Jonkers v Police

[1996] SASC 5956

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law - indecent assault - complainant a girl aged 15 - whether evidence of distress properly taken into account - admissibility of complaint - whether admissions made as a result of pressure from a woman in loco parentis should have been excluded - effect on court's assessment of credibility of accused - appeal allowed and information remitted for rehearing by another magistrate. R v Osborne [1905] 1 KB 551; R v Norcott [1917] 1 KB 347; R v Dubois [1966] QWN 37; The Queen v Peake (1974) 9 SASR 458; R v Corkin (1989) 50 SASR 580; S B King (1995) 78 A Crim R 53; Anthony Valentine (1996) 2 Crim App R 213; W B Scofield (1988) 37 A Crim R 197; The Queen v T Collins (1976) 12 SASR 501, applied.

HRNG ADELAIDE, 26 September 1996 (hearing), 20 December 1996 (decision) #DATE 20:12:1996 #ADD 28:1:1996

Counsel for appellant:     Ms G Brown

Solicitors for appellant:    C B McDonough &; Co

Counsel for respondent:     Ms R C Gray

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 Matheson J

1. The appellant pleaded not guilty before Ms R H McInnes SM in the Magistrates Court at Port Adelaide to a charge for that on "the 11th day of December 1994 at Semaphore Park in the [State of South Australia he] indecently assaulted a person over the age of twelve years."

2. No particulars were sought or given. "The person" was Carrie Maureen Strong, then aged fifteen. The appellant was convicted and released upon a bond to be of good behaviour for eighteen months. He has appealed on the following grounds:
    "1. The Learned Magistrate erred in admitting into evidence the
    evidence of Mrs Ottens of the alleged victim's 'distress'.

2. The Learned Magistrate erred in admitting into evidence the
    'complaint' made by the alleged victim to Mrs Ottens.

3. The Learned Magistrate erred in not giving reasons as to why
    she rejected the evidence of the appellant.

4. The Learned Magistrate erred in admitting as evidence, and gave
    undue weight to, the so called 'confession' to Mrs Ottens.

5. The finding of guilt by the Learned Magistrate is unsafe and
    unsatisfactory."

3. In the late afternoon of the date charged, the complainant, Mr and Mrs Ottens, some other children and the appellant all went to have a swim at a pool owned by a friend of Mr and Mrs Ottens. In addition to the complainant, both Mr and Mrs Ottens gave evidence and a police record of an interview with the appellant was tendered by consent. The appellant also gave evidence.

4. The learned Magistrate described the role of Mr and Mrs Ottens. She said:
    "At all material times Mr. and Mrs. Ottens were employed by the
    Department of Family and Community Services (FACS) as INC parents.
    INC stands for Intensive Neighbourhood Care. FACS had arranged
    for the Ottens family to care for the alleged victim for six
    months, on an 'INC placement'.

The INC programme is one which counsel and magistrates are
    familiar with, as young offenders are sometimes referred to INC
    placements.

During the trial, evidence was given about the INC programme.
    Children in need of short term intensive care outside their home
    are placed by FACS in a family environment where, for a limited
    period, they receive special intensive care. Certain families are
    approved as INC parents by FACS. INC parents take children
    (identified as being in need of special intensive care for some
    reason) into their homes, and provide short term intensive care
    under FACS supervision. INC placements are not 'foster'
    placements. While some adolescents who benefit from INC placement
    are young offenders, young offenders are a small minority of the
    juvenile population. The INC programme is a programme for all
    juveniles, not just juvenile offenders. It is a welfare or 'care'
    programme, not a juvenile justice programme.

It was clear from the evidence that the Ottens family, and Mrs.
    Ottens in particular, have had, over many years, extensive
    experience in providing the required standard of care to children
    and adolescents in need of this special intensive care. I am
    satisfied that as a result of this experience, carried on under
    the supervision of professional staff working with FACS, Mrs.
    Otten is a trained observer expert in identifying behaviour and
    behaviour patterns exhibited by young people.

The alleged victim was placed by FACS with the Ottens family
    because she was in need of special care. The placement was for
    six months. At the material time she had been living with the
    Ottens family for four months.

I have no hesitation in accepting Mrs. Ottens' evidence that
    during the four month period the alleged victim, (who was then in
    her mid teens) had responded to intensive care, and had settled.
    Her behaviour was normal for a girl of her age. In short, the aim
    of the placement had been achieved."

5. The indecent assault alleged, or to put it more accurately, the indecent assaults alleged, took place in the swimming pool. The complainant was not entirely consistent as to the order in which they occurred or as to the extent of the indecency on each occasion. There was clearly much horseplay involving the appellant Carrie and other children jumping and diving and playing with a ball. What the complainant essentially alleged was that on one occasion the appellant rubbed his penis against her leg, that on another occasion he put a hand on her right breast outside her bathers and on another occasion he put a hand on her hand and then placed her hand on his penis. I was not so informed, but I imagine it was the last allegation that the prosecution particularly relied upon. Mrs Ottens said that she was aware at times that Carrie appeared distressed. Mrs Ottens said she yelled at the appellant quite a lot, and that at one stage she went up to him and swore at him and told him to leave Carrie alone. Mr Ottens also noticed that the appellant paid close attention to Carrie, and that wherever she went the appellant was there all the time, but he did not give evidence about hearing his wife rebuke the appellant, and nor did Carrie. Carrie said that she got out of the pool because of the assaults. She said that when they all drove home in the Ottens' van, the appellant sat behind her in the van and stroked her hair. She said in her evidence that night when she got home that she had a shower, had a meal and went to bed. Mrs Ottens on the other hand said that when they got home Carrie seemed upset, and went to bed without having a meal.

6. I do not agree with the appellant's submission that her Honour erred in taking into account and giving weight to evidence of distress. Her Honour did not treat it as corroboration, but merely as supportive of the credibility of Mrs Ottens. Her Honour said:
    "A Prasad application was made in this case, which I rejected. At
    the time I rejected it, I was uncertain as to whether or not the
    behaviour observed by Mrs Ottens could amount to corroboration of
    the kind known as 'distress'. Upon reflection, having had the
    benefit of counsel's submissions, I am of the view that while this
    is not corroboration of 'distress' in the usual sense, the
    observations of a highly trained observer should not be lightly
    disregarded either, and while the evidence may not amount to
    corroboration in the formal sense it is supportive of the view
    that I reached about the victim's evidence, as opposed to being
    supportive of the defence version."

7. It is true that Carrie did not use the word "distressed" about her reactions to the alleged offence, but she did speak of feeling "sick", "dirty" and "disgusting". It is also true that Mr Ottens did not say he saw any evidence of distress. Mrs Ottens, however, said she noted that Carrie was visibly distressed two or three times in the pool, and it was that that caused her to tell the appellant to leave her alone. Later, at home, she said that Carrie said she did not feel like eating, and she noticed that she was very quiet the next day. Her Honour found Mrs Ottens to be a credible witness, and in my view she was entitled to take into account the observations of Mrs Ottens.

8. Carrie did not make any complaint that evening to Mrs Ottens or to anyone else. The following day the appellant spoke to Mrs Ottens on the telephone. Mrs Ottens told Carrie that the appellant had said that he was coming down to talk to her about the fact that he had recently fallen out with his girlfriend. Mrs Ottens said that Carrie said "Oh no, if he's coming over I'm going out". She said she sat Carrie down, and told her that she felt there was a problem, that something had occurred, and that she felt some tension in the swimming pool the day before. She said that Carrie then broke down and cried and told her what had happened. She said that the appellant touched her on the breast two or three times, and grabbed her hand under the water and put it on his penis. Mrs Ottens said her relationship with Carrie was very close and that she was like a daughter to her. Mrs Ottens then said she was going to ring the appellant and deal with the matter, to which Carrie replied "My God I can't face him, how am I going to face him", and that she was upset and agitated. Mrs Ottens told Carrie to seat herself, as I understand it, within hearing, but where the appellant could not see her when he arrived. Counsel who appeared for the appellant before the learned Magistrate objected to the admissibility of this evidence, first, because it resulted from leading questions or cross examination, and secondly, because it was not made at the earliest reasonable opportunity. I am bound to say that my mind has vacillated on this question, but having carefully considered the authorities, I uphold her Honour's ruling. As to the first point, the classical authority is Rex v Osborne [1905] l KB 551. The judgment of the Court for the Consideration of Crown Cases Reserved which consisted of five judges was read by Ridley J. The facts were in no way comparable, but at p556 his Lordship said:
    "It appears to us that the mere fact that the statement is made in
    answer to a question in such cases is not of itself sufficient to
    make it inadmissible as a complaint. Questions of a suggestive or
    leading character will, indeed, have that effect, and will render
    it inadmissible; but a question such as this, put by the mother or
    other person, 'What is the matter?' or 'Why are you crying?' will
    not do so. These are natural questions which a person in charge
    will be likely to put; on the other hand, if she were asked, 'Did
    So-and-so' (naming the prisoner) 'assault you?' 'Did he do this
    and that to you?' then the result would be different, and the
    statement ought to be rejected. In each case the decision on the
    character of the question put, as well as other circumstances,
    such as the relationship of the questioner to the complainant,
    must be left to the discretion of the presiding judge. If the
    circumstances indicate that but for the questioning there probably
    would have been no voluntary complaint, the answer is
    inadmissible. If the question merely anticipates a statement
    which the complainant was about to make, it is not rendered
    inadmissible by the fact that the questioner happens to speak
    first."

9. I also refer to Rex v Norcott [1917] 1 KB 347 where the Court of Criminal Appeal per Viscount Reading CJ said at pp350-351:
    "The Court is concerned to see that in the present case the
    statement made by the girl was spontaneous in the sense that it
    was her unassisted and unvarnished statement of what happened.
    That she may have been persuaded to tell her unassisted and
    unvarnished story is no reason why the evidence of her having made
    the statement should be rejected. Consideration of the principals
    expounded by Ridley J. in the judgment in Rex v. Osborne
[1905] 1 K.B. 551, 556, to which I have referred shows that that
    is so. With the view expressed by him this Court is in entire
    agreement. In the present case Miss Davies stood very much in the
    position of the girl's mother. She tried to befriend her and get
    her to tell her what had upset her. But she neither suggested,
    nor led the girl into making a statement about the assault, nor
    did she suggest to her that she had been indecently assaulted.
    She knew nothing about the assault and tried to get the girl to
    tell her the reason why she was crying and her story, whatever it
    was. The evidence is not inadmissible because questions were put
    to the girl which might have had the effect of persuading her to
    tell her unassisted and unvarnished story. In our view,
    therefore, the circumstances of this case bring the evidence
    within the region of admissibility." (See also Reg v Dubois [1966]
    QWN 37.)

10. As to the second point, I refer to The Queen v Peake (1974) 9 SASR
458. There a girl aged nearly fifteen years alleged that she had been raped by the accused at night in a motor vehicle. She returned to her home at about 11.35 pm and had a short conversation with her mother and father, but said nothing to them about the alleged rape. At about 6 o'clock on the following morning she made a complaint to her mother that she had been raped. At pp 462-463 Bray CJ said:
    "No doubt this is a matter on which different minds could easily
    come to different conclusions. I am strongly impressed with the
    danger of admitting stale complaints. Where a girl who is not a
    mere child, but capable of some sensible calculation of the risks
    of alternative courses of conduct, has had sexual intercourse and
    refrained from complaining about it on the first available
    opportunity to her parents with whom she is living and on good
    terms but does complain after a night's reflection, it may well be
    that that is because she has come to the conclusion that, from the
    condition of her clothing or otherwise, her mother is bound to
    discover the fact of intercourse and that an allegation of rape
    will get her into less trouble than an admission of consent.

Most of the cases where complaints have been admitted despite the
    failure to take advantage of earlier opportunities to complain
    turn on the identity of the recipient of the complaint. A
    complaint to B has been admitted despite an earlier opportunity to
    complain to A, because it has been thought that it was natural for
    the complainant to wait until she could see B. But where there
    were earlier opportunities not availed of to complain to the very
    person to whom after a significant delay the complaint was
    ultimately made, I think it can only be in rare cases that the
    complaint should be admitted.

The reason given here for not complaining to the parents on the
    night of the occurrence was that the girl was scared by reason of
    the threats she said the appellant had made against her and her
    parents and her boyfriend if she informed on him. The fact is
    that when she did complain to her mother in the morning she said
    to her that she was scared. It might be asked why if fear had
    deterred her in the evening and the same fear was present in the
    morning it did not deter her then also.

But on the whole I do not think that we can say that her Honour
    could not judicially have come to her conclusion or that no
    reasonable tribunal could hold that the complaint was made as soon
    as could reasonably be expected after the event. The decision was
    for her and, in my view, this Court cannot say that she was in
    error in admitting this evidence, though if she had decided not to
    admit it we certainly could not have said that it had
    been erroneously excluded. The learned Judge posed the right
    question to herself and there was material before her on which she
    could answer it in the way she did."

11. I also refer to R v Corkin (1989) 50 SASR 580, and to S B King
(1995) 78 A Crim R 53, where in a joint judgment Pincus JA and Thomas J said at p61: "... undue concentration upon the time factor may lead to too narrow and artificial a result."

12. The Court of Appeal in England has recently reviewed the law on the topic of recent complaints. The Crown case in Anthony Valentine
(1996) 2 Crim App R 213 was that the complainant was raped by the appellant on the way home from a restaurant. She arrived home at 2.30 am. Her parents and elder brother were at home but were asleep. The next morning she went into her brother's bedroom and told him that she had been attacked with a knife. She told him that she did not want to tell her parents. She went to work during the afternoon and in the evening told a friend that she had been raped. Their Lordships reviewed some of the authorities, and at pp222-224 the Court said:
" A more recent authority is Cummings [1948] 1 All E.R. 551, where
    the complainant alleged that she had been raped during an evening
    by Cummings. At the time she was living at a Landworker's camp.
    She did not complain to the camp warden that evening, although she
    saw him. She said she did not complain to the camp warden because
    he was a friend of Cummings. There was also a female welfare
    officer at the camp, who was known to the complainant, although
    there was no evidence that the complainant knew the Welfare
    Officer was available for her to speak to. The complainant made
    no complaint to other girls of her age living in the same hut at
    the camp. However, the next day, as early as she could, the
    complainant went from the camp to a much older woman who lived two
    miles away who was known to her and to whom she did make a
    complaint.

The trial judge permitted evidence of that complaint to be given
    and the appeal was mounted on the basis that as the complainant
    had not made a complaint immediately the evidence of that
    complaint ought not to have been admitted. In the course of
    giving the judgment of the Court of Criminal Appeal, Lord Goddard
    C.J. said at p.552:
    'Who is to decide whether the complaint is made as speedily as
    could reasonable be expected? Surely it must be the judge who
    tries the case. There is no one else who can decide it. The
    evidence is tendered, and he has to give a decision there and then
    whether it is admissible or not. It must, therefore, be a matter
    for him to decide and a matter for his discretion if he applies
    the right principle. There is no question here that Hallett J.
    did apply the right principle. He had clearly in mind the fact
    that there must be an early complaint. Whether it was reasonable
    to expect the prosecutrix to complain the moment she got back to
    the Camp to a man who she hardly knew, or whether it was more
    reasonable that she should wait till the morning and complain to
    Mrs Watson, her friend, were matters that the learned judge had to
    take into account. He did take them into account, and he came to
    the conclusion that in the circumstances the complaint next
    morning was in reasonable time. If a judge has such facts before
    him, applies the right principle, and directs his mind to the
    right question, which is whether or not the prosecutrix did what
    was reasonable, this Court cannot interfere.'

We accept that passage as a correct statement of the law and of
    the approach of this Court to a trial judge's ruling on the
    admissibility of complaints in cases of sexual offences.

The authorities establish that a complaint can be recent and
    admissible, although it may not have been made at the first
    opportunity which presented itself. What is the first reasonable
    opportunity will depend on the circumstances including the
    character of the complainant and the relationship between the
    complainant and the person to whom she complained and the persons

    to whom she might have complained but did not do so. It is enough
    if it is the first reasonable opportunity É

We now have greater understanding that those who are the victims
    of sexual offences, be they male or female, often need time before
    they can bring themselves to tell what has been done to them; that
    some victims will find it impossible to complain to anyone other
    than a parent or member of their family whereas others may feel it
    quite impossible to tell their parents or members of their family.

Turning to the present case, we consider that the judge applied
    the principles applicable correctly and adopted the approach laid
    down by Lord Goddard in Cummings. We are content that we should
    follow Lord Goddard's approach and say that this Court cannot
    interfere in a case such as the present where the judge has such
    facts before him, applied the right principle and directed his
    mind to the right questions.

The judge saw and heard the complainant. He assessed her as a
    person who was tense and who would bottle up this matter until she
    found a friend of her own age to confide in. We would echo the
    further words of Lord Goddard:
    'In the circumstances, we think that there was nothing which could
    oblige this court to say that the complaint was not made as
    speedily as could reasonably be expected.'"

13. I repeat that in my opinion her Honour was correct in admitting the evidence of "complaint".

14. What has caused me more concern is the fourth ground of appeal. This arises from a conversation that Mrs Ottens had with the appellant after he was asked to come to her house early in the evening of the day after the alleged offence. The thrust of her evidence was as follows. She said that when he arrived she said she had something to talk to him about. She said that Carrie alleged that in the pool he grabbed her on the breast two or three times and he grabbed her hand under the water and put it on his penis. She said that she told him that before he answered anything she wanted him to know how stressful it was for Carrie and how she felt. She said that the appellant said "Oh how could you think I would do anything like this after everything you have done for me". She yelled at him "How dare you stand there and say this. I know you are not telling the truth. I believe Carrie". She said he just shook his head and went white. He said he did not do it. She said "Well I don't believe you and I do believe Carrie". She added "Before you say any more I want you to understand how she feels as a victim and what happened to her and how terrified she is of you". She said that she told him that if he felt any compassion and he knew what had happened and he truthfully understood and he was guilty for what he had done then the best he could do for Carrie was admit to her and apologise if he was guilty. She said that the appellant left slamming the sliding door. She said that about twenty minutes later the appellant came back, and made admissions. Mrs Ottens said that he apologised to Carrie. Carrie on the other hand admitted that it was possible that he said words to the effect "I'm sorry if I touched you whilst we were in the pool. If I did it was accidental and I didn't mean it. I hope you don't feel too upset about it and I'm very sorry if I have caused you any hurt. I have been under a lot of stress myself lately because I've just broken up with my girlfriend."

15. The learned Magistrate who heard the evidence said: "I have no doubt that the defendant's admissions were made after Mrs Ottens brought considerable psychological pressure to bear on the defendant."

16. Later he said: "It was inherent in [Mr Ottens'] evidence that he did not regard the defendant's admissions as reliable and truthful, because of the way in which they were obtained."

17. The Magistrate did not refer to the admissions again, but she did say later in her reasons in commenting on the evidence given by the appellant that he was "a remarkably unimpressive witness. I did not believe his evidence denying that he had committed the offence".

18. In his interview with the police the appellant said:
    "I know what this is about. If it's about Carrie Strong I've
    received legal advice and have been advised not to say anything.
    I am aware of what the allegation is and I totally refute this."

19. I have reached the firm conclusion that her Honour should have excluded this evidence of Mrs Ottens - and for that matter so much of the evidence of Mr Ottens and Carrie as included the alleged admission. Mrs Ottens was in a very real sense in loco parentis, and it was within her "power to place the wheels and a prosecution in motion". Within the meaning of the old authorities, she was "a person in authority" (see W B Scofield (1988) 37 A Crim R 197). It is clear to me that any admissions resulted from "undue insistence or pressure" (see The Queen v T Collins (1976) 12 SASR 501 at 508-509), and that they were involuntary. At the very least, a proper exercise of the court's discretion required their exclusion. Counsel for the respondent argued that their exclusion would not have affected the result. I do not agree. I have no doubt they affected her Honour's assessment of the appellant as a witness and his denials of guilt on oath.

20. The appeal will be allowed, the conviction set aside and the charge remitted for rehearing before another Magistrate.