R v B No. Sccrm-03-279, Sccrm-03-316

R v B
[2004] SASC 59
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ: I would allow the appeal, set aside the conviction and order a re-trial. I agree with the reasons given by Mullighan J.
PERRY J: In my view, the appeals against conviction and sentence should be allowed. I agree with the reasons of Mullighan J, and with the order which he proposes.
MULLIGHAN J: The appellant was found guilty in the District Court by verdict of the jury of unlawful sexual intercourse with a person under the age of twelve years and sentenced to imprisonment for two years and six months with a non-parole period of 18 months. He appeals against the conviction and the sentence.
The prosecution case was that the appellant, who is aged 49 years, had digital sexual intercourse with his niece, whom I shall call “V”, at the home of his mother, who is her grandmother, at Port Pirie during the early hours of the morning on the 12^th July 2002. V lived at a nearby country town with her parents and brothers. She was aged 12 years at the time of the trial and eleven years at the time of the alleged offence. The appellant and her father are brothers. On that night she was staying with her grandmother at her home which was also the appellant’s home. The appellant went out during the evening and returned home late at night or in the early hours of the morning.
According to V, she was sleeping on the lounge in the sitting room. She was “half awake” when she noticed her pyjama pants and underpants were down around her knees. She told the jury that the appellant’s head was near her hip and he was kissing her in that area. On the prosecution case the appellant inserted a finger in her vagina.
In view of an issue at the trial, that was raised again on appeal, it is important to set out her evidence about that matter. She said that the appellant’s hands were near her “flaps”. She was then asked a leading question by the prosecutor as follows:
“Q       When you say ‘near my flaps’ are you talking about your vagina.”
which was the subject of objection. The question was disallowed. The examination-in-chief continued:
“Q       What do you mean by your ‘flaps’, V.
A      Near my private - near my hip.
Q      What do you call your private.
A      I just call my private near my hip.
Q      What, is it your private part of your body.
A      Yes.
Q      What do you do with that private part of your body.
A      Wee.
Q      And when you talk about flaps, what part of your body is the flaps.
A      The hole.
Q      And what’s the hole; what’s the hole for.
A      Weeing.
QJust to be clear, are flaps a part of the hole, that’s your evidence, that you wee from.
AYes.” (my emphasis)
The question which I have underlined is a leading question about a critical matter as the prosecution had to prove penetration beyond reasonable doubt.
V was then further questioned:
“Q       When you say ‘his hand was near your flaps’, whereabouts was it.
A      In -
Q      In your flaps.
A      Yes.
Q      The flaps being a part of your private part.
A      Yes.
Q      Where you wee from.
A      Yes.
Q      Do you know that private part of your body by any other name.
A      No.
Q      How did you know that that’s where his hand was.
A      Because that hurt.
Q      And just to be plain, I think you’ve already said that -
QUESTION WITHDRAWN
Q      Just to be clear, his hand was inside that area of your flaps.
A      Yes.
Q      And it hurt.
A      Yes.
Q      Do you know which part of your uncle’s hand was inside your flaps.
A      No.
Q      Do you know how long his hand was there for.
A      No.
QWhat about your uncle’s head, I think you’ve given evidence that his head was around the area of your hip.”
It may be seen that V’s evidence on the critical issue of penetration was elicited by leading questions.
In cross-examination V told the jury that she had known for a long time that her private parts were called a vagina. When she was asked why she had not used that word in her evidence-in-chief, she answered because it was “embarrassing”.
I have mentioned that V said that when this alleged incident occurred, she was half awake. In cross-examination she said:
“Q       You told us that you woke up.
A      Yes.
Q      What woke you up.
A      I don’t know.
Q      What happened when you woke up.
AI saw [the appellant] next to me quickly pulling my pants up and going to the lounge room door.”
and later:
“Q       What, so as soon as you woke up do you say he pulled your pants up.
A      Yes.
Q      Then what.
A      Then he quickly went to the door.”
She acknowledged that she was fully awake when the appellant pulled up her pants, and that before then she was half awake. She said that she was not fully awake when the incident involving touching of her private parts occurred. She said that the incident did not wake her up.
During cross-examination she was questioned about penetration. She said:
“Q       He did that after he kissed you, did he.
A      Yes.
Q      Were you fully awake by this stage.
A      No.
Q      That didn’t wake you up.
A      No.
Q      What do you say he did with his hand.
A      Just put it inside.
Q      Sorry.
A      He put it inside.
Q      What part of his hand.
A      His fingers, I think, I’m not sure about that.
Q      Why aren’t you sure about that.
A      I just felt some pain.
Q      Well again are you sure something like that happened.
A      Yes.”
According to V, after the appellant left the lounge room he went to the spare bedroom and she went to the toilet. She said that her private part was red and sore. She went to the kitchen and noticed the time as “3, 2.30” am. She then went to her grandmother’s room. She woke her and told her she could not sleep. She told the jury that she went to that room because she was scared.
V’s mother collected her during the next day. She said that she did not make a complaint to her mother at that time because she thought her grandmother and the appellant might hear. That night she said something to her mother but she could not remember what she said. Again she was asked leading questions:
“QBefore you fell asleep can you remember what you were talking about with your mum.
AWhat happened.
QWhen you say ‘What happened’ do you mean what happened the night before.
AYes.
QWith [the appellant].
AYes.
QHow were you feeling when you told your mum about what happened with [the appellant].
AScared, mad, angry.
QWhy did you tell your mum.
AI don’t know, just - I don’t know.”
It may be seen from this evidence that V did not say, and was not able to say, that what she told her mother was true.
V’s mother told the jury that when she collected V from the grandmother’s house she was alarmed because V was running a temperature, had glassy and red eyes and the room where she saw V was stuffy and hot. She had her other children with her. Upon arriving home, V had a shower and went to bed early. She was running a temperature. In the bedroom V made a complaint to her mother. V’s mother gave the following evidence:
“Q       What did she speak to you about; what did she say.
AStraightaway she said ‘[the appellant] has touched me on the privates’.
Q      Did you respond to her.
A      I did, I said ‘Do you mean he touched your vagina or inside’.
Q      What did she say.
A      She said ‘Put his fingers inside’.
Q      What was [V’s] behaviour like when she was telling you this.
ADistraught, totally upset, really shaking, crying, clinging on to me, very upset.”
It is to be noticed that in her evidence V did not say that the appellant had definitely used his fingers.
V’s mother contacted the police at Jamestown on the following day and V made a statement to the police on 18 July 2002, about a week later. On the advice of a police officer she did not see a medical practitioner or any other expert and so there was no examination of her vagina by an expert. The police did not speak to the appellant until 3^rd December 2002, nearly five months after the sexual interference is alleged to have occurred. Upon request, he voluntarily attended the police station at Port Pirie and was interviewed which was recorded on video tape. That video tape was not admitted into evidence and played to the jury. The interviewing police officer was permitted to relate the interview to the jury from a transcript which he had checked.
The appellant participated in the interview. He had earlier, in November 2002, received some information from his mother about V’s allegations against him, but the nature and extent of that information was not revealed in evidence. It may be accepted that during the interview he was asked to recall events which were alleged to have occurred some months beforehand, without notice of the questions which were to be asked. He denied the allegations of sexual interference. Perusal of the transcript of the evidence of the interviewing police officer indicates that at times some of the appellant’s responses to questions were vague and possibly non-committal. An example is that when he was told that he was licking V around her private parts with his mouth, he said that he did not think he was doing anything like that. Another example is that when it was put to him that V awoke to find him touching her under her clothing and placing his fingers in the area of her genitals and kissing her, he said, “Not that I can remember ..... I don’t know”. As the interview proceeded, answers along those lines became commonplace. No adverse conclusions may be drawn against him for that reason. The video tape recording of the interview was not admitted into evidence and consequently there was no evidence of the demeanour of those participating in the interview, including the appellant. Also, he told the police that he was intoxicated by alcohol when he returned to the house in the early hours of the morning. It is possible that his memory was affected by his condition and the delay between the offence and the interview. It could be expected that his denials might have been more robust and precise but I do not think any of his answers could be regarded as indicating guilt.
The appellant told the jury that he denied the allegations against him. He said that when he returned home on the night in question he did not see V, although he said he would have walked through the lounge to get to the back bedroom where he was sleeping.
The only ground of appeal upon which leave to appeal was granted is that the caution which the learned Trial Judge gave to the jury was inadequate in that he failed to link the caution to unsatisfactory aspects of V’s evidence. On this matter the learned Trial Judge directed the jury as follows:
“You should also exercise some caution in assessing the weight to be attached to what V said, as it is not directly supported by any other independent evidence. The fact that she went to her grandmother’s bed that night might be considered by you as some indirect support. You might also have regard to her observation as to the time that she got up, went to the toilet and then went to her grandmother’s bedroom. She said 2.30 or 3 o’clock. On the accused account, he went home at sometime around 2 o’clock. That is a mere coincidence of time that you might take into account, but that is a matter for you.”
Earlier in his summing up when the learned Trial Judge directed the jury as to the elements of the charge he correctly said that there were two elements which had to be proved beyond reasonable doubt, that the appellant had sexual intercourse with V and that at the time she was under the age of 12 years. He went on to say that sexual intercourse meant penetration of the labia majora on the outer lips of the vagina with any part of the body of the appellant. He mentioned the allegation of the prosecution that the appellant had inserted his finger or fingers or part of his hand inside V’s vagina or inside those outer lips and said that if that allegations was proved beyond reasonable doubt the prosecution would have proved that element of the charge. He also correctly directed the jury that any degree of penetration of the vagina is sufficient but there must be some degree of penetration which, even for a short period of time, is sufficient.
It may be seen that on the prosecution case there was no issue about V’s age. The issues of the trial were whether the appellant behaved indecently to V, which he denied, and if so whether penetration was proved beyond reasonable doubt.
Before addressing the contentions of Ms David, who appeared for the appellant, in support of this appeal, I mention the directions given by the learned Trial Judge as to the evidence of the complaint made by V to her mother. He told the jury that the only evidence of facts and events which is permitted is that given in the witness box, and that what V might have told her mother is not evidence of what she said occurred. He said that her complaint had to be considered because the making of a prompt complaint was relevant in assessing the truth of V’s evidence in court if the jury found it was consistent with the occurrence of the events about which she had given evidence. The learned Trial Judge told the jury that the appellant did challenge that V had been consistent because she “did not give a clear account of what she told her mother and all she could say was that she told her mother what happened”.
I have mentioned the evidence of V and her mother about the complaint. It will be remembered that she said she did not know what she told her mother. Her mother said that V told her that the appellant had touched her “on the privates” and it was not until she questioned V that V said the appellant had put his fingers inside her vagina. As has been seen, V did not say that the appellant had definitely used his fingers.
The learned Trial Judge went on to direct the jury as follows:
“You must also bring your own knowledge of children and experiences of life to bear here. There are some problems associated with the assessment of complaints made by a child. Sometimes, by reason of their immaturity, some children do not have the same sense of responsibility about truth and falsehood that is expected of adults. Sometimes they have difficulty in distinguishing fantasy from fact or imagination from reality, and they may be susceptible to suggestion by adults.
In deciding what weight you attribute to V’s complaint, you should particularly consider the circumstances leading to the making of it - that is, the making of the complaint to her mother - the nature of the complaint and the context in which it was made, and any other factors which you consider relevant to it and that may assist you to arrive at a conclusion as to whether it supports her general consistency in the evidence she gave in this court.”
I return to the significance of these directions shortly.
Whilst there is no rule of law or practice requiring the learned Trial Judge to warn the jury that it was unsafe to convict on the uncorroborated evidence of V (s 12A and s 34I(5) of the Evidence Act 1929 (SA)), it was necessary for him to give such directions to the jury as were required in the circumstances: Longman v The Queen (1989) 168 CLR 79 and R v Corrigan (1998) 74 SASR 454. In those cases it was accepted that a warning must be given whenever necessary to avoid a perceptible miscarriage of justice: Longman per Brennan, Dawson and Toohey JJ at 86, Deane J at 100-101 and McHugh J at 107-109, Corrigan per Doyle CJ at 465-466. As McHugh J said in Longman at 107:
“If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person’s evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr (1988) 165 CLR, at p318.”
It is made clear in the cases that a suitable warning or caution must be given where there are potential dangers in acting upon evidence which may not, without the warning or caution, be appreciated by the jury. The following observations of King CJ in Pahuja v The Queen (1987-1988) 49 SASR 191, at 198, are instructive:
“In many sexual cases prudence will dictate the giving of some appropriate caution or warning. If, since the enactment of s 34i(5), a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does so as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge’s suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law. Subject to those considerations, he may give the jury a warning in the conventional terms or in any other terms which commend themselves to him.”
Also I mention the observations of Doyle CJ in Corrigan that the use of a particular formula for the warning is not required as it should be tailored to the circumstances of the case.
There was no evidence capable of amounting to corroboration which confirmed V’s evidence in crucial respects. There was no evidence independent of V as to the condition of her vagina. There was no evidence confirming that it was red or sore or that such a condition could have been caused by digital penetration. There was no evidence, even from V, as to the location of the redness or soreness.
I have mentioned the direction of the learned Trial Judge that V’s going to the toilet and then to her grandmother’s bedroom was some indirect support for her evidence. I do not know what he meant by “some indirect support”. I think this was a misdirection. V’s evidence about these matters cannot support her own evidence. There was no other evidence about these matters, except the evidence of the grandmother who said that in July 2002 V stayed at her home during school holidays and that on one night she was awoken by V who said she could not sleep. The grandmother told V to get into her bed with her. There was no evidence that this occurrence was unusual or only happened on one occasion. There was no evidence to suggest that going to the toilet in the early hours of the morning was a significant event or going to the bed of her grandmother was unusual.
In my view the learned Trial Judge did not give an appropriate warning or caution to the jury as required by the circumstances of the case and did not discharge his obligation to provide guidance to the jury as to the evidence and the facts. I mention the matters which required a warning in significantly different terms than those given by the Judge. Apart from the evidence of V being uncorroborated and unconfirmed, the following matters were of considerable importance. V said that she was not fully awake and that the alleged conduct of the appellant did not wake her up. Brennan, Dawson and Toohey JJ in Longman set out the reasons for a warning in that case. They said at 90:
“There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother.”
See also Deane J at 100 and McHugh J at 108.

Three of those matters exist in the present case, namely the nature of the allegations, being digital sexual assault, the young age of V and the alleged awakening of a sleeping child by indecent acts. Indeed, as I have mentioned, in the present case the alleged conduct did not cause the child to become fully awake. Although the jury may have understood the significance of V not being fully awake, nevertheless it remained a matter which required a more emphatic caution than was given by the learned Trial Judge.
The next matter is that evidence of penetration was given in response to leading questions. The jury should have been warned about the need to exercise considerable caution in accepting evidence of penetration elicited by leading questions and particularly because of her young age. It was appropriate for him to explain to the jury why leading questions are inappropriate and particularly when asked of a young child.
The next matter is that the jury should have been specifically directed that it was impermissible to reach a conclusion that penetration had been proved beyond reasonable doubt based upon the evidence of V’s mother as to what V said to her. Whilst the learned Trial Judge, as I have said, directed the jury that what V told her mother was not evidence of what occurred, he did not give a specific direction about the evidence of the mother that V told her that the appellant penetrated her vagina. As V did not say what she told her mother, the jury had to first decide what she did say. If they were not satisfied about the accuracy and validity of the evidence of the mother, the evidence of the alleged complaint had to be disregarded. If the jury accepted the evidence of the mother as accurate and reliable, it was necessary for the Judge to direct them to consider the significance, if any, of the mother’s evidence that V first told her that the appellant touched her “on the privates” (my emphasis) which could be consistent with lack of penetration. The jury should have been cautioned to consider whether it was significant that V only mentioned penetration after the question was asked by her mother. Also, the jury should have been cautioned of the need to carefully consider the significance (if any) of V not having said that the appellant did use his fingers.
Lastly on this topic, the learned Trial Judge should have directed the jury that if they were not satisfied beyond reasonable doubt as to the evidence of V as to penetration, they could not use the evidence of the mother to prove that penetration occurred.
I have mentioned the evidence of V’s mother that V was ill when she collected her from the grandmother’s house. In her evidence V said that she was not ill. Whilst I do not think that in the circumstances this is a matter of significance, the jury should have been reminded of this inconsistency and directed to have regard to it when considering the accuracy, reliability and truthfulness of V’s evidence.
It was submitted that the lack of medical or other expert evidence should also have been a reason for a stronger warning or caution to be given to the jury. I do not accept that contention in the circumstances. The absence of such evidence was explained. Whilst it is true that the absence of such an expert from the witness box prevented the appellant from possibly exploring matters which could have assisted his defence, I do not think a particular warning or caution was required for that reason. It would be a different matter if the absence of witnesses would be likely to assist the defence case but that is not the position here.
It was submitted by Ms McDonald that the trial was of short duration, less than two days, and the matters which have been discussed as requiring a more appropriate warning or caution were all matters which would have been obvious to the jury. I reject that submission. The learned Trial Judge was obliged to give guidance to the jury about the evidence and the facts. This necessarily required an adequate warning or caution about the matters which I have mentioned. In my view, he did not do so.
In my view the ground of appeal has been established. The inadequacy of the caution is such that it cannot be said that there has not been a miscarriage of justice. The verdict must be set aside and there should be a new trial.
As the conviction should be set aside, there is no need to consider the appeal against the sentence, which must also be set aside.

[2004] SASC 59

4 March 2004