R v Beard - [2004] SASC 411

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BEARD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
10 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Appeal against conviction - trial by judge alone - convictions for unlawful sexual intercourse with a person under 12 - whether reasoning process flawed - whether adequate reasons given for rejecting the appellant's evidence - whether the verdict unsafe and unsatisfactory - appeal dismissed.
R v Keyte (2000) 78 SASR 68; R v Power (2003) 226 LSJS 337, applied.

R v BEARD
[2004] SASC 411
Court of Criminal Appeal: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ. I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J. There is nothing that I wish to add to those reasons.
PERRY J. I agree that the appeal should be dismissed for the reasons given by Vanstone J.
VANSTONE J: This is an appeal, with leave, against convictions entered in the District Court for three counts of unlawful sexual intercourse with a person under 12, contrary to section 49(1) of the Criminal Law Consolidation Act 1935. The appellant was a family friend of the complainant. The complainant (“V”) was 8 years of age at the time of the conduct, and was 15 years at the time of the trial. The appellant was tried by a judge sitting alone. There was no independent evidence supporting V’s evidence that the offences had occurred. The appellant gave evidence in his defence.
There were four grounds of appeal. Two of those alleged that on two occasions the judge used a reasoning process which commenced with the premise that the appellant was an “opportunistic predator”. Then it was asserted that the judge did not give adequate reasons for rejecting the appellant’s evidence. Finally, the appellant submitted that the verdicts were unsafe and unsatisfactory.
The information on which the appellant was tried contained four offences. The first offence was said by V to have occurred in the water at Glenelg beach on 2 February 1997, when the appellant inserted his finger into her vagina. On that day V and members of her family and the appellant and members of his family, together with two exchange students they were entertaining, travelled from Gawler to Glenelg. The exchange students attended an orientation meeting at Glenelg and during that meeting the appellant took his daughter, the complainant and her two sisters for a swim. Whilst the other children were a little distance away in deeper water, the appellant sat the complainant on his knee and inserted his finger into her vagina.
The other offences were said to have occurred on a Saturday evening in the middle months of the same year. V was to sleep at the appellant’s house on that night. She said that during the evening she was sitting on a sofa watching television with the appellant in the family room of his home. His daughter was asleep on a chair in that room. The appellant’s wife had already gone to bed. The appellant took a flannel from the bathroom and instructed V to wipe her vagina so that it was clean. The complainant failed to give evidence in support of count 2, an allegation of digital intercourse, which had been said to have occurred at this point. But she went on to describe how she then complied with the appellant’s instruction to suck his penis.
The fourth offence occurred soon afterwards. V was made to go into the bedroom of the appellant’s daughter, who was still asleep in the family room. She said he told her to get on the bed on her hands and knees. The appellant then inserted his penis into her vagina. That was count 4. The complainant was scared and told the appellant that his wife was coming. That prompted him to stop and leave the room to check. V said that he then returned to the bedroom and again inserted his penis into her vagina.
Grounds 1 and 2 of the appeal may be considered together. The essence of the complaints was that in assessing the appellant’s argument that it was inherently unlikely that the appellant would act as alleged when other people were in close proximity, the judge took as his starting point an assumption that the appellant was an “opportunistic predator”. The passage in the judge’s reasons for the verdict giving rise to the complaints follows. Having commented in favourable terms on the way in which V gave her evidence, the judge said:
Moreover, there was nothing in the complainant’s account of relevant events that was inherently improbable. As for count 1, I accept the evidence of the complainant’s sisters, supported as it is by the accused’s evidence in chief, that they and the accused’s daughter were in deeper water for a time, albeit by only a few metres. That is all the time and distance an opportunistic predator would need. To a casual observer elsewhere in the water or on the beach, there would have been nothing unusual about an adult and a child together in the water. As for counts 3 and 4, I do not consider that the presence of the accused’s daughter asleep in the family room and the presence of his wife in a bedroom, would make opportunistic conduct by the accused any less likely.
In my view these complaints are misconceived. The question was whether the complainant’s evidence was inherently improbable. That involved an assessment of V’s account as it was presented. That is, the working hypothesis was that the events occurred as described and the question to be answered was whether the behaviour attributed to the appellant was so unlikely that the account fell to be rejected. On V’s evidence, the appellant could certainly be described as opportunistic, but often in these cases a child abuser is found to have acted in a manner involving a degree of risk of exposure.
I do not think the judge’s remarks in any sense threw any onus of proof upon the appellant or wrongly attributed to him any propensity or cast him in any particular light, as suggested by counsel. Rather, the judge at that point of his reasons was assessing V’s account on an objective basis in order to evaluate the defence argument of improbability.
The next ground asserted that the trial judge erred in failing to provide adequate reasons for rejecting the appellant’s evidence.
The adequacy of reasons given by a judicial officer sitting alone needs to be assessed in the context of the course of the trial and the issues in the case: R v Keyte (2000) 78 SASR 68 per Doyle CJ at 81 and Williams J at 69. Here the issues were narrow and were presented concisely. The evidence only occupied one day and the addresses took only 40 minutes. The judge’s decision was delivered on the day following addresses and was succinctly expressed.
The judge described the manner in which V gave evidence as “entirely straightforward and plausible”. He detected in V no animosity towards the appellant nor any hint of “concoction or the influence of family members or others”. He dealt with V’s failure to mention in examination in chief the fact that the penetration involved in count 1 had caused pain, and her failure to give evidence in support of count 2. In all, he described V as convincing and credible. Of course acceptance of her evidence meant that the appellant’s evidence was necessarily rejected. The two versions could not stand together. The judge did not deal with the appellant’s evidence, except to say that he rejected it. That is the complaint. It was suggested on the appeal that the judge should have enumerated his reasons for that rejection.
I consider the judge’s reasons were adequate and sufficient. What needed to be determined was a single issue. That was whether the judge accepted V’s evidence beyond reasonable doubt, notwithstanding the appellant’s sworn denial. If there were a discrete reason for rejecting the appellant’s account, no doubt the judge would have given it. But the judge was entitled to find as he did, without identifying, or indeed without there being, any particular reason for rejecting the appellant’s version, over and above acceptance of the competing account. It was not essential that any specific shortcomings in the appellant’s evidence be identified. This was a case where the preference for the victim’s evidence was very much a matter of impression made by the victim in her evidence, rather than a matter of logic. Where a decision rests on such a basis – as it well may – it is difficult to see how a judge might elaborate upon his reasons for decision. (See R v Power (2003) 226 LSJS 337, 345 per Perry J, Williams and Bleby JJ agreeing.)
Finally, the appellant argues that the convictions are unsafe and unsatisfactory. That ground was based in part on the foregoing matters, which I have determined to be without substance. Mr Boucaut, who was counsel for the appellant both at trial and upon appeal, also pointed to the intervention of the trial judge at various points in the evidence of V in a way which he suggested gave her “lifelines”. In my view, the learned trial judge’s intervention fell very far short of being at a level which could attract criticism. My reading of the transcript suggests no more than that the judge attempted to assist this girl in giving answers to questions which, perhaps because of deficits in her memory, perhaps because of her age and limited education, perhaps because of the distressing nature of her task, were found by her to be difficult.
Counsel further pointed to the failure of V to support count 2 on the information, that count having been described in the prosecutor’s opening. These are all matters relevant to the task of this Court to undertake an independent assessment of the evidence in order to determine whether it was reasonably open to the judge to find the verdicts of guilty. Having undertaken that assessment and having kept counsel’s arguments in mind, I have no apprehension about the safety of the verdicts. In spite of counsel’s criticisms, I think the complainant’s evidence reads as that of a cogent and convincing witness. That the judge accepted that evidence is hardly surprising. I have no misgivings about the safety of the verdicts.
I would dismiss the appeal.