Jeffrey Malcolm Pix v R No. SCCRM 92/644 Judgment No. 4000 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4000

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences offences against the person - appeal against conviction for attempted rape - girl nearly 13, 19 at trial - no corroboration - trial Judge did not give special warning on account of witness' age or the delay - conviction set aside.

HRNG ADELAIDE, 15 June 1993 #DATE 15:6:1993
Counsel for appellant:     Mrs M E Shaw
Solicitors for appellant:    Caldicott and Co
Counsel for respondent:     Mr P J L Rofe QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed, conviction set aside, appellant remanded for trial by another jury on the same information.

JUDGE1 COX J This is an appeal, by leave of the single judge, against the appellant's conviction on a charge of attempted rape. 2. The facts, briefly, were these. The appellant had previously been married to the mother of the complainant, who was a child of the appellant's then wife by a previous relationship. The couple later separated, and the offence was alleged to have been committed on an occasion when the child, then a girl nearly 13 years of age, visited the appellant at his home. 3. The appellant at that time was running a business with an animal ambulance, as it was called, and the Crown's case was that the appellant took the child, ostensibly while making a visit in the van, and stopped the van in the course of the journey and told the complainant to get into the back. There, on some sort of bed-like structure, he told her to remove her jeans and, when she did so, he tried to put his penis into her vagina. They then got back into the front of the van, and the appellant told the child that if anyone asked her why she was upset - because she was, in fact, crying at that stage - she was to say that she had fallen over. Indeed, according to her evidence at the trial, when she got home, she was asked by her brother and sister why she was crying, and she gave that prepared response. 4. Now, on that evidence, the matter went to a judge and jury in the District Criminal Court. There was no corroboration of the child's story. The summing up was unmistakably sympathetic to the appellant but, notwithstanding that, the jury brought back a verdict of guilty. 5. An unusual circumstance of the trial was that the complainant who, as I have said, was 12 years old when the alleged assault took place, told no-one about the alleged offence for some five years, with the result that when she gave evidence at the trial she was 19 years of age. This plainly posed a difficulty for the appellant, who was called upon to answer serious allegations with which he was confronted for the first time five years after their alleged occurrence. 6. There are a number of grounds of appeal. The first and foremost complains of a failure to give an adequate warning related to the age of the child at the time of the alleged offence, but also bearing in mind the lapse of time between the offence and the first report. It is said that, by reason of these matters, the verdict is unsafe and unsatisfactory. 7. The appellant also complains about the learned trial judge's failure to deal adequately with a lie, or alleged lie, that the jury may have considered that the accused told with respect to the nickname of some female acquaintance. 8. I can deal with that last matter quite briefly. It was, in my view, peripheral to the issues that the jury had to consider. The learned trial judge virtually dismissed the matter, in a brief reference to it in his charge to the jury, as irrelevant. No request was made by the appellant's counsel for a re-direction on the subject. The attitude evidently taken to the matter by both judge and defence counsel was completely understandable in the circumstances. In my view, it is inconceivable that the jury could have attached any significance to such a minor and conjectural matter, and that ground of appeal, in my view, must fail. 9. That leaves the more important question whether any warning, either of the conventional kind or some lesser sort, should have been given in this case. Mrs Shaw's submission was that, by reason of the long lapse of time and also the circumstance of the girl's age at the time of the alleged offence, it was not enough merely to refer to the difficulties that the trial posed for the jury. They needed the force of an express warning by the judge with respect to those matters, not perhaps a full corroboration warning, but an adjuration that they should at the least scrutinize the complainant's evidence with special care. 10. There have been a number of cases in this court in recent years dealing with the matter of the age of a young witness, and the kind of warning that might be called for, given an age of something less than full maturity at the time the alleged offence takes place, or at the time when a report is first made to any other person - most obviously an adult in a position of authority or the police - or the age when the witness actually gives evidence at the trial. 11. The need to give a warning, and the kind of warning that will be required, will depend on the circumstances of the particular case, and it is unwise to be dogmatic, about either of those matters, except in the clearest of cases. 12. Here the witness was 19 at the trial and had then been in employment for some years. She was nearly 13 when the alleged offence took place. It is important that she made no complaint about the matter for some five years afterwards, so she was not then locked into a story which she might have felt bound to support to the point of giving evidence against the appellant at a criminal trial. I doubt whether many children of nearly 13 years of age would be the innocent victims of their own imagination, so far as this kind of allegation is concerned, and there could, in the circumstances, be no question of a childish impulse being the explanation for the grave accusation which was eventually made or of the witness acting under the influence of others. I think, myself, it would have been better had the learned judge alluded to the matter of age, but it was certainly not a case calling for a full warning in that respect. 13. The matter of delay, I think, provides a ground of more substance. The lateness of the complaint must inevitably have created difficulties for the appellant. 14. We were, not surprisingly, referred to the High Court's decision in the case of Longman 168 CLR 79. Of course, that was a very different case from this. The complainant in Longman was six years of age when the first of two serious sexual assaults, of which she spoke, occurred, and 24 years passed before she told anyone about it. It is hardly surprising, then, that a conviction based on such evidence should be scrutinized by the appeal courts with the most anxious care. 15. However, while the delay in this case was by no means as dramatic as in the case of Longman, the principle that was applied there has, I think, some application to this trial. There were instances emerging from the evidence, for example the appellant's disposal in the meantime of the vehicle in which the alleged offence was committed, which emphasised the serious difficulties which the appellant, if innocent, faced in meeting this charge. 16. The learned judge certainly described the difficulties to the jury; indeed, he did so at some length and, as I think I have observed, in a manner substantially sympathetic to the appellant. However, it is one thing to acknowledge the difficulties; it is another to assist the jury in their dealing with the matter and here, I think, the summing up was deficient. In my view, it would have been better had the learned judge not merely drawn attention to the problems for the defence that were occasioned by the abnormal delay, but also alerted the jury to the need for that reason to scrutinize the complainant's evidence with special care. 17. I do not think that I would regard either of the principal grounds of appeal - that relating to the age of the complainant and that relating to the time lapse - as alone sufficient to undermine the verdict of the jury in this case. However, it not infrequently happens that a combination of circumstances will lead an appeal court to feel uneasy about a guilty verdict. 18. Bearing in mind not only those particular features of the case, but also the fact that the complainant's evidence was completely uncorroborated and that she did not make any complaint at the time - although, of course, she had every opportunity of doing so -, I think it can be said that the verdict of guilty in this case is unsafe. 19. I emphasise, if it is not plain enough already, that this does not mean that every case in which there is a time lapse of five years, between an alleged offence and an accused person's confrontation with it, will necessarily require some special warning; nor that a special warning need necessarily be given by virtue merely of the age factor in circumstances such as these. The court's decision, in my view, will operate as a precedent only in the unlikely event of circumstances in a future case being found again in this special combination. 20. There is no reason why the appellant should not be required to stand trial again and, indeed, there has been no argument to the contrary. 21. I would allow the appeal, set aside the conviction and remand the appellant for retrial.

JUDGE2 DUGGAN J I agree with the order proposed by Cox J and I also agree with the reasons which he has advanced in support of his conclusions. I add these few comments of my own. 2. Mrs Shaw based her assertion that there should have been some sort of warning given to the jury in this case on a number of factors including the consideration that this was a case of oath against oath without any corroboration to support the complainant's version; that the complainant's age at the time of the incident was approximately 13; that there was a lapse of time, some five years, between the alleged occurrence of the incident and the making of the complaint; that there was vagueness about the evidence of the complainant (a matter referred to by the learned trial judge in the course of his summing up, but not in the context of a warning to the jury); the fact that the delay made it difficult to refute the allegations made by the complainant; and that on one of the few matters upon which the complainant could give some detail as to the incident, there was strong evidence to the effect that she was wrong. 3. As my brother Cox J has pointed out, there are now a number of cases in which the need for giving a warning of some sort in cases such as this is discussed. In Longman v. The Queen 168 79 CLR at p 86 in the joint judgment of Brennan, Dawson and Toohey JJ, their Honours said -
    "Of course, a warning might be needed not only to avoid the risk
    of miscarriage of justice which the rule of practice seeks to
    avoid but a risk of miscarriage arising for reasons other than the
    suspicion attaching to the evidence of any alleged victim of a
    sexual offence. Apart from the special rule, the general rule
    requires a warning to be given whenever a warning is necessary to
    avoid a perceptible risk of miscarriage of justice arising from
    the circumstances of the case." 4. And McHugh J after referring to the Western Australian statutory provisions which have obviated the necessity to give a warning in sexual cases simply because they are sexual cases had this to say:-
    "If, however, the evidence discloses any circumstance which
    suggests that the evidence of the complainant may be unreliable,
    the trial judge has a duty to make the jury aware of the dangers
    concerning that person's evidence. As in any case where the
    prosecution depends solely upon the evidence of one witness, the
    trial Judge is entitled to point out that the evidence of the
    complainant requires careful scrutiny before acting upon it. But
    cases will frequently arise where the circumstances will require a
    strong ruling. The terms of that warning will depend upon the
    particular circumstances of the case." (p.107) 5. One of the South Australian cases in which those principles have been discussed is In the matter of the question of law reserved on acquittal pursuant to the Criminal Law Consolidation Act No.1 of 1993 (unreported 3896 delivered 20th April, 1993) and, in particular, in the judgment of the Chief Justice at p.4. 6. The learned trial judge in the present case summed up to the jury in a manner favourable in some respects to the applicant, but he made no reference to the dangers inherent in the combined circumstances of the case or the need to exercise particular caution in a case such as the present. He simply identified some of the difficulties with which the jury were faced. 7. I agree with my brother Cox J that the fact of the girl's age by itself would be insufficient in the circumstances of the case to overturn this conviction and send the matter back for retrial. However, it is my view that the case called for a warning which specifically directed the jury's attention to the aspects which I have summarised and the careful scrutiny to which the evidence should have been subjected in the light of those matters.

JUDGE3 DEBELLE J I would dismiss the appeal. The summing up was in my view expressed very favourably to the accused. The learned trial judge on more than one occasion referred to the conflict of the evidence and to the delay in the making of the complaint and, in the context of each, emphasised the requirement that the Crown prove its case beyond reasonable doubt. At the conclusion of his summing up, he returned again to the difficulties in the evidence and gave particular emphasis again to the need for the Crown to prove its case beyond reasonable doubt and gave a warning to the jury along the lines of the warning in R. v. Calides (1983) 34 SASR 355. Though no express warning or caution was given as to 9 either the conflict in the evidence or the delay in the making of the complaint, viewed as a whole the summing up was tantamount to such a warning and I believe the jury would have understood it in that way.