R v B, Dr - [2007] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, DR
Criminal Trial by Judge Alone
[2007] SADC 56
Reasons for the Verdicts of His Honour Acting Judge Wilson
7 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Two counts of indecent assault against a child under 17 years of age – trial by judge alone.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION
FULL LONGMAN-TYPE WARNING NECESSARY
Evidence – unsupported and unconfirmed evidence of complainant alone – notional warning called for in the circumstances of the case re danger of convicting on uncorroborated evidence of complainant and re need for special care – complainant aged 14 at the time complaints of child sexual abuse by his school teacher then aged 25 – delay of more than 45 years – factors (including error re date and alibi and error by complainant in describing the accused’s penis) factors warranting warning considered – failure to complain at all for so long (for more than 42 years) held to affect complainant’s credibility – whether complainant’s evidence of what the accused allegedly said to him could constitute evidence of esoteric knowledge from which to infer implication in the crimes charged.
Criminal Law Consolidation Act 1935 ss 70, 285C; Evidence Act 1929 s 34I, referred to.
R v Corrigan (1998) 74 SASR 454; Longman v R (1989) 168 CLR 79, applied.
R v HS [2004] SASC 300; Doggett v R (2001) 280 CLR 343, considered.

R v B, DR
[2007] SADC 56
The Charges

The accused, Dean Rollo Bain, has been charged, in this trial by judge alone, with two counts of indecent assault, contrary to s70(1)(c) of the Criminal Law Consolidation Act 1935, alleged to have been committed “on the 8^th day of July 1961 at Seaton” when the complainant was under 17 years of age.
The Date of the Alleged Offences
The prosecution alleged, and the complainant was adamant, that the two alleged offences occurred (as part of one incident) in a car at the Shandon Drive-in Theatre at Seaton, to which the accused had allegedly taken the complainant “on 8 July 1961”, more than 45 years ago. The evidence of the complainant, which reveals how adamant he was, is to be found at pp.23, 24, 43, 44, 45, 48, 53, 56, 59 and 60 of the transcript.
The Complainant and the Accused
The alleged victim of the alleged offences which, together, may be characterised as child sexual abuse, was born on 6 June 1947, and was, therefore, aged 14 years at the time of the incident particularised in the counts in the Information. He was aged 56 years at the time he first spoke to the police about these matters, and he was aged 59 years at the time he gave evidence in this trial.
The accused, who was born on 26 December 1935, was aged 25 years at the time of the alleged incident, and was aged 71 years at the time of his trial.
On the relevant date, 8 July 1961, the alleged victim (and complainant) was a schoolboy attending Prince Alfred College. The accused was a schoolteacher and a football coach at the College.
The Acts of Indecent Assault
The act of indecent assault alleged in count 1 was the accused’s act of grabbing the complainant’s hand, putting it on his (the accused’s) erect penis, with his (the accused’s) hand on top to masturbate him.
The act of indecent assault alleged in count 2 was the accused’s act of taking the complainant’s penis out of his pants, rubbing it (and sucking it) until ejaculation.
Some Important Reminders
In my consideration of the evidence in this trial I reminded myself that, in a case of this kind, I am the judge, not only of the law, but also of the facts. I reminded myself of the presumption of innocence (being in the accused’s favour), of the onus of proof (being on the Crown) and that the standard of proof is proof beyond reasonable doubt.
I reminded myself of the need to avoid propensity/disposition/poor character reasoning from the accepting (by me) of the fact that the accused pleaded guilty to a charge of indecent assault upon another student, an offence committed between 1 February 1961 and 30 November 1961.
I have avoided, also, any misuse of the fact that special arrangements, pursuant to the Evidence Act, were made whilst the complainant gave his evidence.
I did not overlook the important principle that if, upon a consideration of all the evidence in this trial in relation to a charge under consideration, each of which is to be considered separately, the evidence is open to any reasonable conclusion other than that the accused is guilty, then he is entitled to the benefit of my reasonable doubt and he should be acquitted.
The Assessment of the Principal Witnesses
Whilst the complainant’s overall demeanour did not lead me to doubt his honesty and whilst he was not, in any sense, broken down when under cross-examination, much of his testimony was shown, by other evidence placed before me (by the defence, in particular) to be unreliable.
The accused’s demeanour was also sound. He, too, was not broken down when under cross-examination. I was not persuaded, by the evidence or by argument arising therefrom, to conclude that his denials were either untruthful or unreliable.
A Number of Factors
The complainant was proven by the accused and the evidence he adduced - he bearing no onus of proof - to be, at the very least, mistaken in a number of respects as to the events of the day in question.
First, he was mistaken as to what he did on 8 July 1961. I find that the accused could not have been (and was not) at the Norwood Oval with the complainant watching the West Torrens/Norwood SANFL football match on that day. The accused was playing football for the Brompton Football Club between about 2.30 pm and 5 pm. As Exhibit D3 and the evidence of the three defence witnesses, William Long, John Vanvacus and Raymond Carn, shows, I find that he (“Bain”, and not “Vain” - clearly a printing error in the copy of the newspaper that was tendered) not only played but also was in the best players; and he was also a goal-kicker.
Secondly, the complainant was mistaken as to the name of the restaurant to where the accused allegedly took him for a meal before going to the Shandon Drive-in Theatre on the night of the alleged incident. I find, on the evidence, that it could not have been (and it was not) ‘The Tropicana’, the place which the complainant was adamant about. The menus (Exhibit D7) that were tendered support the accused’s evidence and serve to discredit the complainant.
Thirdly, the complainant was, at the very least, mistaken in his description of the accused’s penis, which figured prominently in the acts of sexual abuse on the night in question. I find, based upon the objective expert opinion evidence given by the accused’s doctor, Dr D.E. Angus (whose evidence I accept), that the accused is (and was at the relevant time) fully circumcised and not, as the complainant would have had me believe, “half-circumcised - not a full circumcision.” What the prosecution had suggested was evidence of esoteric knowledge, on the complainant’s part, simply cannot be considered relevant esoteric knowledge. In the light of Dr Angus’s evidence, the complainant’s evidence must be said to, “lack …… the probative force required to establish a level of esoteric knowledge which would justify” any weight being attached to it (see the judgment of Duggan J in R v HS [2004] SASC 300 at paras.28-30).
I am, therefore, unable to feel satisfied of the accuracy of the complainant’s testimony.
Alibi Evidence
Notwithstanding the fact that there was non-compliance by the defence with the requirement to give to the prosecution an alibi notice (under s285C of the Criminal Law Consolidation Act), I have concluded that it is reasonably possible that the accused’s alibi evidence, supported, as it is, by documentary evidence, the evidence of the defence witnesses, and his evidence by way of denials, represents the truth. I have not felt constrained to draw inferences adverse to the defence from the non-compliance with the statute in the circumstances of this case.
A Warning in the Absence of Corroborative Evidence
In R v Corrigan (1998) 74 SASR 454, Doyle CJ, with whose conclusions Millhouse and Lander JJ agreed, said (at p.465)
‘There is no longer a rule of law or practice that requires a judge to give a warning in the traditional form ….. in relation to the evidence of the victim of a sexual offence or in relation to the evidence of a child who gives evidence on oath. That is the result of s12A and s34I(5) of the Evidence Act 1929 (SA). ….The abolition of the general rule requiring a warning in relation to evidence of a victim of a sexual offence or of a child leaves untouched the requirement that the judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case: Longman v R (1989) 168 CLR 79 at p.86 per Brennan, Dawson and Toohey JJ. ….The effect of the decision of the High Court in Longman is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. …….Particular circumstances, or the combined effect of a number of matters, may call for a stronger warning (than a comment) and, in particular, for a warning in the traditional terms…..
In my assessment of the circumstances of this case, a full Longman warning was called for in terms as strong as that given in the traditional terms and, specifically, in terms emphasising that it would be dangerous to convict on the complainant’s evidence alone except in limited circumstances. Because this is a trial by judge alone and there is no jury, the warning is necessarily a notional one, but nevertheless a strong or “full” one. Special care is called for. There is need to be cautious in assessing the evidence of the complainant.
I have borne in mind the real risks that would be associated with convicting this accused on the evidence of this complainant, standing, as it does, alone and unsupported and unconfirmed by other evidence from an independent source unless, having scrutinized that evidence with great care, and paying heed to the warning and fully appreciating the risk of a miscarriage of justice otherwise, I were to be satisfied of its truth and accuracy.
The several factors which, in their totality, and in my opinion warranted such a warning are:
1.The extraordinarily long delay between the date of the subject incident (July 1961) and the date of the complainant’s first contact with the police (in October 2003) and ultimately the date of this trial (April/May 2007). The delay between the date of the alleged incident and this trial was more than 45 years.
2.The failure, on the part of the complainant, to make a prompt complaint about the alleged sexual abuse, to which he allegedly had been subjected, at the earliest reasonable opportunity after the alleged incident. Indeed, there was a failure, on the part of the complainant, to make a complaint at all and, in particular, to the police for more than 42 years. As against the inferences to be drawn from the existence of this factor, I have borne in mind, as required by s34I(6)(a) of the Evidence Act, the fact that the complainant’s failure to make a complaint (or a series of complaints) until he spoke to the police in 2003 does not necessarily mean that any (or all) of the allegations is (or are) false. I reminded myself, as trier of the facts, that the complainant could have had valid reasons for failing to make a complaint (or complaints).
3.The fact that the complainant continued, on his evidence, to have some intermittent association with the accused at the College and in connection with football for some years after the alleged incident.
4.The absence of any independent support for the complainant’s allegations. The complainant’s evidence as to the specifics of what occurred stands alone.
5.The fact that the incident was isolated, relatively brief in duration, and it was not part of a continuous course of conduct involving the accused showing special or focused attention towards the complainant as one of his students.
6.The fact that there is a certain amount of fragility in youthful recollection and memory when a former youth is casting his mind back a long way, indeed more than 45 years, from late adulthood back to his teenage years.
7. The possibility of distortion or mental reconstruction.
8.The fact that, from the accused’s perspective, the delay has disadvantaged him in defending himself against allegations which he says were false and has disadvantaged him in remembering matters of fine detail and in producing evidence, over and above that already adduced, to disprove the evidence (both direct and implied) of the complainant or to discredit him. In this context it is vital to remember that the accused does not have to prove anything. I also reminded myself of what Brennan J (as he then was) and Dawson and Toohey JJ stated so forcibly in Longman (at p.91) about the significance of lengthy delay. Their Honours said:
Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt about the complainant’s story or confirming the applicant’s denial. After more than 20 years that opportunity was gone and the applicant’s (complainant’s) recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay; see Jago v District Court New South Wales, citation omitted and it was imperative that a warning then be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.
[See also Doggett v R (2001) 280 CLR 343 per Kirby J at p.370 where His Honour said:
Nevertheless, delays in complaint, accusation and formal charge, sometimes involving years and even decades, commonly present serious forensic difficulties for the effective defence and fair trial of the accused.’
Also at pp.374-375:
Yet one common element informed both the joint reasons of Brennan, Dawson and Toohey JJ and the separate reasons of Deane and McHugh JJ in (Longman’s case). This was a recognition of the serious forensic disadvantages suffered by an accused person in a criminal trial in meeting, for the first time, accusations made long after the subject offences were alleged to have occurred. In their separate reasons Deane J and McHugh J added a reference to a second and related danger, namely the risk that, after such an interval of time, the memory even of an honest witness might become contaminated. A lengthy lapse of time could therefore make acceptance of a witness’s testimony dangerous. It was such as to require particular scrutiny and the need for external confirmation of what the witness said.
See also what Deane J is quoted as having said regarding honest but erroneous memory (at pp 376-377):
The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half asleep or between periods of sleep cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy, it is simply to explain why …..in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after the alleged occurrence required to be scrutinised with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not.
To the same effect were the reasons of McHugh J:
The longer the period between an ‘event’ and its recall, the greater the margin for error…. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine. …The opportunity for error in recalling 20 years later two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. See also p.379:
See also (at p 379):
To ascertain whether, apart from the circumstances of lack of corroboration, warnings of the kind required by Longman are necessary, it is therefore essential to address the particular mischief which the judges in Longman identified. This was the serious forensic disadvantage involved in responding to accusations made many years after events. And, in the case of long delay, it also included the special danger presented by honest, and apparently convincing, but erroneous testimony.
Whether Evidence Shows Esoteric Knowledge
The prosecution placed a great deal of emphasis upon the evidence of the complainant as to what the accused allegedly said to him during the alleged incident regarding two other boys with whom the accused had allegedly had some sort of sexual relationship with prior to the incident in question involving the complainant. It was suggested by Dr Salu, for the Crown, as I understood his submission, that the complainant’s evidence, if true, was evidence showing that the accused was attempting to woo over the complainant, if not to seduce him, by the use of words of reassurance to the effect that he (the complainant) was not the only student finding himself, as a student, in an awkward or threatening teacher/student sexual relationship. The problem with Dr Salu’s argument is that the evidence in question is not capable of being corroborative. It does not come from an independent source. Its source is the complainant himself, the very person who, in a real sense, needs support from an independent source if his evidence is to be readily accepted.
The subject evidence does not show esoteric knowledge possessed by the accused which could be used to infer that he was implicated in the crimes charged. At its highest, it could be used in buttressing the complainant’s credibility or counterbalancing factors tending to diminish his credibility. It also could be used to constitute one piece of circumstantial evidence which, together with other pieces, if they were in existence (and there were none), could, in their combined effect, constitute potential corroboration (see R v Duke (1979) 22 SASR 46 per King CJ at p.52 and Kamleh v R (2005) HCA 2). Esoteric knowledge, as the cases show, should not be given, as I think Dr Salu was giving it, too much importance in the circumstances of a case such as this (see R v HS (2004) SASC 300 per Duggan J at paras.28-31). With all due respect, it was an overstatement to suggest, as Dr Salu did, that the evidence of so-called esoteric knowledge here ‘ranks as evidence of the highest order’.

If I may adopt and adapt the words of Kirby J in the High Court case of Doggett v R (at p.386): preferring the evidence of the complainant to that of the accused is not sufficient to convict the accused. Being convinced that the complainant’s testimony was honest and had not been significantly dented by lengthy cross-examination is also insufficient. The warning based on particular considerations derived from the law’s experience needs to be heeded and, in the circumstances, applied.
I must, as a matter of law and procedure (and do) give the accused the benefit of the doubt. To use the words of the traditional Longman warning, the evidence of the complainant Ronald Stennett, standing alone and unsupported and unconfirmed by other evidence from an independent source, I find myself unable ‘to be satisfied of its truth and accuracy’. I have scrutinised his evidence with special care and I have paid heed to the warning. The Longman principle resonates the louder when the delay has been as great as this (more than 45 years) and when, notwithstanding the possible existence of valid reasons for a failure to complain, there has, effectively, been no complaint at all for more than 42 years.
I am, therefore, not satisfied beyond reasonable doubt that the accused is guilty of either count charged. For all these reasons, the verdict in relation to each count, is not guilty. The accused is discharged from this information.