Police v Rosales

[2017] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v ROSALES

[2017] SASC 118

Judgment of The Honourable Justice Peek

15 August 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

MAGISTRATES - HEARING - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

MAGISTRATES - GENERALLY - POWERS AND DUTIES - REASONS

Appeal against a finding of guilt of indecent assault.

The appellant was found guilty by a Magistrate of indecent assault of Ms S, with whom he worked at a nursing home. Responding to a defence request, the prosecution provided further written particulars of the indecent assault as “… he grabbed me from behind … around my shoulders and slid his arms down and then caressed my breasts with his hands and said, “They are firm””.  Ms S gave evidence that, while they were alone in a kitchenette, the appellant stroked Ms S’ hair, attempted to kiss her on the lips, and then, while standing close behind her, placed his hands on her breasts and said “they were firm”.

Shortly after the incident, Ms S complained to several persons including her boyfriend, mother, and three other employees of the nursing home. Each gave evidence that she was visibly distressed at the time.

The defence case relied on inconsistencies between the evidence of Ms S and the evidence of the complaint witnesses; evidence of the appellant’s good character; and evidence of the appellant’s denials in his police interview.

The grounds of appeal asserted that the Magistrate erred in: her consideration of the evidence of the appellant’s good character; failing to direct herself pursuant to s 34R of the Evidence Act 1929 in relation to the appellant’s alleged discreditable conduct towards Ms S immediately before the offence (being the stroking of the hair and attempt to kiss her on the lips); failing to adequately direct herself, and provide any reasons for her findings in relation to the defendant’s denials of guilt; and in finding that the appellant’s guilt had been proved beyond reasonable doubt.

Held (granting an extension of time, dismissing the appeal):

(1) The evidence of the appellant’s conduct immediately prior to the particularised offending was relevant and admissible as part of the res gestae, and was not received pursuant to s 34P. It was not objected to at trial. The Magistrate did not err in not directing herself pursuant to s 34R of the Evidence Act 1929.

(2)     The Magistrate gave herself correct directions as to both the defendant’s denials in the interview and the good character evidence, and was permitted to be satisfied beyond reasonable doubt of the guilt of the appellant on the basis of the evidence of Ms S notwithstanding such evidence.

(3)     The Magistrate correctly dealt with the evidence of Ms S, the complainant evidence, and inconsistencies between that evidence. No error in the Magistrate’s approach or conclusions is established.

(4)     The Magistrate’s directions as to the distress evidence were too favourable to the appellant. Correct directions in the circumstances considered.

(5)     It is not established that the Magistrate pre-judged the appellant to be guilty prior to considering the appellant’s denials in his police interview and evidence of his prior good character. While it would have been preferable for the Magistrate, in drafting her reasons, to have addressed the appellant’s denials in his police interview and the evidence of his prior good character prior to addressing the distress evidence, appellable error has not been established. In any event, it was inevitable that the Magistrate would have (correctly) found the appellant guilty even if the order of her reasons had been as contended for by the appellant.

Evidence Act 1929 ss 34R, 34P, 34M; Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 353(1), referred to.
The Queen v C, M [2014] SASCFC 116; R v Soteriou (2013) 118 SASR 119; Spence v Demasi (1988) 48 SASR 536; Mule v The Queen (2005) 79 ALJR 1573; The Queen v C, G [2013] SASCFC 83; R v Baltensperger (2004) 90 SASR 129; R v Pahuja (No 2) (1989) 50 SASR 551; R v Schlaefer (1984) 37 SASR 207; R v Rogers [2008] VSCA 125; Theophilus v Police (2011) 110 SASR 420; Harriman v The Queen (1989) 167 CLR 590; HML v The Queen (2008) 235 CLR 334, discussed.
R v P, S [2016] SASCFC 97; R v Trimboli (1979) 21 SASR 577; Pfennig v The Queen (1996) 182 CLR 461; R v Helps (2016) 126 SASR 486; Azzopardi v The Queen (2010) 205 CLR 50; Liberato v The Queen (1985) 159 CLR 507; R v Mitrovic [1999] SASC 478; Pelham v Homes [1928] SASR 105; Pope v Ewendt (1977) 17 SASR 45; Weiss v The Queen (2005) 224 CLR 300; R v Adam [1999] NSWCCA 189; R v Player [2000] NSWCCA 123; R v Mostyn [2004] NSWCCA 97; TWL v The Queen [2012] NSWCCA 57, considered.

POLICE v ROSALES
[2017] SASC 118

Magistrates Appeal

1. PEEK J.    Appeal against a finding of guilt of indecent assault.

2. The Information laid against the appellant was in the following terms:

   On the 24th day of December 2014 at MYRTLEBANK in the said State, indecently assaulted [Ms S].

   Section 56(1) of the Criminal Law Consolidation Act 1935. This is a basic offence. This is a minor indictable offence.

3. Further particulars of the charge were sought by the appellant and were provided by the prosecution in the following terms:

   “Those particulars are: “… he grabbed me from behind … around my shoulders and slid his arms down and then caressed my breasts with his hands and said, “They are firm”.

   The subject incident

4. There is no dispute that an incident during which the appellant and Ms S were alone together occurred at the time and place averred in the Information (to be referred to as the subject incident).  However, there are clear differences as between the prosecution case and the defence case (being the version stated by appellant during his police interview) concerning precisely what occurred during the subject incident.  The Magistrate correctly outlined the prosecution case early in her judgment thus:[1]

   [6]     At the time of the alleged offence, the complainant was working two days a week as a food service assistant at the Lourdes Valley Nursing Home, where the defendant worked as a carer.  She said that she had worked with the defendant on and off for about six months, did not encounter him often as their duties did not coincide and knew him well enough to say “hello”.

   [7]     On 24 December 2014, the complainant commenced her shift at 5pm, working on the first floor of the Lodge Building where two dining rooms with accompanying kitchenettes are located, as well as multiple residents’ rooms.  At approximately 7.15pm, the complainant was washing dishes in the kitchenette adjacent to the second dining room.  Corridors to the east and west of the kitchenette led to residents’ rooms.  From her position, the complainant could see the defendant going in and out of residents’ rooms, as he attended to the residents.  A hand drawn map prepared by the complainant of the kitchenette and corridors either side from which residents’ rooms were accessed was tendered as P1.

   [8]     As the defendant entered the kitchenette, he and the complainant were alone and engaged in friendly chitchat.  It was the complainant’s evidence that, as she stood at the position marked “1” on P1, the defendant approached her and asked her to take down her hair, which she wore up for work.  She did so and the defendant moved behind her and stroked her hair.  She said the defendant did not say anything and “I think he was just kind of generally fascinated with it [my hair].”  She said that most people at the nursing home had shown fascination with her hair, which was unique in appearance.  The complainant estimated that the defendant stroked her hair for about five seconds.  He then came around to face her, standing approximately 20 to 30 cms from her, took her face in both his hands and kissed her on both cheeks and the forehead.  She said they were quick kisses which she described as “pecks”.  She said that the defendant “went to kiss me on the lips, but I pulled away” as his lips were about 3 cms from her lips, by putting her hands up against his chest and saying “woah” as she pushed him away, to show the defendant she was not interested.  She thought that she commented that the defendant was excited about Christmas. 

   [9]     The complainant said that she then moved to the opposite corner of the kitchenette indicated as “2” on P1 as she was feeling uncomfortable and confused.  She tried to make herself look busy by moving dishes “just in case he tried anything else”.   It was her evidence that about five seconds after she moved to the other corner of the kitchenette, facing away from the defendant towards the sink, the defendant moved towards her from behind and put his hands on top of her shoulders near her neck.  The complainant said that she looked down to her shoulder, saw the defendant’s fingers and felt confused and that it was “inappropriate for a fellow workmate to come up behind me and put their hands on my shoulders as close as he was”.  She did not say anything to the defendant as he put his hands on her shoulders.  She said

   he brought his hands from my shoulders down to about a third of the way down my arms and then brought them over to my breasts. 

   [10]    She demonstrated in the witness box the defendant’s hands moving to touch the top of both breasts in what she described as a cupping action, holding her breasts, and testified that, as he did so, the defendant said “they were firm”.  She said that the defendant spoke in a casual, matter-of-fact tone of voice and his actions and words were not aggressive.  She said that the defendant’s hands were on both of her breasts “probably only for two seconds, or as quick as I could respond” and that less than five seconds had elapsed between the defendant placing his hands on her shoulders and speaking.  The complainant said that she was feeling uncomfortable and “pretty violated” and once the defendant had spoken she “made an effort to get his arms off of me” and “got him to remove his hands” and turned around to face him.  The defendant then said “are hugs okay”?  She said that she responded “yes” in a tone of voice that she described as “probably a little bit shaky”.  It was the complainant’s evidence that she was “a bit scared, upset, I just wanted to get out of there to be honest”.   It was her evidence that there was a trolley in the kitchenette that she used to take the bins out, which she used as an excuse to leave the kitchenette.

   [1]    The prosecution position is merely stated here without regard to strengths or weaknesses.

5. The Magistrate also correctly summarised the defence case thus:[2]

   [2]     …  When interviewed by police, the defendant admitted being in the kitchenette with the complainant on the evening of the alleged offence and to aspects of the alleged conduct leading up to the alleged offence.  However, he denied kissing the complainant and denied the conduct the subject of the charge.

   …

   [5]     The defendant did not give evidence in his defence, but relied on his record of interview led as part of the prosecution case and called two good character witnesses, Lourdes Valley Home nurse Mrs Rhodora Dalfson and the defendant’s friend, Mr Al Japson.

   [2]    The defence position is merely stated here without regard to strengths or weaknesses.

6. The Magistrate accepted the evidence of Ms S concerning the essential elements of the charge, rejected the denials of the appellant and found that the charge was proven beyond reasonable doubt.

   The grounds of appeal against the finding of guilt

7. Ground 1 of appeal was abandoned during argument.  The other grounds raise a number of issues which I will consider in the following order:

   ·evidence of the appellant’s prior good character (ground 3);

   ·directions pursuant to Evidence Act 1929, s 34R(1) (ground 4);

   ·rejection of the appellant’s denials to the police (grounds 5 and 6);

   ·was the charge proven beyond reasonable doubt? (ground 7); and

   ·evidence of distress (ground 2).

   GROUND 3:  EVIDENCE OF GOOD CHARACTER

   Ground 3: The Magistrate erred at paragraph [133] in her consideration of the evidence of the appellant’s good character.

8. The Magistrate made a number of references to the evidence of the prior good character of the appellant.  At the beginning of her judgment at [5] her Honour referred to the fact that the appellant called two good character witnesses.  During her survey of the evidence of the prosecution witnesses, her Honour referred to positive evidence concerning the character of the appellant given by Ms Trewin at [42], [90] and Ms Barokah at [38], [90].  Her Honour then referred in detail to the evidence of the defence witnesses Ms Dalfson at [84] to [85] and Mr Japson at [86] to [89].  The Magistrate later stated:

   [129]  The defendant led evidence of his good character from Mrs Dalfson and Mr Japson.  Ms Dalfson appeared to be on friendly terms with both the defendant and the complainant.  I accept in its entirety the voracity and reliability of Mrs Dalfson and Mr Japson’s evidence regarding the defendant’s good character.  I accept that he was highly regarded and well-liked at the nursing home and highly regarded and respected as an honest person of good reputation in his social, sporting and spiritual circles.  I accept that, on the basis of their contact with the defendant, they do not consider he would commit the alleged offence charged.

   [130]  DS Spark gave evidence that the defendant has no prior criminal convictions and was cooperative in the police investigation.  Mrs Trewin and Mrs Barokah spoke highly of the defendant and his good character in their evidence.  I accept their evidence on this topic in its entirety.

   [131]  I have borne in mind the defendant’s previous good character in considering whether the prosecution has proved the charge beyond reasonable doubt.  I bear it in mind as a factor affecting the likelihood of the defendant having committed the alleged offence and in assessing the credibility of the explanations given by him at interview, which was led as part of the prosecution case without objection.[3]  …

   [3]    R v Trimboli (King CJ).

9. Pausing there for a moment, one sees that the Magistrate had thus far correctly directed on the two limbs of good character evidence.  Importantly in the present case (where the appellant had not given evidence at trial), her Honour correctly directed herself that the good character evidence was relevant to “assessing the credibility of the explanations given by him at interview”.[4]  The Magistrate later concluded:

   [133]  Although I accept the evidence of the defendant’s prior good character in its entirety, that evidence does not cause me to doubt the credibility and reliability of the complainant’s evidence regarding the alleged events leading up to and the subject of the charge.  Having considered all the evidence, including the alleged conduct and words the subject of the charge and bearing in mind the defendant’s prior good character, I do not consider it a possibility that the complainant became confused or misinterpreted innocent conduct or an accidental touching as the conduct the subject of the charge.

   [4]    King CJ in R v Trimboli (1979) 21 SASR 577 stated at 578: “The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.” See also: Melbourne v the Queen (1999) 198 CLR 1.

   The appellant’s argument

10. The appellant’s argument is summarised in his summary of argument thus:

    [48]    Whilst the Magistrate did refer at [131] to the two theoretical uses that could be made of the evidence of the appellant’s good character, she only referred to actually using that evidence in the following ways:[5]

    - The evidence of the appellant’s prior good character, “… does not cause me to doubt the credibility and reliability of the complainant’s evidence regarding the alleged events leading up to and the subject of the charge.”

    - Bearing in mind the evidence of the appellant’s prior good character, “I do not consider it a possibility that the complainant became confused or misinterpreted conduct or an accidental touching as the conduct the subject of the charge.”

    [49]    The appellant submits that the Magistrate failed to use the evidence of his prior good character to consider the unlikelihood that he, a person of good character, would have acted in the way that was alleged, and therefore the unlikelihood that he was guilty.

    [50]    The Magistrate ought not to have asked herself the question whether the evidence of the appellant’s good character caused her to doubt the credibility and reliability of the complainant’s evidence, but whether that evidence left her with a reasonable doubt about the appellant’s guilt.[6]

    [5] At [133].

    [6]    R v P, S [2016] SASCFC 97, [86].

    Consideration

11. As to paragraph 48 of the summary of argument, it is to be noted that at paragraphs [129] to [131] the Magistrate had directed herself correctly as to the two limbs of good character evidence to be borne in mind when considering whether the prosecution has proved the charge beyond reasonable doubt; there is no reason to think that her Honour then failed to take those factors into account when coming to her ultimate decision.  The correct analysis of paragraph [133] is that her Honour was not here attempting to restate, yet again, the two limbs of good character evidence (and failing to adequately do so as is apparently submitted).  Rather, the Magistrate at paragraph [133] correctly stated the conclusion she reached after having adopted the correct process she had previously delineated at paragraphs [129] to [131].

12. As to paragraph 49 of the summary, I simply observe that the bare allegation that the Magistrate failed to take something into account does not make it so.

13. As to paragraph 50 of the summary, this was not a case of oath against oath.  The evidence on oath of Ms S, if believed, was capable of proving each of the required elements of the charged offence[7] in circumstances where the appellant declined to give evidence on oath.  However, the Magistrate was clearly well aware of two important matters.  First, no less than proof beyond reasonable doubt would suffice.  Second, the appellant was entitled to have his prior good character evidence taken into account in respect to both the unlikelihood that he would commit such an offence and the credibility of his denials to police in the tendered police interview.

    [7]    Of course, the prosecution case depended on acceptance beyond reasonable doubt of that evidence.

14. In those circumstances, if proof depends on “whether the evidence of the appellant’s good character caused her to doubt the credibility and reliability of the complainant’s evidence” (the Magistrate’s formulation), one addresses the defendant’s denials and asks whether the combination of the two limbs of good character evidence causes one to doubt the complainant’s evidence.  On the other hand, if proof depends on “whether that evidence [ie the good character evidence] left her with a reasonable doubt about the appellant’s guilt” (the alternative formulation urged by the appellant), again one necessarily addresses the defendant’s denials and asks whether the combination of the two limbs of good character evidence causes one to doubt the complainant’s evidence.  The difference is no more than a matter of semantics here.[8]  There is no inversion or diminution of the onus of proof.

    [8]    The case of R v P, S[2016] SASCFC 97, [86] apparently relied upon by the appellant involved a jury trial in which the character evidence was stronger than in the present case and the terms of the direction were different to the present terms. In that case, it was considered that the terms of the direction may not have been clear enough for the jury to appreciate the distinction between the two limbs. Here the trial was by Magistrate alone and the direction was orthodox and clear.

1. I reject ground 3 of appeal.

   GROUND 4: DIRECTIONS PURSUANT TO S 34R(1) OF THE ACT

   Ground 4: The Magistrate erred at law by failing to direct herself pursuant to s 34R of the Evidence Act 1929 with respect to the appellant’s alleged discreditable conduct towards the complainant immediately before the charged offence.

2. Section 34R of the Act provides:

   34R—Trial directions

   (1)  If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

   (2)  If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.                (Emphasis added)

3. The opening words of both sub-sections emphasise that these provisions are expressly conditional on evidence having been admitted under s 34P of the Act.  That section provides:

   Section 34P—Evidence of discreditable conduct

   (1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (“discreditable conduct evidence”)—

   (a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

   (b)     is inadmissible for that purpose (“impermissible use”); and

   (c)     subject to subsection (2), is inadmissible for any other purpose.

   (2)Discreditable conduct evidence may be admitted for a use (the “permissible use”) other than the impermissible use if, and only if—

   (a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

   (b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

   (3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

   (4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

   (5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).

4. This ground of appeal depends on a contention that is artificial and tortuous.  The appellant in effect submits that one must “hive off” Ms S’ evidence as to what occurred from the time that the appellant entered the kitchenette until the occurrence of the precise conduct alleged in the further particulars (the “hived off evidence”).  The hived off evidence is presumably the following evidence (taken from the Magistrate’s summary above):

   … he and the complainant were alone and engaged in friendly chitchat.  It was the complainant’s evidence that, as she stood at the position marked “1” on P1, the defendant approached her and asked her to take down her hair, which she wore up for work.  She did so and the defendant moved behind her and stroked her hair.  She said the defendant did not say anything and “I think he was just kind of generally fascinated with it [my hair].”  She said that most people at the nursing home had shown fascination with her hair, which was unique in appearance.  The complainant estimated that the defendant stroked her hair for about five seconds.  He then came around to face her, standing approximately 20 to 30 cms from her, took her face in both his hands and kissed her on both cheeks and the forehead.  She said they were quick kisses which she described as “pecks”.  She said that the defendant “went to kiss me on the lips, but I pulled away” as his lips were about 3 cms from her lips, by putting her hands up against his chest and saying “woah” as she pushed him away, to show the defendant she was not interested.

5. The contention continues that: the “hived off evidence” was “discreditable conduct” for the purposes of s 34P; and therefore it was “admitted under section 34P”; and therefore s 34R(1) is engaged; and therefore the Magistrate failed to give the directions referred to therein.

6. When asked as to whether he had any authority for these propositions, senior counsel’s position was that he did not but that the meaning of the statute is entirely obvious and there is no authority against his contention. 

7. I reject the contention on the following two bases.

8. The first basis of rejection is that I consider that the “hived off evidence” is simply part and parcel of the relevant evidence led to directly prove the charge before the Court.  The effect of the provision by the prosecution of the further particulars was to confirm that the prosecution undertook to prove the matters stated therein, but that does not affect the relevance or admissibility of the evidence of the immediately prior conduct by the appellant; the fundamental distinction between “particulars” and the evidence to be led to establish those particulars should not be forgotten.

9. In the present case, the prosecution would have been well aware of the relatively recent decision of the Court of Criminal Appeal in The Queen v C, M[9] that an indecent assault must have a “sexual connotation”, and that it may be arguable here that pecks on the cheek taken alone may not necessarily establish such a connotation.[10]  The prosecution were appropriately careful to particularise a case which, if proven, would clearly convey the required sexual connotation.  But again, that did not mean that preceding pecks on the cheek could not, or should not, have been led; such evidence was clearly both relevant and admissible.  

   [9] [2014] SASCFC 116.

   [10]   The Magistrate here was certainly alive to that requirement and directed herself correctly at [3] that an indecent assault must be “accompanied by or occurred in circumstances of indecency involving a sexual connotation”.

10. As is referred to at the end of the passage from the Magistrate’s judgment reproduced immediately above, Ms S’ evidence was that she wanted to show the appellant that she was “not interested” and it would seem that if the appellant had done nothing further, no charge would have eventuated.  Be that as it may, on the evidence of Ms S, the further particularised acts and words by the appellant did occur.  To have led in evidence just those further acts and words, but not the appellant’s immediately prior acts and words upon entering the kitchenette, would have been artificial in the extreme.  Wrenched from their immediate context, the evidence of the later acts and words taken alone would have been disjointed, and misleading.  In that sense, the immediately preceding acts and words were in fact part of the res gestae, imprecise and overworked as that label may be on some other occasions.

11. As to the statement that there is no authority against counsel’s contention, a glance at the commentary in Lunn Criminal Law to s 34P discloses a reference to the decision of the Court of Criminal Appeal in R v Soteriou,[11] a decision reported in the State Reports.  In that case, the defendant was convicted of two counts of trafficking in a controlled drug, each offence occurring on 2 February 2011.  Evidence called by the prosecution included first, notebooks containing lists of persons and amounts; second, SMS messages referring, sometimes obliquely, to what the prosecution said were sales negotiations; and third, quantities of unused small plastic ziplock bags.  The Court held that while the first two categories constituted “discreditable conduct” because they referred to past conduct by the defendant, the third category of unused small plastic ziplock bags was not “discreditable conduct” because that evidence was relevant to the present offending charged rather than past offending.  Thus Vanstone J (with whom Sulan and Stanley JJ concurred) stated:

    [13] I start with the question whether the three items of evidence were discreditable conduct evidence. In terms of s 34P(1) that question is: Did the evidence tend to suggest that the appellant had engaged in discreditable conduct … other than conduct constituting the offence?

    [14]    I agree with both counsel that the possession of the resealable plastic bags was not such evidence.  Certainly the prosecution argued that the plastic bags were the tools of trade or paraphernalia or indicia of trading by a drug dealer – indeed there was some evidence from a police officer in this trial to that effect – but the very fact that the appellant still had possession of them indicated that they had not been used in the course of a drug trade.  The subsection catches evidence suggesting that a defendant has, that is in the past, engaged in discreditable conduct; not that he might intend to do so in the future.  (Emphasis added)

    [11] (2013) 118 SASR 119. The High Court refused special leave to appeal on 15 August 2014 [2014] HCASL 155.

12. Of course, all of this is very congruent with the well known observation by McHugh J in Harriman v The Queen:[12]

    If evidence which discloses other criminal conduct is characterised as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused. Consequently, it is a matter of great importance whether the evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the facts in issue …

    [12] (1989) 167 CLR 590, 633.

13. And in HML v The Queen, Kiefel J (as her Honour then was) observed:[13]

    As McHugh J reminded in Harriman v The Queen, if evidence is characterised as part of the transaction charged, it is not subject to any further condition of admissibility.

    [13] (2008) 235 CLR 334, 495 [495].

14. One may also note a number of New South Wales decisions holding that such “transaction” or “res gestae” evidence does not fall within the “tendency evidence” provisions of the Uniform Evidence Acts.[14]

    [14]   Thus see:  R v Adam [1999] NSWCCA 189, [25]; (1999) 106 A Crim R 510, 515; R v Player [2000] NSWCCA 123; R v Mostyn [2004] NSWCCA 97, [116] to [135]; TWL v The Queen [2012] NSWCCA 57, [41] to [45].

15. But really, no such authority was here required. In the course of argument, counsel accepted that if his contention were correct, it would mean that on a charge of vaginal rape, all evidence of touching and various indecent assaults by the defendant immediately leading up to, but prior to, penetration of the vagina would be evidence of discreditable conduct which could only be admitted pursuant to s 34P, because such conduct did not come within the particulars of the charge of vaginal rape.

16. With respect, that is a misconceived interpretation of this legislation.  This provision was always intended to address the admission of conduct by a defendant on a previous occasion.[15]  While it may be possible to imagine a set of facts in a particular case that might give rise to a question of whether a previous occasion is involved, the facts postulated in the vaginal rape example, and indeed the facts of the present case itself, most certainly do not give rise to that question.

    [15]   The word ‘previous’ is here used for convenience but does not deny that evidence of conduct chronologically subsequent to the charged offending may be admissible.  The facts of Pfennig v the Queen (1995) 182 CLR 461 afford a modern example, but this was long the position at common law.

17. Finally, I note that in the summary of argument counsel states:

    [54]    The alleged discreditable conduct was disputed.  In his interview with police the appellant denied he kissed the complainant on the lips (and at least impliedly denied he would have attempted to do so).[16]

    [55] The appellant accepts the evidence of the attempted kiss was admissible evidence pursuant to s 34P(2)(a) as part of the re gestae of the charged offence.

    [16]   At [90], [192], [222].

18. This passage would seem to concede that the evidence is indeed admissible as part of the res gestae, with the writer apparently being unaware that the very making of that concession is to concede that the evidence was not received pursuant to s 34P (which in turn brings down the whole shaky edifice of the argument).

19. The second independent basis of rejection is that it is now settled that a Judge only has to consider the operation of s 34P where objection is taken to the admission of the evidence and not otherwise. Thus in The Queen v C, G, the Court of Criminal Appeal considered whether a Judge or Magistrate is required to apply s 34P where there is no objection to the evidence. The Court stated:[17]

    To our minds, if proposed evidence is under challenge, a judge is obliged to consider whether the evidence should be admitted. In the absence of the judge reaching a conclusion that the evidence should be admitted, it is to be excluded. If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under section 34P of the Evidence Act.  Issues may, however, arise as to the proper use of the evidence.

    [17] [2013] SASCFC 83, [50].

20. That decision is directly on point here.  There was simply no objection to the leading of the “hived off evidence”; and it was never suggested at trial that it constituted “discreditable conduct” at all.[18] Accordingly the Magistrate did not have to consider the operation of s 34P and, in the present circumstances, there was also no obligation to consider the operation of s 34R(1).

    [18]   One might add here a reference to the statement of the plurality (Kiefel, Bell and Keane JJ) in Perara-Cathcart v The Queen [2017] HCA 9:

    [66] It is neither necessary under s 34R(1) of the Evidence Act, nor desirable generally, for a trial judge to instruct the jury about the law in relation to matters about which no issue arises in the trial. The heavy responsibility of a trial judge does not extend to imagining possible issues which the parties have not raised – much less to formulating directions designed to instruct the jury in relation to the resolution of such non‑issues. …

    GROUNDS 5 AND 6:  THE APPELLANT’S POLICE INTERVIEW

21. The appellant deals with grounds 5 and 6 of appeal together and I will do likewise.  They are as follows:

    5. The Magistrate erred at law by failing to provide any reasons for her apparent rejection of the defendant’s denials of guilt when interviewed by police.

    6. The Magistrate erred by failing to direct herself that she could not convict the appellant unless she rejected beyond reasonable doubt the evidence of his denials of guilt when he was interviewed by police.

22. The appellant’s argument is summarised in his summary of argument thus:

    [70]    The reasons do not contain any statement of rejection of the appellant’s denials that he had done what the complainant alleged, any explanation of why his denials were rejected or any statement that the Magistrate rejected his denials as untrue beyond reasonable doubt (or a not being reasonably possibly true).

    [71]    In order for the Magistrate’s reasons to be adequate a statement by her that she rejected the appellant’s denials of guilt as not reasonably possibly true, and brief reasons why, was required.  This was so even though the denials were made in a police interview tendered a as part of the prosecution case, rather than in evidence given at the trial.

    Douglass v The Queen [2012] HCA 34 at [13]; Lawn v Police (2013) 116 SASR 136 at [33]

    [72]    Reasons must be adequate to allow an appellate court to perform its function and so that justice is seen to be done.[19]  The Magistrate’s reasons did not satisfy these requirements.

    [73]    The inadequacy of the Magistrate’s reasons in the regard complained of is reinforced by her failure to direct herself that:

    - The appellant could not be convicted unless she rejected beyond reasonable doubt the truthfulness of the evidence of his denials of guilt when interviewed by police; and/or

    - Even if she did not positively believe the evidence of the appellant’s denials of guilt, she could not find him guilty if that evidence gave rise to a reasonable doubt about his guilt.[20]

    [19]   Papps v Police (2000) 77 SASR 210, [34].

    [20]   Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J).

    The basis of admissibility of a police interview of the defendant

23. In R v Helps[21] I traced some of the history of the admissibility of prior statements made out of Court by a defendant to criminal proceedings.  For present purposes, it is sufficient to say that when the prosecution tenders a record of a police interview with the defendant, the position is as stated by the Full Court in Spence v Demasi:[22]

    One thing should be made quite plain.  The use that may be made in a criminal trial of a mixed statement by a defendant is not confined to passages that qualify or explain, more or less directly, the admissions upon which the Crown relies — for example, by a defendant’s admitting that he struck the victim but going on to claim that he acted in self-defence.  … Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be.  That, I believe, reflects the current practice in the courts of this State.   (Emphasis added)

    [21] (2016) 126 SASR 486. See also R v Weetra (2010) 108 SASR 232.

    [22] (1988) 48 SASR 536 (Cox J), 541.

24. While it is “evidence for all purposes”, Cox J was undoubtedly correct in referring to different degrees of weight being afforded to different parts of a mixed statement, and this distinction remains of continuing high importance.  More recently in Mule v The Queen, the High Court has stated:[23]

    [21]    … An observation by the trial judge that the appellant’s out of court assertions, although disclosed in evidence by the prosecution’s tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant’s interests, and that the jury could give them less weight than the admissions, was proper.  To a lawyer, it might seem to be a statement of the obvious, but it is understandable that a trial judge might make it.  Some jurors could have been puzzled about the consequences of the prosecution having, in effect, put the defence case before the jury.  In the circumstances of this trial, if the judge had not explained to the jurors that they were entitled to attach different weight to different things that were said during the interview, they might have felt obliged to give everything that was said in the interview equal value.

    [22]    … As a matter of law, it was correct to tell the members of the jury that they were not obliged to attach the same weight to all the statements made in the interview, and that it was for them to decide the weight to be given to particular statements.  As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving.  It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.   (Emphasis added)

    [23] (2005) 79 ALJR 1573, 1578-1579 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).

1. However, despite that clear pronouncement of the High Court, the content and tone of the appellant’s submissions seem to be that he had a choice to give evidence before the police officer in his interview or before the Magistrate in Court; and that, if he chose the former, the difficulty in rejecting his denials of guilt, and the obligation to give reasons for doing so, would be exactly the same as if he had given that evidence on oath in Court.

2. In fact, that is far from the correct position.  As the High Court confirmed in Mule, a Judge is free to direct a jury that they may approach a record of an interview given by a defendant who elects not to give evidence before them in the way referred to in the emboldened passages in Mule above.  And, of course, a Judge or Magistrate sitting alone is also free to take that same approach.

3. When seen in that light, the unreality of some of the appellant’s submissions becomes the more obvious.  Here, the Magistrate gave herself a full direction equivalent to an Azzopardi[24] direction; and repeated the onus of proof directions in the direct context of both the defendant’s denials in the interview and the good character evidence, thus:

   [128]  As I have indicated, the defendant elected not to give evidence.  He is presumed innocent and was not bound to give evidence and I do not draw any inference adverse to him or his defence as a result of his exercise of his right to silence and decision to put the prosecution to proof.  There may be many reasons why he did not give evidence and I do not speculate on those reasons.  It is for the prosecution to prove its case beyond reasonable doubt and the defendant does not have to prove his innocence.

   …

   [131]  I have borne in mind the defendant’s previous good character in considering whether the prosecution has proved the charge beyond reasonable doubt.  I bear it in mind as a factor affecting the likelihood of the defendant having committed the alleged offence and in assessing the credibility of the explanations given by him at interview, which was led as part of the prosecution case without objection[25].  In doing so, I remind myself that the onus is entirely on the prosecution to prove the charge beyond reasonable doubt and the defendant is presumed innocent and does not have to prove anything at all.  Having been given his rights and caution, I give the defendant credit for adopting a course he was not required to adopt and cooperating with police in attending the police station voluntarily and participating in a lengthy interview, without obtaining legal advice or representation and without the assistance of an interpreter, English being his second language.

   [132]  The defendant’s interview was generally consistent with the complainant’s evidence regarding their presence alone in the kitchenette on the evening of the alleged offence.  He admitted to touching the complainant’s hair with her permission.  The defendant stated that he went “cheek to cheek” with the complainant.  However, the defendant adamantly and steadfastly denied the allegations the subject of the charge and some alleged conduct immediately preceding the alleged offence, including kissing the complainant on the face and attempting to kiss her lips.  No admissions against his interests were made in relation to the alleged conduct the subject of the charge throughout the reasonably extensive interview.

   [24] (2001) 205 CLR 50.

   [25]   R v Trimboli (1979) 21 SASR 577, 578 (King CJ).

4. These were fulsome directions.  Whatever may be the required approach in an “oath against oath” case, this was not such a case.  Provided the Magistrate gave herself correct directions (and I consider that she did), her Honour was permitted to be satisfied beyond reasonable doubt of the guilt of the appellant on the basis of the evidence of Ms S alone, and notwithstanding the appellant’s denials at interview and his previous good character.

5. It is, in fact, not a complicated concept.  Her Honour said more than enough to make plain that she took into account all matters favouring the appellant but, having done so, came to the ultimate conclusion that the prosecution had proven its case beyond reasonable doubt.  Her Honour made quite plain that this was not a situation where, despite disbelief of the defendant, there might remain a reasonable doubt.[26]  There was no failure to give adequate reasons.

   [26]   Cf Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J).

6. I reject grounds of appeal 5 and 6.

   GROUND 7:  CHARGE PROVED BEYOND REASONABLE DOUBT?

   7      The Magistrate erred in finding that the appellant’s guilt had been proved beyond reasonable doubt and erred in accepting beyond reasonable doubt the complainant’s evidence as accurate and reliable in relation to the charged offence, given:

   7.1     The inconsistencies between the complainant’s evidence about what she told [Mr Y], Barokah, Trewin, Perry and Ms S (senior) (in part) about the incident shortly after it occurred and those witnesses’ own evidence of what the complainant had told them.

   7.2     The Magistrate’s finding that the complainant’s evidence, about what she told [Mr Y], Barokah, Trewin and Ms S (senior) (in part) about the incident shortly after it occurred, was unreliable and her rejection of those parts of the complainant’s evidence to the extent of any inconsistency.

   7.3     The inconsistencies in the conduct of the complainant including her descriptions of the incident, based on what the Magistrate found the complainant did tell [Mr Y], Barokah, Trewin and Ms S (senior) (in part) about the incident shortly after it occurred.

   7.4     The failure of the complainant to complain to Perry about the acts constituting the charged offence when she was interviewed about it.

   The complaint evidence

7. Very shortly after the subject incident, and while she was still at her work place, Ms S complained to the following persons (in chronological order): [Mr Y] (her boyfriend), by telephone; Mrs S (senior) (her mother), who worked at the same establishment; Ms Barokah (a co-worker); Ms Trewin (a nurse) together with another nurse; and Mrs Perry (the registered nurse) together with her mother.

8. There was no objection made by trial counsel to the reception of any of the complaint evidence.  The reason is entirely apparent.  The appellant sought at trial, and now seeks on appeal, positively to rely on inconsistencies between the evidence of Ms S and that of various of the complaint witnesses; given that the appellant elected not to give evidence, such inconsistencies (together with the appellant’s prior good character and his denials to the police) really constitute the defence case.

9. There is no suggestion by the appellant that the Magistrate failed to correctly approach and use the complaint evidence as a matter of law. I consider that the Magistrate correctly determined in the course of her judgment that she would only receive pursuant to s 34M of the Evidence Act 1929,[27] the evidence of Mr Y (as the initial complaint) and the evidence of the mother of Ms S, Mrs S (senior) (as elaboration of the initial complaint); and that her Honour correctly directed herself as to the permissible and impermissible uses of that evidence pursuant to s 34M(4).

   [27]   At [117]-[118].

   The Magistrate’s summary of Ms S’ evidence concerning her complaints

10. The Magistrate correctly summarised Ms S’ own evidence concerning her complaints shortly after the subject incident thus:

    [11]    The complainant said that she left the kitchenette, took the elevator to the ground floor and went outside to where the main bins were kept.  She tried to call her mother, but could not contact her.  She then rang her boyfriend of two years, [Mr Y], with whom she was living at the time.  She said that she spoke to him for approximately five minutes and that she told him that “an old man had tried to kiss me and touch my breasts or had touched my breasts”.  She said that she was “quite hysterical and crying” and that [Mr Y] was trying to calm her down, that she could not recall exactly what he said but that he did eventually manage to calm her down. 

    [12]    It was the complainant’s evidence that, after speaking to [Mr Y], she called her mother again but still could not contact her.  She then returned inside the ground floor foyer of the Lodge and saw a co-worker, Mrs Barokah, who she knew quite well as she also worked as a food services assistant.  It was the complainant’s evidence that she must have been still visibly upset because Mrs Barokah approached her and asked what was wrong.  The complainant asked if Mrs Barokah knew the defendant, which she said she did.  It was the complainant’s evidence that she then told Mrs Barokah that the defendant “tried to kiss me and he touched my breasts”.  She said that she spoke to Mrs Barokah for only about two minutes and Mrs Barokah then sat her down to try and calm her in the foyer area.  The complainant sat there for approximately ten minutes and spoke to two other nurses including Mrs Trewin to whom she thought she said that the defendant had tried to kiss her and touched her breasts.

    [13]    It was the complainant’s evidence that her mother then arrived at the nursing home.  She said that she only told her mother she had been sexually assaulted and did not provide great detail or wish to say very much because “it was quite embarrassing” as her mother was with her boyfriend, Mr Bellin.  She could not recall what her mother said in response.  She said that her mother spoke to the Registered Nurse and the complainant then spoke to the Registered Nurse, Mrs Perry, with her mother present.  It was the complainant’s evidence that, when they spoke with Mrs Perry, Mrs Stephenson directed the conversation and the complainant did not do much of the talking.  She said that at the meeting Mrs Perry asked what had happened and “we took down just sort of dot points of what happened, she took it down on a post-it note”.  It was the complainant’s evidence that she told Mrs Perry that “Santiago the carer from upstairs had tried to kiss me and touch my breasts”.  She did not recall saying anything further to Mrs Perry.

    The Magistrate’s summary of the complainees’ evidence concerning Ms S’ respective complaints to them

11. The Magistrate summarised the complainees’ evidence concerning Ms S’ respective complaints to them in a very long passage from pages 19 to 25 inclusive.  I do not understand the appellant to submit that the Magistrate’s review and summary of this evidence was erroneous or inadequate; the appellant largely embraces the Magistrate’s conclusions that there were substantial inconsistencies and that the complainees (with the exception of Mrs Perry) were to be preferred to Ms S.  In those circumstances, I consider that to attempt to restate or praisee this lengthy section of reasons would be largely meaningless and would risk presenting an unbalanced version of the present cohesive whole.

    The Magistrate’s findings as to inconsistencies between Ms S’ evidence and the complainees’ evidence about the content of the respective complaints

12. The Magistrate came to the following conclusion concerning the inconsistencies between Ms S’ evidence and the complainees’ evidence about the content of the respective complaints:

    [96]    The primary matters which the complainant indicated she was unable to recall at trial generally related not to her alleged interaction with the defendant in the kitchenette, but to the content of her conversations with others at the home shortly after the alleged offence.  The complainant was cross-examined at length regarding the detail of those discussions, including whether and to whom she complained of the alleged conduct the subject of the charge.  The complainant’s evidence as to the content and detail of those conversations was internally inconsistent and inconsistent in some significant respects with the evidence of some prosecution witnesses, including as to whether she told them of the alleged conduct the subject of the charge.  On some occasions, the complainant appeared to be reconstructing or simply agreeing with suggestions put under cross-examination in her evidence regarding the content of those discussions.  Ultimately, it was the complainant’s evidence that “everything that I said has happened, did happen” and that “The intricacies of what was said to a nurse or another, I do not remember, but what happened did happen”.  In assessing the complainant’s evidence, I have also considered the evidence from the witnesses who saw and spoke with the complainant shortly after the alleged offence

    The Magistrate’s conclusions as to the significance of the inconsistencies between Ms S’ evidence and the complainees’ evidence

13. The analysis of the Magistrate concerning the significance of her above finding of unreliability is considerably more lengthy and detailed than is usually found in Magistrates’ judgments.[28]  The Magistrate carefully considered the defence submissions thus:

    [119]  Defence has submitted that the complainant’s failure to disclose the alleged touching of the breasts and words the subject of the charge to most of the people to whom she spoke shortly after the alleged offence casts doubt on her credibility or reliability as a witness, relating as it does to the specific allegation the subject of the charge and, on the complainant’s evidence, the most important and upsetting aspect of the defendant’s alleged conduct. 

    [120]  I must exercise caution before accepting the complainant’s evidence at trial as this omission relates to the specific allegation the subject of the charge.  I have assessed the complainant to be a confident, intelligent and level-headed young woman, despite her relatively young age, who was fully cognisant of her rights and responsibilities in the workplace and the protocols for reporting inappropriate conduct.  She spoke with other witnesses at the home shortly after the alleged offence while her interaction with the defendant was fresh in her mind and stated at trial that she intended to tell the truth and make full disclosure when speaking with various staff at the home.  

    [121]  Nevertheless, I consider there to be an eminently reasonable and believable explanation for the complainant’s failure to disclose the allegation the subject of the charge to those with whom she spoke prior to her mother that evening.  It was the consistent evidence of all prosecution witnesses that the complainant was extremely emotionally upset, distressed and crying throughout her conversations with them – at times, she was so upset that she was unable to be understood.  Mrs Trewin referred to the complainant’s apparent reluctance to disclose details of the alleged incident to her.  The complainant spoke of her embarrassment of disclosing the allegation the subject of the charge within earshot of her mother’s boyfriend.  She spoke with Mrs Barokah, Mrs Trewin and Mrs Perry in somewhat public areas of her workplace.  She disclosed the allegation the subject of the charge to her mother only once they moved outside the Lodge building and were able to speak privately.  She had not previously met Mrs Perry; while she was friendly with Mrs Barokah and Mrs Trewin, they were work colleagues.  The allegation the subject of the charge is the aspect of the defendant’s alleged conduct which I accept the complainant found the most important and upsetting and without which she would not have pursued the matter “to this extent”; as such, it would have been the most difficult to disclose.  The person to whom she first wished to speak was her mother and she spoke with others only after unsuccessfully trying to speak with her mother – she did not speak with [Mr Y] in person, but over the telephone. 

    [122]  In those circumstances, I consider her failure to disclose the most upsetting and important allegation the subject of the charge to her boyfriend and work colleagues that evening and her confiding of that allegation only to her mother once she spoke with her alone and in person, to be an entirely understandable and natural reaction in the circumstances.  The complainant’s failure to disclose the allegation the subject of the charge to others with whom she spoke earlier in the evening does not cause me to doubt the veracity or reliability of her evidence as to the alleged conduct the subject of the charge.  For similar reasons, despite these omissions, I consider the timing, circumstances and content of the initial complaint and elaboration, and to whom they were made, to be consistent with the complainant’s evidence, while not evidence of the truth of the allegation.

    [123]  For the reasons I have indicated, while I found the complainant a to be an honest witness throughout her evidence, I do not accept the complainant as a reliable witness in relation to the content of her conversations with witnesses at the home shortly after the alleged offence.  As I have indicated, her evidence was internally inconsistent and inconsistent in significant respects with the evidence of other witnesses as to the content of those discussions and to whom she disclosed the allegation the subject of the charge; at times her evidence appeared to be a reconstruction or agreement with suggestions put under cross-examination.  Ultimately, the complainant honestly indicated that she could not recall the detail of those discussions.  Her inability to do so at trial is unsurprising and understandable, given her state of distress at the time of those conversations, the number of people to whom she spoke on a common topic within a short space of time and the period of time that had elapsed between that evening and trial. 

    [124]  In relation to the balance of the complainant’s evidence, her evidence regarding the circumstances of her discussions with others at the home shortly after the alleged offence was otherwise clear and consistent with that of other witnesses regarding to whom she spoke, when, where and her demeanour during the discussions.  I have found that no new allegations were made in those discussions, in addition or different to those the subject of the complainant’s evidence.  Further, as I have previously outlined, the complainant generally had a good recollection of her interaction with the defendant that evening and the circumstances of the alleged offence; her evidence on that topic was generally clear, detailed, balanced and consistent throughout.  Accordingly, the inconsistencies and admitted unreliability of the complainant’s evidence at trial as to the detail of her conversations with others at the home shortly after the alleged offence, does not cause me to doubt the credibility and reliability of the balance of her evidence.

    The appellant’s submissions on appeal as to the significance of the inconsistencies between Ms S’ evidence and the complainees’ evidence

    [28]   This is a comment in no way critical of the usual comparative brevity necessitated by the pressure of Magistrates’ caseloads.

14. This is not a case where the appellant can suggest that the Magistrate was not alive to the inconsistencies in the prosecution case or to the extent thereof; the Magistrate found a significant number of inconsistencies between the evidence of Ms S concerning her evidence of what she had said to the complainee witnesses and the evidence of those witnesses themselves.  Nor is this a case where the Magistrate failed to face up to the significance of those inconsistencies; her Honour specifically preferred the evidence of the complainee witnesses[29] and found the evidence of Ms S “unreliable” to that extent (at paragraph [123] reproduced above).  And nor is this a case where the Magistrate nevertheless accepted the evidence of the complainant concerning the elements of the charge without giving clear reasons for doing so; on the contrary, her Honour undertook a very detailed consideration of the evidence and gave extensive reasons for the final conclusions to which she came.

    [29]   With the exception of Mrs Perry.

1. The appellant submitted that the correct approach to a Magistrates appeal pursuant to s 42 of the Magistrates Court Act 1991 is that adumbrated by Perry J in Taylor v Hayes;[30] I entirely agree and adopt that approach.  I have read and re-read the evidence, the reasons of the Magistrate, and both the written submissions and transcript of the oral submissions of the appellant with that approach in mind.

   [30] (1990) 53 SASR 282, 289-292.

2. The cumulative effect of the inconsistencies and other matters upon which the appellant relies does not cause me to doubt the accuracy of Ms S’ evidence of the elements of the charge.  The inconsistencies are explicable for the real and substantial reasons expressed by the Magistrate, with which I agree.

3. Of course, beyond any analysis of the evidence, the Magistrate did have the advantage of hearing and seeing Ms S give evidence; and her Honour used that advantage in a careful and discriminating fashion.  For my own part, I do not see in the whole of the evidence any indicia of falsehood, exaggeration or guile on the part of Ms S and I can find no reason to disagree with the Magistrate’s approach or conclusions concerning the evidence.

4. The above remarks apply to all aspects of the case as put by the appellant, including the inconsistencies as between the evidence of Ms S and the various complainees.[31]  I do not propose to go through all of that evidence but I will refer, as examples only, to the important evidence of Mr Y who gave evidence of the initial complaint, and Mrs S (senior) who gave evidence of elaboration of the initial complaint.

   [31]   At paragraph 122 of the judgment, the Magistrate stated that “the timing of circumstances and content of the initial complaint and elaboration are consistent with the complainant's evidence.”  Counsel for the appellant submitted that while “there was not an inconsistency in timing, circumstances and so on”, there was inconsistency in content.  However, it is my view that, given the Magistrate's obvious appreciation of the various inconsistencies in content (as discussed above), her Honour at this particular passage was simply observing that the combined effect of the initial complaint (to Mr Y) and its elaboration (to the Mother) was that by the end of that elaboration, there was in existence a very recent complaint of an indecent assault by the touching of the breasts by the appellant, as was to be later charged in the Information.

   The evidence of Mr Y

5. Mr Y gave evidence that, as at 24 December 2014, he was the boyfriend of Ms S, and that he still is.  He stated that in 2014 he was spending Christmas Eve with his auntie at her home at McLaren Vale.  While there, at roughly around 7:00pm, he received a call from Ms S on his mobile phone.  He testified as follows:

   QWhat did she say to you?

   AShe was actually crying hysterically to me and was saying that she had been sexually harassed.

   QBy anybody in particular?

   ANo name.

   QAny description of any person?

   ANo name or description.

   QDid you actually hear her voice above the – how would you describe what you heard over the phone was it hysteria?

   AYes, she was very upset.

   QCan you describe that for us, what that upset was?

   AShe was crying and she was very shooken up in a sense, very distraught.

   QAnd that was the noise that emanated into your phone?

   AYes, that she was very upset and yes.

   QCould you, when hearing that, decipher what she was saying over the phone?

   AIt was very, it was very hard to hear her and I had to ask her several times to repeat herself, but yes.

   QDid she, after she said what she said being sexually harassed, did she go any further about that?

   ANo she didn’t go into any detail.

   QDid you say anything to her then?

   AI asked if she had seen another work colleague at this stage to inform them that this had happened?

   QDid she say anything else to you?

   ANot that I can remember.

6. The appellant’s argument concerning inconsistency between Ms S and Mr Y largely relied upon two matters.  First, Mr Y stated in evidence that Ms S had said to him that an old man had “sexually harassed” her.  Second, Mr Y did not recall Ms S stating to him that the person had touched her breasts.

7. As to the first matter, while appreciating the dangers of circularity of reasoning, one may nevertheless observe that, given the factual situation here being alleged by Ms S, she may not unreasonably have found it hard to articulate her complaint in exactly the correct legal form.  If Ms S’ description of events in her evidence is correct, it would follow that at the time of making the first complaint (to Mr Y) she had the following state of mind.  First, that she had not been roughly handled, injured or threatened with harm.  Second, that the appellant had not removed her clothing or reached underneath it, but had rather touched her breasts over the top of her clothing.  Third, that he had desisted without committing a rape or attempted rape.  Fourth, that she was quite young (17) and had no legal training or background.

8. In the above circumstances, finding a correct short label for what had occurred may not have been simple for her.  While the term “indecent assault” comes easily to police and lawyers, one cannot assume it comes so easily to the lips of a person in Ms S’ situation.  Ms S expressly stated to Mr Y that the subject of her complaint to him was “sexual harassment”, “by an old man” and impliedly conveyed (through her crying and distraught manner of speech) that such harassment was both serious and very recent.  That she chose a term in vogue, “sexual harassment”, is hardly surprising.  It is a term that she, as well as everyone else, has no doubt heard frequently used in various contexts.  It may well have suggested itself as a suitable shorthand label which covered what had happened and did not exaggerate the situation, as a claim of attempted rape or something similar would have done.

9. As to the second matter, the lack of evidence by Mr Y that Ms S asserted a touching of her breasts, the appellant submitted that:

   [81]    The Magistrate found that the complainant did not tell [Mr Y] that “an old man had tried to kiss me and touch my breasts or had touched my breasts” and the complainant’s evidence that she did tell [Mr Y] this was rejected as unreliable.  

10. If one is to be discriminating about the evidence and the Magistrate’s reasons in this case, one needs to examine this assertion a little more closely.  The evidence of both Ms S and Mr Y was, and the Magistrate found, that throughout the phone call Ms S was very distraught and crying hysterically.  Mr Y stated that her words were difficult to hear on the phone and he had to ask her several times to repeat herself.  In those circumstances, the Magistrate found as follows:

    [98]    … [Mr Y]’s evidence corroborated the complainant’s evidence as to the timing of the phone call and her state of extreme distress.  His evidence was consistent with the complainant’s evidence that she did not name or describe the alleged offender.  It was his evidence that, given her state of distress, it was difficult to understand the complainant at times and that he had to ask her several times to repeat herself, but that he could discern what she was saying.  It was his evidence that the complainant told him she had been “sexually harassed” and did not go into any further detail “from what I can remember”. 

    [99]    I take into account [Mr Y]’s relationship with the complainant at the time of the incident and at trial and any natural tendency to view things through her eyes.  However, his demeanour in giving evidence, the balanced and direct manner in which he gave evidence, its limited content and consistency with the other evidence, for example as to the timing of the phone call and his observations of the complainant’s distress, convince me that he was endeavouring to be as accurate and truthful as possible in his evidence.  I consider his evidence that the complainant complained of being “sexually harassed”, but did not identify or describe the alleged offender or detail the alleged conduct the subject of the charge to be credible and reliable.  While he had difficulty discerning some of the complainant’s words due to her state of distress, I accept that he was able to discern her words in relation to the matters about which he gave evidence.  The complainant may have made a more specific complaint to [Mr Y] regarding the conduct the subject of the charge which he could not discern given her state of distress.  However, given her distress, her admitted inability to recall the detail of her conversations with witnesses shortly after the alleged offence, the inconsistencies in her evidence on that topic and the content of [Mr Y]’s evidence, I am not satisfied that she did so.  I indicate that I accept [Mr Y]’s account of the complainant’s words and demeanour during their conversation and, where it is inconsistent with the complainant’s account, I reject her account as unreliable.  I accept that their telephone conversation occurred shortly after the complainant left the kitchenette once she was alone and after the complainant attempted to telephone her mother, without success.

11. The effect of the above is rather less definitive than the appellant submits in the passage above “The Magistrate found that the complainant did not tell [Mr Y] that “an old man had tried to kiss me and touch my breasts or had touched my breasts”.  In fact, on a careful reading, the Magistrate found that Ms S “may have made a more specific complaint to [Mr Y] regarding the conduct the subject of the charge which he could not discern given her state of distress” but “I am not satisfied that she did so”.

12. This does, of course, amount to a refusal to make a positive finding that Ms S had said these things to Mr Y and therefore, to that extent, the s 34M complaint evidence has commensurately less weight. However, at the same time, it does not constitute a definite factual finding that she did not do so and it is far from a positive finding of lying by Ms S in her evidence that she had said that to Mr Y.

13. However, the matter of a complaint by Ms S about the appellant touching her breasts was discussed in greater detail in connection with the evidence of Ms S’ mother, to which evidence I now turn.

    The evidence of Mrs S (senior)

14. The evidence of Mrs S (senior), the mother of Ms S, is important for a number of reasons.  First, it constitutes very clear evidence of early complaint of the precise sexual offence before the Court.  Second, Mrs S (senior) was a long term employee at the same work place and well experienced with certain of the dynamics involved.  Third, the Magistrate accepted her evidence over the evidence of Mrs Perry upon which the appellant sought to place strong reliance.

15. Again, the Magistrate spent a good deal of time carefully analysing the evidence of Mrs S (senior), at pages 9 to 12; 21 to 24; and 24 to 25 (in the context of the comparison of her evidence and that of Mrs Perry).  The critical portion of her evidence was accurately summarized by the Magistrate thus:

    The complainant’s mother, Mrs S, had been working as a chef at the nursing home for some years as at the date of the alleged offence.  On 24 December 2014, she arrived at the home with her boyfriend, [Mr B], at approximately 7.15pm, intending to collect the complainant from work.  She said that, as they waited in the foyer of the nursing home, the complainant entered walking quickly, visibly shaking, red faced and teary.  [Mrs S] asked her daughter what was wrong and the complainant “blurted out ‘I’ve just been sexually assaulted’.”  The complainant did not disclose any further details until they were standing outside the nursing home building and away from Mr Bellin, when the complainant told her that the defendant “kissed me and tried to - and felt my breasts, tried to corner me”.  She said that the complainant was still shaking and did not want to return to the Lodge building. 

    Mrs S left her daughter with [Mr B] and Mrs Barokah and went to The Lodge to see the Registered Nurse, Mrs Perry, who she said was the “first port of call for any emergency” in the evenings.  Mrs S spoke to Mrs Perry at the Registered Nurse station on the ground floor of the Lodge and briefly recounted what her daughter had told her.  Mrs S stated that Mrs Perry was initially “very unhelpful and suggested we just have a nice cup of tea”.  Mrs S asked Mrs Perry to contact the CEO, but she was unable to contact him, so Mrs S rang him and left a message.  Mrs S then returned to fetch the complainant and was present when Mrs Perry spoke with the complainant.  Mrs S said

    Mostly I was talking on L’s behalf.  L was standing right next to me but L wasn’t in a fit state to be saying anything so I went in.  Partly because she’s my daughter and partly because she’s my direct subordinate … in the workplace and I would have done it for anybody.

16. Clearly, Mrs S (senior) was a protective mother with a strong personality and with little faith in Mrs Perry.  A passage from her cross-examination extracted by the Magistrate is emblematic of her evidence:

    [51]    When it was put to [Mrs S] that the complainant was being asked questions by Mrs Perry as Mrs Perry was in charge and wanted to identify what had happened, [Mrs S] stated “No, the impression I got is that she [Mrs Perry] really had better things to do, to be honest”. 

    [52]    She agreed that she had given evidence that the complainant had told her that she had been kissed on the lips, her breasts had been touched and her hair had been played with.  When asked whether the complainant had said that to Mrs Perry, she said “I don’t know if she went as far as to say the breast touching.  I don’t know.  I’m being honest.  I’m not going to lie.”  The following exchange then occurred:

    Q     You had just been told, madam, by your daughter that your daughter had been sexually assaulted, including touching her breasts, hadn’t you?

    A     Yes.

    Q     You were upset, weren’t you?

    A     Yeah.

    Q     You were worried about [Ms S]?

    A     Yeah.

    Q     So if [Ms S] hadn’t said that, you would have jumped in and said ‘Well tell her about the breasts’, wouldn’t you?

    A     No, because she was incompetent and I had full plans of going over her head anyway.  That’s the truth.”

    …    

    Q     You make a decision, is that what you’re saying … to go ‘She’s no good even though she’s in charge.  I’ll go somewhere else’?

    A     Yep, because she stood there and suggested that we all go upstairs, get together and have a nice cup of tea.  Now, if that’s in the procedures manual, I’d love to see it.”

    [53]    When it was put to [Mrs S] that her daughter did not allege to Mrs Perry that the defendant had touched her breasts she said “Yep, well I can understand that.  I’ve been a young girl and I certainly wouldn’t talk to strangers … I’m telling you that’s what she said to me then, that’s what I heard.”

17. My conclusions concerning the evidence of Mrs S (senior) are very much the same as those to which I came concerning the evidence of her daughter.  I do not see in the whole of the evidence any indicia of falsehood, exaggeration or guile.  Again, I can find no reason to disagree with the Magistrate’s approach or conclusions concerning Mrs S’ evidence.

18. I reject ground 7 of appeal.

    GROUND 2:  EVIDENCE OF DISTRESS

    Ground 2: The Magistrate erred in concluding at paragraphs [126] – [127] of her reasons that the evidence of the complainant’s distress was consistent only with the allegation the subject of the charge,[32] when such a conclusion required the Magistrate to have already decided that the appellant had committed the actus reus of the offence and the Magistrate had not yet given any consideration in her reasons to the evidence of the appellant’s interview with police and the evidence of the witnesses called by the appellant.

    [32]   See also paragraph [97] of the Magistrate’s reasons.

19. It is to be noted that prior to paragraphs [126] – [127] (to be referred to as the impugned passage), the Magistrate directed herself at paragraph [97] thus:

    [97] I must consider the prosecution evidence relating to complaint in accordance with the requirements of s 34M of the Evidence Act 1929. Evidence of complaint is only admissible as relevant to explaining how the allegations came to light and as evidence of the degree of consistency of the complainant’s conduct.[33]  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.[34]  Evidence of complaint is not admissible as evidence of the truth of what was said.  Similarly, any evidence of genuine distress found to be consistent only with the allegations is admissible only to establish consistency of conduct[35] and aid in assessing the complainant’s credibility and reliability in determining the weight to be attributed to the complainant’s evidence; it is not admissible as evidence of the truth of the allegations.   (Emphasis added)

    [33]   R v J, JA (2009) 105 SASR 563. [93].

    [34]   R v J, JA (2009) 105 SASR 563, [95].

    [35]   R v Baltensperger (2004) 90 SASR 129, [55].

20. The Magistrate, in her last footnote to paragraph [97], refers to the following passage in R v Baltensperger where Gray J observed:[36]

    Similarly, evidence of the complainant’s distressed state immediately after an alleged offence is admissible for the limited purpose of evidencing consistent behaviour and as part of the whole circumstances surrounding an alleged offence.  It may be used as evidence relevant to a complainant’s credibility; however, it cannot be used as evidence of guilt.  As observed in Pahuja (No 2), evidence of complaint and distress is not probative but may assist a jury in determining the credibility of the complainant.  In the case of R v Knight, referred to by Olsson J in R v Green, the court warned against over-emphasising the probative value of evidence of distress, reiterating that evidence of distress will normally only be admissible as evidence of consistency of behaviour.

    [36] (2004) 90 SASR 129, [55].

21. I note that counsel for the appellant states in his summary of argument:

    The Magistrate then purports at [127] to use the evidence of the complainant’s distress to assist in assessing the credibility and reliability of the complainant’s evidence.  This statement serves only to demonstrate the circularity of the Magistrate’s reasoning. [footnote: A similar problem was created by the trial Judge’s directions in R v Pahuja (No 2) (1989) 50 SASR 551 at 576 per Prior J].

22. At the page in Pahuja cited by the appellant, Prior J stated:[37]

    Given the issues raised by the defence in this case, the evidence of complaint and distress only had that tendency after a conclusion that the girl’s allegations were true.  The evidence that could assist in that inquiry did not include the evidence of complaint and distress because that evidence was consistent with the issue raised by the defence.  In the course of addresses, the jury was plainly told by the appellant’s counsel that the girl’s distress was perfectly consistent with either story.  Nothing was made by the prosecution in its address to the jury about the fact of distress.  The evidence of complaint and distress, though admissible, was of a particularly sensitive kind in this case.  The effect of the judge’s direction to the jury was that the jury were to treat that evidence as consistent with the girl’s allegations.  His directions invited circularity of reasoning that distress was to be attributed to the offence having occurred because the girl says it happened.  He did not tell them what he should have told them, that it was also consistent with the defence case.  In this context consistency means non contradictory.

    [37]   R v Pahuja (No 2) (1989) 50 SASR 551, 576 (Prior J).

1. In seeking to call in aid that passage in the present case, counsel omits to state some salient matters.  First, Prior J was in dissent in relation to the matter of distress evidence but I will pass over that.  Secondly and more importantly, in Pahuja, the defendant gave evidence on oath in which he described in detail how the consultation occurred in such a way that it may well have caused the complainant to have become distressed, but in circumstances where the defendant had not committed the offence charged against him.  This was the “issue(s) raised by the defence”, namely that “the girl’s distress was perfectly consistent with either story”.

2. By contrast, in the present case, the appellant did not give evidence and although he faintly suggested in his police interview that Ms S may have misunderstood something, on his version of the facts there was simply nothing that he had done that could possibly have been misunderstood, let alone could have caused the observed distress.

   The impugned passage at paragraphs [126] – [127]

3. The impugned passage at paragraphs [126] – [127] is as follows:

   [125]  In assessing the complainant’s evidence, I have also had regard to the evidence of distress.  As I have previously outlined, all prosecution witnesses gave consistent evidence regarding the complainant’s apparent state of extreme distress in her conversations with them shortly after the alleged offence.  Having assessed all the evidence, I am satisfied that the complainant maintained a casual and friendly demeanour prior to leaving the kitchenette.  However I am satisfied beyond reasonable doubt that, from the time she was alone shortly prior to her conversation with [Mr Y] until she calmed down somewhat in the course of her conversation with Mrs Perry, the complainant was genuinely upset and distressed as described by the prosecution witnesses.  I do not consider it a reasonable possibility that the complainant’s apparent distress was simulated.  In terms of the nature and extent of her genuine distress, I accept that she was hysterical and crying when she spoke with [Mr Y], such that he was unable to understand what she was saying at times, was upset and teary when she spoke with Mrs Barokah, upset and heavily and constantly crying when she spoke with Mrs Trewin, teary and visibly shaking when she spoke with [Mrs S] and crying and very upset when she spoke with Mrs Perry.

   [126]  I am mindful that I must exercise considerable caution and that signs of distress may result from a multiplicity of possible causes, some of which may be unrelated to the charged offence or the defendant.  Having assessed the complainant as a confident, intelligent, and level-headed young woman, I consider her genuine distress to be out of character for her.  The complainant’s distress commenced upon her being alone immediately after the alleged offence and, being unable to contact her mother, contacting her boyfriend.  I do not consider it a possibility that her distress was caused by some other conduct by the defendant (whether alleged, admitted or not), by some remorse on her part to a consensual interaction with the defendant or another person, or by any other situation or matter completely unrelated to the charge or the defendant.  I do not consider it a possibility that the complainant’s distress was the product of her personal temperament given the situation in which she found herself.  The commencement of her distress preceded her conversation with her mother and reject the suggestion it may possibly have been related to her mother’s conduct or forceful personality or asserted “taking control” of the situation or any panic at a feeling of loss of control by the complainant upon her mother arriving at the home.

   [127]  Accordingly, I consider the complainant’s distress to be genuine and to be consistent only with the allegation the subject of the charge and to be conduct consistent with that allegation.  I do not consider there to be any alternative possible explanation for the complainant’s distress, other than the alleged conduct the subject of the charge.  As such, I rely upon it to assist in assessing the credibility and reliability of her evidence. 

   The former practice concerning corroboration warnings

4. In order to address the appellant’s argument, it is first necessary to refer to the position in former times when corroboration warnings were regularly given in certain classes of cases,[38] including that of complainants in sexual cases.

   [38]   For practical purposes, the only such class now remaining is the so called “accomplice warning”.

5. The “dangerous to convict without corroboration” warning was a powerful warning in circumstances where the Judge also directed the jury that there was in fact no potentially corroborative evidence in the case.  Accordingly, forensic arguments continually occurred concerning whether particular items of evidence could constitute corroboration, and apparent distress of a complainant was often discussed in this context.

6. Of course, evidence of the appearance of the complainant, including apparent distress, would usually be before the jury in any event, but it was the responsibility of the Judge to direct the jury as to whether such distress could potentially constitute corroboration.  A decision that it could not do so would have particular significance if there were no other potentially corroborative evidence in the case, for that would mean that the “dangerous to convict without corroboration” warning would then be given with full force and effect.

7. The idea of the complainant’s apparent distress being capable of constituting corroboration was always treated with considerable reserve by the Courts because the basal concept was that corroboration must emanate from a source independent of the person whose evidence is to be corroborated.  Thus King CJ stated in R v Schlaefer:[39]

   The essence of the notion of corroboration is confirmation from an independent source of the story of the person to be corroborated.  There is an incongruity with this essential notion in regarding actions or emotional manifestations emanating from the person to be corroborated as capable of corroborating him.  Such actions and manifestations may be contrived or simulated.  The considerations which have led to the rule requiring a warning as to the need for corroboration of a complainant’s story apply equally to the complainant’s actions and emotional manifestations.  If a sexual allegation may be fabricated out of hidden motives, so may actions and emotional manifestations which are consistent with it.  If a sexual allegation is the result of a disordered imagination, the accompanying actions and appearances are likely to be consistent with the event having occurred as imagined.  Evidence of appearances of distress and the complainant’s actions may have importance as being consistent or inconsistent with the allegations, just as before the intervention of the legislature the words of complaint were admissible on that basis.  But a complaint was never capable of amounting to corroboration, however spontaneous it might appear, precisely because it emanated from the complainant.  For the same reason I think that the courts must exercise particular caution as to the circumstances in which evidence of apparent distress and accompanying actions may be treated as corroborative.  I suppose that most false complaints of sexual assault, whether fabricated or imagined, would be accompanied by some manifestations of distress.  To allow such manifestations to be treated as corroborative, other than in exceptional and compelling circumstances, must have the effect of eroding seriously the rule as to corroboration in sexual cases.   (Emphasis added)

   [39] (1984) 37 SASR 207, 215.

   Times have changed

8. However, times have changed.  Since corroboration warnings are now rare, prosecutors no longer find it necessary to argue that distress in a given case may constitute corroboration.  However, some things remain the same.  Jurors will still be very interested in the extent to which a complainant was apparently distressed and often it will be necessary to carefully warn juries concerning the same types of dangers to which King CJ referred in Schlaefer (albeit in the different context of corroboration).

9. In the present case, the Magistrate directed herself in two ways concerning distress evidence.  First, her Honour directed that evidence of distress, like complaint evidence, is only received “to establish consistency of conduct[40] and aid in assessing the complainant’s credibility and reliability in determining the weight to be attributed to the complainant’s evidence; it is not admissible as evidence of the truth of the allegations.”[41]  That statement is consistent with a number of authorities, is favourable to the appellant and is not complained of by him; it is not necessary to consider it further.

   [40]   R v Baltensperger (2004) 90 SASR 129, [55].

   [41] Magistrate’s Judgment at [97].

   A direction too favourable to the appellant

10. Second, the Magistrate directed herself in terms at paragraph [97] which appears to state that evidence of apparent distress is only admissible if it is first found to be “evidence of genuine distress found to be consistent only with the allegations”.  This is an error, but it is an error because it is too favourable to the defendant.  At least in the situation where (as in the present case) the observation of apparent distress occurs quite soon after the time when it is alleged that the offence occurred,[42] the correct position is that the evidence of apparent distress will usually be admissible, but directions will need to be given as to the use to be made of that evidence.[43]

    [42]   Nettle J put this condition thus in R v Rogers [2008] VSCA 125: “if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant …”

    [43]   In R v Mitrovic [1999] SASC 478, Duggan J (with whom Debelle and Williams JJ agreed) stated: “The evidence of distress was not rendered inadmissible simply because of competing theories as to its cause. On the other hand, it is necessary in a case such as the present to direct the jury that the evidence of distress can only be used as evidence of consistency if the jury are satisfied that other explanations have been excluded.”

11. Those directions should not be in a form suggesting that regard can be had to evidence of apparent distress only if it is first found that the distress is genuine and there is no possibility that it results from something other than the defendant having perpetrated the act charged.  A direction in that form would be circular in that the defendant would first have to be adjudicated to be guilty before the evidence of distress could be used against him.  Rather, the directions should be of a type that leaves the jury free to give appropriate weight to distress evidence but, at the same time, assists the jury by carefully directing them as to the types of dangers to which King CJ referred in Schlaefer and adequately relates the general directions to the facts and issues of the particular case.[44]

    [44]   As an example of the type of directions that might be necessary in a particular case, one may again refer to the judgment of King CJ in Schlaefer where his Honour stated (albeit in the different context of corroboration): “If the child wished to concoct a false allegation, he would be likely to do what he did and to show some signs of emotional upset.  If he suffered an onset of panic or loneliness during the night, he could well have run to his mother and shown the observed signs of distress.  It is in just such circumstances that a young boy, perhaps ashamed of his “unmanly” behaviour, might invent a false allegation to account for it.”

12. The simple answer to the appellant’s present complaint is that the fact that the Magistrate’s approach was too favourable to the defendant should not affect the validity of the verdict.  That approach was taken in R v Rogers where the jury were directed (too favourably to the defendant) that “…The apparently distressed condition of the complainant can only confirm that story, or the version of sexual assault, if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault, or in this case rape, having occurred”.  The following robust approach was taken:[45]

    The effect of this direction was to deprive the evidence of distress of any weight unless the jury came to the conclusion that the complainant had been raped.  Accordingly, I am of the opinion that the ground has not been established.

    [45] [2008] VSCA 125, [13] (Buchanan JA with whom Redlich JA concurred).

    Did the Magistrate pre-judge the appellant?

13. As I understand it, counsel for the appellant seeks to remove the present case from the above line of country by arguing, first, that it should be inferred from the Magistrate’s remarks at paragraph [127] that her Honour had, by that stage of her reasons, determined that the appellant was guilty and, second, that her Honour had thereby prejudged the matter because she had not up to that point in her reasons considered the appellant’s denials in his police interview and the evidence of his prior good character.

14. In my view, these arguments ignore the reality of the judicial process and attribute to the judgment a stilted and artificial sequential process.

15. Several things should be self-evident.  First, the Magistrate had heard all of the evidence and full addresses of both counsel prior to the commencement of judgment writing; thus her Honour was at all times during the course of judgment writing well aware of the defendant’s denials in his police interview and the evidence of his prior good character.  (As it happened, she had mentioned both matters in her judgment as early as at paragraphs [2] and [5] (reproduced above), but it would not matter if she had not.)

16. Second, we know that the Magistrate was well aware of the correct approach to the appellant’s police interview and the correct two limb approach to evidence of good character. We know this because her Honour exhibited it in the paragraphs immediately following paragraph [127].

17. Third, judgments (certainly those of the length and complexity of this Magistrate’s judgment), go through a number of drafts.  We only have under consideration here the final draft, but it would be artificial in the extreme to postulate that by the stage of reaching paragraph [127] in that final draft, the Magistrate had not already come to a view as to whether she was prepared to find the appellant guilty on the basis of the evidence of Ms S, and despite the cumulative effect of: the complaint inconsistencies (referred to above); the denials of the appellant in his police interview; and the evidence of the previous good character of the appellant (having full regard to both limbs of such evidence).

18. Put another way, we know that the Magistrate was prepared to find the appellant guilty because she says so at the end of the judgment in each of paragraphs [138] to [142].  But that does not mean that her Honour only came to that decision at the time of writing those paragraphs.  Again, the statements at the earlier paragraph [127] do indeed evince a preparedness to find the appellant guilty beyond reasonable doubt, but that does not mean that her Honour only came to that decision when writing that paragraph.

19. The fact of the matter is that the Magistrate paid proper attention to all of the matters asserted to be supportive of the defence case as discussed above; and I have found that her Honour correctly directed herself in all matters.  While I accept that it would have been more elegant if the writing dealing with the present matters under consideration had appeared prior to, rather than after, paragraph [127], that blemish does not in my view establish appellable error.[46]

    [46]   For a recent decision of the Court of Criminal Appeal in which a similar argument based on the sequence of the judgment was rejected, see R v Latifi [2014] SASCFC 74 at paragraphs [56]-[60].

    If ground 2 is made out the appeal should nevertheless be dismissed

20. If I am wrong in my view that ground 2 of appeal is not made out, the appeal should nevertheless be dismissed.

21. In Theophilus v Police[47] I considered the circumstances in which an appeal under s 42 of the Magistrates Court Act 1991 may be dismissed even though a ground of appeal has been made out.  I there followed the decisions of Napier CJ in Pelham v Homes,[48] Bray CJ in Pope v Ewendt,[49] and other later cases, all to the effect that a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.

    [47] (2011) 110 SASR 420, 438-440.

    [48] [1928] SASR 105.

    [49] (1977) 17 SASR 45.

22. I note the approach of counsel for the respondent in advocating for an approach couched in terms of “miscarriage of justice”, but I prefer the above approach.  In part, this is because the term “miscarriage of justice” might be mistakenly thought to connote a de facto importation of “the common form proviso” in s 353(1), Criminal Law Consolidation Act 1935 into the area of Magistrate Court appeals brought pursuant to s 42 of the Magistrates Court Act 1991. That, of course, cannot be lawfully done; s 353(1) of the Criminal Law Consolidation Act 1935 has no application to an appeal brought pursuant to s 42, Magistrates Court Act 1991.  Maintaining this distinction may be all the more important since the High Court has commenced to formulate a new approach to the common form proviso commencing with Weiss v The Queen,[50] continuing with a number of more recent decisions and, with all respect, further decisions not being unlikely.

    [50] (2005) 224 CLR 300.

23. I proceed here as in Theophilus v Police.[51]  I consider that any error was minor and I conclude that in all of the circumstances it was inevitable that the Magistrate would have found the appellant guilty if she had adopted the strictly sequential process contended for by the appellant.

    [51] (2011) 110 SASR 420.

    Orders

24. The applications for an extension of time and amendment of the grounds of appeal are granted.

25. The appeal is dismissed.