Christophers v The Queen

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
CHRISTOPHERS v THE QUEEN
[2019] SASCFC 158
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Doyle)
20 December 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Following a trial by judge alone, the appellant was convicted of seven counts of indecent assault (counts 1 to 7) and one count of unlawful sexual intercourse (count 8), contrary to ss 56 and 49 of the Criminal Law Consolidation Act 1935 (SA) respectively.
The various counts related to five different complainants, and to incidents occurring between 1987 and 2003. Each of the five complainants (referred to by the trial judge as JO, PO, EM, HD and BC) were young girls. Count 1 related to JO, counts 2 and 3 to PO, counts 4, 5 and 6 to EM, count 7 to HD, and count 8 (the unlawful sexual intercourse count) to BC.
The appellant pursues three grounds of appeal, being grounds 2, 6 and 8 from his notice of appeal.
Grounds of appeal 2 and 6 challenge his convictions for the indecent assault of complainant EM (being counts 4, 5 and 6). In particular:
1.      Ground 2 is that the convictions for counts 4, 5 and 6 are unreasonable and unsupportable having regard to the evidence. The focus of this ground is upon the quality, as opposed to sufficiency, of the evidence led in support of these counts. It relies upon several contended inconsistencies, or areas of frailty, in the complainant EM’s evidence.
2.      Ground 6 is that the trial judge erred in his treatment of the complaint evidence in relation to the complainant EM. The focus of this ground is the contended failure of the trial judge to take account of the absence of any reference in the complaint evidence to the appellant’s conduct the subject of count 6.
Ground of appeal 8 challenges the appellant’s conviction for the indecent assault of PO that is count 3. It involves a complaint that the trial judge failed to provide adequate reasons in relation to the evidence of PO’s complaint to her siblings (JO and TO), and in particular that his Honour failed to identify how he resolved the inconsistencies between the evidence of PO, JO and TO as to the complaint.
A Judge of this Court granted the appellant permission to appeal in respect of ground 6, and referred the application for permission in respect of grounds 2 and 8 to this Court for consideration.
Held, per Doyle J (Stanley and Nicholson JJ agreeing), granting permission to appeal in respect of ground 2, but otherwise dismissing the application for permission to appeal and dismissing the appeal:
1.      While there were some aspects of EM’s evidence that required close scrutiny, and it contained some unexplained differences from, and inconsistencies with, earlier statements made by EM, these matters did not require doubt on the part of the trial judge as to counts 4, 5 or 6. The convictions for counts 4, 5 and 6 are not unreasonable and unsupportable having regard to the evidence.
2.      The trial judge did not overlook, or fail to take into account, EM’s failure to mention the conduct the subject of count 6 until she gave a further statement in 2014. The appellant has not established any inadequacy in the trial judge’s reasons, or that there was otherwise any miscarriage of justice in respect of count 6.
3.      The appellant has not established any inadequacy in the trial judge’s reasons in relation to the evidence of PO’s complaint to her siblings.
Criminal Law Consolidation Act 1935 (SA) s 49, s 56; Evidence Act 1929 (SA) s 34M, referred to.
M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Filippou v The Queen (2015) 256 CLR 47; R v Becirovic [2017] SASCFC 156; R v J, JA [2009] SASC 401; DL v The Queen (2018) 92 ALJR 636, considered.

CHRISTOPHERS v THE QUEEN
[2019] SASCFC 158
Court of Criminal Appeal: Stanley, Nicholson and Doyle JJ

STANLEY J: In this matter, I would grant permission to appeal on ground 2. I would refuse permission to appeal on ground 8. I would dismiss the appeal on grounds 2 and 6. I agree with the reasons of Doyle J.
NICHOLSON J: I agree with the orders as proposed by Doyle J and with his Honour’s reasons.
DOYLE J: Following a trial by judge alone, the appellant was convicted of seven counts of indecent assault (counts 1 to 7) and one count of unlawful sexual intercourse (count 8), contrary to ss 56 and 49 of the Criminal Law Consolidation Act 1935 (SA) respectively.
The various counts related to five different complainants, and to incidents occurring between 1987 and 2003. Each of the five complainants (referred to by the trial judge as JO, PO, EM, HD and BC) were young girls. Count 1 related to JO, counts 2 and 3 to PO, counts 4, 5 and 6 to EM, count 7 to HD, and count 8 (the unlawful sexual intercourse count) to BC.
The appellant came to know the complainants through family, friends and a church in which he was involved. The prosecution case, which the trial judge found proved, was that the appellant took advantage of those relationships to commit the offences, acting opportunistically and on occasions when the children were in his care.
The appellant pursues three grounds of appeal, being grounds 2, 6 and 8 from his notice of appeal.
Grounds of appeal 2 and 6 challenge his convictions for the indecent assault of complainant EM (being counts 4, 5 and 6). In particular:
1. Ground 2 is that the convictions for counts 4, 5 and 6 are unreasonable and unsupportable having regard to the evidence. The focus of this ground is upon the quality, as opposed to sufficiency, of the evidence led in support of these counts. It relies upon several contended inconsistencies, or areas of frailty, in the complainant EM’s evidence.
2. Ground 6 is that the trial judge erred in his treatment of the complaint evidence in relation to the complainant EM. The focus of this ground is the contended failure of the trial judge to take account of the absence of any reference in the complaint evidence to the appellant’s conduct the subject of count 6.
Ground of appeal 8 challenges the appellant’s conviction for the indecent assault of PO that is count 3. It involves a complaint that the trial judge failed to provide adequate reasons in relation to the evidence of PO’s complaint to her siblings (JO and TO), and in particular that his Honour failed to identify how he resolved the inconsistencies between the evidence of PO, JO and TO as to the complaint.
A Judge of this Court granted the appellant permission to appeal in respect of ground 6, and referred the application for permission in respect of grounds 2 and 8 to this Court for consideration.
Before addressing the grounds of appeal individually, it is convenient to commence by summarising the various complainants’ allegations, and to then make some general observations about the trial and the trial judge’s reasons.
Overview of allegations
Complainant JO (count 1)
The appellant is the complainant JO’s uncle by marriage. She gave evidence of an incident in a children’s pool in the backyard of the appellant’s house in Semaphore. She was at his house with her parents and her sister, the complainant PO. The appellant and his wife were also present. She recalled the occasion being prior to her family having moved interstate to Queensland, and that it was the first time she met the appellant. She could not exactly recall her age, but gave a range of five or six years of age.
JO said that the appellant took her and PO into the backyard to fill up the pool. The trial judge found proven beyond reasonable doubt that the appellant pulled aside JO’s bathers in the crotch area and inserted the nozzle of a running garden hose beneath them such that the nozzle was at the entrance to JO’s vagina; and that he then ran the hose into JO’s vagina for at least a minute, asking her if it felt good (count 1). JO also said that she saw the appellant on that occasion do something similar to PO, namely move the crotch of her bathers aside, and put the running hose into her bathers.
The trial judge observed that there was no evidence of complaint in relation to this incident, but that JO and PO had discussed the incident between themselves and had decided to keep it to themselves for what the trial judge found were their ostensibly credible reasons (essentially that their father would not approve).
JO also gave evidence of discreditable conduct said to have occurred the first time she visited the appellant after her family returned from interstate. She said that she and PO were staying at the appellant’s house, and that whilst bathing she saw a man looking through the bathroom window; he had his face pressed right up against the glass. Even when she looked up, he did not stop looking straight away. Having been shown a diagram of the house, she acknowledged that the window was frosted. She said she did not initially recognise the face, but when she saw the appellant later that day looking at her the same way, she knew it was him.
Complainant PO (counts 2 and 3)
In relation to count 2, the complainant PO gave evidence of an incident in the backyard of the appellant’s house at Semaphore in which he placed a running hose inside her bathers near her vagina. She said that while she thought the same thing had happened to her sister JO, given the passage of time her memory was more about what happened to her.
The trial judge found proven beyond reasonable doubt that the appellant inserted the nozzle of a running garden hose down the leg of PO’s bathers such that the nozzle was at the entrance to her vagina, and that he then ran the hose into her vagina.
In relation to count 3, PO gave evidence of an occasion, which she said was the first time she stayed with the appellant, when he sat her on his lap. Based on PO’s evidence, the trial judge found proven beyond reasonable doubt that the appellant, in the lounge of his house, sat PO on his lap, placed a ‘Bertie Beetle’ chocolate down her pants, put his hand down her pants and started rubbing in an up and down movement on the outside of her vagina, with the chocolate inferentially to be a reward for PO.
PO also gave evidence of discreditable conduct similar to that which occurred in relation to count 3 on several other occasions.
PO gave evidence that on an occasion when she, JO and her brother TO, were playing a game of monopoly, she told TO about what the appellant had done involving the Bertie Beetle chocolate. JO and TO also gave evidence about this complaint. This complaint evidence is the subject of ground of appeal 8, and so is considered in more detail in that context.
Complainant EM (counts 4, 5 and 6)
The complainant EM is not related to JO or PO. She knew the appellant through her parents, who were friends with the appellant and his wife, and she was a comparable age to the appellant’s children (and in particular his stepson Ryan).
EM gave evidence of an occasion when her mother was in hospital in the days following the birth of EM’s brother. The brother was born on 29 April 1991, when EM was eight years of age. There were some difficulties associated with the brother’s birth that resulted in him being transferred from the Kapunda hospital (where he was born and near where his family lived) to the Queen Elizabeth Hospital. EM’s mother and father stayed with some family and friends in Marion. However, after two or three days, the brother’s difficulties had not resolved and EM went and stayed with the appellant and his wife at their house.
EM gave evidence of certain conduct by the appellant while they were playing a board game called ‘Guess Who’ in the lounge room of the appellant’s house. The detail of that evidence is considered later in these reasons. For present purposes it is sufficient to note that the trial judge found proven beyond reasonable doubt that on this occasion, after commencing to tickle EM, the appellant tickled closer and closer to her vagina before then rubbing the outside of her vagina (count 4). The appellant held EM, preventing her from getting up, and told her that it was fine and that they were just playing. He then pulled down EM’s knickers and started rubbing her bare vagina (count 5), telling her that it was okay and that they were just playing. The appellant also took EM’s hand and rubbed it on his erect penis through his pants (count 6), asking her if she liked it, and releasing her hand when she said she did not.
EM’s evidence was that the incident ended when her father arrived to collect her. Her father took her to the hospital, where she said that she complained to her mother that the appellant had touched her ‘private part’. EM’s mother also gave evidence as to this complaint, to the effect that EM told her the appellant had put his hands in her pants and touched her.
It is this evidence of complaint (and in particular the absence of any complaint about count 6, as opposed to counts 4 and 5) that gives rise to ground of appeal 6. Ground of appeal 2 focusses upon the suggested inconsistencies in, and frailty of, EM’s evidence more generally.
Complainant HD (count 7)
The complainant HD is the sister of BC (the complainant in relation to count 8), and knew the appellant through a church that she attended with her mother when she was in South Australia. On occasions she went to the appellant’s house to play with his son. On one such occasion she stayed with the appellant for an extended period of time when her mother (who experienced difficulty with substance abuse) was not fit to look after her.
HD gave evidence of an occasion when she and the appellant’s family had gone on a camping trip to Mannum, and they were staying in a large (three room) tent. Based on this evidence, the trial judge found proven beyond reasonable doubt that while HD was sleeping, the appellant knelt beside her, placed his hand inside her sleeping bag and rubbed her vagina (count 7). He stopped shortly after HD awoke, and as his stepson Ryan (who had been sleeping nearby) said ‘what are you doing’. The appellant responded that he was just ‘tucking her in’.
HD’s evidence was that some years later (when she became aware her mother was going to send her sister BC to stay with the appellant and his family), she complained to her mother that the appellant had touched or rubbed her when she was on a camping trip, but had claimed he was just tucking her in when asked by his stepson what he was doing.
HD also gave evidence of discreditable conduct, namely that on one occasion she was naked in the bathroom of the appellant’s house when she saw the outline of a face staring through the frosted or stained glass window. She went to tell the appellant’s wife, and then saw the appellant coming inside from the back of the house. As he did so, the appellant said, ‘it was only a cat’.
Complainant BC (count 8)
The complainant BC said her grandfather was connected to a church with which the appellant was involved, and that the appellant is her godfather. She would stay at the appellant’s house when her mother required respite.
Based upon BC’s evidence, the trial judge found proven beyond reasonable doubt that on the occasion of a New Years Eve party at the appellant’s house in December 2002, at a time when BC had gone to bed, the accused entered the bedroom where she was sleeping. After massaging her for a time, he pushed her dress up, pulled her knickers down and penetrated her vagina with a finger (count 8).
BC also gave evidence of discreditable conduct by the appellant, namely that he had tried to walk in when she was having a bath, but that his wife had said he could not be in there. She also said that there were times when the appellant would move her underpants aside and look at her vagina for short periods of time.
The trial
Both the length and course of the trial of these proceedings were somewhat unusual. The trial was initially listed for five to seven days, but ultimately occupied 30 hearing days spread over an approximately six month period.
As recorded in the trial judge’s reasons, the trial was adjourned on a number of occasions, primarily at the request of the defence. Some of the adjournments were to enable the defence to gather further evidence. Others were to enable witnesses to be recalled, largely so as to address matters arising out of that further evidence.
Each of the complainants was recalled to give further evidence and for further cross-examination. In several instances the further cross-examination was detailed and extensive. Two of the complaint witnesses (EM’s mother) and TO (the brother of JO and PO) were also recalled.
The appellant not only gave evidence, but was also recalled twice to give further evidence and to be further cross-examined. He was thus ultimately cross-examined three times, and at different stages in the evidence.
The defence case involved significant testing of each of the complainants’ evidence, both in terms of its credibility and reliability. It included suggesting motives for them to lie, and the involvement of the former husband (GB) of the appellant’s wife, and GB’s new wife (DB), in encouraging the allegations.
The case was ultimately one that turned on issues of credibility, with the trial judge, in finding that each of the charges had been proven beyond reasonable doubt, accepting the credit (and reliability) of the prosecution witnesses and rejecting the evidence of the appellant on the critical issues.
Conscious of the unusual length and course of the evidence, and of the importance of closely scrutinising the evidence, the trial judge expressly observed in his reasons that he had not only carefully considered the evidence at the time it was given, but had also subsequently read and re-read the evidence. For the same reason, his Honour said he had set out the evidence in his reasons for verdict in somewhat more detail than he would ordinarily have done.
Ultimately his Honour’s reasons were 136 pages in length. They included not only a relatively detailed summary of each witness’ evidence, but also a detailed and careful analysis of that evidence, and articulation of his reasons for accepting the prosecution witnesses’ evidence, rejecting the appellant’s evidence, and ultimately finding each of the charges to have been proven beyond reasonable doubt.
So far as the accused was concerned, after summarising his evidence at length, and reminding himself of several general considerations (such as the appellant’s good character, and the difficulties associated with giving evidence as to matters that occurred in the distant past), the trial judge ultimately concluded that the accused was a very poor witness. His Honour said:
Whilst in relation to many of the occasions on which offending allegedly occurred the accused seemed to have a very good memory of the event down to small detail such as what the respective complainant was wearing or as to small details such as where he dropped chocolates or what he bought the complainant for lunch that day, as earlier observed, in general he was a rambling and discursive witness, volunteering matters, volunteering hearsay from his wife and others, appearing to suddenly recall new information when pressed and varying his degree of certainty when pressed, or changing his recall of matters when pressed, or indeed changing his evidence.

His Honour then proceeded to detail several examples of the difficulties he had with the accused’s evidence.
In relation to the complainants, his Honour addressed the credit and reliability of the evidence of each of them individually, including several matters of detail pursued through cross-examination of the various complainants. In the concluding section of his reasons, the trial judge found “the evidence of each of the complainants, each of whom at the end of the day was a credible, reliable and convincing witness as to those charged events, proven beyond reasonable doubt.”
Indeed, his Honour then went on to conclude that it was thus unnecessary for him to have regard to either the discreditable conduct evidence or cross-admissibility of the evidence as between the charged events. But his Honour did, for the sake of completeness, express the view that this evidence would have assisted in excluding or rebutting concoction, fabrication or mistake on the part of the complainants. His Honour said:
Such is the strength of the complainants’ evidence it has been unnecessary to have regard to either the discreditable conduct evidence or cross admissibility of the evidence as between the charged events to arrive at that conclusion.
For completeness however, I record that the court finds the evidence led as to discreditable conduct proven beyond reasonable doubt, and that such evidence does reveal a sexual interest on the part of the accused in PO and BC and a willingness to act on it, and that the evidence also reveals an underlying unity or system of behaviour on the accused’s part involving opportunistic access to visiting young female children, brazenly conducted, generally involving brief digital vaginally focussed contact, which strongly excludes the possibility that each of the complainants concocted their complaint, and which rebuts or excludes the possibility of mistake, fabrication or concoction by those other complainants.
The trial judge then concluded his reasons by setting out his key findings and conclusions in relation to each count, ultimately finding the appellant guilty of each count. I have set out his Honour’s ultimate findings in respect of each count earlier in these reasons.
Unreasonable verdict in the case of a trial by judge alone
Ground of appeal 2 is that the appellant’s convictions for counts 4, 5 and 6 are unreasonable and unsupportable having regard to the evidence. The principles governing the approach to this ground of appeal are well recognised and not in dispute.
In the context of a trial by jury, the High Court in M v The Queen[1] described the appellate task as requiring the Court to make its own independent assessment of the evidence, and to determine whether, notwithstanding that there was evidence upon which the jury might have convicted, it would nevertheless be dangerous to allow the verdict of guilty to stand. The Court must ask itself whether it thinks, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.
[1] M v The Queen (1994) 181 CLR 487 at 492-495; see also Libke v The Queen (2007) 230 CLR 559 at 596-597.
In Filippou v The Queen,[2] the High Court confirmed that the task is relevantly identical in the case of a trial by judge alone. The judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
[2] Filippou v The Queen (2015) 256 CLR 47 at [9]-[12]; applied in R v Becirovic [2017] SASCFC 156 at [211]-[212].
By way of elaboration upon the Court’s task in this context, and the question it must ask itself when undertaking its independent assessment of the evidence, it is instructive to adopt and adapt the language of the Court in M v The Queen:[3]
But in answering that question the court must not disregard or discount either the consideration that the [judge] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [judge] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the [judge], having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a [judge] ought also to have experienced. It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable [judge] ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by [judge], for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the [judge] to be satisfied beyond reasonable doubt that the accused was guilty.
[3] M v The Queen (1994) 181 CLR 487 at 493-495.
In the present case, in carrying out an independent assessment of the evidence, it is necessary to have regard to the nature of the trial, the issues that arose and the trial judge’s reasons. I have summarised these matters in the preceding section of my reasons. In the circumstances of the present case, and speaking generally at this stage, it has been necessary to bear in mind what I consider to have been the significant advantage enjoyed by the trial judge over this Court in terms of considering and weighing the evidence of the various witnesses in the atmosphere and context of the trial as it unfolded, and hence in ultimately reaching the conclusions he did as to the credibility and reliability of each of those witnesses.
Grounds 2 and 6
It is convenient to consider grounds of appeal 2 and 6 together, as the parties did in making submissions on the appeal.
Ground 2 involves a contention that the verdicts of guilty on counts 4, 5 and 6 were unreasonable. In so contending, the appellant does not challenge the sufficiency of the complainant EM’s evidence in respect of these counts. Rather, the appellant contends that the inconsistencies in EM’s evidence, and its frailty more generally, were such that they prevented a conclusion of guilt beyond reasonable doubt; that they required a conclusion of doubt that was not able to be resolved even having regard to the advantage of the trial judge in having seen and heard the witnesses give evidence at trial.
Ground 6 focusses upon the evidence of complaint by EM, and in particular the relevance of her complaint being confined to the counts of vaginal touching (counts 4 and 5), and hence not including the count involving her hand being placed on the appellant’s erect penis (count 6). Whilst this ground was expressed as a failure on the part of the trial judge to have regard to the absence of complaint in relation to count 6 when assessing the evidence in relation to counts 4, 5 and 6, it was said that the significance of this contended failure fell to be assessed in light of the other challenges to the trial judge’s findings in respect of counts 4, 5 and 6 identified in the context of ground of appeal 2.
The evidence at trial
A convenient starting point for consideration of the evidence in relation to counts 4, 5 and 6 is the evidence of EM. EM’s evidence was that two or three days after her brother was born, she was taken by her father to stay with the appellant and his wife. She said that the incident the subject of counts 4, 5 and 6 occurred after she had been staying with them for a few days. The appellant had dropped his son Ryan at school, and had dropped his wife somewhere else, and the appellant had taken her back to his house. The appellant asked her if she wanted to play a board game, and they commenced to play ‘Guess Who’ on the floor in the lounge room.
The critical passage from EM’s evidence, which was set out in the trial judge’s reasons, was as follows:
Q.Did anything happen between you and the accused when you started playing the game.
A.    Not at the start, no.
Q.    Please tell his Honour what happened after the start.
A.We were playing Guess Who in the lounge room and we probably had been playing five or 10 minutes and Graham started tickling me and at the start it was just as he would have done any other day so I was laughing. Then he began to tickle the bottoms of my legs and it was still fine. It wasn't until he moved closer to my vagina I became a bit unsure of what was happening.
HIS HONOUR
Q.    You were about eight at this stage.
A.    Yes.
Q.Go on, I think Mr Norman wants you to slowly and in your own words in as much detail as you recall, let me know what you recall happening.
A.He started tickling closer to my vagina and I started to become a little bit, I guess, stressed about what was going on. He was telling me it was okay. Then when I did - when he got a bit too close I went to get up and he started tickling me again to make me laugh and then he was using his hand to hold me. I was sort of up on my elbows, he was using his hand to keep me on the ground.
Q.    You indicated with your hand, whereabouts was he.
A.    He had his hand, like, on my chest.
Q.    To keep you from moving.
A.To keep me from getting up and he was telling me it was okay, that we were just playing. Then he proceeded to rub the outside of my knickers with his fingers and I was - I told him to stop it, that I didn't like it. He told me it was fine, we were just playing. Then he -
Q.    About how long did that go on for.
A.    A few minutes.
Q.    He was telling you it was fine.
A.We were just playing and it was just a game. Then he pulled my knickers down to about my knees and then he was using his hand more on top of me so I couldn't get up because I was a bit stressed about - I was telling him to stop it and he just kept saying it was okay. Then he was rubbing the inside of - not the inside of my vagina but on my private parts, on the outside with his fingers.
Q.    That is on the outside of the vagina.
A.Yes, then he moved on the inside of my, like, not inside but more in between my private area.
Q.    Do you mean the outer lips of the vagina.
A.    Yes.
Q.I know this is embarrassing to speak about but you should understand that everybody in the court has heard this kind of evidence before so don't be embarrassed. You can just be frank and say what you recall. If you want to continue.
A.I kept on trying to get up and he kept on reassuring me it was okay, we were just playing. Then he moved closer towards me and was more leaning over the top of me to get me to stay on the floor and then he sat back on his knees and undid his pants. Before that - before that, before he pulled my knickers down, I think it was, he got me to touch his private area through his pants.
XN
Q.    How did he do that.
A.    He grabbed my hand and rubbed it on his pants.
Q.    Did he rub it on a particular area of his pants.
A.    Yes, on his penis.
Q.    Could you tell if his penis was erect or not.
A.    Yes.
…
Q.Please carry on. After he held your hand against his erect penis through his trousers, what happened then.
A.He asked me if I liked it and I said I didn't and he let go of my hand and I think that was when he pulled my underwear down, and then he sat back on his knees and undid his pants, and then I -
HIS HONOUR
Q.    You go on in as much detail as you can remember.
A.Then my father pulled up. I seen Graham look out the window and he looked a bit startled, and that made me sit up and I saw my dad pull up out the front, and then I jumped straight up and he grabbed me and said that if I said anything I would get in a lot of trouble and I wouldn't be believed, and he let me go.
Having mentioned the arrival of her father as in effect interrupting the incident, EM said that she then ran out the front door, past her father and to his car. She got into the car and locked the doors. Her father went inside with the appellant and returned to the car with her belongings. Her father told her to say goodbye to the appellant but she refused to do so.
EM said that her father drove her to the hospital where her mother was. She did not say anything to her father about what had happened. When they arrived at her mother’s room at the hospital she ran in to cuddle her mother. Her father told her mother that something was wrong, but that EM would not talk about it. Her mother persuaded her to tell her what was wrong. EM’s evidence as to what she told her mother was as follows:
A.Then mum decided she wanted to go out for a smoke, so we left her room and headed out to where you're allowed to smoke and we sat down at a table outside and mum asked me what was wrong and I said I couldn't tell her because I was going to get in trouble and she persisted and reassured me that I wouldn't get in trouble and that I could tell her anything and I proceeded to tell her what happened and then I just remember her crying and we went inside, I remember mum making a phone call and dad being very upset and then the police -
Q.May I stop you there, thank you. I want to go back please to the detail what you told your mother had happened. As precisely as possible, what did you tell your mum had happened.
A.    I told her that he had touched - I would have said 'private part' at the time.
Q.    Did you describe how he touched you.
A.    I don't remember.
Q.    Did you say anything else about the incident you can recall.
A.    I don't remember.
Q.    Do you recall if you mentioned the trousers.
A.    I don't remember.
Q.I don't want to ask you any of the detail about what happened subsequently that day. Can you simply confirm this: you did speak to the police that day.
A.    Yes.
Q.And can you again simply confirm this: your complaint was not proceeded with, is that correct.
A.    Yes.
EM was cross-examined extensively in relation to both the incident and her complaint, as well as more generally. She repeated her account of the charged events in a detailed and consistent manner, including that she told the appellant several times that she did not like what he was doing, and that she got increasingly uncomfortable as the tickling got closer to her vagina. She said the appellant was kneeling in front of her as he tickled her. She agreed that the appellant had tickled her on previous occasions but not in any untoward way.
EM was cross-examined at length about a statement taken from her by the police on 3 May 1991 and hence at a date proximate to the incident. The statement was taken by a female police officer in the presence of a social worker. Both the police officer and social worker were called as witnesses, but neither had any recollection of the discussion or process leading to the preparation of the statement, beyond the police officer confirming that the three page typed statement was compiled from handwritten notes she had taken when interviewing EM. The statement was put to EM, and tendered, by defence counsel. However, EM could not recall the detail of her statement, and what she had told the police. She did not ever sign the statement, and said that she was not otherwise asked to, or given an opportunity to, confirm the accuracy of the statement at the time it was prepared. Indeed, it was apparently common ground that EM had not seen the statement since 1991.
Because it formed a prominent part of the appellant’s submissions as to inconsistency on the part of EM, it is appropriate to summarise the terms of the statement.
According to the statement, EM was collected by the appellant and his wife from the house where she was staying with her father. She got in the car with them, and after the appellant had dropped his wife off somewhere, the appellant took her to his house in Semaphore. After having lunch, they played about five games of ‘Guess Who’ on the floor in the lounge room. EM was cheating, and at some point in about the second or third game, the appellant said ‘I am going to tickle you because you are cheating.’ She told him not to, but he did. She didn’t like it, but initially he tickled her under the arms and it made her laugh. As the tickling continued, she continued ‘sort of laughing’. The statement continued:
I was wearing shorts that had a button that you click (stud) and a zip. Uncle Graham used both hands and undid the button and the zip half way down but it sought of fell the rest of the way down. I had both my hands on the front of my tummy. He said “I’m going to get you back” and I said “Stop it Uncle Graham.” He said, “No I’m going to get you back.” My shorts were down around the top of my knees and I was lying on my back because he had been laughing and tickling me. He then pulled my knickers down. My shorts were around here (indicated knees) and my knickers were here (indicated top of thighs). He then got both hands and used two fingers and was tickling me down here (indicated spread legs and vaginal area) on my “mary”. He used these two fingers (indicated pointer fingers), I could see him. I was saying “Stop it Uncle Graham.” He was going like this (indicated ‘wiggling’ fingers) on the inside part of my “mary”. He was tickling with his fingers and was doing down, sort of deeper in my “mary”. He was tickling up a bit and then down again. He was saying “I’m going to get you.” I got mad and sort of yelled “Stop Uncle Graham.” At first he didn’t stop but the second time he did because I yelled at him.
The statement continued that when the appellant stopped, EM pulled up her knickers and shorts, and went and played with some Lego in another room. EM described feeling sick about what had happened; that what had happened felt scary and wrong. She said that the appellant’s wife subsequently came home, and she stayed the night at their house. Her dad picked her up the following morning and took her to the hospital. She did not tell her father what had happened, but did tell her mother.
During cross-examination about the content of the 1991 statement EM said that if she told the police that she was wearing shorts rather than a dress, she was not sure whether this was a mistake. But she said that she thinks she was wearing a dress because she had her dress shoes on.
EM’s mother gave evidence of the complaint made to her by EM. She said that EM arrived at the hospital, and that she was crying and upset. She said that EM told her that the appellant had touched her; that they were playing a game; that he was tickling her and touched her; and that he did so on the private parts. She said that EM told her that the appellant had rubbed her private parts. While EM’s mother initially recounted what EM told her in terms that the appellant ‘put his hand in her pants’, she clarified that she could not remember whether EM used the word ‘pants’. She said the EM had told her the incident stopped when her father came to pick her up.
EM’s mother said that her understanding from what her daughter said was that the incident had occurred the same day; that is, on the day EM visited her mother in hospital. And when asked what her daughter was wearing that day, she said ‘as far as I remember she was wearing a dress; a little white dress with hearts on it and a pink cardigan that my mum had knitted her.’

EM’s mother said that the police were called to the hospital that day, but that ultimately the complaint was not proceeded with or prosecuted.
EM’s father also gave evidence. He recalled EM going to stay with the appellant and his wife for about four days. He recalled collecting her in the afternoon, and that she ran straight past him and into the car, saying that she wanted to see her mother. She had not done this on previous occasions when he had collected her from their house; and that on this occasion she did not say goodbye to either the appellant or his wife. EM’s father also said that once at the hospital, EM had a chat with her mother and that the police were called.
In the appellant’s evidence, he recalled an occasion when EM came to stay with him and his wife while EM’s mother was in hospital with her newborn son. He said that he and his wife drove and collected EM from the house where she was staying with her father; that EM brought a bag which had only two pairs of jeans, a couple of jumpers, a couple of t-shirts, a tracksuit and underwear; and that it was ‘not in any way’ possible that she had a dress with her. He dropped his wife off at a location in Kilburn, bought EM a pasty with sauce and then returned to his home where EM ate the pasty. His two stepchildren were at school. While they did have the board game ‘Guess Who’, the appellant said that he did not remember playing it with EM. He said it was possible he tickled EM, but did not specifically remember doing so, and that he did not either touch her knickers or private parts, or place EM’s hand on his penis. He drove to collect his wife from Kilburn at 12 pm.
The appellant said that he thought EM stayed with them for two nights. He said they would have played games with her to entertain her, as she was agitated and upset about being sent to stay with them. He said that EM’s father rang early one morning to say he was coming to collect her, which he then did.
Consideration of ground 2
In making submissions in support of ground of appeal 2, the appellant relied upon the following inconsistences or ‘problematic aspects’ said to arise from the differing terms of EM’s accounts of the incident the subject of counts 4, 5 and 6:
1.   The difference in relation to how EM came to be at the appellant’s house, with her evidence being that she was taken there by her father, whereas her 1991 statement stated that she had been collected from the house where she had been staying with her father.
2.   The differences in relation to the tickling, in that her 1991 statement included reference to the tickling starting in response to her cheating in the board game they were playing, whereas EM’s evidence did not; and her evidence included reference to the tickling commencing on her legs, whereas EM’s 1991 statement did not.
3.   Some other differences in the detail of EM’s account, with her evidence including references to the appellant holding her down, the appellant asking her whether she liked it, the appellant undoing his pants, and the appellant grabbing her and telling her not to tell anyone; whereas none of these were included in her 1991 statement.
4.   The difference in relation to the conclusion of the incident, with her evidence being that it ended when interrupted by the arrival of her father, whereas her 1991 statement suggested that it ended when she yelled at the appellant, and that she did not leave the appellant’s house until the following day.
5.   The difference in relation to EM’s clothing, with her evidence being that she was wearing a dress, whereas her 1991 statement suggested that she was wearing shorts.
6.   The failure of EM to mention the conduct the subject of count 6 when first speaking about the incident with her mother, the police and a social worker; and that the first time she mentioned it to police was in giving a statement in October 2014.
7.   The difference between the order of events in EM’s evidence, as opposed to her 2014 statement to the police, with the penis touching being the last event in the statement, but her evidence suggesting that the touching of her vagina continued after this.
The trial judge did not overlook the differing terms of EM’s evidence relative to the accounts she gave on earlier occasions. To the contrary, the trial judge spent several paragraphs of his reasons identifying and analysing various of the differences. However, the trial judge was not ultimately persuaded that the differences or inconsistencies undermined EM’s credit or reliability as to the critical matters. His Honour said:
Preliminary impressions of EM were of a straightforward witness, but with only a moderately good recall of the detail of the events about which she spoke. Her demeanour and presentation was good and she was also matter of fact about what she said she recalled.
The court has closely considered the inconsistencies put to her from her 1991 and more recent statements, and her explanations and responses. She did not deny having made the statements attributed to her, understandably not recalling much about the 1991 statement given when she was only 8 years old. In relation to the 1991 statement taken at the hospital, she said she was never shown what had been recorded or given a chance to check or correct it. The effect of her explanations were that in relation to the matters put to her that she may have been wrong about some things, for example recalling what she was wearing, however in other respects she could not recall why earlier statements were less complete, or expressed differently or had matters in a different order, but that what she said in evidence was what she remembered. She seemed earnest and straightforward in her explanations as set out above and more generally in the transcript.
These are again preliminary impressions. No conclusions as to her evidence were formed until after all the evidence and addresses were concluded.
Having expressed his preliminary impressions of EM’s evidence in these terms, towards the end of his reasons, and after analysing the balance of the evidence (including the appellant’s evidence) and closing addresses, his Honour returned to the topic of the complainants’ evidence, stating that his preliminary impressions remained. In the case of EM, his Honour referred again to her 1991 statement, saying:
It must be observed that the 1991 statement was derived from initial notes taken by a patrol constable in her notebook from an upset 8 year old complainant at the hospital. The statement is not signed by EM, and there is no indication that the statement was ever checked or shown to EM at the time, and shortly afterwards the investigation records show that EM’s father decided not to proceed with the matter as he did not want to put his daughter through it. In those circumstances it may well be incomplete or inaccurate as to exact detail, sequence or completeness, for any number of understandable reasons. Whilst those who were present were all called and gave evidence as to their role and practice and procedure, none had specific memory of the event.
After considering some further issues arising during the evidence and cross-examination of EM, including the consistency of her conduct in respect of her complaint to her mother about counts 4 and 5, the trial judge ultimately concluded that “[i]n the final analysis EM was a convincing and credible witness.”
On appeal, counsel for the appellant emphasised the trial judge’s reference to the appellant having only a “moderately good recall of the detail of the events about which she spoke”. He contended that, even making allowance for EM’s age when making the 1991 statement, and the circumstances in which it was made, when balanced against the fact that the statement was provided much closer to the events in question and was “largely inconsistent” with EM’s evidence, there were “grave issues in respect to the reliability of EM as a witness”. He contended that the differences or inconsistencies in her evidence on various issues warranted a conclusion that the trial judge must have entertained a reasonable doubt.
In my view, the appellant’s submissions overstate the significance of the differences between EM’s evidence and her earlier accounts.
In analysing the significance of the differences, it is appropriate to commence by noting the extent of the consistency between EM’s evidence and the 1991 statement. As the respondent’s counsel pointed out, there was consistency between the two as to numerous key matters, including the timing and occasion of the incident; the incident occurring after EM had been in the appellant’s car and the appellant having dropped his wife off; the location of the incident being in the lounge room of the appellant’s house; the context being the playing of a board game ‘Guess Who’ on the floor of the lounge room; the incident commencing with tickling; the appellant pulling EM’s knickers down; the appellant repeatedly touching her vagina, including rubbing (or wiggling) his hand or fingers on her vagina; the touching progressing into the outer lips of her vagina; the complainant repeatedly telling the appellant to stop; and the complainant not telling her father about the incident, but then disclosing it to her mother upon arrival at the hospital.
It is also relevant to observe that some of the differences relied upon by the appellant’s counsel were in the nature of additional detail included in one version of the incident and not another, rather than inconsistencies in the strict sense. I refer in particular in this respect to the differences set out in paragraphs 2 and 3 above. In my view, these differences are of limited significance.
The first of the matters mentioned in paragraph 2 is an instance of something not included in EM’s evidence. But it is hardly surprising that by the time she gave evidence nearly three decades later that EM might have forgotten why the tickling commenced.
The remaining matters in paragraphs 2 and 3 are matters included in EM’s evidence that did not appear in her 1991 statement. As the trial judge observed, there are a number of potential reasons why these details might not have appeared in the 1991 statement. Some of the additional detail might have been omitted by EM at the time she gave her 1991 statement; perhaps because she gave a summary or fragmented account at a time when she was likely traumatised by what had just occurred; or perhaps because EM did not regard these matters as important or relevant, and was not otherwise asked questions that led to her mentioning them. Alternatively, it is conceivable that some may have been omitted by the police officer taking the 1991 statement on the basis that they were not seen as pertinent.
In my view, the difference identified in paragraph 1 (whether EM was driven to the appellant’s house by the appellant or her father) is a matter of relatively inconsequential detail. It is the very sort of matter where one might expect unreliability of recall given the significant time that had passed between giving the statement and giving evidence, and the relatively peripheral nature of it.
The differences in paragraphs 4 (whether the incident ended when EM’s father arrived to collect her, or occurred the day before he came to collect her) and 5 (whether the plaintiff was wearing shorts or a dress) are potentially more significant. These differences related more directly to the incident itself, and were in the nature of inconsistencies rather than merely additional detail. As such, they required careful consideration and analysis in the context of EM’s evidence as a whole, and indeed the entirety of the evidence.
In relation to EM’s evidence that the incident ended when interrupted by her father’s arrival, the respondent suggested as a possibility that EM might have telescoped obvious and understandable feelings of anxiety experienced by an eight year old remaining at the appellant’s house after the incident, with the relief of being ‘rescued’ by the arrival of her father. In other words, it was said to be unsurprising that, after such a long period of time, a victim of abuse might only recall the abuse and her ‘rescue’, and nothing of what happened in between those events. It was further contended that this ‘mistake’ as to the timing might explain why EM might have confused the clothing she was wearing during the incident (shorts) with the clothing she was wearing when her father arrived to pick her up (a dress).
There is an element of speculation in the above, and the trial judge did not make any finding as to the explanation for the inconsistencies in paragraphs 4 and 5. The point is merely that, in my view, the inconsistencies were not so fundamental as to require doubt about EM’s evidence as to the charged conduct itself; or at least not doubt that was incapable of being resolved by the trial judge having regard to his advantage from having seen and heard EM give evidence in the context of the trial.
The matters raised in paragraphs 6 and 7 relate to EM’s evidence to the effect that the appellant placed her hand on his penis.
The apparent failure of EM to mention the touching of the appellant’s penis in her complaint to her mother (paragraph 6) is addressed in more detail in the next section of these reasons. However, for the reasons there set out, I do not think this either by itself or in combination with the other matters relied upon by the appellant, provides a sufficient basis to conclude that the trial judge’s verdicts of guilty in relation to counts 4, 5 or 6 were unreasonable.
As for the contended difference or inconsistency as to the order of events, the position is not as clear or stark as the appellant’s submissions suggest. It is true that at some points in EM’s evidence at trial she suggested that she was made to touch the appellant’s penis (count 6) before he pulled down her knickers and toucher her vagina (count 5), whereas she accepted that in her 2014 statement to the police she had suggested that these two aspects of the incident occurred in the reverse order. On the other hand, when read in its entirety, it appears from EM’s evidence that by the time she came to give evidence, she was no longer sure about the sequence of events. Indeed, during her evidence in chief, when asked to clarify the sequence of the conduct the subject of counts 5 and 6, EM said “I’m not sure.”
While this uncertainty, and potential inconsistency, in EM’s evidence as to counts 5 and 6 was a significant matter, it was again not, in my view, such as to require doubt as to the occurrence of counts 5 and 6, as opposed to the sequence in which they occurred.
Finally, I mention another asserted inconsistency relied upon by the appellant. The appellant asserted an inconsistency arising out of the reference in a 2016 statement provided by EM to the appellant placing his hand under her knickers, as opposed to her evidence in chief being that the appellant first touched EM’s vagina through her knickers (count 4) and then on her vagina after having lowered her knickers (count 5). However, I accept the respondent’s submissions in relation to this matter. The reference in the 2016 statement was equivocal. It may well have been a reference merely to the appellant placing his hand in her knickers as part of the progression of tickling that EM described, as opposed to it involving a further or different touching of her vagina. And while EM accepted during cross-examination propositions put to her to the effect that the appellant had touched her vagina under her knickers, when read in the context of her evidence as a whole, it is not clear to me that EM appreciated the precise import of what she was being asked; that is, that she was being asked to accept that in addition to counts 4 and 5, there had been a further or different instance of vaginal touching that she had omitted from her evidence in chief. It appears more likely to me that she understood the reference to being touched on the vagina under her knickers as a reference to her being touched on her bare vagina rather than through her knickers (that is, the conduct the subject of count 5).
Of course, in considering the credibility and reliability of EM’s evidence, it is necessary to do so in the context of the evidence as a whole. It is relevant in this respect that the appellant’s evidence, and defence case, accepted significant aspects of EM’s narrative, including that the appellant had the opportunity to abuse EM in that he was at home alone with EM after dropping his wife off, that they had played ‘Guess Who’ together, and that the appellant had possibly tickled EM.
The timing of EM’s complaint to her mother is also significant. Its contemporaneity with the alleged incident meant that it rebutted any suggestion that GB or DB had any role in encouraging EM to make a false complaint. It also tended to rebut any suggestion that EM might have been old enough, and therefore sophisticated enough, to have fabricated the allegations herself, and to have done so in the short window of time that the evidence allowed.
Contrary to the appellant’s submissions, I do not attach much significance to the trial judge’s reference to EM having only “a moderately good recall of the detail of the events about which she spoke.” Read in the context of his Honour’s reasons as a whole, it is plain that his Honour was suggesting that EM’s recall was only moderate in respect of matters of detail, as opposed to the charged conduct. Indeed, later in his reasons, when focussing upon whether the charged conduct had been proven beyond reasonable doubt, the trial judge referred to EM as “a convincing and credible witness.”
In summary, while there were some aspects of EM’s evidence that required close scrutiny, and it contained some unexplained differences from, and inconsistencies with, earlier statements made by EM, I am not persuaded that any of these matters, either individually or cumulatively, were sufficient to require doubt on the part of the trial judge as to counts 4, 5 or 6. To the contrary, having undertaken an independent assessment of the evidence at trial, I consider that they were in the nature of discrepancies or discordances that did not stand in the way of the trial judge ultimately accepting the credibility and reliability of EM’s evidence as to the charged conduct. As the trial judge observed, EM’s earlier account may have been “incomplete or inaccurate as to exact detail, sequence or completeness, for any number of understandable reasons”, being reasons which did not undermine the credibility or reliability of her evidence as to the charged conduct. Any doubt arising from the matters relied upon by the appellant’s counsel was, in my view, capable of being resolved through the trial judge’s advantage of having seen EM (and the other witnesses) give evidence in the context of the trial as it unfolded.
While I would give permission to appeal in relation to ground of appeal 2, I would nevertheless dismiss the appeal on this ground.
Consideration of ground 6
Turning to the issues raised under ground of appeal 6, the appellant emphasised the evidence to the effect that when discussing the incident with her mother (and indeed a social worker and the police), EM did not make any mention of having her hand placed on the appellant’s penis (being the conduct the subject of count 6).
In considering complaint evidence, it is of course necessary to have regard to s 34M of the Evidence Act 1929 (SA). Under s 34M(3), evidence of an initial complaint is admissible in a trial of a charge of a sexual offence.
Section s 34M(2) proscribes the making of any suggestion or statement to the effect that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct. However, in the context of the present matter, the issue is the use that may be made of the failure to complain about count 6; not what may be said or suggested to a jury.

If that had been all that his Honour said about the use made of the complaint evidence, then there would be some force in the appellant’s complaint. However, not only had the trial judge explained the proper use of complaint evidence earlier in his reasons, but importantly he made it clear in the very paragraphs complained of precisely how he used, and did not use, the evidence of complaint by PO in respect of count 3. In particular, he said in [524] that it was demonstrative of consistency of conduct (both as to the circumstances of the complaint and the terms of the complaint), and in [525] that it was not before the court to demonstrate the truth of what was reported. This was an accurate and sufficient description of the appropriate use of the evidence of complaint by PO.
For these reasons, I would refuse permission to appeal in respect of ground of appeal 8.
Conclusion and orders
For the reasons set out, I would grant permission to appeal on ground 2, but I would otherwise dismiss the application for permission to appeal, and would dismiss the appeal.

[2019] SASCFC 158

20 December 2019

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Evidence

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