Harwood v Police No. Scgrg-98-190 Judgment No. S6610

[1998] SASC 6610

HARWOOD  v  POLICE

Magistrates Appeal
Duggan J

The appellant was convicted in the Magistrates Court at Elizabeth of three counts of indecent assault.  The information alleged that the appellant indecently assaulted his stepdaughter on three separate occasions between 1st May 1992 and 14th June 1992.  The complainant was 15 years of age at the relevant time.  The appellant has appealed against his convictions on all three counts.  The grounds of appeal relate principally to the alleged failure of the learned magistrate to deal adequately with the central issues of the case in his reasons for decision.  In order to address these arguments it is necessary to summarise the evidence in some detail.

At the time of the alleged incidents the complainant was living at Two Wells with her mother, the appellant, her three brothers and one of the appellant’s sons.  Her mother was a teacher at the Two Wells Primary School and her father was a registered nurse at a facility for crippled children.  According to the prosecution evidence the incidents were brought to the attention of one of the complainant’s friends about a month after the alleged occurrences.  The complainant’s mother was advised and outside counselling assistance was obtained for the family.   However a complaint was not made to the police until 1996 when the complainant said she became concerned by reason of the fact that the appellant had commenced employment which involved looking after young children.

The complainant gave evidence that the first incident took place while she was sitting on the bed in her bedroom.  She said the appellant came into the room, sat next to her and kissed her.   She said he forced his tongue between her lips but she kept her teeth clenched so that he could not put his tongue into her mouth.  She described the contact as “hard” and said that it lasted for a few seconds before he got up and left.  She said she was frightened by the incident.  According to her evidence he had kissed her before but in what she described as a “fatherly sort of way”. 

The complainant said that about a week after the first incident the appellant approached her while she was lying on her mother’s bed watching television.   She said he lay on top of her and rubbed his penis against her vagina.  They were both wearing clothing at the time and the rubbing took place through the clothing.  She denied in cross-examination that the incident was in the nature of a clumsy wrestle. 

The complainant said that the third incident took place in her bedroom.  The appellant came in to say good night to her and he lifted up the blanket and pulled up her nightgown.   This uncovered her breasts and he touched her left breast and moved his hand down towards her vagina.  He stopped at her pants and said “better not do that”.  She said the incident lasted for a few minutes.  She denied the suggestion put to her in cross-examination that this might have happened as part of a tickling game.

The complainant then described the circumstances in which she spoke to her girlfriend about the incidents.  She said she was at the girlfriend’s house over a weekend attending a party.   A number of other girlfriends attended the party.  She said:

“We were playing a high school game called Skeletons in the Closet and a question came up ‘Have you ever been raped?’   I said ‘No’, and then I said that I had been messed around with by Trevor (the appellant) and I broke into tears.”

She said she stayed at her girlfriend’s house for some days on this occasion because her girlfriend’s mother was worried about sending her back to the house in which the appellant was living.  When she returned home she spoke to her mother about what she said had taken place with the appellant.  She said she  also spoke to welfare authorities.  She said her mother spoke to the appellant.  Her mother also asked their local minister of religion to come around and discuss the matter with them.

Antonella Pilaia gave evidence.  It was at her 15th birthday that the game to which I have referred took place.  She said she turned 15 in June 1992 and the party took place on a weekend at about that time.  She said that in the course of the game the question was asked “Has anyone been raped or sexually assaulted?”.  She said the complainant was the first person who was asked the question.   Miss Pilaia described the complainant’s reaction:

“Well, she sort of was a bit cautious of it.   Whether just saying it or not, neither to say Yes or No, and then she just - after she said Yes, she started crying, so we knew she really wanted to tell somebody.”

The complainant was asked further questions about the matter and she said that her stepfather was the person responsible.   Miss Pilaia told her mother on the following morning.   Miss Pilaia’s mother, Mrs Mooney, said that when she was told of the incident she spoke to the complainant who was in tears.   Mrs Mooney suggested that they ring Crisis Care and tell them about the matter.  The complainant agreed and Mrs Mooney made the phone call.   Mrs Mooney also spoke to the complainant’s mother on the telephone and told her of what had taken place during the party.

Mrs Harwood, the complainant’s mother, gave evidence.  She said that when her daughter returned from her girlfriend’s place after the birthday party she told her about the tongue kissing and the touching on the breast and in the vicinity of the vagina.  She said the complainant was very upset.  Mrs Harwood said that she then confronted the appellant with the allegations.   He told her that it was all a mistake and that he had been tickling the complainant when his hand had slipped and he had touched her accidentally.  Mrs Harwood said that the appellant convinced her that this was the case and so she rang Crisis Care and told them about the explanation the appellant had given to her.  According to the witness she was told that what she had said would be noted but that, under the circumstances, it was probable that nothing would come of it.  However Mrs Harwood said that when she spoke again to the complainant the latter made it clear to her that it was not an accident and so she asked her daughter to explain the circumstances further.   When this took place Mrs Harwood contacted Mr Hurst, their local minister and asked him to come to her house.  After Mr Hurst arrived she spoke again to the appellant.  Her evidence continued as follows:

“I went into the room with Jeff [Mr Hurst] and then I said to Trevor ‘I’ve spoken further to [the complainant] and she says that it was more than an accident, and you didn’t just do it accidentally.  You had rolled on top of her.  You had touched her and tongue kissed her.’  He said, then said to me, ‘Yes’.  I said ‘Did you do this, and for Christ’s sake, why did you do this?’  He said ‘I couldn’t help myself, I lost control.”

She said the appellant left the house that night.  He was away for about four or five days but he eventually returned to live with Mrs Harwood and the complainant.  Mrs Harwood said that while the appellant was staying away from the house he rang her.  He was crying and begged her to forgive him.  He said he wanted help and was going to see his psychiatrist.  There was evidence that he was seeing a psychiatrist before the incidents are alleged to have occurred.   Under cross-examination Mrs Harwood said that she remembers distinctly that her husband admitted the conduct complained of.  She said:

“I clearly remember him saying ‘Yes I did it’.  He didn’t explain what it was, he said to me ‘Yes I did it’, and I remember that and I will remember that to my dying day because it was like a bolt of lightning.”

Mrs Kemsley, a friend of the complainant’s mother, gave evidence about the events of a Sunday when she was contacted by the mother of a friend of the complainant who told her that there was a problem with the complainant and that Crisis Care had been called.  Mrs Kemsley said that she went to the complainant’s house and spoke to her and her mother.  She said that she also spoke to the appellant and said “Why have you done that?  What have you done?” and he replied “I don’t know, I just did it, I just did it”.  She referred to another occasion when she was driving alone with the appellant in a vehicle.  She said:

“He was driving me down Pt Wakefield Road, I’m not sure why, I know we went in the car and they had just had a massive argument and he told me he was really upset about the argument and I said ‘look you are never going to get this solved until you bring all of this out into the open, what actually happened between you and [the complainant], you know I can’t help you if you don’t tell me’ and that’s when he said ‘I touched her, I touched her’ and I said ‘what do you mean you touched her, once or when or what’ and he said ‘no, lots of times, several times.”

Mrs Harwood Senior, the mother of the appellant, gave evidence of an occasion when the complainant and her friend Vanessa visited her house.  She said that she understood Vanessa had made a complaint of rape against her father.  She said she overheard a conversation between Vanessa and the complainant.   The complainant was talking about something and said “I would not be allowed to” and Vanessa said “Just do what I did to my Dad and you can do anything you want”.  The complainant denied that this was said but the learned magistrate accepted that the comment was made.  However he did not regard it as being of particular significance.

The appellant gave evidence.  He said that he was 46 years of age.  He described his marriage to the complainant’s mother as unsuccessful and unsettled.  He described the living arrangements when the complainant and her family came to live with him.  He was asked about the first incident.  He said that from time to time he kissed the complainant goodnight on her cheek and occasionally on her lips.   He denied the allegation that he attempted to force his tongue into the complainant’s mouth.  He also denied the complainant’s version of the second and third incidents.   He said he did not lie on the complainant and rub himself against her; nor did he pull the covers off the complainant’s bed, lift her night gown and touch her breasts.  He referred to an occasion when he said he accidentally brushed the complainant’s breasts as he was wrestling with her in a playful manner. 

According to the appellant he did not confess to the events at any time.  He agreed that when speaking to his wife he said “I did it” but he meant that he simply touched the complainant.  He denied saying that he could not help himself and that he lost control.  The appellant said that at no stage did he admit to Mrs Kemsley that he had indecently assaulted the complainant.  He said in evidence:

“The only thing I said to Chris Kemsley is that I have touched [the complainant] and there was no indication of several times at all.  I said I had touched [the complainant].”

He said he did not discuss the context in which he had touched her.

The appellant said that he had play fights with the complainant from time to time and he would also tickle her.  He said he was tickling her under the arm one evening and his hand slipped and came into contact with one of her breasts.  He also said that his wife asked him on an occasion when they were separated to pay some bills and told him that she would get the complainant to report him for sexual assault if he refused.  Mrs Harwood denied this allegation.

In his ex tempore reasons the learned magistrate went into some detail in summarising the evidence of the various witnesses, including the appellant.   However with one or two minor exceptions he made no comment on the probative value of the evidence, its significance or the credibility of any of the witnesses until he came to the last two paragraphs of his judgment.   He then said:

“I am mindful that I should exercise great caution before deciding any of the issues against the defendant.  I had the opportunity to hear and see all the witnesses give evidence.  I found [the complainant] to be a good witness, a witness of truth and a person upon whose evidence I could rely.  I say the same about [the complainant’s] mother and Mrs Kemsley.  As for the defendant, I do not find that his evidence had a ring of truth about it.  Indeed I find that given the sequence of events and conversations which occurred once [the complainant’s] mother and the Pastor became involved, I have very little difficulty in finding that there simply is no reasonable possibility that the defendant’s explanation of ‘it’ or of his denials is true.

Having regard to the evidence of the prosecution witnesses and the defendant, I have no hesitation whatsoever in finding that the prosecution have proved each count beyond reasonable doubt.  Where there is conflict between the evidence of the prosecution witnesses and in particular [the complainant], her mother and Mrs Kemsley, and the evidence of the defendant, without hesitation I prefer the evidence of the prosecution witnesses.  The defendant is convicted on all three counts.”

It is convenient at this point to say something about the duty of a magistrate to give reasons for decision in a contested matter such as the present case.  The extent to which reasons should be given depends very much on the circumstances of the case, but some general comments can be made.  In Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 it was held that the failure to give proper reasons is an error of law. Whether or not that is so, the case is instructive in the way in which it highlights the practical consequences of inadequate reasons in the event of an appeal. Kirby P had this to say on that topic (p259):

“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.  But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.  Only if this is done can this Court discharge its functions, if an appeal is brought to it.  Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.  Justice has not been done and it has not been seen to be done.”

His Honour, whilst recognising the appropriateness of abbreviated reasons in busy trial courts, nevertheless emphasised that the reasons must be adequate for the exercise of the facility of appeal.   (supra at 260)
(See also Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 per Gibbs CJ at 666).

The same point was made in  Sun Alliance Insurance v Massoud [1989] VR 8 at 18:

“The adequacy of the reasons will depend upon the circumstances of the case.  But the reasons will, in my opinion, be inadequate if:-

(a).... the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)     justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap.  If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

In applying the above criteria to the circumstances of this case, it can, I think be said that the learned trial Judge’s reasoning remains obscure.  This Court is not able to identify with any conviction the considerations which moved his Honour to reach his conclusion.  His Honour’s judgment may have miscarried because irrelevant matters were considered.  In this connection, it appears that his Honour placed weight on at least one irrelevant fact, namely that the plaintiff was not charged with a criminal offence.  It further appears that his Honour believed that the plaintiff’s case was supported by the evidence of his wife, which was not the case.

But the important fact is that the paucity of his Honour’s reasons is such that his reasoning process is not revealed to this Court to enable a judgment to be made as to whether his Honour fell into error.”

Finally, the following advice was given by this court in Lawson v Lee (1978) 19 SASR 442 at 446:

“We therefore state the following practice as being appropriate for Courts of summary jurisdiction.  When constituted by a legally qualified Magistrate they ought to give reasons in which they state their findings on disputed issues.  These reasons do not have to be long but they should be coherent, intelligible and comprehensive.  A court of appeal will more readily uphold the ultimate finding (i.e. as to guilt or non-guilt) of a defendant if it is supported by such reasons.”

The court went on to say that if no reasons are given the Court of Appeal may uphold the magistrate if, on its own review of the evidence it is satisfied that the ultimate finding was properly reached.  In some cases the process of reasoning will be apparent as a matter of inference.

Nevertheless there will be cases in which an independent review cannot effectively take place on appeal.  An example of such a case occurs where the resolution of the issues depends to a large extent on findings of credibility and where the process by which the magistrate reached his or her conclusions is not apparent from the reasons for decision.   This difficulty will be compounded if evidence is led in support of the prosecution case which has permissible and impermissible uses and the reasons do not disclose whether the evidence was relied upon or, if it was relied upon, the manner in which it was considered relevant.  It is not sufficient in such a case to say no more than that one body of evidence is to be preferred where it conflicts with another body of evidence in the case.

In the present case the credibility of the complainant and the appellant were crucial, but there was no discussion in the reasons for decision as to the manner in which the learned magistrate assessed them apart from the bald statements which I have set out above.  On an appeal from a Magistrates Court there is a duty to re-hear the case in the manner described in Taylor v Hayes (1990) 53 SASR 282 at 290. If credibility is an issue the court takes into account the considerable advantage which the magistrate had in observing the witnesses and listening to the evidence as it was given. Nevertheless, even in case where evidence of credibility is of the essence of the dispute, it is often important for the appellate court to examine the process of reasoning which led the court at first instance to accept or reject witnesses. It goes without saying that the assessment of credibility rarely turns entirely on observations of demeanour. The impact of other evidence on the version given by a witness is often of considerable importance in the assessment of that witness and this may involve an examination by the appellate court of the manner in which the other evidence was applied by the court at first instance to the consideration of the witness’s reliability.

One of the grounds of appeal which gives rise to this process complains of the lack of specificity in relation to the finding concerning incriminating statements alleged against the appellant.  The evidence of the complainant’s mother is set out above.  Mrs Harwood explained in her evidence that she was very upset when she first heard the allegations from her daughter and it was not clear to her whether the alleged acts all took place on the same occasion or whether there were separate occasions.  The appellant is alleged to have given an affirmative answer to the “rolled up” allegation and added, in answer to another question, “I couldn’t help myself, I lost control”.  In his evidence the appellant denied the second statement, although he agreed that he said “I did it”.  He said he was referring to a simple touching of the complainant.

According to Mrs Kemsley, she asked the appellant what he had done and why.  He replied that he did not know.  He added “I just did it”.   She said that on another occasion the appellant said “I touched her” and added that this had taken place several times.  The appellant said that he told Mrs Kemsley he had touched the complainant, but did not admit that he had indecently assaulted her.  He denied making any reference to “several times”. 

The evidence of the alleged admissions was of considerable probative value if accepted.  In its totality it provided important support for the complainant’s version.    That is not to say that it was essential to a successful prosecution.    The learned magistrate may have been prepared to accept the evidence of the complainant without any supporting  evidence.  On the other hand it may have played an important role in the court’s assessment of credibility.   But before it could play a significant role, the steps leading up to the conclusion that it was probative evidence had to be taken, following which the extent to which it was relevant had to be assessed.     In practical terms this process would involve ascertaining the extent to which the evidence given by Mrs Harwood and Mrs Kemsley could be accepted beyond reasonable doubt before going on to weigh the probative value of that evidence in relation to its potential to assist in determining the credibility of the complainant.

Unfortunately the learned magistrate’s reasons fall far short of giving an effective insight into the manner in which the evidence was used.  His evaluation of it is restricted to the passage from his reasons which I have quoted above.   His Honour stated in broad terms that he accepted the evidence of Mrs Harwood and Mrs Kemsley where it conflicted with that of the appellant.  The alleged admissions were not referred to in specific terms.   The comment which came closest to the issue was his Honour’s rejection of the appellant’s explanation of “it”.  Presumably this was a reference to the statement “I did it”.   There is nothing in the reasons to assist with the precise extent to which the prosecution witnesses were accepted in relation to these conversations; nor is there any indication of any inferences which the learned magistrate might have drawn from what was said and how this was relevant to the credibility of the complainant concerning the proof of the three offences charged in the information.  In the absence of this information it is impossible for an appellate court to review, in a proper manner, the process of reasoning which led to his Honour’s conclusions.

Another ground of appeal raises the issue of complaint and distress.  The complainant did not immediately complain to her mother about the incident.  She gave her reasons for not doing so.  However she did make a statement in relation to the appellant’s alleged conduct when she was questioned while playing the game at her friend’s house.  It is not suggested by the respondent that this was a spontaneous recent complaint.  It could not be used as evidence of consistency in assessing the credibility of the complainant.  No objection was taken to the leading of the evidence by the prosecution and the appellant’s counsel conceded that it could be regarded as being relevant to the unfolding of the events and to counter the defence argument in relation to the late notification to the police several years later.   However it was important that these statements by the complainant not be used as evidence of recent complaint.   Furthermore the learned magistrate twice referred to the evidence that the complainant was distressed on the occasion when she told her friends about the appellant’s illegal conduct.  That evidence could not be used in the assessment of the complainant’s credibility if it was equivocal in its effect.   Furthermore, if it was not equivocal a further judgment had to be made as to whether it could be used as evidence of consistency with the complainant’s version or whether it was one of those rare cases in which it could be treated as independent support for the complainant’s version.  (R v Schlaefer (1984) 37 SASR 207 at 216; R v Wilson (1973) 58 Cr App R 304 at 311). There is no indication in the reasons for judgment as to whether the evidence of distress was taken into account by the court and, if so, in what manner.

Next the appellant drew attention to the delay of four years in reporting the matter to the police.  It was suggested that the delay was relevant in two respects; first that it cast doubt on the veracity of the complainant and second that it hampered the appellant’s defence in view of the lack of specificity in the particulars of the charges and the inability to investigate in detail the surrounding circumstances of the occasions on which the alleged offences took place.  In my view the first point is of quite limited relevance.  This is not a case in which the allegations were raised for the first time some years after the alleged incidents.  The allegations surfaced within weeks of the period specified in the information.  It would appear that they were brought to the attention of the welfare authorities who might well have been influenced by the complainant’s mother in her early conversation with them into taking no further action at that stage.   This does not reflect adversely on the complainant.   She was 15 years of age at the time and I do not think it reasonable to expect that she should have persisted with the complaint by taking it up with the authorities after what had happened.  Nor do I think it particularly significant that she was alone with the appellant from time to time after the incident.   She was living with her mother and the appellant in the same house.

In my view this is not a case which rendered the evidence clearly unsafe or unsatisfactory by reason of the delay.   However it is of some relevance that the events took place a significant time before trial and it was appropriate to take this into account when assessing the reliability of the evidence.  The learned magistrate referred to the delay on two occasions, but by way of explaining why there may have been understandable discrepancies in the prosecution evidence.  There is no suggestion that he took it into account for other purposes.  I think it is a matter which should have been considered when assessing the evidence as a whole.  I make no comment as to the degree to which it should affect the assessment of the evidence.

Other criticisms were made of the reasons for judgment, but enough has been said to indicate that there were important shortcomings in the reasons for judgment and these difficulties cannot be overcome by an assumption on my part that the issues were properly addressed.  In my view an adequate appellate review cannot take place in the present case and the convictions must be quashed and the sentences set aside.

I was invited by counsel for the appellant not to order a retrial.   In my view there is no justification for that course.  The evidence was not so unsafe or unsatisfactory as to warrant such an order and there is no other reason which would require it.

I direct that there be a retrial before another magistrate.