Carindale Country Club Estate Pty Ltd v Astill

Re: LYLE JOHN MARTIN
And: THE QUEEN
No. ACTG82 of 1992
FED No. 218
Number of pages - 31
Evidence Act 1971

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(2) and Wilcox(1) JJ

CATCHWORDS

Evidence Act 1971, ss.64, 76F

Oaths and Affirmations Act 1984, s.15

Criminal Justice Act 1988 (U.K.), s.34

R v Brasier (1779) 1 Leach 199; 168 ER 202

Omichund v Barker (1744) Willes 538; 125 ER 1310

Attorney-General v Bradlaugh (1885) 14 QBD 667

R. v Schlaefer (1992) 57 SASR 423 at 429-437

R. v Taylor (1790) Peake 15; 170 ER 62

Cheers v Porter (1931) 46 CLR 521

Da Costa v The Queen (1968) 118 CLR 186

Harriman v The Queen (1989) 167 CLR 590

S v The Queen (1989) 168 CLR 266

R. v Beserick (unreported, NSW Court of Criminal Appeal, 16 February 1993)

R. v Rogerson and Paltos (unreported, NSW Court of Criminal Appeal, 16 December 1992)

Chidiac v The Queen (1991) 171 CLR 432

R. v Brown (1977) Qd R 220

R. v Domonic (1984) 14 A Crim 4 418

R. v Ball (1911) AC 47

Paton v The Queen (unreported, Wilcox, Miles and von Doussa JJ, 22 July 1992)

Chamberlain v The Queen (1983) 153 CLR 521

Morris v The Queen (1987) 163 CLR 454

Kilby v The Queen (1973) 129 CLR 460

Smith v Commonwealth Life Assurance Society Limited (1935) 35 SR (NSW) 552

K v The Queen (1992) 34 FCR 227

HEARING

CANBERRA, 31 March and 1 April 1993

#DATE 15:4:1993

Counsel for Appellant: Mr J.H. Brewster

Solicitors for Appellant: Legal Aid Office (A.C.T.)

Counsel for Respondent: Mr J. Ibbotson

Solicitors for Respondent: Director of Public Prosecutions (A.C.T.)

ORDER

THE COURT ORDERS THAT:

1. The appeal is allowed and the conviction set aside.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

GALLOP and WILCOX JJ This is an appeal against conviction and sentence for an offence of committing an act of indecency upon a person under the age of 10 years imposed in the Supreme Court of the Australian Capital Territory on 1 December 1992.

On 23 November 1992 the appellant was arraigned on an indictment charging him with one offence that on 30 April 1990 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with a person under the age of 10 years, namely 8 years, and an alternative count of committing an act of indecency upon the same person under the age of 10 years, namely 8 years. On his arraignment the appellant pleaded not guilty to both counts. On 24 November the jury returned verdicts of not guilty on the count of engaging in sexual intercourse with a person under the age of 10 years, and guilty of the alternative count of committing an act of indecency upon a person under the age of 10 years.
Following the jury's verdict the trial judge heard evidence relative to sentence on 25 November and submissions on 1 December 1992. Having heard submissions on 1 December 1992 he sentenced the appellant to a term of imprisonment of two and a half years and fixed a non-parole period of 9 months, both periods to date from 24 November 1992.
The grounds of appeal as set out in the Notice of Appeal are:

"2. That the verdict was unsafe and unsatisfactory.

3. That the Learned Trial Judge was in error in admitting evidence of prior incidents of a sexual nature between the accused and the complainant.

4. That the Learned Trial Judge was in error in allowing the evidence of the complainant to be given on oath.

5. That the Learned Trial Judge was in error in sentencing the accused in using the decision of This Honourable Court in the matter of Wilks v. R (unreported decision dated 6 November 1992) as a 'benchmark' for this type of case.

6. That the sentence was in the circumstances manifestly excessive."

Grounds 5 and 6 were not pressed on the hearing of the appeal.
Counsel for the appellant argued Ground 4 first, namely that the trial judge was in error in allowing the evidence of the complainant to be given on oath. At the commencement of the trial, counsel for the appellant raised with the trial judge whether it was appropriate for the complainant to give evidence on oath or not, and whether any enquiry as to that matter should be heard in the absence of the jury. The trial judge did embark upon an enquiry and asked the complainant a series of questions before she gave evidence. We set out those questions and her answers.

HIS HONOUR: Now, are you (the complainant's full name)? WITNESS: Yes.

HIS HONOUR: Right, thank you. Now, where do you live? WITNESS: (She gave her full residential address). HIS HONOUR: Right. Now, I am going to ask you a few questions about yourself now and then later on somebody else might ask you some questions about something else. But I am just asking you about, do you understand that? Where do you go to school? WITNESS: At Latham Primary School. HIS HONOUR: Right. What class are you in? WITNESS: Grade 5.

HIS HONOUR: Right. How old are you? WITNESS: Ten.

HIS HONOUR: And has anybody told you the date of your birth? WITNESS: Yes.

HIS HONOUR: When was that?

WITNESS: 3 April.

HIS HONOUR: So that is when you have your birthday, is it? WITNESS: Yes.

HIS HONOUR: Do you know what year it was you born in? WITNESS: 1988 I think.

HIS HONOUR: Now, apart from going to school do you go to Sunday school at church or anything like that? WITNESS: No, I do sometimes with my friend but not usually.

HIS HONOUR: Which one is that? Which church or Sunday school do you go to?

WITNESS: The one up in Kippax. HIS HONOUR: Right.

WITNESS: Somewhere around near Kippax. HIS HONOUR: Has it got a name?

WITNESS: I do not know the name. HIS HONOUR: At any rate, do you know some people here would like to ask you some questions about something that happened a while ago?

WITNESS: Yes.

HIS HONOUR: Right. I will stop shouting. If you are asked questions about what happened, what would you do? Would you answer truthfully?

WITNESS: Yes.

HIS HONOUR: Do you know how important it is to answer truthfully? WITNESS: Yes.

HIS HONOUR: What do you think would happen if you did not answer truthfully?

WITNESS: I would be telling a lie. HIS HONOUR: Would there be anything wrong with that? WITNESS: Yes.

HIS HONOUR: Why is that?

WITNESS: You would not be getting the information you want.

HIS HONOUR: That is true. All right. This is a court case. Have you ever been in a court before?

WITNESS: Yes.

HIS HONOUR: Have you. You were in court before about these same things that happened, were you?

WITNESS: Yes.

HIS HONOUR: And that is what you are going to tell us about? If you were given the Bible to take an oath, do you think you would know what was involved in that?

WITNESS: Yes, telling the truth. HIS HONOUR: That is right. Have you seen people take the Bible before to tell truth?

WITNESS: Yes.

HIS HONOUR: Have you heard what they say? WITNESS: Yes.

HIS HONOUR: Do you know the sort of thing you would be asked to say about telling the truth?

WITNESS: Yes.

HIS HONOUR: Would that help you tell the truth? WITNESS: Yes.

HIS HONOUR: All right. Well I think I will have the witness sworn. All right, now, (name), we are going to ask you to go outside again and we will ask you to come back in a bit later, probably about a quarter of an hour later, and there will probably be some more questions then, do you understand that? WITNESS: Yes."

In answer to further questioning from his Honour the child indicated that she would prefer to give evidence in camera. Members of the public were excluded, the complainant was then sworn in the ordinary way as a witness and gave her evidence. His Honour did not indicate what assessment he had made of the complainant as a person competent to take the oath. It is reasonable to assume, however, that the girl demonstrated to his Honour sufficient intelligence to understand the duty to speak the truth.
Section 64 of the Evidence Act 1971 provides:

"64. (1) Where the evidence of a child who has not attained the age of fourteen years is required in a proceeding, the court may receive that evidence without administering an oath or requiring an affirmation or declaration and, subject to the next succeeding subsection, without any formality.

(2) The court shall, before receiving evidence in pursuance of the last preceding subsection, explain, or cause it to be explained, to the child that he is required to tell truthfully what he knows about the matter to which his evidence relates.

(3) Evidence admitted in pursuance of subsection (1) of this section on the trial of a person charged with an offence shall be disregarded unless it is corroborated by other evidence implicating that person."

It is relevant also to note s.76F of the Evidence Act, which is in the following terms:

"76F. (1) Any rule of law or practice requiring the corroboration of evidence or requiring the judge to give a warning to the jury in criminal proceedings to the effect that it is unsafe to convict a person on uncorroborated evidence is abolished in so far as the rule applies to or in relation to evidence given by the complainant in thetrial of a person for a prescribed sexual offence.

(2) Nothing in this section shall affect the right of the judge in prescribed sexual offence proceedings to comment on any evidence that may be unreliable but the judge shall not, in such proceedings, give a warning to the jury to the effect that it is unsafe to convict the accused person on the uncorroborated evidence of the complainant.

(3) Nothing in this section affects the operation of any rule of law or practice which requires -

(a) a judge, on the trial of a person for a sexual offence alleged to have been committed before the commencement of this section, to give the jury a warning as referred to in subsection (1); or

(b) a judge, on the trial of any person, to give the jury a warning to the effect that it is unsafe to convict a person on the uncorroborated sworn evidence of a child.

(4) Nothing in this section affects the operation of subsection 64(3)."

The submission on behalf of the appellant was that if the complainant's evidence had not been given on oath it would have to have been disregarded pursuant to s.64(3) as it was uncorroborated. It was common ground on the hearing of the appeal that there was no corroboration of the complainant's evidence.
From the complainant's answers to the trial judge it is clear that she did not understand the nature of an oath. She was accordingly incompetent to take an oath.
Section 15 of the Oaths and Affirmations Act 1984 (ACT) provides:

"15. Where a person required or permitted by law to take an oath -

(a) appears to a person before whom an oath may be taken to be incompetent to take an oath;

(b) is objected to, on grounds a person before whom an oath may be taken considers reasonable, as incompetent to take an oath; or

(c) wishes to take an oath in a form and manner permitted under section 21, but it is not, in the opinion of the person before whom an oath may be taken, reasonably practicable without inconvenience or delay for him to take that oath at the appropriate time and place, the person before whom an oath may be taken may require that first-mentioned person to make an affirmation instead of taking an oath."

It is clear law that a child of tender years cannot give evidence on oath unless it appears that he or she has sufficient knowledge of the nature and consequences of an oath (R v Brasier (1779) 1 Leach 199; 168 ER 202; Omichund v Barker (1744) Willes 538; 125 ER 1310; Attorney-General v Bradlaugh (1885) 14 QBD 667). The cases are collated in the judgment of Matheson J in R. v. Schlaefer (1992) 57 SASR 423 at 429-437.
It has been held that it is proper to ask a witness, whose competency to take an oath is in question, whether he believes in God, in the obligation of an oath, in a future state of rewards and punishments (R v Taylor (1790) Peake 15; 170 ER 62).
In Cheers v. Porter (1931) 46 CLR 521 it was held in relation to s.13 of the Oaths Act 1900 (NSW), a comparable provision to s.15 of the Oaths Act 1984 (ACT), that it authorises affirmations when the incompetence of the witness to take an oath does not arise "from immaturity or from unripeness or disorder of the intelligence".
Hence, his Honour may have admitted the evidence upon affirmation pursuant to s.15 of the Oaths and Affirmations Act 1984, but it would seem that he did not have the terms of the section in mind when he decided that the child could be sworn as a witness. If the evidence had been given by the child on affirmation, s.64(3) of the Evidence Act 1971 would not have operated so as to cause the child's evidence to be disregarded.
In any event, it is probably now too late to contest the admissibility of the child's evidence based upon her lack of understanding of the nature of an oath. In Da Costa v. The Queen (1968) 118 CLR 186, dealing with a similar argument, Windeyer J doubted whether the point could be taken for the first time after verdict and sentence. He said that after the trial has concluded, no objection having been taken to the admissibility of evidence at the trial, it may be too late to say that the receipt of the evidence was defective because of the witnesses (two Aborigines) being sworn when they did not understand the nature of an oath.
The ground of appeal directed to the operation of s.64(3) of the Evidence Act 1971 in relation to the child's evidence because she did not understand the nature of an oath and yet was sworn as a witness in the ordinary way must fail.
The next ground argued was Ground 3, namely that the trial judge was in error in admitting evidence of prior incidents of a sexual nature between the accused and the complainant. It was submitted on behalf of the appellant that the evidence was not admissible because the appellant was not charged in relation to those incidents, no doubt because they could not be particularised. The thrust of the submission was that charges should not be brought that cannot be properly particularised. Such charges make it impossible to found a defence of alibi or properly to test the complainant.
Counsel referred to Harriman v. The Queen (1989) 167 CLR 590 and to the dicta of Brennan J at 593 and Dawson J at 599 to the effect that evidence of prior similar acts should not be admitted unless it is highly probative.
It is now well established law that in a case of a sexual nature, evidence of prior sexual behaviour not charged is admissible to show the relationship that existed between the accused and the complainant as background to the circumstances in which the charged offence was committed (see Harriman v. The Queen, supra, S v. The Queen (1989) 168 CLR 266; R. v. Beserick (unreported decision, New South Wales Court of Criminal Appeal, delivered 16 February 1993; R. v. Rogerson and Paltos (unreported decision, New South Wales Court of Criminal Appeal, delivered 16 December 1992).
In our view the trial judge was correct in admitting the evidence of prior sexual behaviour and properly directed the jury as to the use of that evidence.
The most significant issue raised by the appeal is Ground 2, that the verdict was unsafe and unsatisfactory. This ground must be approached with caution. As Mason CJ pointed out in Chidiac v The Queen (1991) 171 CLR 432 at 443, it is not the function of an appeal court to re-try the case. The verdict is the responsibility of the jury, which enjoys the considerable advantage of seeing and hearing the witnesses. Mason CJ went on, at 444, to describe an appeal court's function as being "to determine whether there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof". His Honour stipulated that "the court must necessarily recognise that issues of credibility and reliability of oral testimony are matters for the jury"; rarely will a conviction be set aside "as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility". He went on:

"Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury's apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof."

Mason CJ made special reference to "(c)onvictions based upon certain categories of testimony which the law has traditionally regarded with great caution". Those categories include "convictions based upon ... the uncorroborated evidence of sexual complaints". The conviction entered in the present case is, of course, such a conviction; but with the additional feature that the complainant was only eight years old at the time of the alleged offence. In relation to these categories Mason CJ commented, at 444-485:

"The instances in which this jurisdiction has been exercised are, of course, cases in which there was sufficient evidence to go to a jury to entitle it to bring in a verdict of guilty where nonetheless the quality of the evidence was not such as, in the opinion of the appellate court, to establish the guilt of the accused beyond reasonable doubt, after taking into account the jury's assessment of the credibility of the witnesses based on the advantage which it had in seeing and hearing them."

The other members of the Court, in Chidiac, expressed views on matters of principle consonant with those of the Chief Justice. There is no need for us to set them out. But it is useful to mention the observation of McHugh J, at 462, concerning the attitude which an appeal court should take to the fact of the jury's verdict:

"In exercising this extraordinary jurisdiction, the Court of Criminal Appeal has to be mindful of the great advantage which a jury has in seeing and hearing the witnesses. It must act on that view of the evidence which is most consistent with the conviction except to the extent that it is satisfied a reasonable jury would not have so acted. But unlike an appeal against a jury's verdict in a civil action, the Court is not bound to act upon that view of the credibility of the witnesses which is most consistent with the verdict of the jury. In an appropriate case, the Court is entitled to hold that, despite the jury's verdict, a reasonable jury would not have accepted the evidence of a particular witness or witnesses to the extent necessary to be convinced beyond reasonable doubt of the guilt of the accused. Thus, in Ralph and George (1988) 37 A Crim R 202, the Court of Criminal Appeal set aside two convictions which depended upon the uncorroborated evidence of a convicted drug dealer who was an admitted liar and perjurer. The Court was of the opinion that, although the evidence, if accepted, was legally sufficient to convict the appellants, the nature and quality of that evidence made it unsafe or unsatisfactory to allow the convictions to stand."

In the present case, there was much common ground in the accounts of the events of 30 April 1990 given by the complainant and the appellant. But they were in direct conflict on the critical question: whether the appellant touched the complainant in the region of her vagina. The complainant's account of that matter was not inherently improbable; and it is obvious from their verdict that the jury preferred that account to the appellant's denial. The complainant was apparently an impressive witness.
We have given these factors great weight in our consideration of Ground 2. But, notwithstanding their force, we have reached the conclusion that the verdict is unsafe and unsatisfactory. There are important inconsistencies in the complainant's evidence and several puzzling aspects of the surrounding circumstances.
During the course of his submissions, counsel for the appellant identified seven alleged inconsistencies in the complainant's evidence, as compared with what she described on an earlier occasion. An eighth matter emerged in discussion. Some of the so-called inconsistencies are matters of no consequence, the sort of minor variation in a witness' accounts of an incident that usually arises; and in the absence of which a court might wonder whether the witness had learned her/his evidence by rote. Some of the claimed inconsistencies may have been merely verbal mannerisms. An example is the complainant's use of the words "all the time" to describe to the investigating police officer the frequency of the appellant's intrusion into the boys' bedroom when she was changing; whereas she said at the trial that this happened "a few times". People often use the phrase "all the time" to refer to a recurring phenomenon, without intending to convey that it occurred on every available occasion. The same comment applies to the complainant's statement to the police officer that she had "always" taken all her clothes off when he entered the room; as against her evidence that sometimes she had her leotard on and sometimes just her undies.
There were three non-verbal "inconsistencies" about the incidents which allegedly occurred before 30 April. At the trial the complainant described how she used to change in the bedroom occupied by the appellant's two small sons. She said that she was unable to shut the bedroom door because there was a "cot kind of thing" in the way, which she had to climb over. This statement leaves a gap in the complainant's evidence. She did not say that the appellant climbed over the cot, if that is what it was; or otherwise indicate how he succeeded in reaching her while she was changing. But the statement did more than create a gap in the evidence. The complainant's account of a "cot" blocking the closing of the door, given in evidence in chief and repeated in cross-examination, conflicted with evidence she gave in the Magistrate's Court:

"But there were lots of other kids around, weren't there, (name)? Yes, all of the kids were playing in the toy room while the door was shut, and I was getting changed in the boys' room with the door shut. All right, so you used to always shut the door, as well, did you? Is that right?

Yes".

The second non-verbal "inconsistency" concerns the way the appellant used to pick up the complainant. It appears that, at both the committal hearing and the trial, the complainant used a doll to demonstrate the appellant's action. At the trial she referred to only one form of handling. It was described by counsel variously as holding her with "one hand round your back as much as one would a baby" and "(h)e would hold you in the crook of his arm". In the Magistrate's Court the complainant referred to two methods of handling her. One method was the appellant holding her round the back, apparently with one arm. She agreed with a description of the other method that "both his hands were under your armpits, and that she was lifted straight up with her legs dangling down". She said the appellant put her down "when he had finished feeling me".
We put no weight on this point. The description given at the trial is consistent with one of the two methods described at the committal hearing. It is true that, at the trial, the complainant made no reference to the other method. But this does not amount to a conflict of evidence. It merely means that the trial evidence may have been incomplete. In any event, the difference between the two methods may easily be exaggerated. The complainant stated at the committal proceeding that the appellant touched her genital area on these occasions. If so, he could not have continued throughout to hold her with both hands under her armpits. At some stage he must have shifted her to a cradling position.
The remaining pre-April 30 "inconsistency" is unclear in the appeal materials. During the course of cross-examination at the trial, the complainant was asked this question:

"Again, I suggest you were asked, in the Magistrate's Court, you were asked about whether a finger was put in at his house and at your house, and you said, 'Does that mean that putting his finger inside you was at your place or just touching you on the outside was at your place?' And you answered, I suggest, 'He just touched me on the outside at my place.' That wasn't right?---No".

On the face of it, by this answer the complainant conceded that she falsely told the magistrate that the touching that took place in the appellant's home (as distinct from any touching in her home on 30 April) was confined to "the outside". But it is clear that, in another part of her committal hearing evidence, the complainant claimed that, on one or more of these occasions, the appellant digitally penetrated her vagina. There is nothing in this point.
The three remaining "inconsistencies" arise out of the complainant's account of the incident of 30 April. At the trial the complainant said that the appellant "came in and said goodnight to us and turned the light off". She was referring to the bedroom occupied by herself and her younger sister. The complainant added that "the hall light was still on and we read a little bit". They were able to do this "because the hall light shone right into the room". She said that the appellant came back into the room and said goodnight again. According to her trial evidence, the appellant then "took me out and said that I could read the book to him on the couch". She got out of bed and followed the appellant to the lounge room. He lay on the couch. She lay facing him and read the book aloud.
There are three apparent discrepancies between this evidence and the complainant's earlier accounts of the same events. The first relates to lighting. At the committal proceedings, the complainant said that she and her sister read "for about 15 minutes". We are unclear whether this time was measured from the time her parents left the house or the time the appellant arrived. It does not matter. The complainant said that the appellant then switched the hall light off. Her sister asked if she could have it on; but the appellant replied: "No, you have to go to sleep now". At the trial the complainant was asked: "That's not right, either?" She replied: "No".
Despite the complainant's concession, it is not clear that this evidence involves an inconsistency. It is possible that the appellant switched off the hall light, and refused to allow it back on, immediately before he made the suggestion that the complainant should come to the lounge room to read. The trial evidence may have been merely incomplete.
The second matter is a true inconsistency. At the committal hearing the complainant was asked whether the appellant picked her up or she walked to the lounge room. She replied: "He picked me out of bed". At the trial she agreed that this was wrong.
Finally, a more complicated matter. As mentioned, the complainant said at the trial that she lay on the couch facing the appellant. She was in that position when, according to her, the appellant touched her vaginal area. At least on one view of the matter, she earlier gave two different accounts of her position at that time. During the course of her cross-examination the complainant's mother was asked the terms of the complainant's conversation with her on the morning after the alleged incident. She replied that the complainant told her that the appellant -

"got me out of bed and he took me into the lounge room and told me that he wanted me to read him a book and he sat me down on his knee on the couch and he told me to pull my knickers down and I told him I wasn't going to and he said that he would tell me (that is, the mother) that she'd been a bad girl if she didn't do it. So he did it anyway".

The complainant's mother added that the complainant told her "he rubbed the front of her".

At the trial the complainant was asked about the account of the incident she gave to a police officer. It was put to her that the police officer asked: "Where were you sitting?" and that she replied: "On the couch". It was then suggested that she was asked: "Where was Mr Martin sitting?" and that she replied: "On the couch next to me". She said that this account was not right.
As we have indicated, we are not troubled by all the inconsistencies mentioned by counsel. Some inconsistencies of recollection are to be expected. It seems to us that there is a proper distinction between evidence which depends upon a witness' analysis of a larger mosaic of facts (for example, in this case, whether the appellant "always" entered the bed room as she was changing) and evidence concerning an incident in which she was involved. Many witnesses, perhaps especially small children, will vividly remember an incident but be inconsistent in analysis. The more significant the incident to the witness, the more likely that the witness will remember it. According to her evidence, the complainant was very aware of the appellant's handling of her, both on 30 April and the earlier occasions, and resented that treatment. So one would expect a clear memory of the incidents, even in an eight year old. For these reasons we are troubled by the complainant's inconsistent statements about the shutting of the door on the earlier occasions and the last two matters mentioned in connection with the 30 April incident: whether she was picked out of bed, or got out and walked, and the positions of herself and the appellant during the reading.
In considering the weight to be given to these inconsistencies, we have to remember that the complainant's account of the appellant's conduct is uncorroborated. But, important as they are, it is not only the complainant's inconsistencies that cause us to consider the verdict unsafe and unsatisfactory. There are several puzzling and unexplained circumstances. Most of them arise out of the evidence of the complainant's mother.
In considering the evidence of the complainant's mother, it is relevant to know that, at the date of the trial, she was Director of Occupational Therapy at a large hospital in the Australian Capital Territory and a senior counsellor in its Psychiatric Department. The evidence does not disclose whether the complainant's mother held these positions during 1989 and 1990. But it does disclose that she worked at the hospital at that time and that she is a trained occupational therapist and psychiatric counsellor. She attended a course concerning child sexual abuse in late 1988. It is reasonable to infer that a person with this background would have been sensitive to the subject of child sexual abuse and aware of its insidious and harmful nature.
The complainant's mother gave evidence that Mrs Martin, the wife of the appellant, regularly cared for the complainant and her sister. Mrs Martin was an accredited child minder. The complainant's mother knew that Mr Martin worked shift-work and was often at home while the girls were being minded after school, including on occasions when the complainant was changing for ballet. The complainant's mother said that, before April 1989, when she commenced to work at the hospital, "(The complainant) had already indicated some alleged interference". Between April and October the complainant's mother worked hours that enabled her to be home when it was time for the complainant to change for ballet. During this period there was no complaint about interference. But, in about October 1989, the mother's work hours were varied. Once again, the complainant had to change for ballet at the Martin's home. According to the complainant's mother, her complaints resumed. The complainant's mother said that the complainant told her "Mr Martin is still touching my fanny". She gave evidence of a behavioural problem. As the school holidays approached, the complainant "became increasingly agitated, saying that she didn't want to go back there". At one stage in her evidence, the complainant's mother said that, in the period shortly before April 1990, the complainant said nothing about interference but "behaved atrociously". At another point in her evidence, she agreed that she had told a police officer that, in the four to six months until about April 1990, "(The complainant) started talking about it again with frequency, perhaps once a week or more". She attributed to the complainant the words: "I hate going there, Mummy, because Mr Martin plays with my fanny" and "I wish Mr Martin wouldn't play with my fanny". The complainant's mother said she discussed the complainant's behaviour, and her dislike of going to the Martins, with her husband. But she said: "I don't think we actually discussed any alleged sexual interference".
If this evidence is true, it is difficult to understand why the complainant's mother continued to send the complainant to the Martins' home. When she was asked about this, the complainant's mother replied that the family had few friends in Canberra. They moved to Canberra only in mid-1987. We accept that it might not have been easy to find an alternative child-minder, although we note that the complainant's mother found an alternative in one day immediately after 30 April; but we have difficulty in believing that, whatever the problems about alternative minding, a mother trained in psychiatric counselling and child sexual abuse would be prepared to accept the risk of continued abuse of her young daughter. Upon the complainant's mother's version of the matter, the complainant could hardly have been more explicit about Mr Martin's conduct.
Another puzzling aspect of the mother's evidence is that she said nothing to her husband about Mr Martin's alleged conduct, notwithstanding that they discussed the complainant's dislike of returning to his home. We would have thought it impossible to discuss the problem without adverting to its cause. The omission, which is unexplained, causes us to wonder whether the complainant did make the statements which the complainant's mother claims.
The evidence of the complainant's mother concerning events after 30 April also creates difficulties. She said that she first learned of the incident on the following morning, when she went to the breakfast bar where the complainant was sitting. The complainant's mother said that she was going to ask how things turned out, expecting her to reply that "everything was fine"; but the complainant cried and made the statement set out above. According to the complainant's mother, she was "absolutely shocked". She spoke to her husband about the matter before he went to work.
The complainant's father gave a different account of learning about the allegations. He said that on the morning of 1 May the complainant told him something about what had happened the previous night. He went to the ensuite and spoke to his wife, who was showering at the time.
However the complainant's mother learned about the events of 30 April, after that time she had, according to her evidence, "absolutely no doubt at all" about Mr Martin's activities. Yet she did not confront Mr Martin with the complainant's allegations or report him to the police. On the morning of 1 May, she took both her daughters to Mrs Martin to be minded, presumably until it was time for them to go to school. During the day the complainant's mother made arrangements for an alternative child minder. That evening she went to the Martins' house to inform Mrs Martin that the girls would not be coming again; but, when asked the reason, she replied that it was better for them to be with girls their own age.
After 1 May the complainant's mother maintained social contact with both Mr and Mrs Martin. The complainant's father left the home on 13 March, at the commencement of what proved to be only a temporary separation arising out of marital difficulties between himself and his wife. The complainant's mother asked Mr Martin to change the locks on the house doors. She gave him a spare key to the house. The complainant's mother had tea with Mr and Mrs Martin from time to time and they reciprocated. On three occasions "at the most", according to the complainant's mother, the two families (apparently without the complainant's father) went out for dinner together. In July the complainant's mother took the children away for holidays. She asked Mr Martin to feed the household pets. Then, also in July and under circumstances wholly unexplained by the evidence, the complainant's mother contacted the Family Day Care organisation. Mrs Martin's child minder accreditation was withdrawn, or perhaps suspended. The complainant's mother was contacted by the Sexual Assault Unit of the Federal Police. An investigation ensued and criminal proceedings commenced.
The complainant's mother is not on trial. We do not wish to be unnecessarily critical of her actions. Her relationship with Mr and Mrs Martin and her sensitivity towards the complainant are not matters directly in issue in this case. But we cannot regard these matters as irrelevant. The history we have recited strongly suggests that there is more to this case than the evidence reveals. We appreciate that, on 1 May, the complainant's mother was undergoing the stress of serious marital difficulties. She was close to Mr Martin. Without elaborating the point, the complainant's mother volunteered during the course of her evidence the comment: "Mr Martin was closer to me than my own father and I trusted in him and he supported me greatly in the marriage difficulties that we had". If that was so, it must have been difficult for the complainant's mother to accept the import of what, according to her, the complainant kept telling her before 30 April. Yet, once again according to her, on the morning of 1 May, she did accept the significance of the complainant's statement. Notwithstanding that fact, between 1 May and some time in July, she not only made no complaint or accusation; she actively put the complainant in proximity to Mr Martin.
We do not impute any improper behaviour to the complainant's mother. We do not pretend to understand the dynamics operating between these people in the period April - July 1990. They were not explored at the trial. Perhaps counsel thought them irrelevant; but without more information it is impossible for us to feel satisfied that the mother's delay in reporting the alleged offence (and then not to the police) is compatible with the complainant having made the clear statement she attributes to her on 1 May. If it was clear, from the events of 1 May, that a profoundly disturbing incident had taken place the previous evening, it would be easier to accept the inconsistencies in the complainant's versions of the incident. But that is not clear. The complainant's mother, the person best placed to evaluate whatever the complainant told her, did not act as if a profoundly disturbing event had occurred. Her reaction causes us to wonder whether the complainant did make the statement her mother attributed to her. Uncertainty on that matter must affect the question whether the evidence, considered as a whole, was capable of satisfying the jury beyond reasonable doubt.

We wish to make it clear that we are not saying we are satisfied that the complainant's evidence was false. The evidence does not establish that conclusion. But that is not the issue. The prosecution had to prove the appellant's guilt beyond reasonable doubt. In the context of this case, that means that it had to prove that the complainant's evidence was true. If the matter was left uncertain, the appellant was entitled to an acquittal.
If, notwithstanding the jury's apparent acceptance of the complainant's account of the matter, we are satisfied that the difficulties in the evidence were such as to make it insufficient to satisfy a reasonable jury of guilt beyond reasonable doubt, we must intervene. That is our position. In our opinion the verdict of the jury is unsafe and unsatisfactory. The appeal should be allowed and the conviction set aside.
It is, perhaps, desirable to point out the seriousness of child sexual abuse. Such conduct is totally unacceptable to right thinking members of society. Where child sexual abuse is proved, it ought to be severely punished, usually by a term of imprisonment. But, precisely because of the serious nature of the offence, the stigma that attaches to a conviction and the punishment which generally follows, it is important to ensure that any conviction is supported by material sufficient to enable a reasonable jury to be satisfied of guilt beyond reasonable doubt.
We have considered whether we should order a new trial. A new trial will not reduce the number of inconsistencies, although it may serve to explain some of them. It may yield insights into the other matters we have discussed; possibly enabling a jury to be satisfied of the appellant's guilt beyond reasonable doubt. But the advantage of obtaining an unimpeachable jury verdict, one way or the other, has to be weighed against the disadvantage of requiring the complainant, yet again and three years after the critical events, to recall them to her mind. As a result of the jury's verdict, the appellant has already served four months in prison. This fact would have to be taken into account in fixing a new sentence after any new conviction. The appellant's family now reside far from Canberra. On release he is likely to resume cohabitation with them and unlikely to come into further contact with the complainant. Indecent assault of a young child is a very serious offence. But in all the circumstances of this case, it would not be appropriate to order a new trial.

JUDGE2

DAVIES J This is an appeal from the conviction of the appellant on the charge that, on 30 April 1990, he committed an act of indecency upon a girl who was then under the age of 10 years. An appeal against sentence was not pursued.

At the trial, evidence was given on behalf of the prosecution by the girl, her mother, her father and by two other persons with whom the accused had had conversations. Evidence was also given by a medical practitioner but that added little or nothing to the case. Evidence for the defence was given by the accused himself and by his wife. At the time of trial, the girl was aged 10 but at the time of the offence she was aged 8.
At the trial, the girl gave evidence on oath. The first ground of appeal is that she was not shown to be qualified to do so, in the sense that she was not shown to have understood the nature of the oath. Counsel for the appellant relied upon R. v. Brown (1977) Qd R 220; R. v. Domonic (1984) 14 A Crim R 418; R. v. Schlaefer (1992) 57 SASR 423. However, the trial Judge closely questioned the girl and was satisfied that she understood the significance of giving evidence and the necessity to tell the truth. On the answers given, his Honour's discretion under s.64(1) of the Evidence Act 1971 (ACT) to permit the girl to give evidence did not miscarry. The girl was therefore entitled to give evidence either on oath or on affirmation. She took an oath and no objection was taken pursuant to s.15(b) of the Oaths and Affirmations Act 1984 (ACT) on the ground that she was incompetent so to do. At this point in time it is too late to raise a matter which, if it was to be raised at all, had to be raised when the girl was sworn.
In the course of the trial, evidence was given by the girl as to earlier occasions extending over a period of more than a year during which the accused had indecently handled her. The mother gave evidence of the girl's complaints of these matters and of the girl's apparent upset at the incidents. The trial Judge admitted this evidence. I see no error in the exercise by the trial Judge of his discretion in this respect. The evidence of past incidents made it more likely that the offence charged had in fact occurred and that the incident of 30 April 1990 was not a mere accidental touching which had been magnified in the mind of the girl into a circumstance of an entirely different character. The evidence of past events was essential if the jury was to weigh up the evidence of both the girl and the accused. The evidence placed the incident of 30 April 1990 into a context in which its probability could be judged. Standing alone, evidence as to the events of the night of 30 April 1990 could have seemed to the jury to be unreal and unlikely.
Accordingly, although the evidence as to earlier incidents showed a propensity on behalf of the accused to commit the crimes of the nature charged, its persuasive value outweighed its prejudicial effect. The trial Judge was not in error in admitting the evidence. See R. v. Ball (1911) AC 47; Harriman v. The Queen (1989) 167 CLR 590; Paton v. The Queen (unreported, Wilcox, Miles and von Doussa JJ, 22 July 1992); R. v. Beserick (unreported, Hunt CJ at CL, Finlay and Levine JJ 16 February 1993).
Accordingly, the appeal turns on the issue whether the verdict of the jury was unsafe or unsatisfactory, that is to say, whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the accused's guilt. Chidiac and Asfour v. The Queen (1990) 171 CLR 432; Chamberlain v. The Queen (1983) 153 CLR 521; Morris v. The Queen (1987) 163 CLR 454. The principle to be applied in this appeal was stated in Chidiac v. The Queen by Mason CJ at 443-444 as follows:-

"In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Whitehorn (1983) 152 CLR, at p 686; Chamberlain (No 2) (1984) 153 CLR, at pp 534, 606-608; Morris (1987) 163 CLR, at p 461. Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt: Morris (1987) 163 CLR, at pp 472-473. The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose: Chamberlain (No. 2) (1984) 153 CLR, at p 531; Morris (1987) 163 CLR, at p 473.

In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten (1974) 131 CLR, at pp 515-516; Chamberlain (No. 2); (1984) 153 CLR, at p 534; Morris (1987) 163 CLR, at pp 463, 473. In making that assessment, the court must necessarily take into account the nature and quality of the evidence, as this Court did in Morris, when it set aside the conviction as being unsafe or unsatisfactory because it proceeded upon the jury's evident acceptance of an admission of guilt which, in the opinion of the Court, was unreliable. ...

In resolving that question, the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. ...

Convictions based upon certain categories of testimony which the law has traditionally regarded with great caution provide compelling illustrations of the exercise of this jurisdiction. Thus, the courts have set aside as being unsafe convictions based upon unsatisfactory evidence of identification or the uncorroborated evidence of sexual complainants and accomplices, notwithstanding that the judge has cautioned the jury in appropriate terms about the risk of acting upon the evidence or acting upon the evidence unless it is corroborated, as the case may be."

Dawson, Toohey, Gaudron and McHugh JJ each expressed the test in slightly different terms; but the case shows that the function of an appellate court is to examine the evidence for itself, not to substitute its own view for that of the jury, but to assess whether a reasonable jury properly appreciating its task was entitled to convict on the evidence before it.

The girl gave evidence that she and her family and the accused and his family were neighbours and that she had often visited his home, particularly for the purpose of changing her clothes before going to ballet school. She said that on the evening of 30 April 1990, the accused came to her home to babysit her and her younger sister. The girl said that she and her younger sister were in bed together and she was reading a Dr Seuss book. She gave this evidence inter alia:-

"How long were you reading the book, do you believe, after Mr Martin arrived? How long were you reading it in bed, I should say?---I can't remember. He came down and had a talk with you about reading it to him, is that what you say?---Yes, he said, 'Come out here and you can read the book to me.' You got out of bed then?---Yes.

Had he already left and gone back down to the lounge room or whatever, or did you go down with him?---I think he'd gone down before me.

So you joined him in the - is the lounge room, or family room?---It was the lounge room. You joined him in the lounge room?---Yes. When you got there, where was he?---On the couch. Was he sitting on the coach, or lying on the couch?--- He was lying on the couch.

What did you do?---I came up and lay down next to him and read the book to him.

...

You were lying on the couch. How long were you reading the book before he began to touch you?---I don't know. I'm sorry?---I don't know.

Do you remember, did you start again at the beginning of the book or did you continue reading from where you'd reached?---I continued reading. Could I just have a look at the book, please. I will just go back to what you told Mr Sabharwal. You say he pulled your nightie up and put his hand down your knickers?---Yes.

He kept saying, 'Open up' to you; what did you say, if anything?---I said, no, and kept on reading my book. You said 'No'. So, what, you kept your legs together, did you?---Yes.

And you kept them together the whole time, did you? You didn't 'open up" as he asked?---I kept them together.

The whole time?---Yes.

Now, for about how long was he touching then in the lounge-room that night?---I don't know because when I was younger I didn't have much sense of the time. Do you remember how many pages you might have read while it was happening?---No.

And you kept reading to him aloud; is that right?---Yes. You said, after lunch - when Mr Sabharwal was asking questions - you said, 'He put his finger into your vagina'?---Yes.

And did that hurt at all?---No.

Again, I suggest you were asked, in the Magistrate's Court, you were asked about whether a finger was put in at his house and at your house, and you said, 'Does that mean that putting his finger inside you was at your place or just touching you on the outside was at your place?' And you answered, I suggest, 'He just touched me on the outside at my place.' That wasn't right?---No.

In fairness, though - I have to say, 'In fairness' - you did, at other times, I suggest, during the Magistrate's Court, say that he did put his finger in?- --Yes. And when he had finished touching you, what happened?---He told me to go back to bed.

And did you do that?---Yes.

And what did you do, did you read in your bed or go to sleep?---I went to sleep.

Now, when you woke up, what, was it the next morning?---Yes. And did you say something to either of your parents about what happened?---I told both of my parents. Who did you tell first?---My mum."

That evidence was given in cross-examination but it puts the substance of her story.

I see nothing improbable in that evidence, when read in the light of the evidence as to prior events. I may have had a doubt as to the evidence that the accused was "lying on the couch" for it is usual for an adult to sit rather than lie on a couch. However, the accused gave evidence that when the parents came to his house on the following night, "I was lying on our couch watching the television". So there is no reason to doubt the girl's evidence in that respect.
The accused gave evidence in chief as follows:-

"Did you have a conversation with her?---Yes, I'd been down to the laundry to untangle the sheets as (the mother) had asked me to check in the dryer - there were some sheets in the dryer - and on the way back I put my head in the bedroom to see that everything was quiet and everything was all right.

And was there a conversation with (the girl)?---Yes. And what was that conversation?---She was still looking at a book, as I recall, and I can't remember the exact words but she offered to read me some of the book. And was there a conversation about the terms under which you might agree to that request?---I said to her that to avoid disturbing (the sister), who was asleep, or trying to go to sleep, that she should sit out in the lounge room and read it for a while if that's what she wanted to do.

And what did you do then?---I went back to the lounge. And what happened? Did (the girl) later end up there?---Yes. With a book?---Yes.

And were you doing anything at the time that she arrived?---I'd taken a video with me which I'd recorded from the television regarding the space shuttle crash and I was watching that.

And where were you?---On the couch. Were you sitting or lying on the couch?---I was sitting on the couch.

And what did (the girl) do?---She came in and sat on the couch as well.

And did she read her book?---Yes. This was aloud?---Yes.

For how long did that go on?---I would say maybe only between five and 10 minutes at the most, I would say. What happened then?---I said to her, 'Well, I think, you know, that's enough for now and you'd better go back to bed.'.

And did she do so?---Yes.

And was there any form of touching at all between you and (the girl) on that evening?---No."

Members of the jury would be likely to have considered that version of events to be improbable or incomplete. Members of the jury would have expected that, in the ordinary course of events, the accused who had got the 8 year old girl out of bed, would have been likely to have initiated some discussion about school or about ballet or the day's events, even that he would have taken the girl back to the bedroom when she had finished reading and would have settled her into bed and said goodnight to her. The accused's account of the incident seems stark, lacking in the human responses that one would expect between an adult and a child who knew each other well. Note the contrast between the irrelevant detail of the untangling of the sheets and the sparseness of the events in the loungeroom.
The girl appears to have given her evidence well. Her answers were short and to the point. She did not prevaricate or seek to avoid questions and was not expansive in the way that witnesses who try to put across a point of view so often are. I see no indicia of unreliability in her evidence and am left with the impression that she was an excellent witness.
There were several discrepancies in evidence on which counsel for the appellant relies; but these were all put to the jury by counsel in his address and by the trial judge in his summing up. I do not propose to discuss the discrepancies individually. Some were brought about by the girl's answers to leading questions put during the committal. None of the discrepancies causes me any concern, perhaps because I would not expect a girl of 10 years or less, that is to say at an age when language is not used with the precision that might be expected of an adult, to go through the process of statement to the police, evidence in the committal proceedings and evidence of the trial without there being some discrepancies.
There is a difference between the girl's evidence and what her mother said was her complaint on the morning of 1 May 1990. But to some extent, this discrepancy supports the girl's evidence, for it shows that the girl was not repeating by rote a story that her mother had impressed upon her. Indeed, the transcript of evidence suggests to me, as her evidence must have suggested to the jury, that the girl was giving her evidence from her actual recollection of the events and not from a story in which she had been tutored.
Counsel for the appellant has submitted that, if the jury believed the girl's evidence, then it was inconsistent for the jury to acquit the appellant of the more serious charge of sexual intercourse with her. However, having regard to the child's age, the limited extent of the finger penetration which the girl described, and her evidence that she refused to open her legs, I would not have expected the members of the jury to be satisfied that the more serious offence was proved beyond reasonable doubt.
The girl's evidence was supported by the complaint she made to her parents on the following morning. Such a complaint was described by Barwick CJ in Kilby v. The Queen (1973) 129 CLR 460 at 472 as "a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence". In Kilby's case at 475, Menzies J said that "evidence of the recent complaint is admitted not as evidence of the acts complained of, but as affording greater probability that the evidence of the woman who has made such a complaint is true." As Jordan CJ said in Smith v. Commonwealth Life Assurance Society Limited (1935) 35 SR (NSW) 552 at 556:-

"the fact that a complaint was made at the time in terms similar to the evidence afterwards given, goes to negative the possibility that what is now said in evidence is an afterthought - an invented story prepared after the event - a possibility which is regarded as existing in a special degree in this class of case."

As the girl's evidence was buttressed by her early complaint to her parents and the mother's evidence that the girl was upset, which was confirmatory of her evidence, the prosecution presented a straightforward and substantial case. The allegation by counsel for the appellant that the girl's complaint was a response to her parents' marital problems does not seem credible having regard to the period over which the girl made such complaints to her mother.
A curious feature of the case was the conduct of the girl's mother, who, notwithstanding the complaints that she had received over more than 12 months, did not take adequate steps to protect her daughter and took only limited steps after receiving the complaint on 1 May 1990. But her conduct does not cast doubt upon the girl's story. The explanation lies in the mother's reliance on the appellant. As the mother said in evidence:-

"Mr Martin was closer to me than my own father and I trusted in him and he supported me greatly in the marriage difficulties that we had."

I have had an opportunity to read the reasons for judgment of my brothers, Gallop and Wilcox JJ I note that their Honours have a doubt that the girl made the complaint of which she, her mother and her father gave evidence. However, I have re-read the transcript of the evidence in this light and do not myself find any reason to doubt the evidence of those witnesses. The step taken on the evening of 1 May 1990 of removing the girl in the future from the care of the appellant and his wife was consistent with it.

On the other hand, the appellant's evidence at the trial had elements which the jury might well have disbelieved. And, the jury might have thought that the evidence of the appellant's wife was evasive. For example, in cross-examination as to the earlier events, the appellant's wife gave this evidence:-

"I suggest to you that (the girl) went and changed in (the appellant's sons') bedroom?---No. Only a couple of occasions she did that.

Did you tell her to go and change there?---Probably. It was probably when we had visitors or something. I don't recall telling her to go and change there but I - I don't recall her getting changed there very often. But she did go and change there?---Yes, occasionally."

There was, moreover, a conversation between the appellant and a female security supervisor at the appellant's place of work. The supervisor gave evidence, inter alia:-

"He (the appellant) then went on to say that he did not consider that a finger or a thumb constituted penetration."

In cross-examination this evidence was given:-

"And I further suggest that he did not say that he didn't consider that a finger or a thumb constituted penetration but that he said, he had been unaware of the fact that in law, apparently, penetration by a finger or thumb is sexual intercourse?---No, it was not said like that, sir."

The members of the jury would probably have considered that both the statement of which the supervisor gave evidence and the statement as alleged by counsel for the appellant were very strange statements by a person whose case was that the incident which the girl alleged was a figment of her imagination.

In these circumstances, it seems to me that it was open to the jury to be convinced that the evidence of the girl was correct and the evidence of the appellant was false and that it was open to a reasonable jury to conclude beyond reasonable doubt that the appellant was guilty in respect of the lesser offence of an indecent act with which he was charged. The girl's evidence, if accepted, proves all the essential elements of the charge.
There is a rule of practice or of law which requires a judge to warn the jury of the danger of convicting on the uncorroborated evidence of a child. This rule is discussed in K v. The Queen (1992) 34 FCR 227 at 232-3. The rule has been removed in some jurisdictions, as by s.34 of the Criminal Justice Act 1988 (U.K.), but it is retained by s.76F(3)(b) of the Evidence Act 1971 (ACT). The trial Judge gave the warning to the jury. There is no challenge to the summing up by the trial Judge in this or in any other respect. Counsel for the appellant did hint on occasions that the summing up by the trial Judge was not in "traditional form" but when pressed, made no challenge to the summing up and no ground of appeal was directed to it.
The trial Judge warned the jury that the jury "should look particularly carefully at the evidence of a young child" and "be particularly careful before convicting on the uncorroborated evidence of a young child" and "must bear in mind the dangers of so convicting". This warning having been given, the matter was, it seems to me, a matter for the jury. If the members of the jury were satisfied of the truth and accuracy of the evidence given by the child, they were entitled to act upon it, taking into account the Judge's warning of the danger in so doing.
Young though she was, the girl's evidence was clear and probable. Her credibility was confirmed by her early complaint and her distress on the morning after the incident. It seems to me that a jury, taking note of the warning given by the trial Judge as to the danger in acting on the uncorroborated evidence of the girl, was entitled to assess her as a witness of the truth and to assess the evidence of the appellant as false. The members of the jury saw the witnesses giving their evidence and would have been in a position to assess their veracity. If the girl was an excellent witness, as she appears from the transcript to have been, it seems to me that the jury was entitled to be satisfied beyond reasonable doubt that the offence of an indecent act had occurred. The acquittal of the appellant on the more serious charge is an indication that the jury turned its mind seriously to the task of ensuring that a conviction be made only on proof beyond reasonable doubt.
For these reasons I would dismiss the appeal.

[1993] FCA 218

15 APRIL 1993