De Sa v The Queen
[2021] SASCFC 22
•13 April 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal)
DE SA v THE QUEEN
[2021] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Peek and the Honourable Justice Blue)
13 April 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
The appellant was convicted after a trial by a Judge alone in the District Court of one count of aggravated communicating with the intention of procuring a child for sexual activity and two counts of aggravated indecent assault.
The appellant appeals against the convictions on the following grounds:
1.The fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and standard of proof.
2.The Judge erred in finding the applicant was not under a significant forensic disadvantage.
3.The Judge erred in failing to provide adequate reasons for her decision.
4.The verdicts are unreasonable and cannot be supported having regard to the evidence.
Held by the Court (dismissing the appeal):
1.The trial Judge did not make the asserted errors in fact finding or the application of the burden and standard of proof (at [46], [59], [79], [90], [102] and [103]).
2.The trial Judge did not err in assessing forensic disadvantage (at [117]).
3.The Judge did not fail to provide adequate reasons for her decision (at [133]).
4.The verdicts are not unreasonable or incapable of being supported having regard to the evidence (at [150]).
5.Permission to appeal granted. Appeal dismissed (at [151]).
Evidence Act 1929 (SA) ss 34 CB and 34M, referred to.
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; Ashby v Slipper (2014) 219 FCR 322; R v Sierke [2011] SASCFC 53; R v MAS (2013) 118 SASR 160; Davis and Hyland v R (Supreme Court of South Australia, Doyle CJ, Prior and Debelle JJ, 8 September 1995); R v T, WA (2014) 118 SASR 382; JGS v The Queen [2020] SASCFC 48; DL v The Queen (2018) 266 CLR 1; M v The Queen (1994) 181 CLR 487, considered.
DE SA v THE QUEEN
[2021] SASCFC 22
Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ
THE COURT: The appellant, Miguel De Sa, was convicted after a trial by a Judge alone in the District Court of one count of aggravated communicating with the intention of procuring a child for sexual activity[1] and two counts of aggravated indecent assault.[2]
[1] Criminal Law Consolidation Act 1935 (SA) section 63B(3)(a).
[2] Criminal Law Consolidation Act 1935 (SA) section 56.
The appellant appeals against the convictions on the following grounds:
1.The fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and standard of proof.[3]
2.The Judge erred in finding the applicant was not under a significant forensic disadvantage.[4]
3.The Judge erred in failing to provide adequate reasons for her decision.[5]
4.The verdicts are unreasonable and cannot be supported having regard to the evidence.[6]
[3] Five particulars are provided of this ground of appeal. Permission to appeal was granted by a single Judge in respect of one particular relating to risk of contamination and permission in respect of the balance was referred to the Full Court.
[4] Permission to appeal referred by a single Judge to the Full Court.
[5] Permission to appeal granted by a single judge in respect of risk of contamination and permission in respect of the balance of this ground referred to the Full Court.
[6] Permission to appeal referred by a single Judge to the Full Court. This ground is expressed as that the verdict is “unreasonable, unsafe and against the weight of the evidence”. This Court has consistently identified that this articulation does not reflect the wording of section 158(1)(a) of the Criminal Procedure Act 1921 (SA) and assumes an unnecessary and inappropriate burden on behalf of an appellant: see for example R v Quist [2017] SASCFC 37, (2017) 127 SASR 471 at [11] per Peek J and most recently (in the context of an appeal under the Magistrates Court Act 1991 (SA)) Dixon v Police [2021] SASC 24 at [6]-[8] per Peek J.
Background
In 2016 the appellant was a director of a company that operated a café in a shopping centre in a country town. Immediately next to the café was a storeroom. Both the café and storeroom had a frontage onto a ground level car park of the shopping centre. The company leased the café and storeroom for the café business.
The shopping centre also had an underground car park. In the underground car park was a coolroom. The café business used the coolroom for storing foodstuffs and other items required to be kept cool. The coolroom was accessed via a shopping centre lift near the cafe giving access to the underground car park.
The café business was established in March 2016. The café was initially open for breakfast and lunch. From September 2016 it was also open for dinner on Thursdays to Sundays and its opening hours on those days were from 8 am to 9 pm.
The appellant was the manager of the café business. He physically worked in the café. In November 2016 he was 25 years old.
In 2016 the complainant was 16 years old and was in year 11 at high school. In August 2016 she commenced work as a waitress on a casual basis at the café. She generally worked one or two shifts per week. Her shifts were generally during the daytime after school or on the weekend.
On Saturday 12 November 2016 the complainant was rostered to work the dinner shift starting at 5 pm. At 3.50 pm the appellant sent a text message to her saying:
Because its night time can you wear a dress or something more formal.
There was then the following exchange of text messages:
Complainant: It’s a bit windy for a dress.
Appellant: You are not working outside
Appellant: But yeah it’s a bit cold for a dress.
The complainant arrived at work at 5 pm. She wore black skinny jeans and a white shirt. At some time between 6 and 7 pm, the appellant asked her to come with him to the coolroom to get some muffins. They got some muffins and went back upstairs to the café.
There was a dispute on the evidence about what else occurred in the coolroom. The complainant gave evidence that, while she was standing on a crate to check muffins, the appellant was standing very close to her, pushed behind her. She also gave evidence that he asked her what she would do for $200 and she replied that she would clean out the storeroom or rearrange some decorations in the café. The appellant denied this conversation in cross-examination.
Upon their return to the café, the appellant took some money out of the till, gave it to the complainant, and asked her to go to the supermarket in the shopping centre to buy some marshmallows. He asked her on her return to meet him in the storeroom to undertake a stocktake.
There was a dispute on the evidence about the detail of these events. The complainant gave evidence that the appellant gave her $100 and asked her to buy bread as well as marshmallows. She did not in fact buy the bread because the supermarket did not have the type of bread that the café wanted. The appellant denied this and gave evidence that he gave the complainant $20 to buy one bag of marshmallows.
On her return from the supermarket, the complainant joined the appellant in the storeroom. She put the marshmallows and the receipt for them on the table. She had brought a pen and pad to record the stocktake. She looked at the drinks, counted what was there, and recorded what was present and what was needed. Ultimately, she returned to the café, first picking up the marshmallows and receipt from the table and leaving them near the cash register in the café. The appellant returned to the café at the same time, but stopped on the way to pick up some broken glass.
There were numerous disputes on the evidence about what occurred while the complainant and appellant were in the storeroom. First, the complainant gave evidence that the change from the supermarket was about $70, she offered this to the appellant and he declined to take it, saying that she should keep it for the time being. The appellant denied this and said that he had only given the complainant $20 in the first place.
Secondly, the complainant gave evidence that the appellant was sitting on a chair and asked her to come over and sit on his lap. When she hesitated, he said that he does not bite and to just come and sit on his leg, which she did. The appellant denied this conduct.
Thirdly, the complainant gave evidence that, while she was sitting on his leg, the appellant asked her a series of questions. He asked her how many boyfriends she had had, how many boys she had kissed, how many sexual partners she had had and what type of sex she had had. She brushed off the questions and avoided answering them. He then said “Would you have sex with me for $200?” The appellant denied this conduct. These alleged questions, in the context of the earlier events, were the subject of count 1, namely aggravated communicating with the intention of procuring a child for sexual activity.
Fourthly, the complainant gave evidence that the appellant asked her “Would you give me a massage for $20?”, to which she replied “I’m not very good at giving massages [and] don’t know how to give them”, to which he responded “Come on, you can’t be that bad”. She then massaged his shoulders from behind. The appellant denied this conduct.
Fifthly, the complainant gave evidence that she told the appellant that she had to return to the café and walked over to the table to pick up the marshmallows and receipts. The appellant stood close behind her, with his body pushed up against her. He asked her “What colour underwear are you wearing?” and said “I think you’d be a G-string type of girl”. He was touching her with both hands on her hips and the side of her bottom, playing with it. He also tried to loop his fingers through her underwear. The appellant denied this conduct. This conduct was the subject of count 2, namely aggravated indecent assault.
Sixthly, the complainant gave evidence that the appellant asked her to pull down her pants so that he could see her bum. She felt that she had no choice but to do so. She pulled down her jeans to above the knee but did not pull down her G-string. The appellant had his body pushed up against her from behind. The appellant asked her to bend over so that he could see her bum and she did so. The appellant was touching her with both hands on her hips and the side of her bottom. He also looped his fingers through the sides of her G-string. She then pulled her pants back up. The appellant denied this conduct. This conduct was the subject of count 3, namely aggravated indecent assault.
Seventhly, the complainant gave evidence that she tried to give the change back to the appellant. He said just to keep it and not to put it in her bank account because otherwise her mum and dad would see that it was in there. He said not to tell anyone about what happened, not even her best friend. She kept the money in her apron and ultimately left the café with it. The appellant denied this conduct.
Ultimately, the appellant left the café at about 8 pm. The complainant remained working in the café until the end of her shift sometime between 8.30 and 9 pm. Before she left, the appellant telephoned her and asked to speak to a fellow waitress working in the café. After speaking to the fellow waitress, the appellant spoke to the complainant.
There was a dispute on the evidence about the content of the telephone conversation. The complainant gave evidence that the appellant asked her to think about his offer (which she understood to be the offer of $200 for sex) and said that she could negotiate as well. He said that he had a shack near the town that they could go back to, she would be his best girl, she would get more shifts if she accepted his offer and she should not tell anyone. The appellant denied this. He gave evidence that the complainant asked him for more shifts for the following week, he said no, and she hung up the phone straight away.
The complainant was picked up by her boyfriend from the café and driven home.
On Sunday 13 November 2016 in the early afternoon, the complainant sent a text message to the appellant saying:
About what we spoke about last night, I don’t think it’s a very good idea since it would probably be uncomfortable working together and stuff. That’s understandable isn’t it?
The appellant sent three texts in response, saying:
Of course it is! I understand and hope I didn’t upset you
Sorry if I upset you
Are you upset with me?
In the evening of that day, the appellant had a conversation with her mother concerning the events on the previous evening. The evidence given by the appellant and her mother about the conversation was admitted as complaint evidence. It is addressed below. The complainant’s mother telephoned the police on that evening.
The complainant’s mother gave evidence that on the Monday morning she saw $70 in the complainant’s purse. She also saw a text message on the complainant’s phone asking something to the effect “What size Victoria’s lingerie do you wear? Can I buy you some?”, which set off alarm bells in her mind. The complainant gave evidence that she received this text message from the appellant on the Sunday or Monday, but was not sure when. The appellant gave evidence denying sending such a text message.
On Monday 14 November 2016 the complainant and her mother attended at the local police station. Constable Holmes interviewed the complainant and typed up a statement by her. The complainant, her mother and Constable Holmes gave evidence about the attendance, which is addressed below.
On the evening of Thursday 17 November 2016 the appellant sent three Facebook messages to the complainant, which said:
Hi [complainant], how are you? Call me when you can. Thank you
Hi [complainant], you know youre working tomorrow yeah?
?
The complainant responded:
I can’t work at [the café] anymore because I’m too busy with other things for a job
In February 2018 the appellant was interviewed by the police about the complainant’s allegations. An information was laid charging him with the three counts.
The trial proceeded over three days in April/May 2020. The prosecution called the complainant, her mother and Constable Holmes as witnesses. The appellant gave evidence in his defence.
Fact finding and burden and standard of proof
The first ground of appeal is that the fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and standard of proof.
It is axiomatic that in a criminal trial, subject to irrelevant exceptions, the burden of proof lies on the prosecution to prove an offence charged beyond reasonable doubt. Merely rejecting a defendant’s evidence does not entail that an offence has been proved beyond reasonable doubt: the ultimate question is whether, having regard to the whole of the evidence (adduced by the prosecution and defence) the prosecution has proved the offence charged beyond reasonable doubt.[7]
[7] See for example Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086 at [12]-[13] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; De Silva v The Queen [2019] HCA 48, (2019) 94 ALJR 100 at [9] per Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
The appellant provides four particulars of this ground of appeal, although those particulars might be seen as grounds in their own right. The appellant provides a fifth particular which is that, by reason of the first four particulars, the Judge failed to correctly apply the onus and standard of proof. We address each of the first four particulars sequentially, followed by a holistic consideration of this ground of appeal (incorporating the fifth particular).
Rejecting or failing to take into account uncontested evidence by Constable Holmes
The first particular is that the fair trial miscarried as a result of the Judge rejecting the evidence of Constable Holmes or failing to take it into account as not having been negatived as a reasonable possibility where it was not contested.
Constable Holmes gave evidence that she graduated from the police academy in September 2014. In November 2016 she was stationed at the country town. She did not make notes of her interview of the complainant but typed a statement by the complainant in the presence of the complainant’s mother. During the interview, the complainant showed Constable Holmes her mobile phone with text messages on it. Constable Holmes read the messages. She did not take a photograph of them and could not explain why. However, she did copy the text messages extracted at [8] and [24] above word for word into the typed statement.[8] Constable Holmes was not asked, in evidence in chief or cross-examination, about any text message relating to Victoria’s Secret or lingerie.
[8] The source of the text messages at [8] and [24] above is the statement typed by Constable Holmes on 14 November 2016. The messages themselves had been deleted by the complainant from her phone.
The complainant and her mother each gave evidence of the existence and content of “the Victoria’s Secret message”. Each gave evidence that Constable Holmes was shown that text message on 14 November 2016. The complainant gave evidence that she deleted the text messages between the appellant and herself after not having heard from the police for a long time after she reported the matter to them.
The Judge accepted the evidence of the complainant and her mother concerning the existence of the Victoria’s Secret message despite the evidence of Constable Holmes. The Judge observed that Constable Holmes was inexperienced; made no notes of her contact with the complainant and her mother; permitted the complainant’s mother to be present for at least part of the interview of the complainant; took no photographs of the text messages; and apparently did not progress the investigation until the matter was assigned to a detective in February 2018. In this respect, the Judge accepted the criticisms of the police investigation by defence counsel. The Judge concluded:
… however, the absence of evidence from Constable Holmes about the text message does not cause me to doubt AB or her mother. AB’s mother said she ‘100% read that one’. I believe her.
The appellant characterises Constable Holmes’ evidence as “unchallenged” and contends that it was not open to the Judge to reject Constable Holmes’ evidence in relation to the text messages that she saw.
The appellant contends that, as a general proposition, evidence which is not inherently incredible and which is unchallenged ought to be accepted but accepts that there is no rule of law that dictates the acceptance of unchallenged evidence.
In Precision Plastics Pty Ltd v Demir[9] Gibbs J (with whom Stephen J agreed) said, in the context of applying the rule in Browne v Dunn:
The respondent was asked in her examination-in-chief: "How long did you intend to continue working?" and replied: "… Until the age of fifty-five years old...." If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation (cf. Browne v Dunn), but she was not in fact cross-examined on her answer. The respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible... In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five.[10]
[9] (1975) 132 CLR 362.
[10] At 370-371. (Citation omitted)
In Ashby v Slipper,[11] Mansfield and Gilmore JJ said, also in the context of the rule in Browne v Dunn:
… as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted [citing Precision Plastics]. The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.[12]
[11] [2014] FCAFC 15, (2014) 219 FCR 322.
[12] At [77]. (Citation omitted)
In the present case, it is misleading to characterise Constable Holmes’ evidence in relation to the text messages as “unchallenged”. In the present context, that term means unchallenged by the party who cross-examined the witness and who is contending that the witness’s evidence should be rejected. Defence counsel did not challenge Constable Holmes’s evidence about the text messages. The prosecution, who called Constable Holmes as a witness, was constrained not to cross-examine her and thereby challenge her evidence.
In addition, Constable Holmes did not give evidence that she did not see the Victoria’s Secret message. She simply was not asked any questions about such a message.
Regardless of whether Constable Holmes’ evidence should relevantly be characterised as “unchallenged”, if it is regarded as evidence that she did not see a Victoria’s Secret text message or by extension that the message never existed, it was certainly contradicted by the evidence of the complainant and her mother that the message existed and that Constable Holmes’ attention was drawn to it. This was not a case where Constable Holmes’ evidence was both unchallenged and uncontradicted, as was the case in Precision Plastics.
If the trial had been before a jury, it would have been open to the jury to find, based on an acceptance of the evidence of the complainant and her mother, that the message existed and that Constable Holmes’ attention was drawn to it despite Constable Holmes’ evidence that she transcribed into the statement the messages that she was shown. For the purposes of this ground of appeal, the position is no different because it was a trial by Judge alone. The Judge was entitled to accept the evidence of the complainant and her mother in this respect.
The first particular is not established.
Failing to consider the reliability of the complainant’s evidence
The second particular is that the fair trial miscarried as a result of the Judge failing to consider and have regard to the reliability, or the lack thereof, of the complainant’s evidence as distinct from its credibility.
In R v Sierke[13] the complainant and defendant were in a relationship. The complainant gave evidence that the defendant had intercourse with her without her consent. The complainant had consumed a very large quantity of alcohol as well as ecstasy, cocaine and marijuana over an extended period and could not recall some of the details of that night. The defendant denied having intercourse with the complainant on that occasion. Both the credibility and reliability of the complainant’s evidence arose given her large consumption of alcohol and drugs and impaired memory. This Court upheld the defendant’s appeal because the trial Judge addressed the complainant’s honesty but not her reliability. David J (with whom Duggan and Sulan JJ agreed) said:
At the outset I indicate that it is my view that the trial judge has erred in his analysis of the evidence in failing to deal with the question of V’s reliability as distinct from merely considering questions of her credibility.
Although the case was defended on the basis that V and Mark Chatfield were liars, the surrounding facts demanded attention to the question of her reliability, even if she considered she was telling the truth, and so demanded a consideration of the effect of alcohol and drugs, or indeed both, when considering her evidence, bearing in mind of course that there was little outside support. The trial judge in the passage stated above found that he rejected the submission that V and Mark Chatfield were liars. In order to convict the appellant, the judge was required to be satisfied beyond reasonable doubt that V’s evidence was both honest and reliable. He quite correctly directed himself that that of itself is not a basis for conviction. However, he does not discuss the question of reliability.[14]
[13] [2011] SASCFC 53.
[14] At [32]-[33].
In R v MAS[15] this Court said in the context of a jury trial:
In cases where the credibility and reliability of a complainant is directly in issue (and particularly where there is no corroboration as in the present case), it is very important that the Judge adequately puts the defence case to the jury.[16]
[15] [2013] SASCFC 122, (2013) 118 SASR 160.
[16] At [81] per Kourakis CJ, Peek and Blue JJ.
In the present case, the appellant contends that the Judge was required, but failed, to consider the complainant’s reliability as opposed to her credibility.
The Judge gave herself some directions of law and then summarised the prosecution and defence cases. Under the heading “Discussion”, commencing at paragraph [45], the Judge addressed the issues raised in closing addresses, made findings and at paragraph [83] made the ultimate finding that each count was proved beyond reasonable doubt.
The Judge observed at paragraph [45] that the prosecution case relied solely upon the evidence of the complainant.
The Judge referred to a submission by the defence that there were aspects of the complainant’s account that did not ring true because of embellishment or inconsistency. The Judge addressed the various items of alleged embellishment or inconsistency (considered in more detail in the context of the third particular below). For example, the defence pointed to an absence of evidence about a reconciliation of the till in relation to the $70 change that the complainant said she retained at the insistence of the appellant and the Judge said at paragraph [51] that this was not a matter “which causes me to doubt the complainant’s evidence”.
The Judge considered that some alleged inconsistencies were not in fact inconsistencies. The Judge considered that there were other inconsistencies but they did not cause her to doubt that what the complainant said happened in the storeroom did in fact occur.
The Judge’s ultimate conclusion was expressed at paragraph [83] in the following terms:
Having rejected [the appellant’s] evidence, it does not follow that he must be guilty. The prosecution bears the onus of presenting evidence to prove its case against the accused beyond reasonable doubt. The accused does not have to prove anything. I have considered the points made by Mr Caldicott both individually and together. I have scrutinised the evidence of the complainant with care. I have considered each count separately. The complainant presented well as a witness. Her answers were thoughtful and measured. I consider she was doing her best to remember that evening at work; an evening which remains distressing. I got no sense of her embellishing what occurred. She presented as an honest person who was put in a difficult, awkward and compromising situation by her employer. Having seen her give evidence, assessed what she has said carefully and scrutinised it with all the other evidence, I am satisfied beyond reasonable doubt that what she said happened in the storeroom did in fact occur.
Contrary to the appellant’s submission, the Judge’s acceptance beyond reasonable doubt of the complainant’s evidence involved a finding that her evidence about the events in the storeroom was both honest and reliable.
The present case is different to the circumstances in Sierke where, by reason of the complainant’s consumption of alcohol and drugs, a question necessarily arose whether her account (or recollection) of events may have been honest but incorrect as well as the question whether her account was fabricated. The present case is different to the circumstances postulated in MAS where both the honesty and reliability of a complainant is in issue. In the present case, there was no suggestion or question that the complainant’s evidence about events in the storeroom may have been honest but incorrect: the forensic question was whether her account was fabricated.
In the circumstances, the Judge was not required to undertake independent assessments of the honesty and reliability of the complainant’s evidence. The Judge was entitled to consider whether she accepted beyond reasonable doubt the complainant’s evidence about what happened in the storeroom having regard to the whole of the evidence in the case. The Judge’s affirmative answer necessarily entailed an acceptance of the honesty and reliability of the complainant’s account of those events.
The second particular is not established.
Failing to direct herself adequately concerning prior inconsistent statements
The third particular is that the fair trial miscarried as a result of the Judge failing to direct herself adequately in relation to the alleged prior inconsistent statements of the complainant and their significance in relation to the complainant’s credibility and reliability.
The appellant contends that the Judge failed to bring to bear the potential impact of inconsistencies in respect of the complainant’s evidence in evaluating her credibility or reliability and further the Judge failed to consider whether they may have been a source of reasonable doubt in relation to the complainant’s reliability (as opposed to credibility).
In Davis and Hyland v R,[17] in the context of directions at a jury trial, Prior J (with whom Doyle CJ agreed) said:
In a case where credibility was crucial, the jury had to consider whether they were convinced about the truth of what the woman was then telling them against any inconsistencies apparent to them in what they were satisfied she had said on other occasions. It was not necessary to direct the jury to treat the woman's evidence as unreliable in light of any established inconsistencies. It was necessary to have the jury consider what reliance they were prepared to place upon her evidence given in the witness box against such inconsistencies as they found made out against previous statements. More so was this the case here when the intoxication of the woman at the time was a factor going not only to the question of consent but also recollection.[18]
[17] (Supreme Court of South Australia, Doyle CJ, Prior and Debelle JJ, 8 September 1995, Judgment No 5250) at [19].
[18] Citation omitted.
The first alleged inconsistency identified by the appellant is the appellant’s evidence that she pulled her pants down to above her knees compared to the statement typed by Constable Holmes on 14 November 2016 which stated “I took my pants off”. When asked in cross-examination whether the statement said that, the complainant said that, after that initial statement, when she later read it back, she corrected it to what actually happened. She said that on 14 November she did not really interpret what Constable Holmes had typed as what it meant.
It may be observed that the complainant’s later “correction” of the statement did not involve any exacerbation of the circumstances of the alleged offence and, if anything, involved a slight lessening of those circumstances. Objectively assessed, if the complainant had fabricated the story, it is not inherently likely that she would have changed her story in this respect. In addition, the change was relatively slight compared to the underlying circumstances of the alleged offending.
The Judge found that the difference was due to imprecision in expression rather than an inconsistency. In the circumstances, it was open to the Judge to so find.
The second alleged inconsistency is the complainant’s evidence that the appellant touched her on and played with her bottom compared to the statement typed by Constable Holmes on 14 November 2016 which stated “[The appellant] kept hitting my bum and trying to get me over”. When asked in cross-examination whether the statement said that, the complainant said that she did not recall saying that to Constable Holmes. Later, when it was put to her that the appellant did not hit her bum, she said that it was hard to say, he was playing with her bottom but she did not remember hitting.
The Judge said that, although there was some inconsistency, it did not detract from the complainant’s generally credible evidence about events that evening. In context, it is clear that the Judge was referring both to the honesty and reliability of the complainant’s evidence. The Judge explicitly brought to bear the impact of this inconsistency in evaluating the complainant’s evidence. In the circumstances, it was open to the Judge to so regard this inconsistency.
The third alleged inconsistency is the complainant’s evidence that she (not the appellant) pulled down her pants but not her knickers compared to her mother’s evidence that the complainant told her that the appellant pulled down her pants and her knickers. The complainant’s mother’s evidence was that her daughter told her that the appellant grabbed her from behind and tried to pull her pants down (in chief) or grabbed her from behind with her pants down (in cross-examination). She said in cross-examination that her daughter’s knickers were pulled down with her pants and in re-examination, when asked if the word “knickers” was used, she said that it might have been “pants” as in “He pulled down my pants”.
In relation to this alleged inconsistency, the Judge said:
I think AB’s mother is likely to be incorrect in recalling what AB said to her on this topic. It would be understandable to remember AB as saying that the accused, rather than AB, pulled her pants down. Even if AB’s mother correctly recalled AB’s account such that there is an inconsistency with AB’s evidence, I do not consider the inconsistency significant. There is no doubt that AB’s pants were pulled down. The identification of who pulled them down (the complainant or the accused) is of little moment given that AB has never alleged any physical force was used by the accused. She complied out of intimidation and pulled her pants down, rather than the accused using actual force to pull them down.
My view is the same in relation to whether there is an inconsistency between AB’s evidence that her pants were pulled down and not her knickers and her mother’s evidence that she may have said her knickers were pulled down. In every day terms, a reference to ‘pants’ being pulled down may or may not include knickers. It is not clear from AB’s mother’s evidence whether AB did go into the detail about her knickers. I think she did not and that there is no inconsistency between her evidence and what she told her mother.
The Judge explicitly brought to bear the impact of this inconsistency in evaluating the complainant’s evidence. Objectively assessed, the complainant’s mother’s recollection was not clear as to whether the complainant referred to her pants or her knickers being pulled down and was not clear as to whether the complainant said that the appellant grabbed her from behind and tried to pull her pants down or grabbed her from behind with her pants down. In the circumstances, the Judge’s approach to the alleged inconsistency was entirely open to the Judge.
Under the third alleged inconsistency, the appellant also refers to evidence given by the complainant’s mother in cross-examination in which it was put to her that her police statement said that the appellant touched her on the front of the body and she said that her daughter told her this sometime later and not in November 2016. No questions were asked about the circumstances of this statement and defence counsel did not cross-examine the complainant on this topic.
The Judge said that, given that the complainant was not questioned on the topic, there was insufficient evidence to assess this possible inconsistency. Given the limitations and the lack of cross-examination of the complainant on the topic, this approach was open to the Judge.
The fourth alleged inconsistency is the complainant’s evidence (and that of her mother) that she showed the Victoria’s Secret text message to Constable Holmes compared to Constable Holmes’ inclusion in the typed statement of the text messages sent on the Saturday and Sunday without a Victoria’s Secret message. The complainant’s evidence on this topic was confined to the single question in cross examination “Did you show that to the police?” and her answer “Yep”. No questions were asked about the detail, including how it was shown or whether there was any conversation about the message. As observed above, no questions were asked of Constable Holmes about the message.
In the passage extracted at [37] above, the Judge said that the absence of evidence from Constable Holmes about the text message did not cause her to doubt the complainant (or her mother). For the reasons given above, this approach was open to the Judge. The Judge explicitly brought to bear the impact of the non-recording of the text message by Constable Holmes in evaluating the complainant’s evidence.
The fifth alleged inconsistency identified by the appellant is the complainant’s evidence in cross-examination that her mother was present when the statement was given to Constable Holmes, when the text messages were shown to Constable Holmes and when she signed the statement, compared to her mother’s evidence in cross-examination that her daughter told her on the Sunday night that the appellant grabbed her from behind but on the Monday at the police station she asked her to leave the room when she told the rest of that story.
The complainant’s mother was not asked any further questions in cross-examination about her departure, the stage that had been reached when she left or the stage when she returned. The complainant was not asked whether her mother left the room at any point. Constable Holmes gave general evidence that the complainant’s mother was present but was not asked whether she left the room at any point. A submission was not made in closing address that the complainant’s evidence was inconsistent with that of her mother. Defence counsel did not apparently consider that there was a material inconsistency. The contention that there was such an inconsistency is raised for the first time on appeal.
No doubt because the matter was not raised before the Judge, the Judge did not address any potential inconsistency in her reasons for verdict. Given the paucity of questions of the three witnesses on the question whether or when the complainant’s mother left the room, there is no basis for the appellant to contend for the first time on appeal that there was such an inconsistency and the Judge ought to have addressed it in her reasons.
In the concluding paragraph [83] of her reasons for verdict extracted above, the Judge said that she had considered the points made by defence counsel individually and together. Insofar as there were inconsistencies, the Judge properly considered them and took them into account in assessing the honesty and reliability of the complainant’s evidence.
The third particular is not established.
Failing to consider risk of contamination
The fourth particular is that the fair trial miscarried as a result of the Judge failing to adequately, or at all, consider the risk of contamination or collusion in relation to the evidence of the complainant and her mother.
The complainant’s mother gave evidence of what she was told by the complainant on the Sunday night. She gave evidence that she accompanied her daughter to the police station on the following morning and was present during the interview apart from a passage for which the complainant asked her to leave. The appellant contends that there was a risk that, when she came to give evidence, the appellant’s mother may have conflated or confused what she was told on the Sunday night with what she heard the complainant tell Constable Holmes on the Monday morning.
The complainant’s mother was not cross-examined on this topic. She was not asked whether there was any confusion or doubt in her mind as to her recollection of what she was told on the Sunday night as opposed to what she heard on the Monday morning. It was not suggested to her that she might have conflated or confused those matters.
The only submission made by defence counsel in closing address on this topic was “Now, I submit has there been a complaint per se or is the mother remembering what was said to Ms Holmes in the circumstances? I submit that we can't be certain one way or the other.”
The Judge addressed this submission in the following terms:
In relation to the evidence of AB’s complaint to her mother, Mr Caldicott submitted it is possible that AB’s mother is not remembering what AB told her on Sunday night, but rather what she heard her daughter tell the police or what they discussed subsequently. That suggestion was not put to AB’s mother. She gave evidence she had not read any of AB’s statements. Although it was unwise for Constable Holmes to have AB’s mother present when she took AB’s statement, my view is that AB’s mother was doing her best to remember what AB told her on the Sunday night before they went to the police station the next day.
Mr Caldicott drew attention to the inconsistencies between AB’s evidence about what happened in the storeroom and what her mother said she said happened. The fact that there is some inconsistency suggests in itself that AB’s mother was doing her best to remember what AB told her rather than remembering AB’s statement to the police. It is necessary to consider the extent of the inconsistencies.
It is clear from the context, including the Judge’s reference to the lack of any cross-examination of the complainant’s mother on this topic, the Judge’s reference to “rather than remembering AB’s statement to the police” and the Judge’s subsequent detailed references to the complainant’s mother’s evidence of what she was told on the Sunday night being different to the complainant’s evidence (and implicitly what she told Constable Holmes on the Monday morning) that the Judge found that the complainant’s mother’s evidence of what she was told of the Sunday night was not contaminated by what she heard on the Monday morning.
The appellant refers to the expression used by the Judge “AB’s mother was doing her best to remember what AB told her on the Sunday night” as negating collusion and not contamination. However, the Judge went on to find that complainant’s mother’s recollection of what she was told on the Sunday night was objectively incorrect insofar as it differed from the complainant’s evidence. The Judge therefore needed to use a form of words to convey that the complainant’s mother’s evidence was of her recollection of what she was told on the Sunday night rather than a finding by the Judge that it was accurate in every respect.
Evidence of “complaint” is not evidence of the truth of the complaint; rather under section 34M of the Evidence Act 1929 (SA) its relevance is confined to informing the trier of fact as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the alleged victim. It is a matter for the trier of fact whether or to what extent the trier of fact relies on evidence of complaint as evidence of consistency of conduct. In the present case, the Judge did not rely on the evidence of the complainant’s mother in this respect. The Judge said at the outset of her reasons for verdict that the prosecution case relied solely upon the evidence of the complainant and in her conclusion, extracted at [55] above, the Judge relied solely on the evidence of the complainant and did not rely on the evidence of complaint as bolstering the credibility of the complainant.
In the circumstances, although there is some infelicity in the Judge’s expression, there was no miscarriage of justice as contended by the appellant.
Although this particular as framed contended that the Judge also failed to consider the risk of collusion, it is plain that the Judge found no collusion and the appellant does not contend otherwise on the hearing of the appeal.
The fourth particular is not established.
Failing to correctly apply the onus and standard of proof
The fifth particular is that the fair trial miscarried as a result of the Judge failing to correctly apply the onus and standard of proof to the issues for her determination.
This particular, as expressed in the grounds of appeal, is dependent on the first to fourth particulars (addressed above). However, on the hearing of the appeal, the appellant also contends that the Judge’s approach to his own evidence revealed a subtle reversal of the onus of proof.
The appellant gave evidence that the subject of the telephone conversation between the complainant and himself on Saturday 12 November 2016 was not sexual but rather a request by the complainant for more shifts for the following week, which he refused and which resulted in the complainant abruptly hanging up.
At paragraph [73] of her reasons for verdict, referring to the appellant’s evidence about the content of the telephone conversation and explanation for the text messages, the Judge said “I do not find the accused’s evidence to be credible on this point”.
At paragraph [75], referring to the appellant’s evidence that during the telephone call both parties were yelling at each other and the conversation was abrupt, the Judge said “I do not believe the accused about that phone call or his evidence generally that the complainant often asked him for more shifts”.
These two passages did not involve any reversal of the onus of proof but rather were part of the Judge’s explanation why she did not find the appellant to be a credible witness and why she rejected his evidence.
The appellant gave evidence that he asked the complainant to accompany him to the coolroom because it had been broken into recently and he did not feel safe going by himself. At paragraph [81] the Judge said “The accused’s explanation for asking the complainant to go to the coolroom that evening was not believable”. This did not involve any reversal of the onus of proof; it was part of the Judge’s explanation why she did not find the appellant to be a credible witness.
The appellant gave evidence that he sent the complainant to the supermarket to purchase a single packet of marshmallows. At paragraph [82] the Judge said “I do not believe the accused needed, on his account, a single packet of marshmallows for the next day”. This again did not involve any reversal of the onus of proof.
The appellant also contends that the reasoning of the Judge at times revealed a tendency to presume that the complainant was telling the truth. The complainant gave evidence that her recollection of the text messages sent to her by the appellant before she left for work on Saturday 12 November 2016 was to the effect of wearing something short. The messages in fact requested her effectively to wear a dress. At paragraph [53], the Judge referred to a submission by defence counsel that the complainant’s evidence about these text messages was an indication of embellishment. The Judge said:
I do not consider there is anything sinister in her evidence. It is understandable that, after the event in question, she may now think the accused mentioned something about her wearing a short skirt or dress.
This did not involve a presumption that the complainant was telling the truth. It merely explained why the Judge rejected the submission that the complainant’s evidence was embellishment in this respect.
The Judge said at the outset of her reasons for verdict that the prosecution must prove each of the offences beyond reasonable doubt, there was no onus on the appellant to prove anything, and by giving evidence he undertook no onus of proof. The Judge said at the end of her reasons for verdict that, having rejected the appellant’s evidence, it did not follow that he must be guilty and the prosecution still bore the onus of proving its case against him beyond reasonable doubt. There was no failure by the Judge to apply the correct onus or standard of proof.
The fifth particular is not established.
Conclusion on first ground of appeal
The first ground of appeal is not established.
Forensic disadvantage
The second ground of appeal is that the trial Judge erred in finding the applicant was not under a significant forensic disadvantage.
Section 34CB of the Evidence Act 1929 (SA) provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
…
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The appellant contends that the Judge ought to have found that the time elapsed between the alleged offending and the trial had resulted in a “significant forensic disadvantage” to him and to have given herself a direction as required by subsections 34CB(2) and (3).
The Judge said:
I accept Mr Caldicott’s criticisms of the police investigation. It is for the prosecution to prove the case. If the prosecution fails to do that to the extent that doubt remains, then the accused must receive the benefit of that doubt. This police investigation was less than perfect. It was deficient.
…
Mr Caldicott submitted the accused had suffered a forensic disadvantage as a result of the missing items/evidence. I do not consider the lapse of time of approximately four years has resulted in a significant disadvantage to the accused[19]. There was a delayed and deficient police investigation. I have taken into account the potential of the police to have obtained evidence in considering whether the prosecution has proved its case beyond reasonable doubt, bearing in mind the prosecution has that onus and the accused has no onus of proof. In all the circumstances, I do not consider any forensic disadvantage to be significant.
[19] Evidence Act 1929, section 34CA
Applicability of section 34CB
Subsections (2) and (3) impose an obligation on a trial judge to give directions to a jury if the precondition of “significant forensic disadvantage” is met. In general, the purpose of directions to a jury requiring consideration of specific matters is that judges are aware from their experience, but juries may not be aware, of the need to give consideration to those specific matters.[20]
[20] R v T, WA [2014] SASCFC 3, (2014) 118 SASR 382 at [21]-[22] per Kourakis CJ.
Subsections (2) and (3) are prescriptive of what must be said (explain the nature of forensic disadvantage specific to the circumstances of the particular case and direct that the jury must take it into account when scrutinising the evidence specific to the circumstances of the particular case), and must not be said (dangerous or unsafe to convict), to the jury. Section 34BC does not address a trial by a Magistrate or Judge alone.
In R v T, WA[21] Kourakis CJ (with whom Vanstone J and Anderson J relevantly agreed) said:
… having regard to both its text and context I would hold that s 34CB of the Evidence Act does not require a judge to include within his or her reasons a direction of the kind that that section prescribes.[22]
[21] (2014) 118 SASR 382.
[22] At [22]. See also R v R, PA [2019] SASCFC 19 at [85] per Parker J (with whom Kourakis CJ and Nicholson J agreed).
In JGS v The Queen[23] Lovell J (with whom Peek and Bampton JJ agreed) said:
The terms of the section suggest that there is no requirement on a trial judge, hearing a matter without a jury, to consider the question of whether an accused has suffered a “significant forensic disadvantage” and therefore enlivening the obligation to direct him or herself in accordance with ss 34CB(2)(a) and (b). Presumably Parliament considers that judicial officers are aware of, and will give the appropriate weight to, the difficulties faced by an accused when confronted with the forensic disadvantages envisaged by s 34CB.[24]
[23] [2020] SASCFC 48.
[24] At [146]. (Citation omitted)
The Judge was not required to give herself a significant forensic advantage warning under section 34CB and the appellant’s primary contention fails.
Taking into account forensic disadvantage
Leaving aside section 34CB or any warning by the Judge to herself, the existence of forensic disadvantage is a matter that should normally be taken into account by a Judge sitting alone in the course of considering whether the charge has been proved beyond reasonable doubt.
In R v T, WA[25] immediately after the passage cited above, Kourakis CJ said:
That construction of s 34CB of the Evidence Act does not entail a conclusion that a judge presiding over a criminal trial without a jury does not need to pay close attention to any forensic disadvantage arising from a delay in bringing a complaint. A judge is required to give reasons for his or her verdict. As Kelly J observed in Bakhuis, if delay is a material issue in a trial, a judge’s reasons must adequately deal with that issue. Whether or not a failure to adequately deal with the issue amounts to an error of law or whether, for any other reason, it results in a miscarriage of justice, will depend on the particular circumstances of each case and a reading of the judge’s reasons as a whole. However, a judge’s reasons need not replicate a judge’s charge to a jury.[26]
[25] (2014) 118 SASR 382.
[26] At [22]. (Citations omitted) See also R v R, PA [2019] SASCFC 19 at [85] per Parker J (with whom Kourakis CJ and Nicholson J agreed).
In JGS v The Queen[27] immediately after the passage cited above, Lovell J said:
However, in some cases it may be necessary as part of the trial judge’s obligation to give adequate reasons to consider and comment upon circumstances which, in the trial judge’s opinion, do give rise to a significant forensic disadvantage to the accused or indeed forensic disadvantages that cannot be said to be “significant”.[28]
[27] [2020] SASCFC 48.
[28] At [146].
The appellant identifies on appeal the evidence identified by defence counsel at the trial (referred to by the Judge in the first paragraph extracted at [107] above) that was said to have been lost due to the delay in the police investigation. The Judge explicitly took those matters into account as is apparent from the paragraphs in her reasons for verdict extracted at [107] above.
The second ground of appeal is not established.
Adequacy of reasons for verdict
The third ground of appeal is that the trial Judge erred in failing to provide adequate reasons for her decision.
In DL v The Queen[29] Kiefel CJ, Keane, Edelman JJ said:
The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
... Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[30]
[29] [2018] HCA 26, (2018) 266 CLR 1.
[30] At [32]-[33]. (Footnotes omitted)
In JGS v The Queen[31] Lovell J (with whom Peek and Bampton JJ agreed) said:
The content of the duty to give adequate reasons was considered in Fleming v The Queen. The High Court held that the obligation to give reasons demands more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”.
…
The adequacy of the reasons is to be assessed by reference to the forensic issues of the trial and the circumstances of the case and the reasons delivered must be read in their entirety. Adequacy of the reasons must be determined on a case by case basis. …
…
Reasons must be sufficiently comprehensive to reveal to parties and an appeal court the basis upon which the trial judge arrived at his or her decision. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.[32]
[31] [2020] SASCFC 48.
[32] At [199], [201], [204]. (Footnotes omitted)
With two exceptions, the appellant essentially makes the same submissions under this ground of appeal as are made under the first and second grounds. In JGS v The Queen[33] Lovell J referred to the distinction between reasons and reasoning in the following terms:
There is however a distinction between a complaint of inadequate reasons and a complaint of inadequate reasoning. The distinction is not always obvious. However, the two concepts should not be conflated.[34]
[33] [2020] SASCFC 48.
[34] At [205]. (Emphasis in original)
Insofar as the appellant’s substantive complaint is a lack of reasoning, it has been addressed above in the context of the first and second grounds of appeal. Insofar as the appellant’s substantive complaint is a lack of reasons, it is addressed in the context of this third ground of appeal.
The appellant contends that the Judge did not explain how and why she preferred the evidence of the complainant and her mother to that of Constable Holmes as to the existence of the Victoria’s Secret text message. Given the lack of cross-examination of the three witnesses in relation to this topic referred to at [35] and following above, the Judge’s reasons for accepting the complainant’s mother’s evidence about seeing the message were adequate.
The appellant contends that the Judge did not explain how she found that the complainant and her mother were credible and reliable witnesses. The Judge’s reasons were adequate in this respect.
The appellant contends that the Judge did not explain how she found that the complainant’s mother was doing her best to remember what the complainant told her on the Sunday night given the risk of contamination from what she heard at the police station on the Monday morning. This is not significant because the Judge did not rely on the complainant’s mother’s evidence as bolstering the credit of the complainant.
The appellant contends that the Judge did not explain how she concluded that the reference in the statement typed by Constable Holmes to her taking her pants off (as opposed to merely down) was due to an imprecision in expression. That finding was open to the Judge and it is difficult to imagine what more could have been said on that topic.
The appellant contends that the Judge did not explain why she was not troubled by the inconsistency between the complainant’s police statement that the appellant was hitting her bum and trying to get her over and her evidence. The Judge accepted that there was some inconsistency but this did not adversely affect the Judge’s assessment of the complainant’s evidence. The inconsistency was relatively minor and again it is difficult to imagine what more could have been said on the topic.
The appellant makes two specific complaints in respect of matters that are not the subject of the first or second grounds of appeal. The appellant refers to the complainant’s evidence that he told her on 12 November 2016 that he had a shack near the town somewhere that they could go back to. He gave evidence that he did not say that and further that he did not own a shack or other property near the town. In relation to this evidence, the Judge said:
There is no evidence the accused had a place nearby. However, I do not think that means he did not suggest to AB that he did. In order to get AB to agree to have sex with him, I think he told AB he had the money and the place, she just had to say yes.
The appellant complains that the Judge did not explain how she made the finding in the last sentence about what the appellant told the complainant. It was open to the Judge to make that finding by accepting the complainant’s evidence and rejecting the appellant’s denial of the conversation regardless of the objective fact whether the appellant owned a shack. Again, it is difficult to imagine what more could have been said on the topic.
The appellant also refers to the detail of his evidence as to what occurred on the evening of 12 November 2016, as to which the Judge said:
Even though he was not interviewed by the police until 14 February 2018, the accused purported to be certain about detail such as asking the complainant to get only one marshmallow packet, not asking her to get any bread and only giving her $20. On his account, there was no reason for this evening to be memorable.
The appellant complains that he did not give that evidence and it was not put to him in cross-examination that he had no particular reason to remember those aspects. The appellant gave explicit evidence in chief that he asked the complainant to buy marshmallows and not bread, only gave her $20 and she came back with only one bag of marshmallows. He gave categorical evidence it cross-examination denying that he asked the complainant to buy bread, denying that he asked the complainant to buy more than one bag of marshmallows and denying that he gave her $100 or any more than $20. It was explicitly put to him in cross-examination that he had made up these details to bolster his false denials after he read the witness statements by the appellant referring to being given $100, being asked to buy multiple bags of marshmallows and bread and buying multiple bags of marshmallows. In the circumstances, it was open to the Judge to characterise the appellant’s evidence as she did and there is no inadequacy of reasons.
Apart from these specific complaints, the appellant makes a general contention that the Judge’s reasons lack identification of the linking process by which the Judge acknowledged weaknesses and discrepancies in the prosecution evidence but nevertheless found that the prosecution had discharged the onus of proof in relation to the complainant’s evidence. Considered holistically, the Judge’s reasons are not inadequate in that respect.
The third ground of appeal is not established.
Verdict unreasonable or incapable of being supported having regard to the evidence
The fourth ground of appeal is that the verdicts are unreasonable or incapable of being supported having regard to the evidence.
The appellant’s contentions in respect of this ground of appeal largely reiterate and rely upon his having established the contentions made in respect of the first, second and third grounds of appeal. For the reasons given above, those contentions are not established.
When considering whether a verdict is unreasonable or incapable of being supported having regard to the evidence, it is necessary for an appellate court to undertake an independent review of the evidence to determine whether it was open to the trier of fact to be satisfied of guilt beyond reasonable doubt. In M v The Queen[35] Mason CJ, Deane, Dawson and Toohey JJ said:
The question is one of fact which the court must decide by making its own independent
assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all
the circumstances to allow the verdict of guilty to stand”.…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the
evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[36][35] (1994) 181 CLR 487.
[36] At 492-493. (Citations omitted)
We have conducted an independent review of the evidence. As a result of that review, it was clearly open to the Judge to find the charges proved beyond reasonable doubt.
The appellant points out that the prosecution case was dependent on the evidence of the complainant alone, there was no corroboratory evidence of the complainant’s evidence, there was no objective evidence of the offending and the appellant denied the allegations on oath. These are not unusual circumstances.
The appellant points out that there were inconsistencies between the complainant’s evidence and her police statement and between the complainant’s evidence and her mother’s evidence as to the content of the complaint. These types of inconsistencies are relatively minor and are not unusual in respect of honest and reliable witnesses. For the reasons given above, it was open to the Judge to accept the complainant’s evidence despite inconsistencies.
The appellant contends that there was an inconsistency between the evidence of the complainant and her mother and the evidence of Constable Holmes. This has been addressed above.
The appellant contends that there was a risk of contamination of the complainant’s mother’s evidence. This is not significant for the reasons given above.
The appellant contends that he faced a forensic disadvantage in several respects. First, he contends that he was disadvantaged because the police did not interview the other waitress, or the back of house staff, working at the café on the evening of 12 November 2016. However, the evidence of both the appellant and the complainant was that no other staff were present in the coolroom or storeroom when the relevant events occurred.
Secondly, the appellant contends that he was disadvantaged because the police were unable to locate the complainant’s then boyfriend. The complainant gave evidence that she told him when he picked her up on 12 November 2016 that her boss was being creepy but she did not think that she told him any more details than that. The boyfriend’s evidence of what he was told could only have been admissible if it amounted to a complaint about the charged offences and, on the face of the complainant’s evidence, it was too vague to be referable to the charged offences. While it cannot be known what evidence the boyfriend might have given, it is not inherently likely that it would have been significant. It cannot be known whether the boyfriend, if called, would have agreed or disagreed with the complainant’s assertion that she told him that her boss “was being creepy”. If he had agreed that she did say that, obviously that would not have assisted the defence. However, if he had said that she had not said that, such would not be inconsistent with a lack of memory of what the boyfriend might, at the time, have perceived as small talk about the boss generally rather than anything of importance.
Thirdly, the appellant contends that he was disadvantaged because he did not obtain contemporaneous access to the complainant’s Facebook messages sent to her then boyfriend but subsequently deleted. For similar reasons as in respect of the inability of the police to locate the boyfriend, it is not inherently likely that such Facebook messages would have been significant.
Fourthly, the appellant contends that he was disadvantaged because, by the time the police resurrected the investigation in early 2018, the complainant had deleted text messages from her phone and the appellant lost the ability to compare what was on her phone with his own records. The appellant did not give evidence that he deleted text messages with the complainant from his phone and his submissions on appeal do not suggest that he did. However, if it be assumed that he did so, the only relevant putative text message was the Victoria’s Secret text message, which had limited relevance to the issues in the case.
Fifthly, the appellant contends that he was disadvantaged because he did not obtain contemporaneous access to the complainant’s mobile phone records showing the time and duration of the telephone call at the café and he lost the ability to compare what was on her phone with his own records. There was no evidence that records in respect of the complainant’s phone were not available to show the time and duration of the telephone call, nor records in respect of the appellant’s phone. In any event, there was no dispute on the evidence as to the time or duration of that call but only as to its content.
Sixthly, the appellant contends that he was disadvantaged because contemporaneous access was not obtained to the bag of marshmallows, a photograph of the complainant’s apron or a reconciliation of the till from that night. This is typical of the type of evidence that is not obtained regardless of the competency of the police investigation and would not have been central to the complainant’s allegations concerning the appellant’s conduct the subject of the charges.
Finally, the appellant contends that he was disadvantaged because of the loss of his own memory due to the passage of time.
These matters were taken into account by the trial Judge, who had the advantage of hearing and seeing the complainant and the appellant give evidence. They are not such that, considered collectively, they must have given rise to a reasonable doubt about the appellant’s guilt. When weighed with the other circumstances upon which the appellant relies, it was open to the Judge to find the charges proved beyond reasonable doubt.
The fourth ground of appeal is not established.
Conclusion
We grant permission to appeal on each ground but dismiss the appeal.
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