge found no reason to differ from the Magistrate’s conclusion that DO was an honest and, on essential issues, reliable witness. The Judge referred to a submission that the evidence relating to NC’s complaint was inconsistent, because DO referred to NC saying that she was made to touch GMC’s “thing” and to hold GMC’s “thing”, while NC’s evidence was that GMC put his penis in her mouth. He referred to an attack on NC’s reliability on this basis, and having regard to the lengthy delay. He referred to the difficulties that faced GMC in meeting the charges after all the years that had passed. The Judge said that nevertheless it was open to the Magistrate to accept NC’s evidence as establishing the relevant events beyond reasonable doubt. Having regard to NC’s age he did not regard the terms of her complaint as inconsistent with the evidence she gave that GMC had placed his penis in NC’s mouth.
The Judge said that having reviewed the evidence, there was sufficient evidence upon which the Magistrate could be satisfied of guilt beyond reasonable doubt.
The Judge made the point that the evidence of the complaint by NC, and the evidence of DO leaving BW’s home, gave a basis for drawing a distinction between count 3 and the other two counts, and for reaching a conclusion of guilt beyond reasonable doubt on count 3.
The Judge dismissed the appeal in relation to that count.
Submissions on the application for permission to appeal
It is appropriate to note that the application for permission to appeal relates to the decision of the single Judge. The question for this Court, on the application for permission to appeal, is whether it is arguable that the Judge erred, and whether it is an appropriate case for a grant of permission to appeal. If permission to appeal is granted, the issue then becomes whether the single Judge erred.
I mention this because, at times, Mr Mead’s submissions for GMC were put as if this Court were reviewing the Magistrate’s decision. On the other hand, in deciding whether the single Judge erred, on some issues it is necessary for this Court to make its own review of the evidence before the Magistrate, if the attack on the decision of the single Judge turns on whether the Judge erred in his review of that evidence: see T v Medical Board of South Australia (above).
Mr Mead submits that DO’s evidence of the complaint by NC should have been given little or no weight by the Judge. He submits that the evidence is so lacking in weight as not to be admissible, but in the alternative that the Judge gave it weight that was not warranted. He submits that the Judge should have held that the Magistrate erred in relying on the evidence of DO in relation to the complaint by NC.
The submission by Mr Mead involved a scrutiny of the evidence of DO, and of suggested inconsistencies and weaknesses in that evidence. Mr Mead took the Court through that evidence in some detail.

Mr Mead referred at some length to evidence by DO that after the incident there was little or no contact between her and her children and GMC. Mr Mead took the Court to evidence from KP and from an uncle of NC, which evidence suggested that there were occasions after the alleged incident assaults when there was contact between the children and GMC, or between the children and BW when GMC was also present. The relevant evidence from KP and the uncle was in fairly general terms, and it is relevant to bear in mind that at that time they were unaware of the alleged incidents. Mr Mead submits that the Judge paid insufficient attention to this evidence. The Judge did not refer to it when dealing with DO’s evidence.
I agree with the answer made by Mr Kimber. The evidence of KP and of the uncle suggesting contact with GMC, or that the children stayed with BW when GMC was with BW, was tentative. They were dealing with events about 30 years ago, at a time when they were not aware of NC’s allegations. More significantly, GMC’s evidence was to the effect that once DO and her children returned to live with KP he had very little contact with DO and the children. The evidence relied on by Mr Mead does not undermine the evidence of DO to any significant degree.
Mr Mead criticised the evidence of DO about the circumstances surrounding the incident the subject of count 3. On some matters her memory was lacking. There were some details that she was unable to explain. For example, if GMC was in BW’s bedroom when the alleged incident assault was committed, it is not clear how he came to be in the kitchen when, moments later, BW returned to the kitchen after speaking to DO. However, it may be that if DO and BW were in DO’s bedroom, GMC could have walked from BW’s bedroom to the kitchen without being observed.
In any event, I consider that the limitations in the evidence of DO are not surprising, given the passage of time. They are not to be ignored. But, in themselves, they do not give me reason to doubt her evidence, making my own assessment of the evidence. I agree with the single Judge that her evidence about moving out of BW’s house, and returning to live with KP, despite her preference to remain apart from him, has a ring of truth to it. This evidence is supported by the evidence from school records about NC changing schools.
Taken as a whole, the matters pointed to by Mr Mead are matters for consideration, but do not pose a significant obstacle to an acceptance of the evidence of DO, if she is otherwise a credible witness, as the Magistrate found her to be.
The single Judge reviewed the evidence, and considered the criticisms of DO’s evidence at [62]-[68]. The single Judge did not refer to all of the individual criticisms, but he was not obliged to do so. There is no reason to doubt that they were brought to his attention and were considered by him.
My review of the evidence does not cause me to conclude that the Judge erred in this respect. There is no indication of any error in the Judge’s approach.
Mr Mead submits that on one or two occasions the Magistrate dealt with DO’s evidence in a manner that suggested he had reversed the onus of proof. For example, at [71] the Magistrate said:
I am not persuaded that there was any basis for concluding that DO made up the evidence about the complaint to assist her daughter.
But at [33] the Magistrate stated quite clearly that he approached the evidence on the basis that GMC was not obliged to prove or to explain anything. I am satisfied that in the passage just referred to the Magistrate was merely alluding to a particular submission put to him. But, in any event, I can find no error by the single Judge in his treatment of the evidence of DO.
I also reject the submission that the differences between NC’s evidence as to what constituted the indecent assault (an act of fellatio) and the terms of the complaint (holding or touching GMC’s “thing”) is such that the complaint cannot demonstrate consistency of account. Having regard to the age of NC, and to the evidence that she did not know the word “penis”, and to the difficulty a five year old is likely to have in explaining such an event, I have no doubt that her complaint (if found to be made) was capable of demonstrating consistency, as the Judge found.
Mr Mead submits that although the Magistrate correctly directed himself in relation to the delay that had occurred, and in relation to its impact on his approach to the evidence, the Magistrate failed to apply the warning to the facts of the case, as did the Judge.
I do not accept this submission. It was not necessary for the Magistrate to repeat the warnings that he had given himself, when considering each count. In fact, in relation to count 2 the Magistrate referred again in general terms to the warnings. In relation to count 3 he referred to some of the factual matters raised by the warnings. There is no reason to think that the Magistrate failed to apply to the facts the warnings that he had given himself.
The Judge noted that he had to make his own assessment of the evidence: [43]. The Judge referred to the warnings that the Magistrate gave to himself: [44]-[45]. The Judge concluded that it was open to the Magistrate to be satisfied beyond reasonable doubt that count 3 was proved. In doing so, at [67] the Judge noted that the Magistrate had referred to the decision of the High Court in Longman. The Judge was clearly mindful of the relevant principles. There is nothing in this particular complaint.
It is true that at this stage of his reasons the Judge does not refer to the impact of the delay on the ability of GMC to defend himself, or to GMC’s inability to call BW as a witness. But the Judge referred to these matters in his earlier summary of the Magistrate’s reasons.
Mr Mead submits that the evidence of the complaint by NC, of the observations by DO of her state of distress, and the evidence of DO relating to her returning to live with KP, were insufficient to justify a conclusion that count 3 was made out. He submits that the doubt that remained on count 1 and count 2 was not displaced by these matters. He argues that the Judge erred in failing to acquit on count 3 on that basis.
I disagree. Having regard to the Magistrate’s findings on the credibility and reliability of NC generally, and having regard to his findings as to the evidence of DO, it was open to the Magistrate to convict on count 3. Likewise, the Judge did not err in upholding the Magistrate’s decision to convict. It is clear that the Judge gave careful consideration to the question of whether there was a basis upon which a conviction on count 3 could be sustained. After all, the Judge set aside the conviction on count 1 because there was nothing in the prosecution case to support a conclusion that the evidence of NC should be treated differently in relation to count 1. In my opinion the Judge was right to conclude that there was a basis upon which the conviction on count 3 could and should be upheld.
Mr Mead also submits that NC’s evidence relating to count 3 was improbable. I disagree. Sadly, the experience of the Courts is that offending of this kind (acts of indecency committed by an adult on a young child) are often committed in an opportunistic way, and in circumstances such that the risk of detection at the time of offending seems high. In that respect, this case is not unusual. NC’s evidence is not improbable. This does not mean that in considering the case the Court assumes it is likely that NC is reliable and truthful. It means only that her evidence cannot be characterised as improbable when deciding if it should be accepted.
Finally, Mr Mead complains that neither the Magistrate nor the Judge gave reasons for rejecting the evidence of GMC denying that he committed the offences. It is no criticism of GMC to observe that his evidence was mainly a simple denial that the offences occurred. There is really nothing to which he deposed in an affirmative sense that had to be rejected before the Court could convict GMC. It is not surprising, given the lapse of time, that his evidence consisted primarily of denials. There is no suggestion that his demeanour was unsatisfactory. In those circumstances, a conclusion that the evidence of NC was truthful and should be accepted could lead to the rejection of GMC’s evidence. GMC’s evidence was not rejected because of an intrinsic weakness, or because it was inconsistent with other proven events, or because of dissatisfaction with GMC as a witness. In those circumstances, as Mr Kimber said, the rejection of GMC’s evidence followed from the acceptance of NC’s evidence, and there was really nothing more that could be said by way of explanation.
Mr Mead argued that all of these matters taken together should have led the Judge to set aside the conviction on count 3. I consider that taken in combination the matters to which I have referred have no greater effect than they have taken separately.
My review of the Judge’s reasons discloses no error. The Judge correctly discharged his function in hearing the appeal. He correctly directed himself as a matter of law. My own review of the evidence does not lead me to conclude that it was not open to the Judge to reach the conclusions that he did.
Conclusion
The case raises no issue of principle or of general importance. It involves the application of well established principles of law to the particular circumstances of the case. There is no indication of error on the part of the Judge. Nor do the interests of justice call for this Court to intervene. My consideration of the submissions for GMC leads to the conclusion that there has been no error of fact, or in the Judge’s approach to the case.
Accordingly, it is appropriate to refuse permission to appeal, as the criteria for a grant of permission to appeal are not satisfied. As I have indicated, if permission to appeal were granted, the appeal would in any event have to be dismissed.
BLEBY J. I agree that permission to appeal should be refused for the reasons given by the Chief Justice.
GRAYJ. This is an application for permission to appeal.
The applicant, C, GM, was charged with three counts of indecent assault of a five-year-old child in 1975. He pleaded not guilty to all counts. The trial Magistrate found the applicant guilty on the first and third counts, and acquitted him on the second count.
The applicant appealed, as of right, to a Judge of this Court, who allowed the appeal in part. The conviction on count one was set aside and a verdict of not guilty entered. The learned Judge upheld the conviction on count three. This is an application for permission to appeal from the decision of the Judge with respect to count three.
On the hearing of the application, in accordance with the practice of this Court, full argument was presented, so that in the event that permission was to be granted, there would be no need for a further hearing.
I agree with the order proposed by Doyle CJ. The history of the matter and the facts have been addressed in his reasons. I respectfully adopt his Honour’s treatment of those matters, and only refer to those facts as are necessary for an understanding of my reasons.
It is important to recognise that permission to appeal is sought with respect to the order of the Judge. On the hearing of the initial appeal, the Judge was required to reassess the whole of the evidence, having appropriate regard to the trial Magistrate’s views on credibility and reliability of the witnesses and to come to his own conclusion as to the applicant’s guilt.
The Judge undertook a full review of the evidence and a careful reconsideration of the issues under appeal. He provided extensive reasons with respect to his review of the evidence and reached his own opinion. As observed earlier, he set aside the conviction on count one. It is clear from the Judge’s reasons that he gave separate consideration to the evidence relevant to count one and count three, and gave appropriate consideration to the significance of the acquittal on count two. The question before this Court is whether there is any error demonstrable on the part of the Judge.
Counsel for the applicant, before this Court, primarily attacked the reasons of the Magistrate. This was a major thrust of the application. Only passing attention was paid to the reasons of the Judge. The difficulty with this approach is that the focus was moved away from the judgment sought to be reviewed, to and onto the decision of the Magistrate.
The conclusion of the Judge with respect to count three was in the following terms:
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.
An analysis of the Magistrate’s reasons raises some issues of concern. Those issues relate to whether the Magistrate, having correctly identified the approach to be taken to a case where there has been lengthy delay (in this case more than 30 years), and to a consideration of the evidence of the complainant, a five-year-old child at the time, heeded the dangers in assessing the evidence in these circumstances. It was put by the applicant’s counsel that in a number of respects, those dangers were not heeded. It was suggested that certain remarks of the Magistrate had the effect of reversing the onus of proof or “diminishing”[1] the standard of proof. However, there was no basis for advancing these submissions with respect to the reasons of the Judge. Other submissions put by the applicant concerned what was said to be a failure by the Magistrate to properly address the weight of the evidence on a number of topics with respect to the evidence of the complainant and her mother. It was contended that inadequate regard was had to inconsistencies in their testimony.
[1] Palmer v R (1998) 193 CLR 1 at [9].
These arguments were addressed by the Judge and rejected. No basis was established to suggest that the Judge had not addressed all of these issues in an appropriate way. Doyle CJ has addressed these matters in detail. I respectfully agree with his reasons.
An argument was advanced that evidence of complaint had wrongly been received. In my view this argument was misconceived, and was rightly rejected by the Judge. I agree with the reasons of Doyle CJ with respect to this contention.
The evidence led in support of count three included evidence from the complainant’s mother that was probative of that count. The Judge considered this evidence to be of particular importance, and as providing a clear basis for distinguishing the verdict on this count, from the verdict on the other counts:
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.
It is evident from the latter paragraph that the Judge considered that the observations of the complainant’s mother were probative. I agree. The complainant’s mother described observing her five-year-old daughter in a state of distress. It was this distress that caused the complainant’s mother to enquire of her daughter as to what was wrong. This led to the daughter’s complaint as to the conduct of the applicant. As the Judge observed, there was a substantial body of evidence that confirmed the conduct of the complainant’s mother in seeking to remove her children from the house in which the applicant lived. This included resuming co-habitation with her then estranged husband, feigning a genuine desire to return to live with him, and the changing of her daughter’s school. My review of the evidence has confirmed the significance of the mother’s testimony.
No error has been identified in the reasons of the Judge. I agree with his conclusions with respect to count three