DINEDIOS v Police - [2016] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DINEDIOS v POLICE
[2016] SASC 146
Judgment of The Honourable Justice Doyle
7 September 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
A Magistrate convicted the appellant of two counts of indecent assault. The complainant, the appellant, and the appellant’s two daughters had attended a birthday party in Whyalla. The offending was alleged to have occurred during the evening while the appellant was checking on his eldest daughter who was sleeping next to the complainant on a recliner.
The appellant appealed on a number of grounds. The appellant contended that the Magistrate failed to direct herself on the proper use of the evidence of complaint and distress; erred in her approach to, assessment of, the appellant’s evidence, and in making the findings she made in relation to credit; and erred in her assessment of the reliability and credibility of the complainant’s evidence. The appellant also contended that the verdicts were unsafe, unsound and against the weight of the evidence.
Held per Doyle J, dismissing the appeal:
1. No error in the Magistrate’s approach or assessment has been established.
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
R v J, JA (2009) 105 SASR 563; R v Baltensperger (2004) 90 SASR 129; R v Keyte (2000) 78 SASR 68; R v Dennis (2010) 202 A Crim R 453; R v Latifi [2014] SASCFC 74; R v R, R & R, LJ [2008] SASC 35; R v Livingstone (2011) 109 SASR 380; Driscoll v The Queen (1977) 137 CLR 517, considered.

DINEDIOS v POLICE
[2016] SASC 146
Magistrates Appeal.
DOYLE J:

The appellant was charged with three counts of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). A Magistrate convicted the appellant of counts 1 and 2, but acquitted him of count 3.
In this appeal against his conviction of counts 1 and 2, the appellant relies upon 10 grounds of appeal. Those grounds may be summarised as alleging:
1.The Magistrate erred in failing to direct herself on the proper use of the evidence of complaint and distress (grounds 4, 5 and 8).
2.The Magistrate erred in her approach to, and assessment of, the appellant’s evidence, and in making the finding she made as to his (lack of) credit (grounds 3, 6 and 9).
3.The Magistrate erred in her assessment of the reliability and credibility of the complainant’s evidence (ground 7).
4.The verdicts of guilty were unsafe, unsound and against the weight of the evidence (grounds 1 and 10).
The appellant also alleged that the convictions on counts 1 and 2 are inconsistent with the acquittal on count 3 (ground of appeal 2), however that ground of appeal was ultimately not pressed.
Background
At the relevant time, the complainant was 14 years of age. The appellant is the brother of her aunt’s partner. On the date of the incidents, 2 August 2014, the complainant and the appellant were attending a birthday party in Whyalla for the complainant’s seven year old twin cousins. The party was at the home of the mother of the twins, who was the complainant’s aunt. The appellant took his two children (aged 4 and 7 at the time) to the party.
The party was during the afternoon, but some of the guests decided to stay the night. The complainant’s mother attended the party but left in the evening. The complainant stayed. The aunt set up a sleeping area for the children in the lounge area. The complainant and the appellant’s seven year old daughter (S) settled in together on a recliner chair in the lounge. The aunt slept on a mattress a couple of metres from the foot of the recliner chair.
The offending was alleged to have occurred during the late evening while the appellant was checking on his daughter, who was lying on the recliner next to the complainant. The Information alleged three counts of indecent assault. At the commencement of the trial the three counts were particularised as follows:
1.While the complainant was on the recliner, the defendant came over and touched her on the breast area, moved his hand from her breast to her stomach area and then left.
2.The appellant returned sometime later and touched the complainant’s breast and bottom area before leaving again.
3.The appellant touched the complainant on her lips and put his hand under her jumper from the neck area towards her breasts.
The complainant gave evidence in support of the allegations, the detail of which is summarised below. The prosecution also called evidence from the aunt, which included complaint evidence.
The appellant gave evidence. His evidence, and the defence case, was that he attended to his daughter on the recliner on several occasions that evening, initially to assist in settling her and then subsequently to check upon her. On a couple of occasions he made contact with the complainant in an attempt to move her away from his daughter. On his version of events, his contact was with the hip and forearm or shoulder of the complainant and not her breast. Any other contact with the complainant was fleeting and accidental.
Against the background of this overview, it is appropriate to commence by summarising the critical evidence of the three witnesses, before turning to the key aspects of the Magistrate’s reasoning and conclusion.
The complainant’s evidence
The complainant’s evidence was that after taking S out to say goodnight to her father, the appellant, she and S attempted to go to sleep lying next to each other on the recliner. After a while, the complainant heard S asking her father to sit next to her. She lay next to S, trying to sleep, while the appellant was kneeling beside his daughter and assisting her to settle and go to sleep. He was patting S on her head and talking to her quietly. The complainant was lying on the wall side of the recliner. She was lying on her side, with her back facing the wall and her front facing S. S was between her and the appellant, who was at the side of the recliner. The recliner was about halfway between the upright and horizontal positions. There was a blanket over the complainant and S as they lay on the recliner, although it only covered the bottom half of them.
The complainant said that after about five minutes she “felt a press on [her] breast”. She also described it as a “light squeeze”. The contact was to her right breast, and on the outside of the jumper she was wearing. It lasted “about 10 seconds”. She heard the appellant sigh, and he then stood up and left and returned outside to where some of the adults were still drinking and talking. While her aunt, and some of her cousins, were in the room at the time, she thought they were all asleep.
At the time, the complainant did not know what to think about what had happened. She was not sure whether it was an accident. She was embarrassed, but tried to go to sleep and succeeded in doing so.
The complainant said that she then woke up to the touch of the appellant again. She opened her eyes and saw him. He was at the side of the recliner, on S’s side. The complainant said that the appellant touched her right breast again. The contact was “harder” than the previous occasion, and felt like “more of a squeeze”. The contact was to the outside of her jumper and lasted for “the same amount of time, about seven seconds.” The appellant did not say anything. She could hear S snoring, and assumed she was asleep. The complainant had her eyes closed. She heard the appellant leave and walk to an adjacent room where he was apparently going to sleep. The complainant was scared and did not know what was going on. She did not try and move until the appellant had left.
The complainant said that at that point she started to cry, and could not stop crying. She now knew that it was not an accident. She said she “freaked out”, but did not want to wake everyone up because she did not want to “mess everything up” on the twins’ birthday.
The complainant stood up and went over to her cousin (J) who was sleeping on the other side of the room. She woke him and asked to borrow his phone, but as he did not have it available, she went back to her position on the recliner next to S and tried to go back to sleep. She tried rolling over into a position “where he [could not] touch my breasts”, with her left arm in front of her.
The complainant fell asleep crying. She woke to find the appellant crouching by the recliner and touching her bottom. She described him as “cupping” and “rubbing” it. While not sure how long he had been touching her bottom before she woke, she estimated it lasted for about six seconds after she woke. S was still asleep on the recliner next to her. The complainant assumed that others in the room, including her aunt and J, were asleep.
The complainant recalled the appellant sighing and then walking around to the back of the recliner. She said that she then felt a lift of her jumper, and felt the appellant’s fingers “tapping” on both of her breasts. On this occasion the touching was under her clothing. She described the appellant as touching her from over the shoulder, down the top of her jumper. She estimated that the touching lasted “about the same amount of time, about seven seconds.” Again she said nothing, and he said nothing.
When asked what happened next, the complainant said “I am not sure where this fits in because I can’t quite remember, but I remember him rubbing his fingers up against my lips.” She repeated that she could not recall when this happened, but said that “it definitely happened”. She recalled feeling his hands “cupping my face a little bit and some thumb rubbing against my lips”.
The complainant said that after the “tapping” on her breasts, the appellant walked away. She lay next to S for about 10 minutes crying to herself. She knew it was not an accident, and knew she needed to do something to stop it. She went and sat next her aunt on her mattress. Initially her aunt did not wake and so she lay next to her. She recalls that as she lay there the appellant again entered the room, but soon left.
The complainant woke up her aunt and said she wanted to telephone her parents. Her aunt said “no” given the time of the night, and told her to go back to sleep. The complainant did not want to tell her aunt the whole story, but told her briefly what the appellant had done. She was not able to recall precisely what she said, but remembered saying she had been “molested” by the appellant.
The aunt left the room. The complainant assumed she had gone to speak to her husband (W) or his brother, the appellant. She was crying, and heard yelling, mostly by the aunt.
The aunt returned and called the complainant into the kitchen. Present in the kitchen were the complainant, the aunt, W and the appellant. The complainant told those present that the appellant had molested her. The appellant looked her in the eyes and said “I don’t know what you are feeling, I am sorry, but I was just tucking [S] in”. The complainant said that she was scared. She said she was only able to speak “lightly” and that all she did was nod when the appellant spoke and break into tears. She did not want to see or speak to the appellant.
The aunt eventually requested that the appellant leave the house. He collected his daughters and left. The police were telephoned. They attended and took a statement from the complainant.
At the conclusion of her evidence in chief, the complainant was asked the general question how many times she was touched on the breasts. She answered “twice or three times, really. Again I am not sure because I was asleep for some of it but it could have been way more … three maybe. I hadn’t been quite sure.” She confirmed that she was only touched on the bottom once.
In cross-examination, the complainant was challenged as to various aspects of the detail of her description of the three incidents she had mentioned in her evidence in chief, including by reference to the statement she gave to the police very soon after the incidents had occurred.
For example, in relation to the first incident it was pointed out to the complainant that in her police statement she had said that after feeling the appellant touch her right breast, his hand went down towards her stomach. In cross-examination, the complainant said she was not now able to recall the detail of the appellant’s hand moving or sliding away; but that she was clear about the touching of her breast, and did not regard her reference in her evidence in chief to the appellant “pressing” her breast as being any different to what was in her statement.
During cross-examination, the complainant also said that the first incident involved two touches of her breast, at least in the sense that the appellant touched her breast, stopped and sighed, and then did it again before leaving. The complainant acknowledged that she had not mentioned these two actions or aspects to the first incident in her statement, and said that she did recall the two actions, but said that as it was now over a year since the incident it might be that she was thinking of the second incident.
When pressed in cross-examination about the subsequent incidents, the complainant became unclear about whether in fact there had been three or four incidents of contact or touching by the appellant. As to when the appellant touched her bottom, she became unclear about which of the incidents this formed part of. She suggested it might have been after the second incident.
The complainant maintained her evidence that at some point the appellant touched her inside her jumper, and that this involved a “tapping” motion by the appellant with his fingers.
The complainant denied any recollection of the appellant ever shaking the blanket which was over the bottom half of them while they were on the recliner, or moving the blanket so that it was higher up on them.
The complainant emphatically denied that what had occurred was accidental touching while the appellant was tucking in or settling his daughter, or that she had otherwise misinterpreted what had occurred.
The aunt’s evidence
The aunt’s evidence was that she was woken by the complainant wanting to telephone her parents. When she refused to do so, and told the complainant to go back to bed, the complainant told her three or four times that “that man” had “touched” her on the “boob”. She eventually said the man she was referring to was the appellant.
The aunt said that she told the complainant not to be silly, that the appellant had “probably accidentally touched you to get his daughter off you”. The aunt said that the complainant’s “stories kept getting different and differenter” so she left the room and arranged for W, the appellant and the complainant to discuss the matter in the kitchen.
The aunt’s description of the conversation in the kitchen was difficult to follow. She described the appellant as having a look on his face like “what the hell is going on.” She recalled the appellant saying he was sorry if he scared her, but he was just tucking his daughter in, and she recalled the complainant saying that was not true (or at least shaking her head). She described how she requested that the appellant leave the house. She said that even though she thought the complainant was telling a lie, she did so because she was worried about what might happen when the complainant’s father (who was the aunt’s brother) arrived to collect her, and because she wanted people out of her house.
As for the complainant’s reaction, the aunt said that once the appellant left “she just laid in my room, like nothing was going on, no tears, no crying, no panicking because if you had that done to you I am sure you would be doing more crying and panicking.” When asked whether the complainant cried at all, the aunt answered “No. Sorry, maybe when I didn’t believe her and then she had to throw out this allegation that she maybe cried for a second and then she was bang, straight, no tears, laid in the bed that supposedly the man that had touched her, laid in that bed and was telling us this.”
When asked again whether the complainant was crying at one point, the aunt said “maybe one point, maybe.”
The appellant’s evidence
The appellant gave evidence that his daughter, S, had for a period of time been experiencing anxiety as a result of an incident at her school that had required the police to attend and for the school to be effectively placed in “lock down”. This had manifested in more general difficulties on the part of S, including difficulties in sleeping and with nightmares, and tantrums associated with going to bed. A letter from S’s school and from her doctor were tendered by consent to support the existence of these difficulties.
The appellant said that S’s sleeping issues were probably at their worst at about the time of the events the subject of these proceedings.
On the night in question, S had expressed to the appellant her desire to stay the night and to sleep on the recliner with the complainant. The appellant agreed to this.
The appellant recounted checking on S early in the evening while the complainant and S were on the recliner but still watching television. S and the complainant then came out to see him so that S could say goodnight to him.
While S initially went to bed apparently happily, she soon appeared at the back door, and the appellant could tell that she was worried and agitated. He could sense a tantrum brewing, but at the same time S was saying she wanted to stay with the complainant. The appellant sat next to her while she was on the recliner and started rubbing her head with one hand in an attempt to settle her. His other hand was on his daughter’s chest. She began cradling his hand and arm. His daughter was lying on her back, but then after a while rolled towards the complainant while she was still cradling his hand. They remained in that position for about five or 10 minutes until the appellant was satisfied that S had fallen asleep. He then extricated his hand by pulling it out. When asked whether this involved his hand coming into contact with the complainant, he said “[n]ot to my knowledge, no”.
The appellant went back outside and continued chatting with the adults who remained at the party.
About half an hour later the appellant went back in to check on S. He noticed that the complainant had shifted in towards the centre of the recliner and was compromising S’s position. S was pressed against the armrest and did not look very comfortable. The appellant reached in and lifted his daughter up, and then after realising he still needed to make some room, placed his right hand on the complainant’s forearm and his left hand on her hip, and with his open palm applied a moderate force to tilt her back. With that prompting, the complainant then rolled onto her back, giving some clearance between her and S. The appellant then adjusted S a bit more before returning outside.
Once outside, the appellant continued chatting with his brother. After half an hour or so he decided to go to bed. He had been offered a bed in a room joined to the lounge by a passage. The appellant went into the lounge and noticed that “the previous scenario had repeated itself,” and he “pretty much repeated what [he] did earlier.” The only difference was that this time when the appellant used his hands to prompt her to roll onto her back:
[T]his time she rolled inwards, into my hands, and I remember distinctly that she nearly caught my fingers under her body as she was rolling in cos I was sort of creating a barrier and she rolled forwards, sorry to the side, and I quickly took my hands out and as a result she dragged the blanket that was on her, over her shoulder she dragged the blanket down and it fell off and uncovered her and partly uncovered [S] after which I reached down and grabbed the blanket and snapped it and then placed it back over the two of them and went to bed.

The appellant was still worried about S and so after about 10 minutes he went back to check again, intending to retrieve her and take her into bed with him. Once in the lounge he realised the complainant had left the recliner and was on the floor with the aunt. He had assumed the complainant was asleep until that point in time, but realised that she must have at least woken to move places. He was relieved and went back to bed.
The appellant was later woken by his brother who told him that the complainant had alleged he had grabbed her by the breast. He said it was “bullshit” and got dressed and came into the kitchen. The complainant was sitting there “totally distressed, red-faced, in tears and just looked so stricken with grief that it shocked [him]”. He was taken aback and figured she had made a mistake or misinterpretation of what had happened. He said to the complainant “I am sorry I scared you and you have to understand I was just worried about [S] and you were squashing [S] so I just had to adjust the positioning”.
Soon after this the appellant was told he needed to leave. He took his children and left. The police arrested him early the following morning.
In cross-examination, the appellant denied at any point touching the complainant on the breast, although he acknowledged there was a possibility that he had inadvertently or unintentionally touched her on the bottom or the breast. He denied ever squeezing her breast or putting his hands under her jumper, saying in response to the latter “no, nowhere near it”.
The Magistrate’s reasons
After summarising the evidence at some length, the Magistrate observed that the evidence revealed that the appellant approached the recliner on which his daughter and the complainant were attempting to sleep on four occasions. I understand this to be a reference to the three occasions on which the complainant was on the recliner with S, plus the last occasion when the complainant was next to her aunt on the adjacent mattress. The evidence also supported some physical contact between the appellant and complainant on each of the first three occasions. While denying any contact with the complainant’s breast area, the appellant acknowledged the possibility of accidental touching on the first occasion as he removed his hand from being cradled by his daughter, and contact with the complainant’s hip and forearm on the subsequent two occasions in his attempts to roll the complainant away from his daughter.
The Magistrate addressed the credit of both the complainant and the appellant.
As to the complainant, the Magistrate said:
The complainant gave her evidence in chief in a calm, logical, chronological fashion. …
The complainant was a relatively confident young woman given her age. She was responsive to questioning and answered promptly. She was not prone to exaggeration or embellishment. She had a very detailed recollection of the events of the night in question. … She was clear and concise with her answers. She did not answer in an accusatorial or sarcastic manner and this was especially evident in cross-examination.
The Magistrate later added:
The complainant was a credible witness and gave detailed evidence. She recounted events from some time ago. Defence raised a question as to her reliability, based upon cross examination from her statement to police. There were some differences in her account from evidence in chief to cross examination and in particular as to the number of times the defendant came into contact with her and the sequence of the touches. No new types of touching was given in evidence – all evidence was of touches raised in the opening. The differences went to the number of times she was touched.
The Magistrate concluded that the complainant’s evidence was generally reliable, despite some discrepancies in her evidence as to the number of acts and their sequence.
An example was the complainant’s evidence as to the touch on the bottom. While not resiling from her evidence that she was touched, the prosecution case was particularised on the basis that this occurred on the second occasion, whereas the complainant’s evidence suggested it was the third.
Turning to the appellant’s evidence, the Magistrate said his evidence was “somewhat nervous and strained.” She said that he was defensive at times. Her Honour accepted that he was responsive to questioning and listened to what was being asked, but said his evidence was “not detailed”.
In particular, the Magistrate was critical of various aspects of the appellant’s evidence.
The Magistrate accepted the evidence of the complainant and aunt to the effect that in the kitchen on the night in question, the appellant said that he had been “tucking in” his daughter when the contact occurred. The Magistrate did not accept the appellant’s evidence that he said he was adjusting their positions. The Magistrate saw the difference between these two versions as “stark and relevant”.
The Magistrate described the appellant’s evidence on the issue of his child’s sleeping issues as unconvincing and lacking in plausibility. The Magistrate explained:
There is no evidence to suggest that the defendant needed to be checking his daughter on a regular basis in the manner he suggests he needed to. … He has deposed he deliberately placed his hands on the complainant on three occasions – one hand to her upper arm area and one hand to her thigh. Defence suggest that the complainant has misinterpreted innocent conduct.
The Magistrate expanded in relation to the lack of plausibility of the appellant’s evidence:
The defendant’s evidence was that he was exhausted after the long day. Nevertheless he was in and out of the lounge room on numerous occasions after he was aware his daughter was asleep. He said he was uneasy about the arrangement but did not want to wake his daughter by moving her. Despite this on his evidence he was moving a young girl who he had only met that day. He believed the complainant was asleep at all times he came into contact with her. This evidence is not plausible.
The Magistrate concluded:
I have considered the defendant’s evidence and I reject his version of events as to where he touched the complainant and the circumstances of his contact with her. His evidence is not consistent with his immediate response to the complainant where I have found he said he was tucking his child in. His evidence is that he was moving the complainant by placing his hands on her arm and thigh area to move her in the chair. He agrees he may have come into accidental contact with the complainant when he was first at the recliner with his child as she went to sleep. I reject the defendant’s evidence as to the physical contact he had with the complainant. The defendant’s version of events is neither credible nor believable. The defendant’s evidence was he was very tired, yet he went into the lounge on numerous occasions. The defendant has met the complainant for the first time on this occasion, he is aware she is 14 years of age, and his child is asleep. He has said that he may have accidentally come in to contact with her as he moved his hand away from his daughter and also that he placed his hands on her to move her on several occasions. If he needed to move her (which in itself is not accepted) then surely he would not have placed one of his hands on her thigh area. This would be contact with a child in a potentially compromising way and would not be prudent. The defendant has admitted he touched the complainant three times. He disputes where he touched her. I reject the defendant’s evidence. I reject the possibility of accidental or incidental touching of the complainant by the defendant. I have considered the complainant’s account. I reject the possibility of the complainant being distressed or misinterpreting innocent contact. At no stage did the complainant suggest he contacted her with two hands. Further, she said she was touched to her bottom, and not to her thigh area. The defence case is that contact was made with the front of her body, moving her over on the recliner.
Having accepted the complainant’s evidence as credible and generally reliable, and having rejected aspects of the defendant’s evidence, the Magistrate made findings as to each count. As to count 1, the critical findings were:
I am satisfied that at this stage the [defendant] came into direct contact with the complainant’s right breast by way of a squeeze with one hand as she was lying on the recliner next to the defendant’s sleeping daughter. He then walked away. I am satisfied it was a deliberate and intentional application of force and while not a long period of time was not a fleeting contact. I have considered whether this first contact was an accident and I reject that as a possibility. … I find that count one is proven beyond reasonable doubt.
Turning to count 2, the Magistrate found:
I am satisfied that the defendant did not move the complainant by way of placing his hands onto her arm and thigh area. I am satisfied there was a direct application of force to the right breast of the complainant by way of a squeeze – once again over the top of her clothing. This was of some duration. I am satisfied that this was deliberate and not accidental. The defendant had not been in physical contact with his daughter on this occasion.
The Magistrate then referred to the particulars of count 2 (which included touching of the complainant’s bottom) and the complainant’s evidence to the effect that the touching of the bottom did not occur until on the third occasion. The Magistrate did not find this aspect of count 2 proven. The Magistrate explained:
I am satisfied that there were a series of occasions in which the defendant came into contact with the complainant and after she complained of the matter to her aunt there was an encounter with the defendant. The trauma of that encounter, being woken up at night on several occasions by the presence of the defendant in the room and the sensation of being touched, the passage of time between the night and the giving of evidence, and the events of the evening themselves could account for a mixing up of the sequencing of events. I am satisfied there were a series of acts which could constitute indecent assaults. I can not be satisfied that on the second occasion there was contact with the complainant’s bottom. That part of the particulars alleged with respect to count 2 is not proven.
I find count 2 is proven to the extent that there was contact to the right breast on the outside of the complainant’s clothing, and that contact was an indecent assault.
Finally, the Magistrate found that count 3 was not proven. The Magistrate explained:
The particulars in Count 3 are that there was contact to the lips of the complainant and then the defendant put his hand under the complainant’s jumper and moved his hand from the neck towards her breast. The complainant’s evidence was of being touched to the bottom and breast and being touched under her jumper and to her lips. She complained of these actions to police on the night. The sequencing of the events raised in count 2 flows into count three. The timing of the events is a hard matter to resolve based on the evidence before the court. It may be that there was a very short period of time between events. As the complainant was asleep it would be impossible for her to know of the timing without access to a clock; she did not have that access. While I do not disbelieve the complainant that there were a series of occasions in which she was touched inappropriately by the defendant, given the issues raised with respect to the sequencing of events, and the particulars given in count 3, I can not be satisfied that count 3 is made out. The case has proceeded on the basis of the opening. The defence has been conducted on the basis of the opening. I find that count 3 is not proven and I find the defendant not guilty of count three.
Grounds of appeal 4, 5 and 8: the complaint and distress evidence
The Magistrate referred to the complainant having made an “immediate complaint to her aunt”. The Magistrate said:
The immediacy of the complaint in this case is a relevant factor. The complainant spoke to her aunt contemporaneously with the events of the night.
The Magistrate also made a finding, despite the aunt’s evidence, that the complainant was distressed in the period immediately following the incidents.
Evidence of the complaint was only admissible as relevant to explaining how the allegations came to light, and the consistency of the complainant’s conduct.[1] Consistency in this context means consistency in the sense of making a complaint when one would expect a complaint to be made, and consistency between the incident that is alleged and the terms of the complaint.[2] The complaint evidence was not admissible as evidence of the truth of what was said.
[1] R v J, JA (2009) 105 SASR 563 at [93].
[2] R v J, JA (2009) 105 SASR 563 at [95].
The evidence of distress was similarly admissible only to establish consistency of conduct.[3]
[3] R v Baltensperger (2004) 90 SASR 129 at [55].
The appellant complained that the Magistrate’s reasons were inadequate in that she failed to direct herself as to the limited use that might properly be made of the evidence of complaint and distress, or to otherwise explain what use she did make of that evidence.
There is an obligation on a judge who conducts a trial without a jury to provide reasons for verdict.[4] While the nature and extent of the reasons required will vary depending upon the facts and issues which arise at trial, the reasons need not be elaborate or extensive. They do not need to address every argument at trial, or to explain every step in the reasoning process or every detailed finding of fact.[5]
[4] R v Keyte (2000) 78 SASR 68 at [51].
[5] R v Keyte (2000) 78 SASR 68 at [48]-[49]; R v Dennis (2010) 202 A Crim R 453 at [27].
In the context of the limited use that may be made of certain types of evidence, a trial judge’s reasons need not replicate the instructions that would be given to a jury in a trial by jury, either as to form or content.[6] In particular, the trial judge need not use the formula of warning himself or herself as if he or she was the jury.[7] While the trial judge may choose to adopt this style of reasoning, it is generally sufficient that the trial judge’s reasons make it plain that he or she was alive to, and appropriately took account of, the issue that might have warranted a warning or direction to a jury.
[6] R v Keyte (2000) 78 SASR 68 at [54], [58]; R v Latifi [2014] SASCFC 74 at [68].
[7] R v R, R & R, LJ [2008] SASC 35 at [43].
Ideally the Magistrate should have set out in clear terms the proper and limited use that might be made of the complaint and distress evidence. However, I do not consider that the failure to do so involved error on the part of the Magistrate. There is nothing in the Magistrate’s reasons to suggest that her Honour made inappropriate use of the evidence. While her Honour described the complaint evidence as relevant, the relevance was anchored in the immediacy and contemporaneity of the complaint. This makes it plain in my view that her Honour saw the evidence as relevant to the consistency of the complainant’s conduct. As both the complaint and distress evidence were referred to only in the context of an assessment of the credit of the complainant, there is no basis for concluding that the Magistrate used the evidence as relevant to the truth of the complaint.
In relation to the distress evidence, the appellant also contended that the Magistrate failed to disclose her reasoning as to why she dismissed the alternative possible explanations for the distress. I do not accept that the Magistrate was required to descend to this level of detail in her reasons. It was sufficient that the Magistrate set out her finding that the complainant was distressed, and referred to (but impliedly rejected) the existence of other reasons that might have explained her distress. In other words, it was sufficient that her reasons demonstrated that the Magistrate was alive to, and took account of, the existence of alternative explanations.
The appellant also challenged the Magistrate’s reference to the aunt as being “quite hostile” to the complainant as a consequence of the allegations she made, and the Magistrate’s rejection of aspects of the aunt’s evidence. While “hostile” was perhaps an unnecessarily strong word to use, there is no doubt that the aunt was quick to dismiss the complainant’s allegations as mistaken, and indeed untruthful. As the Magistrate later observed, the aunt was certainly not sympathetic to the complainant on the night in question, or when giving evidence.
The Magistrate accepted and relied upon the aunt’s evidence at least as to the timing and fact of the complaint. To the extent that the Magistrate rejected the aunt’s evidence to the effect that the complainant changed her version of events on the night, the Magistrate was entitled to do so.
I do not consider that any error has been established in respect of the Magistrate’s treatment of the evidence of complaint and distress.
Grounds of appeal 3, 6 and 9: the Magistrate’s assessment of the appellant’s evidence
In addition to a general complaint that the Magistrate erred in rejecting the appellant’s credit and evidence, the appellant challenges two particular aspects of the Magistrate’s reasoning leading to this conclusion.
The first is her Honour’s reference to a “stark and relevant” difference between the appellant’s reference on the night to the touching occurring while he was “tucking in” his daughter and his evidence that it occurred while he was adjusting the positions of the complainant and S on the recliner. The appellant’s contention is that her Honour’s approach involved too literal an approach to the concept of “tucking in”, and that properly understood this was a more general reference to the process of checking and settling his daughter and so included adjusting the positions of S and the complainant.
The relevant passage from the Magistrate’s reasons was in the following terms:
The difference in the accounts is stark and relevant. The defendant’s defence is that he did place both of his hands onto the complainant as he pushed her away from his daughter on several occasions. It is not that he was tucking his child into the make-shift bed on the recliner or adjusting his daughter.
I accept that the appellant’s reference to “tucking in” his daughter could fairly be understood as involving more than literally tucking in the blanket that was covering his daughter. However, on a close reading of the relevant passage in the Magistrate’s reasons, the “stark and relevant” difference was not a move by the appellant away from a version that involved “tucking in” in a literal sense. Rather, the focus was upon an inconsistency or difference between the appellant’s reference to “tucking in” his own daughter, and his ultimate evidence that he placed his hands on the complainant. Indeed, in the last few words of the passage extracted above, the Magistrate seems to allow for the inclusion of “adjusting his daughter” within the appellant’s original version. This underscores in my view that the difference or inconsistency referred to by the Magistrate was the failure by the appellant to mention any adjusting or touching of the complainant in his original version of events.
The second specific challenge was to the Magistrate’s reference to the appellant’s evidence as to his daughter’s sleeping difficulties being “implausible”. Again, I accept that the evidence did support the existence of some sleeping difficulties on the part of S, and I do not think that it can be said that it was implausible that a parent would, over the course of a couple of hours, check on their child’s sleeping arrangements a handful of times.

However, it is again necessary to focus more precisely on the Magistrate’s reasons. The passages containing reference to the implausibility of the appellant’s evidence are extracted earlier in these reasons.
Closely analysed, the implausibility to which the Magistrate twice referred was more general than simply the regularity of his checking on his daughter. The implausibility included the appellant’s evidence that he twice touched the complainant in the manner that he described. The Magistrate considered this implausible given that she was “a young girl who he had only met that day.” The Magistrate later explained, or expanded, that if he had needed to wake her, “then surely he would not have placed one of his hands on her thigh area.[8] This would be contact with a child in a potentially compromising way and would not be prudent.”
[8] The appellant’s evidence was that he touched her on the hip or waist, rather than thigh, but I do not think anything turns on this distinction. On two earlier occasions in her reasons the Magistrate correctly recorded the appellant’s evidence as involving him touching her on the hip.
While I have some reservations in relation to the “tucking in” and “implausibility” planks of the Magistrate’s reasoning, I am not ultimately satisfied that they disclose error on the part of the Magistrate. While I am required on an appeal such as the present to undertake my own independent assessment of the evidence, I must nevertheless do so having regard to the findings of the Magistrate, and advantages that the Magistrate enjoyed in having seen and heard the witnesses give evidence. The Magistrate in this case has carefully considered the credit and reliability of the appellant, including by reference to his demeanour as a witness. In all of the circumstances, I do not consider that the Magistrate erred in rejecting the appellant’s evidence on the critical issues.
Ground of appeal 7: the Magistrate’s assessment of the complainant’s evidence
This ground of appeal was not developed beyond a submission that the Magistrate did not disclose her reasoning with respect to inconsistencies in the complainant’s evidence, citing R v Livingstone[9] and Driscoll v The Queen.[10]
[9] R v Livingstone (2011) 109 SASR 380.
[10] Driscoll v The Queen (1977) 137 CLR 517.
There is no merit in this aspect of the appeal. The Magistrate spent a significant portion of her reasons identifying and distilling the inconsistencies in the complainant’s evidence, and in particular the lack of clarity about the precise number and sequence of incidents of touching. Most of the inconsistencies were between the complainant’s original version of events in her police statement (which were reflected in the particulars of the charges at the outset of the trial) and the complainant’s evidence at trial, rather than internal inconsistencies in the complainant’s evidence at trial. The Magistrate made specific reference, for example, to the complainant’s reference in her evidence to the touching of her bottom forming part of the third count, rather than the second count (in accordance with the particulars).
In addition to referring to and identifying the inconsistencies, the Magistrate explained why she was nevertheless satisfied as to the complainant’s general reliability. The Magistrate emphasised that the inconsistencies were confined to the number and sequence of the incidents of touching, and did not involve any “new types of touching”. The Magistrate made express allowance for the distress the complainant would have experienced on the night in question, and the delay between the incidents and the matter coming to court.
The Magistrate was not satisfied that the complainant’s evidence was sufficient to make out count 3. However, in so holding, the Magistrate made it plain that she did not reject or disbelieve the complainant’s evidence. It was simply a case of the Magistrate considering each count separately and having some reservations about the precision or clarity of the complainant’s evidence as to count 3. In my view, not only does this explanation for the acquittal on count 3 negate any basis for contending that there was a relevant inconsistency between the verdicts, but it also underscores the close regard the Magistrate had to the fact and significance of the (in my view, relatively minor) inconsistencies in the complainant’s evidence.
Bearing in mind the Magistrate’s advantage in having seen and heard the complainant give evidence, which was reflected in the Magistrate’s detailed descriptions of the complainant’s evidence and demeanour, I am not satisfied that the Magistrate erred in accepting the evidence of the complainant.
Grounds of appeal 1 and 10: verdicts of guilty unsafe, unsound and against the weight of the evidence
The challenge to the Magistrate’s ultimate verdicts of guilty was again only addressed at a general level. The submission was effectively that the cumulative effect of all of the above matters disclosed error on the part of the Magistrate in finding that counts 1 and 2 were proven beyond reasonable doubt.
I do not think that this general ground advances the matter beyond the more specific challenges I have already addressed. I do not consider that the cumulative effect of the matters raised establishes any error on the part of the Magistrate.
Once it is accepted, which for the reasons set out above I considered it must be accepted, that the Magistrate was entitled to reject the evidence of the appellant, and accept and prefer the evidence of the complainant, then in my view there is no basis for impugning the verdicts of guilty. The complainant’s evidence, once accepted, was sufficient to establish beyond reasonable doubt counts 1 and 2.
At the risk of repetition, I am conscious of the requirement that I undertake my own review and assessment of the evidence. However, in a case such as the present, where the case turned on the assessment of the evidence of the two key witnesses (the complainant and the appellant), the advantages experienced by the Magistrate were very significant. Having read the transcript and the Magistrate’s reasons, there is nothing that suggests error on the part of the Magistrate in her assessment of the witnesses and hence in the ultimate findings made.
Conclusion
None of the grounds of appeal has been made out. The appeal must be dismissed.