R v B, P
[2016] SASCFC 30
•22 March 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, P
[2016] SASCFC 30
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bampton)
22 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appeal against conviction and antecedent refusal of Judge Chivell to grant a permanent stay of proceedings.
The appellant was charged on an Information heard in the District Court on five counts of unlawful sexual intercourse. The appellant was convicted on the first three counts. The jury was unable to reach a verdict on the last two counts.
The appeal was against those three convictions and the refusal of an application for a permanent stay of proceedings. The appellant contended that he had been denied a fair trial due to the delay of 13 years between the original complaint and the institution of the prosecution. He argued that due to inconsistencies in the testimonies of the victim, that the verdicts of guilty could not have been supported by the evidence.
Held per Kourakis CJ (Kelly and Bampton JJ agreeing), dismissing the appeal:
1. The proceedings were not an abuse of process nor oppressive;
2. Judge Chivell was right to refuse the application for a stay;
3. The convictions were supported by the evidence;
4. The verdicts were not unsafe, unsatisfactory or unreasonable.
Jago v District Court (NSW) (1989) 168 CLR 23; Gill v The DPP (1992) 64 A Crim R 82; R v Lane (Full Federal Court, 19 June 1995, Unreported); R v Glennon (1992) 173 CLR 295; Attorney-General’s Reference (No 1 of 1990) (1992) 95 Cr App R 296; R v Sawoniuk [2000] 2 Cr App R 220; Police v Pakrou (2008) 103 SASR 124 ; Duncan v Crews (2001) 161 FLR 250; Williams v Spautz (1992) 174 CLR 509; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, considered.
R v B, P
[2016] SASCFC 30Court of Criminal Appeal: Kourakis CJ, Kelly and Bampton JJ
KOURAKIS CJ: The appellant was charged on an Information heard in the District Court on five counts of unlawful sexual intercourse. Counts 1, 2 and 3 alleged digital penetration and counts 4 and 5 penile penetration. The victim, V, was the niece of the appellant’s wife, C. The offences occurred between 1990 and 1995 when V was being cared for by C and the appellant in their home. V, who was born in 1985, was aged between five and nine years at the time of the alleged offending.
Police in South Australia first became aware of V’s complaint in 1999 when taking a statement from V about sexual offences committed by the appellant against her. The appellant was convicted of an offence of indecent dealing in July 2002 and received a suspended sentence of imprisonment in the Northern Territory.
On 23 July 2015 the appellant was convicted on the first three counts. The jury was unable to reach a verdict on the last two counts. This is an appeal against those convictions and the antecedent refusal of Judge Chivell to grant a permanent stay of proceedings. The appellant contends that for several reasons the delay of 13 years between the original complaint and the institution of the prosecution has denied him a fair trial.
With respect to the conviction itself, the appellant argues that:
· V’s testimony is materially inconsistent with the statements made by her to police in 1999; and
· that it is inherently unsafe to rely on testimony about events of between 21 to 25 years before trial when the appellant was a young child.
The appellant argues that in those circumstances the verdicts of guilty cannot be supported by the evidence. The proceedings were not an abuse of process. The failure of the police to prosecute the appellant was probably attributable to their secondary role in taking a statement for the Northern Territory police. There was no evidence that the delay was part of a calculated strategy of oppression. The delay did not compromise the jury’s capacity to evaluate the evidence. The convictions were supported by the evidence. The inconsistencies did not materially undermine V’s evidence. In any event, any doubt arising out of them was capable of being removed by the weight of her testimony.
Background information
Between 1990 and 1996 V and her mother, H, lived in Adelaide’s southern suburbs not far from the appellant’s home in Hackham. V testified that all of the charged offences in South Australia occurred at the appellant’s home when the appellant and C were caring for her whilst her mother was working.
The appellant and C moved to Darwin in 1994. V and H moved to Darwin in 1996, where they stayed with the appellant for some six weeks, before moving into their own home. They remained in Darwin until late 1998 to early 1999 when they returned to live in Adelaide.
On 15 December 1998, the day before V and H left to travel to South Australia, V made a statement to police in Darwin in which she alleged that the appellant had committed a number of sexual assaults against her, including penetration of her vagina, while in the Northern Territory. V was 13 years and 11 months when she made the statement.
On the same occasion V described three instances of offending committed in South Australia. She described the appellant:
· taking V from a bedroom in which where she was getting dressed into his bedroom and placing her on a water bed and removing her pants (the bedroom incident); and
· the appellant hugging her after sitting her down on a large table in his painting studio (the painting studio incident); and
· unzipping her pants after sitting her down on a large chopping board on wheels (the chopping board incident).
V did not tell the police that any penetration occurred on those occasions but in other respects the incidents coincide with counts 3, 4 and 5 respectively.
On 1 July 1999 V was interviewed in South Australia by Constable Cunningham of the South Australia Police Sexual Assault Section at the request of the Northern Territory police. V disclosed to Constable Cunningham more sexual offending which she had not mentioned to the Northern Territory police. For example, she alleged that the appellant indecently assaulted her on a camping trip in the Northern Territory.
V also disclosed that digital penetration had occurred in South Australia during the bedroom incident. At the time she took the statement, Constable Cunningham made a note that V ‘has very little memory of offences and does not really know why she has attended SAS’.
On 26 October 1999 charges were laid in the Northern Territory against the appellant alleging three counts of indecent dealing and one of rape. The appellant pleaded guilty to one count of indecent dealing and the other charges were withdrawn. A suspended sentence of four months imprisonment was imposed on 25 July 2002. V was just over 17 years of age at the time.
On 22 March 2012 V made a complaint to police in South Australia alleging that the appellant persistently sexually abused her between 1990 and 1998. Police investigated her complaint and arrested the appellant. The information charging five counts of unlawful sexual intercourse was laid in the District Court on 6 May 2013.
In a statement made to police on 2 May 2014, V explained that she did not formally complain to police about the offences committed in South Australia until 2012 because:
… at the time of the court case in the Northern Territory and for years after I was feeling extremely let down by the Justice system and I wasn’t up for the emotional stress to make another report in another state. At that time there was no way I [was] going to do this all over again to have the same outcome, by outcome I mean that I walked away from the Northern Territory Court process feeling unsupported and extremely upset.
I was too young and the experience was completely overwhelming it was just too much. If I wasn’t ready in the Northern Territory to go through with the court process there was no way at that time that I was ready to do it in South Australia either.
It was always in the back of my mind that if I ever felt strong enough that I could come to the South Australia police and make an official report and statement. It was only after the birth of my son that I felt really strong enough to go to the South Australia police. After years and years of counselling and psychologists I realised that I couldn’t come to terms with what had happened to me and that my complaint against [PB] was incomplete until I made the report to the South Australia police.
The evidence
The offence charged in the first count occurred when V was about six years old. V testified that the accused approached her from behind when she was sitting at the dining table in his home. The appellant told her that he loved her. He then touched her around her vagina area before placing his finger inside her vagina. V described the appellant’s finger as going only part way in but that it did go further than the outer lips.
Count 2 was alleged to have occurred in the shed at the appellant’s home. V and her cousin were playing in the shed when it went dark. When V found that he was no longer with her in the shed, she tried to leave but the appellant approached her from behind and hugged her. The appellant kissed her neck and placed his hand inside her pants and penetrated her vagina.
Count 3 was the chopping board incident which was alleged to have occurred in the kitchen. V testified that the appellant lifted her onto a chopping board. He unzipped her pants and placed his finger inside her vagina. V testified that he again said that he loved her and asked if she reciprocated. Whilst assaulting her, the appellant stared at her as if trying to ‘connect with her’.
The fourth count, on which the jury was unable to reach a verdict, was the painting studio incident. V testified that the appellant approached her from behind in the painting room and sat her up on a table. V testified that the appellant removed her pants and underwear, before an act of penile penetration. The incident came to an end when V’s aunt was heard calling from outside the house.
The fifth count, on which again the jury was again unable to reach a verdict, was the bedroom incident. V testified that she had been dropped at the house early in the morning and got into bed with her cousin. V testified that when she awoke her cousin was no longer in the room and the appellant was standing at the bed. The appellant blocked her attempts to leave the room, forcing her into the appellant’s bedroom where he placed her on the bed. V testified that there was then digital and penile penetration. V recalled seeing a tub of Vaseline in the bedroom. C gave evidence that Vaseline was kept in the appellant’s and her bedroom.
C testified that in late 1988 or early 1989 the appellant informed her that he was being charged with molesting or interfering with V and later told her ‘I didn’t touch her while she was in nappies’. When interviewed by Detective Senior Constable Harris on 14 May 1999, the appellant admitted to touching V on the outside of her clothing but denied penetrating her:
[PB]It doesn’t go back to me. What I’ve done wrong see. I know I have done wrong, I but I never what do you call it, penetrated her, do you know what I mean?
Harris…
[PB]It was just something from the outside, not.
HarrisMmm can you tell me what happened?
[PB]Well I sort of can’t remember cause I was drunk or something I think. I was just fully getting drunk everyday.
The interview later continued:
HarrisDo you think that at times you’ve touched [V] in an in a inappropriate matter.
[PB]inap?
HarrisInappropriate, um not right, something that’s not not right?
[PB]Yeah I think so but you know, I was drunk you …
HarrisCan you remember any specific occasion?
[PB]No cause I sort of ah block things out cause I’ve been, what do you call it I’ve been through the process already.
The appellant also admitted, in a general way, that similar touching had occurred in South Australia:
HarrisOkay, do you believe [PB] that in the time that that you’ve known [V] that on occasions you’ve touched her in not the right way?
[PB]Yeah.
HarrisAlright so …
[PB]Probably when I’m drunk where, see her mother keeps on saying there could be somebody in this room, there could be a child molester, and it could be your uncle or could be your brother or could be your father, she always says that all the time. Yeah
HarrisAlright, but what I’m sort of getting at is you know, are you agreeing that at times you’ve touched [V] the wrong way or
[PB]Yeah.
HarrisOr are you just saying that because someone else has says you’ve done it?
[PB] When I’m drunk, yeah. Probably drunk yeah. Drunk or something yeah. Like the parents were there all the time.
HarrisOkay so the manner in which you’ve touched her, them has been?
[PB]I don’t know what to say, like the parents are there.
HarrisYeah.
[PB]You know what I mean.
HarrisHow did it.
[PB]Probably a split second …
HarrisHow did it make you feel at the time?
[PB]No good.
HarrisNo then why did you do it then if it if it didn’t make you feel good?
[PB]It’s just, just the alcohol know. Like she’s a daughter to me, you know what I mean.
HarrisYeah.
[PB]She’s like a daughter to me.
HarrisHave you got anything further? Okay
[PB]So my daughter you know she telling me. It was just that I don’t know I was attracted you know what I mean.
HarrisSorry.
[PB]Attraction.
HarrisOh right.
[PB]She’s very pretty [V]’s, real pretty.
HarrisOkay.
[PB]But I can’t tell it to her any more, see.
HarrisIs there anything else you want to, say about all this [PB].
[PB]I was really you know sorry if I touched her, I’d always sort of you know as wrong state of mind and that. She thinks that’s you know, I how would you say, offensive, that’s then I’m sorry I mean …
HarrisOkay and this stuff has it happened in Darwin or only in South Australia?
[PB]South Australia as well.
HarrisAs well as Darwin, okay.
[PB]Yeah.
Uncharged conduct
A number of uncharged acts were left to the jury to consider as context for the charged acts. V recounted a number of occasions where the appellant touched her and other occasions of penetration. V also gave evidence that the appellant would touch her vagina over her clothes when playing games. Evidence was also given of sexual offending in the Northern Territory.
Stay of proceedings
The appellant applied to the trial Judge to have the matter permanently stayed as an abuse of process. The appellant’s grounds were as follows:
·the delay of about 13 years;
·the failure of SA police to explain why they had not charged the appellant even though they were aware from 1999 that V alleged that she had been sexually assaulted by the appellant in South Australia;
·the loss of Constable Cunningham as a possible witness because of the delay;
·the inability by reason of the delay to explore the reasons for V’s incremental disclosure of offending of increasing seriousness;
·the appellant’s inability to test the ‘internal topography’ position of furniture and layout of rooms in which the offending is alleged to have occurred; and
·the possibility which cannot now be confirmed that the alleged offending in South Australia was taken into account by the Magistrate who sentenced the appellant in Darwin in 2002.
The Judge refused the application observing that a number of matters were unremarkable in the context of child sexual abuse cases. The Judge also found:
·that the unavailability of Constable Cunningham was of little effect on the appellant because much of her evidence, even if admissible, was of little probative effect;
·that any forensic disadvantage could adequately be dealt with by a direction;
·the appellant was not punished for the South Australian offending when sentenced in the Northern Territory; and
·there was no evidence of prosecutorial misconduct.
The Judge was right to refuse the application for a stay largely for the reasons given by him.
The following submissions of the Director of Public Prosecutions on the applicable principles should be accepted. The onus on the applicant for a stay of proceedings is a heavy one. The community interest in the adjudication of complaints of serious criminal conduct is high. Presumptive prejudice will not ground a stay. Actual prejudice must be shown.[1] The courts will not infer or assume that simply because of the effluxion of time, there is real prejudice. The continuation of a prosecution is not an abuse of process, if there is only a risk of prejudice.[2] The defendant, on the balance of probabilities, must prove the existence of ineradicable prejudice.[3] The defendant must show on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be heard.[4]
[1] Jago v District Court (NSW) (1989) 168 CLR 23, 33; Gill v The DPP (1992) 64 A Crim R 82, 94.
[2] R v Lane (Full Federal Court, 19 June 1995, Unreported) at 19 (Ryan and Higgins JJ), relying on the High Court in R v Glennon (1992) 173 CLR 592.
[3] Attorney-General’s Reference (No 1 of 1990) (1992) 95 Cr App R 296, 303.
[4] R v Sawoniuk [2000] 2 Cr App R 220, 230-231.
The issue of delay in the specific context of child sexual offending has been the subject of comment. In R v Lane it was held:
... it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child ... it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[5]
[5] R v Lane (Full Federal Court, 19 June 1995, Unreported) at 3 (Wilcox J).
In Police v Pakrou[6] I explained the concept of forensic unfairness arising from the loss of evidence as follows:
There is forensic unfairness when the exceptional circumstances in which the proceedings are brought has denied, to a significant extent, an accused the benefit of the operation of the common law and statutory rules and practices that are calculated to ensure a fair trail [sic].
[6] (2008) 103 SASR 124 at 142 at [59].
In re-evaluating the effects of the loss of evidence on the fairness of a trial the following considerations are relevant:
·Courts have always made findings of fact on less than all of the available evidence.
·The procedural and substantive rules of the common law trial process are designed to meet the practical reality that findings of fact will often be made on imperfect evidence. These rules include the presumption of innocence, the rules against double jeopardy, the right to reasonable notice of the prosecution case and the prosecution obligation to disclose exculpatory as well as incriminatory material.
·The common law and statutory rules require directions to be given in a criminal trial which address potential unfairness.
Nonetheless, there may be exceptional cases where an unacceptable risk of miscarriage subsists despite the protections to which I have referred.
Deciding what is ‘unacceptable’ is a normative judgment. A judicial ‘assessment on anything less than all of the possible available evidence will always carry with it a risk of error in a general sense, but it cannot be the law that a trial must be stayed whenever some evidence that might, theoretically, have raised a doubt for one reason or another cannot be produced.
The nature and strength of the prosecution evidence which will be called must be weighed against the nature of the evidence which has been lost.
In weighing the competing circumstances, the public interest that prosecutions for serious offences that have at least a reasonable evidential foundation are brought to trial is a very important consideration. It is the very constitutional function of courts to do justice by exercising their jurisdiction. In all but the most exceptional of circumstances justice will be denied when courts close their doors to a supplicant.[7] Exceptional circumstances will only exist where the judicial function cannot be acceptably performed.[8]
[7] Duncan v Crews (2001) 161 FLR 250 at 257-8, [49]; Jago v District Court (NSW) (1989) 168 CLR 23 at 47; Williams v Spautz (1992) 174 CLR 509 at 519; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 303-4, [158]-[161] (Kirby J).
[8] Duncan v Crews (2001) 161 FLR 250 at 258, [54] (Greg James J).
The lost opportunity of an accused to present evidence or test the prosecution case should not be considered in isolation and is certainly not determinative. The critical issue is whether the court’s capacity to fairly assess the evidence which will be led has been so compromised that there is an unacceptable risk of a miscarriage of justice. Those cases will be rare and exceptional.
In evaluating the contention that a defendant cannot, or will not receive a fair trial, it is important to appreciate that on an application for a stay of proceedings that contention requires a prospective evaluation of the factual issues which might arise at trial and the nature of the evidence which might be led to prove or disprove the disputed facts. It is necessarily difficult to be certain about how the trial will actually proceed. Moreover, a court faced with an application to stay proceedings must consider the extent to which any forensic disadvantage might be adequately dealt with by a direction to the jury.
Ultimately an applicant for a stay can only succeed if the Judge is satisfied that the capacity of the court to safely adjudicate the complaint or Information will necessarily be unacceptably compromised. If no more is shown than that the trial might be unfair, the defendant’s remedy, if that is ultimately the case, is an appeal on the ground that there has been a miscarriage of justice. The question on an application for a stay is whether or not the defendant should be spared a trial because there is no realistic prospect of a fair trial. If there is no such prospect, it would be oppressive to allow the prosecution to continue. The mere possibility of unfairness cannot be enough to stay a trial because if that were the test, it would shut out prosecutions which may well have been fairly tried.
The delay in this matter was not, in itself, exceptional. The general difficulties arising from delay between the alleged offending and the trial, in cross-examining a complainant and in discovering and adducing evidence challenging a complainant’s account, do not, in themselves, sufficiently compromise a jury’s capacity to evaluate the evidence if guided by appropriate directions. A jury has the capacity to assess whether the delay between the alleged offending and the trial has left it with doubt because it fears that exculpatory material might been have been lost in the intervening period.
I turn to the particular matters on which the appellant relies.
The opinion of Constable Cunningham that V’s recollection of detail was poor could not have been led as part of the defence case, and the prosecution was not under an obligation to lead it, unless it contradicted an explanation given by V of the reason for not fully disclosing the offending in 1998-1999.
As counsel for the appellant on the stay application before the Judge explained, the making of those statements might have been an issue if V had testified that the lack of detail or absence of complaint about particular incidents in those statements was attributable to Constable Cunningham’s failure to ask the appropriate question or to conduct the interview in a way which was conducive to full disclosure by V. However, that was not V’s explanation. When asked by the Judge why she had not given the police details or full details in the statement made to Northern Territory police, V answered:
I was really young, I had never talked about this with anyone, I had never verbalised exact details of what he had done to me and the experience was so overwhelming I just got to the point where I knew I had to say certain words and I just couldn’t do it.
Later V was asked:
QAnd they were, I suggest, sensitive in asking you questions about those sort of intimate and personal details.
AIn all honesty the police officer I had wasn’t very nice. I think she just wanted to get out of there, and so did I.
However, that question and answer was limited to the police in the Northern Territory. V was not asked her reasons for not giving further details to Constable Cunningham.
In any event a defendant faces much the same difficulty in testing a complainant’s explanation for not including all of the details of the alleged offending in a first interview whenever the trial is heard. The ability to test and challenge the evidence of a complainant who elaborates on an earlier complaint or a statement with greater detail will always be difficult. The explanation is usually a personal one of which there is seldom any independent evidence. Generally challenging the credibility of the elaborated account depends on an analysis of the complainant’s own evidence, assessments of her demeanour and the extent to which the explanation accords with the jury’s view of human behaviour.
The layout of furniture in a room is seldom of much significance in evaluating competing testimony about offences of this kind. There was nothing in the evidence of this case which made it so. As to the layout of the rooms, the complainant, her mother and the appellant’s ex-wife were all called to give evidence. Nothing of significance arose. No factual issue arising out of the layout was explored in cross-examination.
The contention that the appellant was sentenced for offences committed in South Australia by the Northern Territory Magistrates Court is speculative in the extreme. It is a fundamental proposition that the courts of one political entity only have jurisdiction to hear and determine breaches of the criminal law of that entity. No question of the common law is involved here. The applicable law of sexual offences in both South Australia and Northern Territory is statutory. The Northern Territory Magistrates Court had no power to sentence for offences in South Australia. The sentence imposed in the Northern Territory could not lawfully have been imposed for any offences committed in South Australia. If the Magistrate in the Northern Territory in any way took into account offences committed in South Australia in sentencing for the offending against the laws of the Northern Territory then the appellant’s remedy was to appeal against that sentence. He did not.
In any event digital penetration was an element of the offending in counts one and two of the District Court Information. Offending of that kind had not been alleged in 2002.
The appellant did not rely on delay and forensic unfairness alone in support of his application to stay proceedings but also emphasised the failure of the police in South Australia to institute proceedings after taking the statement on 1 July 1999 and becoming aware of the South Australian offences alleged by V.
In this respect the appellant seeks to characterise this prosecution as an act of oppression because of the failure to bring it earlier. It can be accepted that proceedings may be stayed as an abuse of process when they are brought for collateral purposes and in particular when they are brought as an instrument of oppression by prosecuting authorities. However that is plainly not this case. The reason for the failure to prosecute can be explained by the notorious reluctance of victims of sexual offending to first disclose, and then persevere with the prosecution of offenders. There is no suggestion in this case that police adopted a calculated strategy to persecute the appellant. The delay here is shown to be a product of V’s youth, the nature of the offending and the lack of rigor in the prosecutorial practices of the time for offences of this kind. The prosecution is not oppressive.
I would dismiss this ground of appeal.
Ground 2 – unreasonable verdict
The appellant relies on the following particulars in support of his ground that the verdicts of guilty were unsafe, unsatisfactory or unreasonable:
1.1It was dangerous or unsafe to rely on the Complainants sworn evidence of the Appellant’s alleged misconduct as it was in conflict with statements given by her to police 15 or 16 years earlier.
1.1.1The appellant’s alleged misconduct against the complainant occurring in South Australia and Northern Territory first came to light in December 1998 (T98.10) when the complainant gave information to police in the Northern Territory.
1.1.2The Complainant gave further information to police in South Australia in July 1999 (T107.19).
1.1.3The Complainant did not tell police of the activity the subject of counts 1 (kitchen table incident) and count 2 (the shed incident) on the occasions she spoke to police in 1998 (T106.19).
1.1.4The Complainant did tell police of the activity the subject of count 3 (the chopping board incident) on the occasion she spoke to police 1998 (T101.23-36 and 105.11-17) but did not assert penetrative activity (T105.20).
1.1.5The Complainant was aged between 13 and 14 years when she gave the 1998 and 1999 statements (T108.5).
1.1.6The conduct the Complainant was describing in counts 1, 2 and 3 allegedly occurred when she was aged somewhere between 5 and 9 years, that is, between 1991 and 1994 (T138.24).
1.1.7In 1998 the Complainant was able to give detail of penetrative activity allegedly occurring in the Northern Territory at Tiwi (T106.1).
1.1.8The explanation given by the Complainant of the omission of any penetrative activity as alleged in counts 1, 2 and 3 when speaking to police in 1998 and 1999, (“I couldn’t verbalise what happened to me” T102.4) against the fact that she could “verbalise” activity occurring in Tiwi, renders her evidence gravely unreliable and unsafe.
V gave the following evidence about the reasons for the inconsistencies between her testimony and her earlier statement:
AMy statement in the Northern Territory is a little different to my South Australian ones being that at the time I was 13, I had never discussed this with anyone, especially in detail, and I couldn’t really verbalise what had happened to me.
…
A I gave them the best that I was able to verbalise.
…
QIt was not an easy process, giving information about sensitive, very personal and intimate matters relating to sexual conduct, was it.
ANo, it’s not easy at all.
…
QWhy didn’t you give all the details.
AI was really young, I had never talked about this with anyone, I had never verbalised exact details of what he had done to me and the experience was so overwhelming I just got to point where I knew I had to say certain words and I just couldn’t do it.
…
AHaving something so horrible and personal happen to you is extremely hard to say it out loud. It’s actually when it comes to naming body parts.
…
A.In all honesty the police officer I had wasn’t very nice. I think she just wanted to get out of there, and so did I.
The explanations given by V were plausible on their face. The reticence of the victims of sexual abuse to give all of the details of the offending and its extent is notorious. It is a completely natural aspect of ordinary human behaviour. The argument that V might have been expected to give the detail of the offending in South Australia to the police when she had described occasions on which penetration had occurred in the Northern Territory was one for the jury to evaluate. That difference is not one which causes me to doubt her evidence. It does not follow as a matter of human behaviour that a young girl in the complainant’s position would feel comfortable about disclosing all of the detail, of all the occasions on which penetration had occurred, because she managed to disclose that detail on one or a few of the occasions. On my evaluation of V’s conduct against my assessment of human behaviour. Having regard to V’s age at the time of the offending, her age when she gave her statements and the way in which the statements were taken both in the Northern Territory and South Australia, I am not at all surprised by her reticence. In any event even if I had entertained a doubt for this reason, all such doubts were obviously resolved against the appellant by the jury which had the advantage of hearing V’s testimony.
The broader question of whether the delay in itself left some reason to doubt the guilt of the appellant was a matter which V’s testimony was capable of dispelling. I entertain no doubt on this ground.
Conclusion
I would dismiss the appeal.
KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
BAMPTON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
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