R v B and D Nos. SCCRM 92/799, 92/803 and 92/804 Judgment No. 3887 Number of Pages 9 Criminal Law and Procedure Evidence (1993) 66 a Crim R 192

[1993] SASC 3887

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), DUGGAN(1) AND PERRY(2) JJ

CWDS
Criminal law and procedure - evidence - Child witness aged almost 14 and aged 11 at time of alleged offences of unlawful sexual intercourse - corroboration warning required - inadequacy of warning given - other defects in summing up - cumulative effect to deprive accused of fair trial - miscarriage of justice - appeal allowed and new trials ordered.

HRNG ADELAIDE, 19 March 1993 #DATE 20:4:1993
Counsel for the appellant:        Mr G F Barrett
Solicitors for the appellant:     Ms J M Arkinstall
Counsel for the respondent:     Mrs M E Shaw
Solicitors for the respondent:    Olson and Co
Counsel for the Crown:            Mr P R Brebner
Solicitors for the Crown:         Director Of Public
  Prosecutions (SA)

ORDER
Appeals allowed.

JUDGE1 KING CJ The appellants were tried in the Supreme Court on an information containing five counts of unlawful sexual intercourse with a person under the age of 17 years. The alleged victim in each case was the daughter of the appellant B. The first, fourth and fifth counts allege offences by D only. The second and third counts allege unlawful sexual intercourse by D and also allege that B aided and abetted the crimes. D was found guilty by a jury on the first four counts and B was also found guilty on the second and third counts. There was a verdict of not guilty by direction on the fifth count. 2. The appellant was 11 years of age at the time of the alleged offences. She was almost 14 years of age at the time of trial. The appellant B and the alleged victim's father separated when the alleged victim was four years of age. Thereafter the girl lived mostly with her father's mother in Tasmania. Her father was living with another woman in Tasmania. The appellants were living together in Adelaide in the suburb of Queenstown. 3. In June 1990, due to the grandmother's illness, it became necessary for the girl, whose name is Susan, to come to live with the appellants. She was discontented in Adelaide from the beginning and wished to return to Tasmania. In preparation for her arrival, her mother painted the room which was to be her room in pink. Susan disliked the decor and let that be known. She did not like D. She missed her friends and her school in Tasmania and in particular missed her grandmother. She realised that her grandmother was ill, but wished to live with her father in Tasmania. She returned to live with her father in Tasmania the week after the appellants' arrest. 4. At the time of Susan's arrival in Adelaide, the appellant B was in hospital for the purpose of a hysterectomy. She was in hospital for a week and was confined to bed at home for about a month afterwards. Susan's evidence was that conduct which was the subject of the first count in the information occurred while B was in hospital. Her evidence was that D inserted his finger into her vagina. Susan alleged that a similar incident occurred in the loungeroom after B came out of hospital, but that was not the subject of a charge. 5. The second count in the information relates to an incident which Susan described when she and the appellants were in the appellants' bed together. D had sexual intercourse with Susan by inserting his penis into her vagina. That was followed by the appellants having sexual intercourse with one another. Following that D licked Susan's vagina in the presence of B. 6. The conduct the subject of the fourth count occurred, so Susan alleged, on January 26th 1991. D had sexual intercourse with her by inserting his penis into her vagina. 7. Susan claimed that D was in the habit of kissing her in an inappropriate way with his tongue in her mouth and claimed that her mother knew about that. There seems to have been a good deal of friction about disciplinary matters. This culminated in August 1991 in an incident in which there was a dispute between D and Susan as to doing the washing up. D struck Susan leaving her with a black eye. Shortly afterwards there was a programme at school about reporting child abuse and Susan contacted the police. 8. Both appellants, when questioned by the police, denied Susan's allegations. They both gave evidence at the trial denying the allegations. The case for the prosecution depended entirely upon the evidence of Susan. There was an attempt to bolster that evidence by means of a photograph and also by means of the evidence of a girlfriend of Susan's by the name of Hopkins. The photograph was taken by the appellant B and depicted D and Susan kissing. Susan claimed that it depicted D's tongue in her mouth. To my mind the photograph was quite innocuous. It is not possible from the photograph to discern that D's tongue was in Susan's mouth. The photograph might indicate a certain degree of play acting for the camera but it is quite incapable of indicating any sexual interest in Susan on the part of D. Hopkins gave evidence that on one occasion when she was staying at the house, D kissed Susan goodnight in a lingering fashion. Hopkins described the kiss as a "pash" and more like a kiss which a man would give his wife rather than his daughter. The notion of D giving his de facto stepdaughter a sexual-type kiss in the presence of a stranger is unlikely and the interpretation of the kiss depends upon the perception of a young girl. This evidence was too flimsy to constitute any support for the existence of sexual interest in Susan on the part of D. 9. The learned judge cautioned the jury as follows: "Finally on the law I give you a warning. You are considering the evidence of a child. Susan B is the one who has made accusations against her mother, and her mother's de facto husband. Sexual allegations are easy to make and hard to refute. I ask you to think very carefully before you are prepared to find the charges proved on Susan's evidence. You may do so, of course, it is a matter entirely for you whether you do or don't. I give you this warning though, because Susan is still only a young girl, and experience shows that persons of her age are more likely to make up a story than those more mature." 10. The first contention of counsel for the appellants on the appeal was that that caution was inadequate and did not conform to the rule of practice in relation to the evidence of young children. 11. The relevant rule of practice requires that where the witness is a young child, the jury should be warned that it is dangerous to convict on the uncorroborated testimony of the child; B v R (1993) 110 ALR 432 per Dawson and Gaudron JJ at p.444. There is no fixed age below which the warning should be given and whether the warning should be given in a particular case is a matter for the decision of the trial judge; B v R supra at p.445. The decision of the trial judge is of course reviewable on appeal. A review of the cases indicates that, while some flexibility has been allowed in the case of older children, appellate courts have insisted upon the corroboration warning being given in relation to the evidence of younger children. 12. In Hargan v The King (1919) 27 CLR 13 the High Court considered that the rule of practice had been infringed by reason of the failure of the trial judge to give the warning in relation to the evidence of a 14 year old girl. In R v Morgan 1978 1 WLR 735 the English Court of Appeal considered that omission to give the corroboration warning was a departure from the rule of practice in the case of a 12 year old witness but considered that in the case of a 16 year old witness it was a matter for the judgment of the trial judge. In R v Pahuja (1988) 49 SASR 191, Cox J at page 217 considered that a girl who was 14 years of age at the time of giving evidence and 12 years of age at the time of the alleged offence "was of an age that called for a warning of some sort, but not necessarily the full warning that would have been needed in the case of a younger child". In R v Atkins (1988) 50 SASR 272, the Court of Criminal Appeal held that the trial judge was in error in not giving a corroboration warning in relation to the evidence of a girl of the age of 12 years at the time of giving evidence and 10 years at the time of the alleged offences. In R v Do (1990) 54 SASR 543, the witness was aged 13 years and 7 months at the date of trial and 11 years and 11 months at the date of the alleged offence. The Court of Criminal appeal held that the failure to give the corroboration warning was a non-compliance with the rule of practice. 13. I think that the age of the child at the time of giving evidence is the predominant consideration in determining whether a corroboration warning should be given. The reasons commonly given for the warning, namely susceptibility of children to influence by adults, the tendency to confuse fantasy with fact and youthful irresponsibility, are all directed to the degree of maturity existing at the time of giving evidence. It is clear, however, that the judge is entitled to take into account the age of the child at the time of the alleged offence; B v R supra at p.445. I think too that a relevant consideration is the age of the child at the time of making the first complaint. Once a false complaint is made a witness tends to be locked into the situation created by the making of the false complaint and may persist with it even though with greater maturity making of the complaint is regretted. 14. There is undoubtedly an area of discretion for the trial judge in relation to children of more mature age. I think that the weight of authority indicates the need for a full corroboration warning in relation to a witness of the age of Susan. She was under 14 years of age at the time of giving evidence and was only 12 years of age at the time of making the complaint. She was 10 or 11 years of age at the time of the alleged offences. I think that the rule of practice required a corroboration warning. Non-compliance with the rule of practice will result in a conviction being set aside if it has resulted in a miscarriage of justice; R v Schlaefer (1984) 37 SASR 207; R v Do supra at p.546. There are other features of the summing up which give rise for concern. The case for the prosecution depended entirely upon the evidence of Susan and her allegations were denied in evidence by both appellants. It was a case of Susan's oath against the oath of the appellants. That important feature of the case was not expressly adverted to by the trial judge in the course of the summing up. Not only did his caution with respect to the evidence of Susan not refer to the danger of acting upon uncorroborated evidence, it also failed to give the jury adequate guidance as to the reasons for the caution. The bald statement that "experience shows that person of her age are more likely to make up a story than those more mature", does less than justice to the reasons why the caution was necessary in the present case. There were concrete indications in the evidence of Susan's immaturity in relation to her attitude to household chores and resentment of domestic discipline and also in her immature reaction to the decor of the room which had been specially prepared for her. There was clear evidence from her that she liked nothing about Adelaide, disliked her stepfather, missed her school and her friends, her grandmother and her father and wanted only to return to Tasmania. The risk that youthful irresponsibility might lead a child in that state of mind to make a false accusation to achieve her ends required special mention as a reason for the caution. 15. I think moreover that the defence was not adequately put. The essence of the defence, apart from the denials on oath of the appellants, was that Susan had fabricated the story in order to achieve her desire to return to Tasmania. This point, and Susan's evidence in relation to it, was central to the defence and ought to have been expressly put to the jury by the judge. In recounting Susan's evidence, His Honour did refer to her answers in relation to these matters but it was never put to the jury as being the appellants' defence to the charge. No doubt these points were mentioned by counsel for the defence in the course of the address but they were so essential to the defence as to require express mention in the course of the judge's summing up of the issues of fact to be decided by the jury. 16. I think that there is also cause for concern in His Honour's treatment of the medical evidence. Dr Moody gave evidence that when she examined Susan in August 1991, the state of her vagina and her hymen was such that there could have been penile penetration. Dr Moody's evidence was that what she observed was consistent with Susan's evidence that there had been penetration, but by that she meant no more than that the condition of the female organ was not inconsistent with penetration having taken place. Her evidence, of course, in no way implicated the appellants. In dealing with this witness in the summing up, His Honour said:
     "She expressed the opinion that the condition in which
    she saw Susan B was consistent with the history the
    girl gave to her. With intercourse there was no reason
    to expect that there would have been tearing or bleeding
    in this girl at age eleven. The scar which she saw in
    the girl's vestibular fossa must have been caused by
    penetration of some form." 17. It is literally true, of course, that what Dr Moody found was consistent with the history the girl gave and Dr Moody expressed that opinion. I think, however, that the account which His Honour gave of the evidence of Dr Moody in the summing up was inadequate to convey the true effect of her evidence to the jury. The expression "consistent with" is frequently used in ordinary conversation as synonymous with "confirmatory of". The failure of the judge to make clear that Dr Moody's evidence did not in any way implicate the appellants created the risk that the jury might understand the learned judge as conveying that they could regard Dr Moody's evidence as tending to confirm the guilt of the appellants. 18. I think that the cumulative effect of the defects in the summing up to which I have referred, has been to deprive the appellants of a fair trial and in consequence to produce a miscarriage of justice. 19. For the above reasons I reached the conclusion that the appeals should be allowed and that there should be a new trial of the appellants on the counts upon which they had been found guilty.

JUDGE2 DUGGAN J    I agree with the reasons of the Chief Justice.

JUDGE3 PERRY J I agree substantially with the reasons for judgment of the Chief Justice. I would wish, however, to make some further comments. 2. There is a limit to the extent to which it is necessary for the trial judge to give directions to the jury on matters which will be obvious to them from the very nature of the case, and which have been emphasised in the submissions of counsel. This case came down to the word of the alleged victim against that of the appellants, and it hardly needed the trial Judge to point that out. He made it clear several times during the summing up that the jury must be satisfied of the charges beyond reasonable doubt, and he did give a warning to "think very carefully" before finding the charges proved on the evidence of the prosecutrix. 3. The warning contained the words "sexual allegations are easy to make and hard to refute". In my opinion, since Longman (1989) 168 CLR 79, such a warning is undesirable. In that case, Deane J said (94):
    "...I do not think the direction should be explained by
    reference to 'the ease with which the charge is made and
    the difficulty which may attend its rebuttal'. The
    distress and even humiliation to which a complainant in
    a sexual case is commonly subjected seem to me to make
    the first limb of that explanation inappropriate,
    particularly when sexual assault within a family unit is
    involved. The second limb seems to me to run the risk
    of diverting the jury's attention from the proper
    working of the onus of proof in a criminal trial." 4. The objectionable direction having been given, however, it must be said that the warning was favourable to the accused, and the fact that it had been made could not advance the appeal. 5. Looking at the matter broadly, it is not for this Court to make too nice an anaylsis of the summing up divorced from the atmosphere of the trial. This is so particularly when no complaint to the trial Judge was made by counsel for the accused on matters subsequently sought to be agitated before this Court on the appeal:
    "If some aspect of the summing up is made a ground of
    appeal, appellate courts regard it as of great
    importance that an experienced defence counsel failed to
    object to it at the trial. Such an omission points
    strongly to the conclusion that in the atmosphere of the
    trial itself there was nothing about the summing up
calculated to lead to a miscarriage of justice." Chamberlain v R (1983) 46 ALR 493 per Bowen CJ and Forster J at 502. See also Bray CJ in R v Carbone (No 2) (1976) 14 SASR 280 at 286-287. 6. I agree with King CJ that the alleged victim's age called for a warning, but I am not satisfied that a full corroboration warning was required. The terms of the warning were very much a matter for the discretion of the learned trial Judge, and I would be disinclined to allow the appeal if it turned only upon the question of the adequacy of the warning. 7. However, I agree with His Honour the Chief Justice that the argument of the defence that the victim had fabricated her story "in order to achieve her desire to return to Tasmania" was not adequately put to the jury. It is not always sufficient simply to summarise the evidence of each of the witnesses in turn, which is the approach adopted by the learned trial Judge in assisting the jury as to the facts of the matter. In my opinion, it is better that the trial Judge summarise in his own words the salient features of the defence. With respect to the learned trial Judge, the manner in which his summing up was constructed did not bring home the cogency of the evidence suggesting that the complainant may well have had a strong motivation to concoct. 8. I agree with His Honour the Chief Justice that use of the expression "consistent with" in connection with the medical evidence of the condition of the victim was apt to mislead. 9. For these reasons, I concurred in the order allowing the appeal, and ordering a re-trial.