R (Respondent) v Hetherington (Appellant) No. SCCRM 94/151 Judgment No. 4743 Number of Pages 9 Criminal Law and Procedure Evidence

[1994] SASC 4743

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL NYLAND(1), MOHR(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - evidence - in general burden of proof - Appeal against conviction - appellant tried by judge alone - convicted of two counts of indecent assault - inconsistencies affecting nature and quality of evidence at trial - advantage of trier of fact - role of appellate court - case of oath against oath - no adverse finding against credibility of appellant - reversal of onus of proof - convictions unsafe - appeal allowed - convictions set aside and judgment of acquittal on all counts. Criminal Law Consolidation Act 1935 s56. R v Freeman (1980) VR 1; R v Gallaqher (1986) 41 SASR 73; Chidiac v Asfour (1991) 171 CLR 432; Coghlan v Cumberland (1898) 1 Ch 704 and R v Calides (1983) 34 SASR 355, applied.

HRNG ADELAIDE, 20 July 1994 #DATE 24:8:1994

Counsel for appellant:     Mr D H Peek

Solicitors for appellant:    Tindall Gash Bentley

Counsel for respondent:     Mr P R Brebner

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 NYLAND J This is an appeal against conviction. The appellant was charged on information with two counts of indecent assault, contrary to the provisions of s.56 of the Criminal Law Consolidation Act 1935. He elected to be tried by judge alone. The information alleges that the offences occurred on 13 October 1991 (the first count) and in or about the month of January 1992 (the second count). The counts were representative of a course of conduct.

2. At the time of these events the appellant had been living with Vicki Gray, the mother of the complainant, Naomi-Lee Gray, for a period of approximately 10 years. Naomi was born in December 1978. She was nearly 13 at the time of the first offence and just over 13 at the time of the second charged offence. Also residing in the home were Naomi's young sister Stevie who was aged about nine and Tom who was the child of the appellant and Mrs Gray. He was aged just under two years.

3. Naomi's evidence was that the assaults were committed by the appellant on some Sunday nights, whilst her mother was at work, in the bedroom which she shared with her sister Stevie. Her evidence was that the first incident occurred on an evening when she was watching a film called "The Delinquents". The allegation put to the appellant by the police was that the first offence occurred in the month of June 1991. It was an agreed fact at trial, however, that "The Delinquents" was shown on Channel 10 on the night of 13 October 1991, commencing at 8.30 pm and finishing a couple of hours or so later. Naomi said that the appellant came in and told her to turn off the television as the following day was a school day. After she went to sleep she became aware of something happening. Her evidence was (p.14 of transcript):
    "A. Graham was touching me.
    Q. You were in your bed.
    A. Yes.
    Q. In the bottom bunk bed.
    A. Yes.
    Q. What did you use to wear to bed.
    A. A nightie usually.
    Q. A nightie.
    A. Yes.
    Q. And what about any underwear did you wear to bed.
    A. Yes.
    Q. What did you wear.
    A. Nickers.
    Q. Where was Graham touching you.
    A. On my vagina.
    Q. How was he touching you, with what part of him.
    A. His hand.
    Q. What was he doing with his hand.
    A. Rubbing.
    Q. As far as bed clothes are concerned, not the clothes you
    were wearing but the bed clothes, what did you have on your
    bed.
    A. Quilt.
    Q. Like a continental quilt.
    A. Yes.
    Q. You had been under that asleep, I take it.
    A. Yes.
    Q. And where was Graham in relation to that quilt, do you
    know.
    A. I'm not sure, his hand was under it.
    Q. How was his position in relation to yourself.
    A. He was behind me.
    Q. How were you lying.
    A. On my side.
    Q. Are you able to say, could you tell what he was wearing.
    A. Just underpants.
    Q. Could you see him.
    A. Sometimes.
    Q. When you say sometimes, what do you mean.
    A. If I moved my head.
    Q. How could you tell he was wearing underpants.
    A. I saw.
    Q. Did you have any idea what time it was that this was
    happening.
    A. Not really.
    Q. All you remember is that you had gone to sleep and then
    you were aware of this happening.
    A. Yes.
    Q. Now, did either of you say anything. Did you say
    anything to him or did he say anything to you.
    A. He said that I shouldn't tell anyone because he would
    take my brother and ruin my family and it would be my fault.
    Q. By your brother he was talking about Tom.
    A. Yes.
    Q. Did he say Tom's name or call him your brother or what.
    A. He said Tom - I'm not sure.
    Q. Whilst he was touching you, did you do anything.
    A. I was crying.
    Q. Did he say anything about that.
    A. He said it wasn't worth crying about, crying wouldn't do
    anything.
    Q. Probably hard for you to answer this one, but are you
    able to give us some idea of about how long he was in the
    bedroom with you.
    A. He was, I'm not sure, until my Mum had to get picked up.
    Q. So how were you aware of that, your Mum having to get
    picked up.
    A. She rang and then he left.
    Q. So the phone rang, he answered it.
    A. Yes.
    Q. Where was the phone in the house.
    A. In the dining room.
    Q. Then he went and got your Mum.
    A. Yes."

4. Naomi was still awake when her mother returned home but she did not say anything to her. The next day she went to school. She said that during the luncheon period she spoke to her close friend Jodie Deer who was in the same grade. She told her that the appellant had been touching her. She said that thereafter the appellant touched her "every week for a few weeks, then just every couple of weeks". This always occurred in the room she shared with Stevie on a Sunday night when her mother was at work. When asked what happened on each of these occasions her response was "Same thing as the first time, he touched me".

5. Just before Christmas 1991, the whole family went to Sydney. They returned on about 10 or 11 January 1992. Naomi was about to commence her first year at Northfield High School. She said there was one further episode of touching which occurred just after her return to school. This incident is the subject of count 2. Her evidence on that topic was:
    "Q. What happened on that last time.
    A. The same.
    Q. What night of the week was it.
    A. Sunday.
    Q. You told us how on the first time that it happened you
    could see or smell that he had been drinking.
    A. Yes.
    Q. Had he been drinking.
    A. Yes.
    Q. You have told us how you cried on the first occasion and
    he said something about that, about crying, did you cry on
    other times.
    A. Yes.
    Q. Did he say anything about the crying.
    A. Just not to."

6. Naomi said that a short time afterwards she had a conversation with her mother in which she said she wished to go to her grandmother's house. Her mother had asked her whether the appellant had ever touched her or done anything and she replied in the affirmative. She said that subsequently her mother told her that she had spoken to the appellant about the allegations and there had been discussion about going to the police. Naomi said that she did not want to go to the police and it would appear that in due course the matter was left to rest.

7. At the beginning of 1993, however, an argument occurred in the home, following the discovery by the appellant of money in Naomi's bag which she should have spent on school books. Mrs Gray then discovered a forged entry in Naomi's school diary purporting to explain her absence from a lesson. According to Naomi, her mother told her that she could not trust her and that from then on the appellant would be taking her to school. She said she did not want to be alone with the appellant and the next morning she left a note saying that she did not like the appellant being put before her all the time and believing him and not her. She went to school where she saw a counsellor, following which the police were contacted and she made the complaint to them which led to these charges.

8. The appellant immediately went voluntarily to the police and denied the allegations. He also denied the allegations on oath at his trial. The learned trial judge then returned a verdict of guilty with respect to each charge.

9. Jodie Deer, in evidence, confirmed that there was an occasion, during their last year of primary school, on which Naomi had told her about a book she had read in which a man had tried to rape a girl. Naomi said the same thing had happened to her. She said that Naomi had said it had occurred in her bedroom on a night when her mother was at work. She said that Naomi was crying when she spoke to her. Jodie could not remember if she was told the identity of the perpetrator.

10. The learned trial judge was satisfied that, despite some differences between the two versions, Naomi and Jodie both spoke about the same occasion and that they had both attempted to recount the conversation to the best of their recollections. He was further satisfied that the conversation occurred in the playground of the Para Hills primary school during the lunch break on Monday, 14 October 1991 and that Naomi was crying at the time. He found that Naomi said words to the effect that she had read a book about a father interfering with his daughter and that the appellant had done the same thing to her. He was satisfied that the conversation met the requirements of a recent complaint and that it demonstrated consistency by Naomi in giving her evidence. He was also satisfied that the book about sexual abuse did not cause or influence Naomi to concoct or exaggerate her complaint to Jodie Deer.

11. The appellant submitted that the learned trial judge had erred in finding that the conversation between Naomi and Jodie came within the requirements of a recent complaint and having done so, had erroneously used such finding in support of Naomi's credibility in the resolution of the case.

12. In order for the complaint to be admissible it must have been made at the first reasonable opportunity and must be capable of demonstrating consistency on the part of the complainant. In R v Freeman (1980) VR 1, the Full Court of the Supreme Court of Victoria held admissible a complaint of rape made by a woman who had initially withheld her story after being asked by a friend "Did somebody hit you or have you been raped or something?". In their judgment (at p.5), Starkey, McInerney and Murphy JJ said:
    "Almost inevitably, any attempt to formulate a rule which
    will cover all cases is bound to fail. What may prove or
    tend to prove consistency in one case may not do so in
    another, and the attempt which appears to have been made in
    Osborne's case to provide guidance to a trial Judge of a
    rule of thumb nature when deciding whether evidence of a
    complaint should or should not be admitted, may in some
    cases prove misleading.

The ultimate question must always be does the 'complaint',
    in the circumstances in which it was uttered, tend to
    buttress the prosecutrix's credit as a witness.

This, of course, is a jury question, and that question can
    only arise if the trial Judge has first determined to admit
    the complaint. That decision involves the formation by the
    trial Judge, on the facts as they appear on the evidence
    then before him, and the facts of the complaint emerging
    from the proffered evidence, of a judgment whether the
    complaint is capable of being regarded by the jury as being
    a spontaneous account by the prosecutrix of the incident the
    subject of the charge."

13. Freeman's case was cited with approval by King CJ in R v Gallagher (1986) 41 SASR 73. In adopting the statement of law from R v Freeman (supra), he went on to say (p.78):
    "In order to determine whether the learned trial Judge was
    correct in admitting the evidence, it is necessary to
    consider all the circumstances, including the age of the
    child, her relationship with the mother, the alleged
    injunction by the appellant not to tell of the incident, the
    nature of the mother's questions and of the responses
    thereto, in order to answer the question whether the
    statements made in those circumstances are capable of
    showing consistency of account and thereby buttressing the
    credit of the alleged victim as a witness."

14. In this case, the learned trial judge accepted that Naomi was telling the truth about these matters. If this incident occurred in the way she described it must have been a disturbing incident for her. In view of the admonition not to tell anyone because of the threat to take her brother away and ruin the family, it would be natural for a child of her years to have some reluctance to tell her mother that the man with whom she had a close relationship had behaved in such a manner. In any event, the evidence does not disclose whether any opportunity arose either that evening or the following morning to see her mother alone prior to going to school. Similarly, she might have felt some reluctance to talk to a school teacher or counsellor about matters of a sexual nature but be more comfortable in discussing these matters with a close friend of comparable age. Although the learned trial judge did not make any express finding that the complaint was made at the first reasonable opportunity, it is implicit in his findings that he considered that matter and on that basis properly found the complaint to be admissible.

15. There were, however, inconsistencies between Naomi's evidence and that of her mother, Mrs Gray, as to the nature of the complaint and the circumstances in which the complaint was made to her. In evidence Naomi said that she spoke to her mother about this matter in early 1992. According to Mrs Gray, however, the complaint was made in about June 1992, shortly after a visit from Gary Gray, Naomi's natural father. Mrs Gray said that she had been depressed and crying when the appellant had left Adelaide and had gone to Port Pirie, apparently with another woman. She said Naomi asked her what was the matter and in the ensuing discussion, Naomi had said "He has done something to me". She then said "He touched me". Mrs Gray asked Naomi "Did he touch you up the top?" and Naomi had said "No". She said that she talked to Naomi about going to the police and also about seeing a doctor but she did declined. Mrs Gray said that she confronted the appellant with the accusation about a week later. He immediately denied any wrongdoing and said "Take it to the police". In due course, the appellant returned from Port Pirie and for some period lived at the house and sometimes lived at Norwood with a friend. Eventually he moved back to the house on a permanent basis. Mrs Gray said that she continued to work on Sunday nights but thereafter Naomi spent most Sunday nights at her grandmother's home. The appellant, in evidence, said that this arrangement had been put in place because he did not want to be left alone at home with Naomi and she did not want to be left with him, although the other two children wanted to stay with him. Notwithstanding this arrangement it appeared that there were two occasions thereafter when the appellant looked after Naomi on his own with Naomi's acquiescence.

16. Mrs Gray confirmed that in early 1993 there was a family argument concerning the money found in Naomi's bag and she said that she became very angry when she discovered that Naomi had forged her signature in the school diary. Following this event, she grounded her and said "If you are not going to school at the right times, I will have to take you to school". Mrs Gray confirmed that the next morning Naomi left a note to say that she was not going to be told what to do or be told off by the appellant. Shortly thereafter, the police became involved.

17. The learned trial judge accepted Mrs Gray's evidence as to the circumstances in which the complaint was made to her but said that he did not think that Naomi had attempted to mislead him. He thought she was genuinely mistaken.

18. Mr Peek who appeared on the appeal submitted that on consideration of the evidence as a whole, no reasonable finder of fact could have been satisfied beyond a reasonable doubt as to the guilt of the appellant and that the verdict should therefore be set aside as being unsafe and unsatisfactory.

19. In making a decision as to whether the finder of fact acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Chidiac v Asfour
(1991) 171 CLR 432, per Mason CJ at 442-445; Dawson J at 451-453; Toohey J at 457-458; Gaudron J at 458-459; McHugh J at 461-462. This general principle should not be affected by the fact that in this case the appellant was tried by judge alone. Whether it be trial by jury or trial by judge alone, the conviction should be set aside if the appellant is able to identify matters which affect the nature and the quality of the evidence to the extent that, in the opinion of the appellate court, guilt has not been established beyond a reasonable doubt. Although the appellate court must have regard to the great advantage which the trier of fact has in seeing and hearing the witnesses, the appellate court is not bound to act upon that view of the credibility of the witnesses. In Coghlan v Cumberland (1898) 1 Ch 704, the Court of Appeal said at p.705:
    "When, as often happens, much turns on the relative
    credibility of witnesses who have been examined and
    cross-examined before the judge, the Court is sensible of
    the great advantage he has had in seeing and hearing them.
    It is often very difficult to estimate correctly the
    relative credibility of witnesses from written depositions;
    and when the question arises which witness is to be believed
    rather than another, and that question turns on manner and
    demeanour, the Court of Appeal always is, and must be,
    guided by the impression made on the judge who saw the
    witnesses. But there may obviously be other circumstances,
    quite apart from manner and demeanour, which may shew
    whether a statement is credible or not; and these
    circumstances may warrant the Court in differing from the
    judge, even on a question of fact turning on the credibility
    of witnesses whom the Court has not seen."

20. In this case, there were a number of matters which the appellant identified as affecting the nature and quality of the evidence at the trial, such as Naomi's age at the time of the charged offences, her age at trial, and the fact that her evidence was uncorroborated. The appellant also relied on inconsistencies between Naomi's evidence and that of her mother as to the time and circumstances in which the allegations were disclosed to her, her refusal to make a formal complaint despite her mother's attempt to persuade her otherwise, and the failure by both Mrs Gray and Jodie Deer to notice anything different or unusual in Naomi's relationship or behaviour towards the appellant in the period between the first incident and the date of the first disclosure. Mr Peek referred to the evidence of the two occasions upon which the appellant had looked after Naomi on his own with her acquiescence between June 1992 and February 1993 and the fact that Naomi had made her complaint to the police in the context of a family argument in which she was being disciplined by her mother and the appellant. He also referred to the appellant's behaviour in contacting the police and voluntarily submitting to an interview in which he denied the allegations and his denial of those allegations at the trial. Perhaps the most significant criticism, however, relates to the evidence of the circumstances in which the acts of indecency are alleged to have occurred. Naomi was definite that each of the assaults occurred in the room that she shared with her sister, Stevie. There was never any suggestion that Stevie, who was sleeping in the top bunk, ever saw or heard anything untoward. Mr Peek argued that it was highly unlikely that the appellant, clad only in his underpants, would have behaved in the way described at trial, and to have continued to do so when there was such an obvious risk that Stevie would hear or see something and report it to her mother. Although Mrs Gray was at work when these events are alleged to have occurred, the evidence was that her place of employment was close by and that on most occasions she either walked or drove home. The proximity of her place of employment therefor of necessity added to the risk of her arriving at home unexpectedly and detecting these activities.

21. Nevertheless, the learned trial judge, in his reasons, purported to take into account the inconsistencies and other criticisms pressed upon him by counsel for the appellant and notwithstanding those matters, made a strong finding concerning Naomi's credibility. This was, however, very much a case of oath against oath. As Mr Jennings QC, who prosecuted the allegations against the appellant, said in the course of his address:
    "Obviously, to find the accused guilty, your Honour has to
    disbelieve him. There cannot be any doubt about that.
    There is no room for mistake in this case, no room for
    anything other than a conclusion that someone is telling the
    truth and someone is telling lies."

22. Nevertheless, the learned trial judge in his reasons did not make any adverse finding concerning the credibility of the appellant. He said:
    "As I said earlier, the accused gave sworn evidence and he
    must be given credit for that. Points have been made for
    and against him by counsel. In my judgment, his responses
    to the allegations, his behaviour generally over the
    relevant period and his sworn evidence in the witness box,
    if examined in isolation, have a relatively neutral impact
    upon the question of his guilt or innocence."

23. He went on to say that in the end, notwithstanding all the criticisms that had been made of her, that Naomi's evidence left him in no doubt that she was the victim of indecent touching by the appellant on the two occasions in question. I am, however, perplexed about the use of the phrase "if examined in isolation". It suggests to me that his Honour adopted an impermissible line of reasoning and inadvertently reversed the onus of proof. The consistency of presentation of the appellant should have been considered in the light of the evidence as a whole and with particular regard to the inconsistencies appearing therein.

24. Whilst giving proper weight to the advantage enjoyed by the trial judge in seeing and hearing the witnesses, in my view, in the absence of any adverse finding against the appellant, the learned trial judge's confidence in Naomi as a witness of truth should have been diminished by factors such as the lack of particularity of the allegations, the lack of corroboration, the inconsistencies between her evidence and that of her mother and the intrinsic unlikelihood of the assaults having occurred in the circumstances that she described. I am of this opinion, notwithstanding the evidence of Jodie Deer.

25. I indicate that I have not formed the view that Naomi told lies about what occurred, but rather, that I consider a detailed analysis of the evidence in this case ultimately leaves one with the third possibility adverted to in R v Calides (1983) 34 SASR 355, namely, that at the end of the day one is just unable to say where the truth of the matter lies. If that be the situation then of course the verdict must be one of not guilty.

26. In my opinion, the evidence in this case was not sufficiently cogent to justify the learned trial judge reaching a conclusion of guilt beyond a reasonable doubt.

27. I consider that the verdicts of guilty were unsafe. I would allow the appeal, set aside the verdicts of guilty and substitute a verdict and judgment of acquittal on each count.

JUDGE2 MOHR J I agree.

JUDGE3 DEBELLE J I agree with the reasons of Justice Nyland and the orders proposed.