Colin James Robson v R No. SCCRM 93/145 Judgment No. 4129 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4129

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - Sentence - three offences of indecent assault on 12 year old boy - nature and degree of indecency not grave - prior conviction for similar type of offence - man aged 40 years - sentence 4 years' imprisonment reduced on appeal to 2 years with non-parole period 18 months.

HRNG ADELAIDE, 18 August 1993 #DATE 18:8:1993
Counsel for appellant:     Mr P A Cuthbertson
Solicitors for appellant:    Caldicott and Co
Counsel for respondent:     Mr B J Jennings QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against convictions by verdicts of a jury in the Supreme Court of three crimes of indecent assault. 2. The case for the prosecution depended upon the evidence of the alleged victim. He was a boy who was aged 12 years and about 1 month at the time of the alleged offences, and was aged 13 years and 5 months at the time of giving evidence at the trial. 3. His evidence was that, with another youth, he met the appellant in the city and was taken home by the appellant by train to Henley Beach. They went for a swim and on their return to the house, the appellant rubbed his back ostensibly to rub sand from his back. The boy was sitting on the appellant's knee, the appellant moved around thereby rubbing his penis against the buttocks of the boy, but through their clothing. The appellant then placed his hands down the back of the boy's pants touching him in the region of the buttocks on the skin. The other boy was present while this was occurring. 4. On the following day, the two boys again met the appellant in the city and again went to his home. Following a swim, they had a shower and the appellant placed his hands on the boy's penis. The appellant gave evidence admitting that the boy was there on one occasion, but denying that any indecency occurred, and denying that he was there on the second occasion. 5. The principal ground of appeal advanced against the conviction and argued by Mr Cuthbertson for the appellant, was that the youth of the alleged victim witness called for a warning that it was dangerous to convict upon his uncorroborated evidence and that the warning given by the learned trial judge fell short of what was required by the relevant rule of law or practice. 6. The learned judge gave a warning to the jury in the following terms:
    "This is not a direction in law, nor is it a direction as
    to invariable practice in sexual cases, and the guidance that I
    give you is because of the particular allegations in this case,
    namely allegations made by a child alleging that the accused
    committed acts of indecent assault upon him, and because of the
    factual circumstances which emerged from his evidence, it is
    desirable that I invite your particular attention to certain
    features which you must bear in mind in the course of your
    deliberations. As I have already said, what I am about to put to
    you is not a direction in law, so you do not have to follow it and
    you can act as you see appropriate, bearing in mind the directions
    I have given you about the onus of proof and the elements of the
    particular crime. You can accept my guidance and use it in such a
    way as you consider to be appropriate in the whole of the
    circumstances of this case. Ladies and gentlemen, in the case of
    a young person such as this, a 14 year old boy as he now is, 12
    year old boy - sorry, he is only 13 now, he was 12 at the time of
    these alleged offences, that boy's immaturity or even his
    irresponsibility, if you consider there is an element of
    irresponsibility about him, having seen him in the witness box, is
    a factor which you can take into account to diminish the weight of
    his testimony. This is a particular consideration which you are
    asked to bear in mind in the case of a young person accusing an
    older person of a sexual offence. Sometimes, motives for
    fabricating evidence are not readily apparent. Furthermore, the
    allegations implicating the accused in alleged sexual activities
    relates to occasions as to which, because there are only two
    people present as a general rule - and I will deal with that a
    little later - in alleged sexual activity, it is difficult for the
    accused to obtain evidence in support of a denial of the
    allegations. You must not forget that charges of this kind are
    often easy to make, but difficult to refute. Therefore, ladies
    and gentlemen, you should weigh the evidence of the boy with
    special care, and you ought not to regard it, by itself, as
    sufficient to justify a finding that the accused was guilty of the
    conduct complained of, unless you are satisfied that his evidence
    is reliable." 7. The relevant law can be sufficiently stated by quoting from my judgment in R v Bryce and Dewar, a Full Court decision delivered on 20 April 1993. I quote:
    "The relevant rule of practice requires that where the
    witness is a young child, the jury should be warned that it is
    dangerous to convict on the uncorroborated testimony of the child;
B v R (1993) 110 ALR 432 per Dawson and Gaudron JJ at p.444.
    There is no fixed age below which the warning should be given and
    whether the warning should be given in a particular case is a
    matter for the decision of the trial judge; B v R supra at p.445.
    The decision of the trial judge is of course reviewable on appeal.
    A review of the cases indicates that, while some flexibility has
    been allowed in the case of older children, appellate courts have
    insisted upon the corroboration warning being given in relation to
the evidence of younger children." 8. After citing other cases, I referred to R v Pahuja (1988) SASR 191, in which Cox J at p.217 considered that a girl who was 14 years of age at the time of giving evidence, and 12 and a half years of age at the time of the alleged offence, "was of an age that called for a warning of some sort, but not necessarily the full warning that would have been needed in the case of a younger child." 9. I think that the rule of practice which is indistinguishable in its effect from a rule of law, required, having regard to the age of the present alleged victim, some caution from the learned trial judge. I think that it was a matter for his judgment and discretion as to whether a full corroboration warning should be given. He evidently judged that it was sufficient to give the warning which he, in fact, gave. It is indeed a strong warning, drawing attention to the relevant considerations and bringing home to the jury the point that they ought not convict upon the evidence of the alleged victim alone unless thoroughly satisfied that his evidence is reliable. It fell only just short of a full warning directing them of the dangers of acting on uncorroborated evidence and defining corroboration for them. It was an exercise of judgment by the trial judge which I think was justified by the facts and circumstances of the case and I would not be prepared to say that the warning which he gave was inadequate for the purposes of this case. 10. I have been troubled to some extent by his Honour's statement that he was not giving a direction of law and that the direction, not being a direction of law, was one which the jury did not have to follow. I do not quite know what the jury would have made of that, but I have reached the conclusion, upon reflection, that the warning which the judge actually gave was so direct and given in such cogent terms, that the jury must have realised that they were being given a warning which was to be taken seriously in their deliberations, and that the statement that they were at liberty to not to follow it really amounted to no more in substance than to say that if they were satisfied beyond reasonable doubt after considering the warning they were still at liberty to bring in a verdict of guilty. 11. In my opinion, the warning was adequate for the purposes of the present case. If his Honour's references to the warning not being a direction in law were erroneous by reason of the existence of the rule of practice requiring some sort of warning in a case of this kind, then I am quite satisfied that they could have made no difference to the jury's deliberations and that it could not have affected the result. 12. Mr Cuthbertson also argued that an expression which his Honour used was inadequate to direct the jury's attention to the significance which they should place upon the evidence given by the appellant. He argued that the learned judge had really set out to tell the jury that they were to give the appellant credit for having giving evidence, but then diminished the importance of that by using an expression "perhaps not so significant". I think that this submission is to be rejected on more than one ground. 13. As I read the summing up, the expression "perhaps not so significant" related not to the evidence of the appellant or any credit to be given to him for it, but related simply to a right of an accused person to remain silent, a right which was not significant in the present case because the accused did not remain silent. But that aside, there is no obligation upon a trial judge to tell the jury that an accused person is entitled to credit for giving evidence. An accused person has the right to give evidence. If he gives evidence he is entitled to have his evidence treated in the same way as the evidence of any other witness. The learned judge made that clear to the jury. He said in so many words: "As far as the accused's evidence is concerned, you must treat that, as I said, in exactly the same way as you assess the evidence of any witness who is giving evidence on oath and being cross-examined." 14. Nothing more is required. It follows from what I have said that, in my opinion, neither ground of appeal is made out. I repeat that if there was any error of law in the learned judge's statement in connection with the warning that it was not a direction in law, then that was an error which could not have affected the deliberation of the jury and, in my opinion, they would have inevitably reached the same conclusion if that statement had not been made. In my opinion therefore, if there was any error of law, there has been no substantial miscarriage of justice and the proviso to s.353 of the CriminalLaw Consolidation Act should be applied. I would therefore dismiss the appeal against the convictions. 15. There is also an appeal against sentence. The appellant is aged 42 years. He has one prior conviction 10 years ago for a similar type of offence. He was sentenced to imprisonment for 2 years, but that sentence was suspended. That sentence was imposed on 2 May 1983. Apart from that, it appears that he has been a good citizen and a regular worker. The learned judge imposed a single sentence for all offences of imprisonment for 4 years with a non-parole period of 30 months. The serious aspect of the appellant's offending consisted in his enticing the boy to his home on two separate occasions. That is an aggravating factor but it is necessary to focus upon the nature of the indecent conduct which is the subject of the charges. Although there are three separate offences, there were really only the two episodes, the first two counts relating to the same incident. 16. The nature and degree of indecency involved in these offences was not great. The conduct was of short duration, and as I have already described it in the course of these reasons, it is by no means the most serious type of offending of this kind which courts encounter. 17. I think that taking everything into consideration, the sentence imposed was unduly severe. In my opinion, it can be characterised as manifestly excessive. I would allow the appeal against sentence and impose in lieu of the sentence which was imposed by the learned sentencing judge, a sentence of imprisonment for 2 years with a non-parole period of 18 months, both to commence from 22 April 1993.

JUDGE2 MOHR J I agree with the reasons of the Chief Justice, both as to the appeal against conviction and the appeal against sentence and agree with the order he proposes in relation to the sentence.

JUDGE3 BOLLEN J I too agree with all orders proposed by the Chief Justice and with his Honour's reasoning.