R v A, GP

[2012] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v A, GP

[2012] SASCFC 81

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice David)

5 July 2012

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

Appellant found guilty of three counts of indecent assault by a judge sitting alone - appeal against conviction - whether judge erred in admitting evidence of initial complaint - whether judge erred in use of evidence of the date when the complaint was made to the police - whether the conviction on count 3 is unsafe and unsatisfactory.

Held: appeal dismissed - evidence of the victim's complaint was admissible under s 34M(4) of the Evidence Act 1929 (SA) not only to demonstrate consistency of conduct, but also to provide information as to how the allegation first came to light - the judge's use of the date of complaint could not have made any difference to the judge's evaluation of the evidence as a whole - the appellant's conviction on count 3 was not unreasonable.

Evidence Act 1929 (SA) s 34M, referred to.

R v A, GP
[2012] SASCFC 81

Court of Criminal Appeal:  Nyland, Vanstone and David JJ

1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.

2. VANSTONE J:     The appellant was convicted in the District Court by a judge sitting alone for three counts of indecent assault committed upon his daughter when she was under ten years of age.

3. Three grounds come before this Court for consideration.  The first of those concerns a matter of law.  Grounds 3 and 5 are grounds containing mixed questions of law and fact and permission to appeal on those grounds was previously granted.  The appellant does not renew his application for permission to appeal on what were grounds 2 and 4.

   Background

4. The complainant, “J”, was born in early 1992.  Her mother and the appellant were then in a de facto relationship.  They separated when J was about two years of age.  In 2000 and 2001, the appellant had access to J on every second weekend.  By then the appellant and J’s mother lived in separate towns and J would travel to the appellant’s town and stay with him at his home during the access visits.

5. J’s evidence was that when she stayed with him she slept in the appellant’s bed and that is where the offences were said to have occurred.

6. Count 1 was fixed in time by reference to the occurrence of the Royal Adelaide Show to which the appellant took J.  In evidence she said that on the night before going to the Royal Show she awakened to find the appellant pulling down her pyjama pants and touching her in the areas of her bottom and vagina.  That incident came to an end when she started crying and he told her not to tell her mother because he would end up going to gaol.

7. By the time of count 2 the appellant had moved to a different home.  Again she slept in her father’s bed.  Again she said that during one of the nights of her stay she awakened to find the appellant pulling down her pyjama pants and touching her and rubbing her vagina while she was lying on her back.  She said that at some point she thought he had explained his actions to her by saying that he thought she was her mother.

8. Count 3 was said to have occurred not long after count 2 and in the same house.  Again J said she awakened to find her father touching her in the area of her hip and trying to adjust her pyjama pants.  In view of the fact that ground 5 focuses on this count I shall set out the evidence-in-chief of J:

   Q.Did something wake you up.

   A.Yes, dad woke me up.

   Q.How were you awakened.

   A.I was awakened by dad touching me near my hip area trying to get either my pants down or just in the front of them.

   Q.Were you wearing pyjama pants on that occasion too.

   A.Yes.

   Q.Did he make contact with you.  That is, did he touch you.

   A.He touched me like around my hip area, trying to get a hold of my pyjama pants but that’s the only place he touched me.

   Q.Did you react in any way or do anything when he touched you there in that way.

   A.Yes, I just rolled closer to the edge of the bed so that he wouldn’t be able to get in there.

   Q.Did he do anything.

   A.No, he just tried but I got away.

9. Both J and her mother gave evidence about a conversation they had which the prosecution put forward as evidence of a complaint.

10. The appellant gave evidence in his own defence but his evidence was rejected by the trial judge.  The judge said of J that she impressed him as a mature and thoughtful person.  He said he had confidence in her credibility and reliability.

    Grounds of appeal

11. The first ground of appeal is that the judge erred in admitting evidence of the initial complaint.  Counsel argued that the evidence going to complaint was so general as not to answer the description of a complaint at all.

12. Counsel frankly acknowledged that no objection to the evidence was taken at trial.  This acknowledgment is all but fatal to the ground of appeal since the appellant is bound by the course of the trial.  It demonstrates that counsel then acting viewed the evidence proffered by the prosecution as amounting to evidence of complaint.  It also raises the possibility that counsel then acting might have seen a forensic advantage accruing to his client in allowing the material to be presented.

13. The evidence going to complaint came first from J who said that she complained to her mother, and then from J’s mother, who spoke of a conversation with J.  There was limited correspondence between the two conversations;  but on the other hand it was well open to the judge to find that the witnesses were describing the same conversation, especially bearing in mind that it occurred some years before the trial.  There was a temporal link between the two accounts in that both witnesses agreed that as a result of the conversation counselling for J was obtained.

14. J said that when she was about 14 she told her mother about these events.  She said that she was in trouble for being absent from school and that she had been making lots of excuses.  On this occasion her mother was questioning her as to why she kept “wagging” school and J said to her “I don’t want to go to school and be there and dad did something to me when I was younger”.  She said that her mother then offered to arrange for her to have counselling and that in fact happened.

15. Her mother described the conversation in the following way.  She said that she was telling her daughter that she had to stop missing school and to stop being naughty when J started crying.  She asked J what was wrong and J said she could not tell her.  J said that she would not understand.  When her mother asked her if it had something to do with her father, J agreed it did.  Her mother told her that she could not help J if she did not tell her.  Her mother then said she offered to get counselling for her and that was arranged.  It was agreed that J received counselling in 2006.

16. Counsel for the appellant argued, in effect, that the accounts of the conversations were so vague and general that they could not be seen to answer the description of a complaint in s 34M of the Evidence Act 1929 (SA). Section 34M abolishes the common law relating to recent complaint in sexual offences and renders admissible evidence of an “initial complaint” of an alleged sexual offence. The words “initial complaint” are defined in s 34M(6) and include information provided by way of elaboration. The word “complaint” is also defined expansively. Examples given in s 34M(3) make plain that the fact of a complaint, as well as the content of it, may be given in evidence.

17. I do not agree that either J’s evidence of the conversation with her mother or her mother’s account of it were too general to be admissible under s 34M. Plainly, J considered that the conversation amounted to a disclosure to her mother of her father having abused her. The same could be said of her mother, who, in asking the girl whether it concerned her father clearly apprehended that it did and, on her account, was then told that it did. It is not to the point that no description of the conduct was given. It was enough that the allegation was made. The evidence was admissible under s 34M(4) not only to demonstrate consistency of conduct, but also merely to provide information as to how the allegation first came to light.

18. In my view the evidence was admissible and should have been admitted even had objection been taken to it.  As I said earlier, no objection was taken.

19. Ground 1 is not made out.

20. Ground 3 concerns the use made by the judge of evidence led to prove the date when the matter was eventually reported to the police.  Evidence was given that the police report was made in April 2010.  However, apart from under cross‑examination, when it was sought to contradict J by reference to the statement she made to police, no detail of the report was given.

21. In the course of his reasons, the judge made the following finding:

    45Having regard to J’s age, and her unsettled lifestyle during her teenage years, I find that the initial complaint to her mother, and the circumstances in which it was made, her later elaboration of it during counselling, and the eventual report to the police, are consistent with her allegations, and bolster her credibility in that regard.

    (emphasis added)

    It is the italicised words to which exception is taken.  Counsel argues that the fact of a report being made to the police is incapable of demonstrating consistency of conduct.

22. I leave aside any previous statements put to J in the course of cross‑examination, which she might have accepted she made.  Counsel’s submission that the mere fact of reporting the allegations to police could not demonstrate consistency is well made.  Counsel for the respondent was inclined to dismiss the italicised words as a “mere slip” by the judge.  That might well be a correct characterisation.  But in any event, the question arises whether the inclusion in the paragraph of the reference to the police report could have made any difference to the judge’s evaluation of the evidence as a whole, or to his ultimate finding.  In my view, it could not have.  Plainly the judge considered that the initial complaint to J’s mother and the circumstances of it and her later elaboration of it during counselling showed consistency and had the effect of enhancing J’s credibility.  In that context the report to the police could have added nothing.  Later, when the judge again mentioned the initial complaint, he made no reference to the police report.  Indeed, it is plain that the judge’s acceptance of J’s evidence was based almost exclusively on his evaluation of her direct evidence in support of the charges and upon his rejection of the appellant’s denials.

23. I would categorise the reference to the “eventual report to the police” as, at worst, a blemish.

24. Ground 3 is not made good.

25. Ground 5 is a complaint that the conviction on count 3 is unsafe and unsatisfactory, essentially because it is said that the complainant did not come up to proof.

26. Earlier I set out the evidence given by J in support of count 3.  In essence she said that she thwarted the appellant’s attempt to touch her vagina by rolling away from him and that he only touched her “around [her] hip area” while trying to get her pants down.  It is complained that this evidence did not go so far as to reflect what prosecution counsel had sketched in his opening address in terms of this charge.  In opening, counsel had said that count 3 was a touching in the vicinity of J’s vagina, similar to counts 1 and 2.  At trial there was no cross‑examination of J to suggest that she had previously told prosecution counsel, or anyone else, that the touching went further.

27. The controversy was raised by the judge during the final submissions.  The judge dealt with it in his reasons, saying this:

    89There was also a discrepancy between J’s evidence and Mr Powell’s opening address in relation to count 3. In his opening, Mr Powell said that count 3 was a touching of J’s vagina, similar to counts 1 and 2. J’s evidence was that the third incident was an attempt only, and that she was only touched in the region of her hip.

    The argument proceeds that since the judge in this paragraph made a finding that the third incident amounted to an attempt only, then he should not have gone on to find the appellant guilty as charged of a completed offence.

28. In my view this argument misunderstands what the judge said.  He did not say that what the witness described amounted, in law, to an attempt only.  Rather, he was paraphrasing J’s own evidence that, by her conduct, she prevented the appellant from proceeding to touch her vagina.  In fact, a touching in the area of J’s hip while trying to remove her pants was properly considered to be an indecent assault.

29. The question then arises whether, because of the inconsistency between the opening address and the description given in evidence of the conduct, the judge should have acquitted the appellant of the completed charge.  A submission to that effect misunderstands the nature of an opening address.  It is not evidence and in particular it is not evidence that witnesses have previously made statements in accordance with what counsel foreshadows will be their evidence.  There might well have been an inconsistency to be explored.  However it was not explored.  Again, the appellant is bound by the conduct of his trial counsel.  Again, counsel might have taken a forensic decision not to cross-examine, since the conduct described in evidence was arguably less serious than the allegation outlined by the prosecutor.

30. Having examined the various passages in the transcript bearing on this ground, I am satisfied that the conviction on count 3 was not unreasonable and was supported having regard to the evidence.

    Conclusion

31. The appellant has not made good any of his grounds of appeal.  The appeal should be dismissed.

32. DAVID J: I would dismiss the appeal.  I agree with the reasons of Vanstone J.