R v Bellchambers
[2011] SASCFC 60
•29 June 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BELLCHAMBERS
[2011] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
29 June 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The applicant was charged with 11 sexual offences involving two complainants, being one count of inducing a child to expose a part of her body, five counts of indecent assault, and one count of procuring an act of gross indecency against the first complainant, and three counts of indecent assault against the second - he elected to be tried by Judge alone - the applicant was acquitted of one charge of indecent assault against the first victim but convicted on the other 10 charges.
A Judge refused permission to appeal - the Full Court heard the renewed application as though it was an appeal.
The applicant was on bail before, during and after his trial - submissions on sentence were adjourned until after the hearing of the appeal, during which time the applicant remained on bail.
Whether the trial Judge erred in conducting a single trial of all charges; whether the trial Judge did use the evidence of the two complainants on the basis that it was cross-admissible; whether any such use was impermissible; whether the trial Judge gave inadequate reasons for the rejection of evidence of a prosecution witness; whether the trial Judge incorrectly applied the burden of proof; whether verdicts unreasonable and not supported by the evidence.
Held: applicant granted permission to appeal on amended Grounds 2, 3, 4 and 5.
No application to the trial Judge for separate trials - in the circumstances a joint trial of all charges was appropriate - trial Judge did not use the evidence of each complaint on the basis that it was cross-admissible - no error of law shown - trial Judge's reasons were adequate - trial Judge did not err in his consideration of the evidence or in the application of the onus of proof - verdicts not unreasonable and were supported by the evidence - appeal dismissed.
Consideration of whether it is appropriate and in the interests of justice for trial judges to defer hearing sentencing submissions, or sentencing, following a guilty verdict while the defendant pursues an appeal.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 58A, s 278, referred to.
Hoch v The Queen (1988) 165 CLR 292, distinguished.
Director of Public Prosecutions v Boardman (1975) AC 421, discussed.
R v B [2010] SADC 149; R v M, BJ [2011] SASCFC 50; R v Arthur (1991) 163 LSJS 18; R v K, MC [2009] SASC 141; R v Keyte (2000) 78 SASR 68; R v Sweeny [2008] SASC 300; Fleming v The Queen (1998) 197 CLR 250; R v Calides (1983) 34 SASR 355; Prater v Rowbottom (Unreported, Supreme Court of South Australia, White J, 12 March 1991); Harris v Mill (Unreported, Supreme Court of South Australia, von Doussa J, Judgment No 592, 7 April 1988); Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; R v Tran & Tran [2011] SASCFC 51; M v The Queen (1994) 181 CLR 487; R v Nguyen [2010] HCA 38; Libke v The Queen (2007) 230 CLR 559; R v Shueard (1972) 4 SASR 36; R v Weetra (2004) 236 LSJS 328; R v Abdulla (2011) 109 SASR 258; R v Seigneur (2009) 103 SASR 207; Mallard v The Queen (2005) 224 CLR 125, considered.
R v BELLCHAMBERS
[2011] SASCFC 60Court of Criminal Appeal: Doyle CJ, White and Peek JJ
DOYLE CJ: I agree with the orders proposed by White J and with his reasons. I agree also with his comment that generally it is preferable for a trial Judge to proceed to sentence following a guilty verdict, even though the defendant may be proposing to appeal against the conviction or convictions. The advantages in proceeding to sentence are summarised by White J in his reasons. The course that he suggests will usually be the better course, although, as he recognises, there may be some cases in which it is preferable to defer sentencing until after an appeal against conviction.
WHITE J. The applicant was charged with 11 sexual offences involving two sisters when they were children: eight involving the complainant T; and three involving the complainant C. He elected for trial by Judge alone and was found guilty of 10 of the charges.[1] The Judge acquitted the applicant of one charge because of the lack of any specificity in the evidence of T about the incident to which the charge related.[2]
[1] R v B [2010] SADC 149.
[2] Ibid at [19]-[22], [234]-[236].
A Judge of this Court refused the applicant permission to appeal against the convictions. The Full Court heard the renewed application as though it was the appeal.
Background
The applicant is now 56 years of age. He met J, the mother of T and C in 1983 when he was 29 years of age. T was born in 1976 and C in 1980.
In 1984, the applicant and J commenced cohabiting in a house at Modbury. Apart from the occasions when T and C had fortnightly access visits to their father, T and C lived with them.
The applicant and J continued cohabiting until February or March 1988.[3] Although the applicant then moved out of the Modbury home, he and J continued a relationship until mid to late 1989.[4] Until that time the applicant was a regular visitor at the Modbury home.
[3] Ibid at [3].
[4] Ibid.
The conduct alleged against the applicant was said to have occurred at various times between 31 August 1985 and 1 October 1990 and all was alleged to have occurred at the Modbury home. The conduct concerning T occurred when she was aged between 9 and 12, and that concerning C occurred when she was aged between 8 and 10.
The Offences Involving T
Count 1 was an offence of inducing T to expose a part of her body for the purpose of gratifying the applicant’s prurient interest.[5] T said that she was alone in the lounge room with the applicant when he told her to pull down her bathers. She complied and the applicant then stared at her breast area, and later at her pubic area for 30 seconds to a minute before, feeling uncomfortable, she pulled the bathers back up.
[5] Contrary to s 58A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Count 2 was a charge of indecent assault.[6] T said that on some three or four nights per week and over a long period, the applicant would come into her room while she was doing her homework, stand behind her, put his hand down her top, and fondle her. This occurred both before and after her development of breasts. The Judge was satisfied that this conduct had occurred but, because of the lack of specificity in the evidence of any particular occasion, regarded Count 2 as bad for uncertainty. This is the count on which the applicant was acquitted.
[6] Contrary to s 56 of the CLCA.
The Judge said, however, that he would treat the evidence of the conduct of the kind to which Count 2 related as evidence of uncharged acts.[7]
[7] R v B [2010] SADC 149 at [85].
Counts 3 and 4 both alleged indecent assaults. The applicant worked nightshifts and it was his practice to go to bed at about the time T and C were getting up to go to school. On one morning, the applicant invited T to “tuck him in”. When she did so, he pulled aside the bed cover and, holding his hand over T’s, had her masturbate him. This occurred more than once. Count 3 related to one of those occasions. In the same incident the applicant asked T, after she had masturbated him, to get on top of him so that she straddled him. He then moved her back and forwards so that his penis was rubbing against her vaginal area. This was the subject of Count 4.
Count 5 alleged the offence of procuring an act of gross indecency.[8] The applicant asked T to measure his erect penis with her ruler and then to masturbate him. Although the Judge found that T’s evidence of the measured length of the penis was wrong, he found nevertheless that this charge was proved.
[8] Contrary to s 58(1)(b) of the CLCA.
Counts 6 and 7 alleged indecent assaults and arose out of the one incident. T said that on one night while she was lying in bed trying to sleep, the applicant came in to the bedroom. He took her hand and made her masturbate him (Count 6) and then wiped the end of his penis on her nose, leaving wetness (Count 7).
Count 8 was the final count of indecent assault involving T. When she was about 11 years of age, the applicant hugged her while they were both in the backyard swimming pool. At the same time he rubbed his erect penis against her in the area of her lower back and at the top of her bottom.
The Offences Involving C
Each of the counts concerning C alleged offences of indecent assault.
C said that on one occasion after the applicant came off nightshift, he had her, while clothed, sit on his lap with her legs around his waist as he sat on the edge of the bed. He then got her to jiggle on his lap while his erect penis was against her vaginal area (Count 9).
Count 10 alleged an incident in the backyard swimming pool. The applicant gave her a bear hug from behind while, at the same time, rubbing his erect penis against her bottom.
In relation to Count 11, C gave evidence of an incident in the kitchen at the Modbury home. C was sitting at the kitchen table. The applicant came behind her, put his left arm around her shoulders and then rubbed her chest area with his right hand. At the time this occurred C’s breasts had not yet developed.
Uncharged Acts
T and C also gave evidence of uncharged acts by the applicant involving each of them. It is not necessary for present purposes to detail those acts. The Judge found the uncharged acts proved beyond reasonable doubt.[9]
[9] R v B [2010] SADC 149 at [98].
Involvement of Department of Community Welfare
The trial of the applicant took place more than 20 years after the applicant had ceased to have any contact with the complainants. However, the suggestion that he was sexually interfering with the two girls had arisen as early as 1985.
The Department of Community Welfare became involved with the family at least by late 1985 after concerns were raised by J’s former husband (the complainants’ natural father).[10] Documents extracted from the Department’s file indicated that a departmental officer spoke to J on 15 January 1986. J told the officer on that occasion that she and the applicant had agreed to defer their then impending marriage because of the Department’s concerns about the applicant’s conduct.
[10] Ibid at [4]-[5].
A departmental officer also interviewed T and C at their school on 26 November 1987.
Although the extent to which the applicant was questioned at that time is not clear, it is plain that he was aware that some allegations were being raised by the complainant’s father. On 11 February 1988, each of the applicant and J signed an agreement prepared following consultation with the Department. The substantive part of the agreement was as follows:
In consultation with the Department for Community Welfare Workers, it has been mutually agreed that the following conditions will be implemented for the protection of [T and C]. It is understood that these conditions will also help to protect Michael Bellchambers from suspicion.
(1) [J] will discuss with [the] children the inappropriateness of getting dressed/undressed in front of adults.
(2) A lock is to be put on [the] bathroom door so that [the] children can have privacy.
(3) Michael Bellchambers is to stay overnight only when [the] children are on access visits to their natural father.
(4) Michael can attend family meals and accompany family on outings but is not to have unsupervised access to [the] children.
We understand that the above conditions satisfies the Department for Community Welfare that actions have been taken to ensure [T and C’s] safety.
As noted above, each of J and the applicant signed this agreement.
The Department closed its file in about May 1989.
At various stages during the departmental investigation, T and C had the opportunity to report the conduct of the applicant about which they gave evidence at the trial. Not only did they not make any report, each denied to the departmental officers that the applicant had engaged in any inappropriate touching of them. In their evidence, each of T and C said that they had lied to the departmental officers in this respect.[11]
[11] Ibid at [151].
Naturally, the applicant’s counsel at trial relied very much on the contemporaneous denials of T and C of inappropriate conduct by the applicant.
T said that she had not reported the applicant’s conduct to her mother or to others because of shame and embarrassment and because she thought a report would lead to a fracturing of the relationship between the applicant and her mother. She knew this would cause unhappiness for her mother and did not wish to bring that about. T also said that when she was interviewed by the departmental officers, she had been scared by the thought that if she mentioned the applicant’s conduct, the Department would consider J to be an unsatisfactory mother and would then remove her and C from J’s care.
By reason of her age at the time, C had only limited memory of the involvement of the Department. She did, however, recall feeling that it was her fault that the Department had become involved because it followed a statement which she had made to her natural father regarding the applicant’s behaviour.
The Decision of the Trial Judge
The Judge said that both T and C were “excellent witnesses”[12] and described their evidence as having “a quality and coherence to it that was compelling”.[13] He accepted their evidence as proving beyond reasonable doubt the counts (other than Count 2) in relation to which each was, respectively, a complainant.[14]
[12] Ibid at [7]-[8].
[13] Ibid at [10]. In relation to the evidence of T see also the findings at [37] and [56].
[14] Ibid at [117], [230].
The Judge considered J to be an honest witness but did not regard her evidence as being wholly reliable.[15] This assessment was important because her evidence was, in some respects, exculpatory of the applicant and was capable of undermining that of each of T and C. In particular J said that she had not seen any inappropriate conduct by the applicant in relation to the two girls and her evidence suggested, in relation to a number of the counts, that the applicant would not have had the opportunities to offend in the way alleged against him. This was particularly so in relation to those offences alleged to have occurred after the applicant had moved out of the Modbury home. When there was a conflict between the evidence of T or C, on the one hand, and that of J on the other, the Judge preferred the evidence of T and C, and in some instances rejected J’s evidence altogether. The Judge’s treatment of the evidence of J gave rise to one of the issues on the appeal which I will address in more detail shortly.
[15] Ibid at [11], [202].
The applicant did not give evidence at his trial.
The Grounds of Appeal
At the commencement of the appeal hearing, the applicant sought permission to amend his notice of appeal so as to substitute five grounds for the existing six. The Court granted the applicant permission to substitute Grounds 3, 4 and 5 and reserved its decision on the proposed new Grounds 1 and 2. The applicant submitted that permission to appeal was not required in relation to proposed Grounds 1 and 2, contending that they raised issues of law only.
Having now considered the matter, I would grant the applicant permission to amend to raise the new Grounds 1 and 2. In what follows, I will address each of the five new grounds.
Ground 1 – Single Trial
Ground 1 complained that the conduct of a single trial of all charges had deprived the applicant of a chance of acquittal. He contended that the evidence in relation to the charges relating to one complainant was not cross‑admissible in relation to the charges involving the other, with the result that the charges relating to each complainant should have been tried separately.
The applicant also sought to support this ground by reference to the particulars set out in the notice of appeal in relation to each other ground. As they will be considered separately, I will not consider them in relation to this ground.
Ground 1 seemed to be pursued only faintly. Counsel for the appellant made very few submissions to support it and did not refer at all to s 278 of the CLCA and the authorities concerning its application.
There was no suggestion at trial that the charges were improperly joined in the one information, nor was there any application for separate trials of the charges relating to T and C.[16]
[16] Ibid at [116].
Section 278 provides:
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of
being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c) in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii) the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
(3)This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
(4) In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b) an attempt to commit, or an assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.[17]
[17] Section 278 has been in this form since 23 November 2008. Being procedural in nature it has been held to apply to all trials commencing after that date: R v Seigneur [2009] SASC 59 at [70], [112]; (2009) 103 SASR 207 at 227, 236-7.
Subsection (1) permits charges to be joined in the same information if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. Given that no application for disjoinder was made at trial, and the paucity of submissions on the topic on appeal, it is not appropriate to refer at length to the authorities concerning the question of whether particular charges are part of “a series of offences of the same or a similar character”.[18] Generally, the requirement for the charged offences to be of at least similar character refers to the legal nature of the charges in the particular case. In the present case, the charges alleged against the applicant were plainly of a similar character and accordingly properly joined in the one information.
[18] Vanstone J reviewed several of the authorities recently in R v M, BJ [2011] SASCFC 50 at [21]-[24].
Section 278(2a)(a) indicates that it should be the norm for multiple charges of sexual offences against different victims which have been joined in the one information to be tried together. The power of the Court to order separate trials in such circumstances is now confined. A judge may order a separate trial of a count relating to a particular victim if, and only if, evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim, that is, if the evidence is not cross-admissible.
Evidence may be cross-admissible in relation to a count concerning a different victim if it goes to establish more than mere propensity (subs (2a)(c)(1)). The evidence may be cross-admissible even if there is a reasonable explanation in relation to the evidence which is consistent with the innocence of the accused (subs (2a)(c)(ii)(A)), and even if it is possible that the evidence is the result of collusion or concoction (subs (2a)(c)(ii)(B)). In this way, s 278(2a) reverses the position established by Hoch v The Queen[19] which made satisfaction by the trial Judge that the evidence could not be explained by collusion or concoction a threshold requirement for admissibility.[20] The possibility of concoction is now a matter which is to be considered by the jury.
[19] (1988) 165 CLR 292 at 295-6.
[20] See R v M, BJ [2011] SASCFC 50 at [30]-[31].
In the present case, several of the counts relating to T and C alleged conduct of the applicant of a similar kind. By Count 2 (the count upon which the applicant was acquitted) the prosecution alleged conduct of the applicant which involved him putting his hand down T’s top and fondling her breasts and breast area. By Count 11, the prosecution alleged almost identical conduct in relation to C. By Count 4, the prosecution alleged that the applicant had T sit on him while in bed in such a way that she straddled his waist area. He then moved her back and forwards so that his penis was rubbing against her vaginal area. By Count 9, the prosecution alleged conduct of a very similar kind in relation to C. By Count 8, the prosecution alleged that while hugging T in the swimming pool the applicant had rubbed his penis against her in the area of her lower back and at the top of her bottom. By Count 10, it alleged very similar conduct by the applicant in relation to C.
The Judge was satisfied that there was an underlying system, pattern or unity in the alleged conduct of the applicant which made it objectively improbable that the alleged events had occurred other than in the way alleged by T and C.[21] As will be seen, the Judge did not rely upon that objective improbability in reaching his verdicts but that is immaterial for present purposes. What is relevant is that the similarities in the alleged conduct, and the underlying system, pattern or unity in that conduct, made the evidence of one complainant admissible in relation to the charges alleged in relation to the other and, accordingly, for there to be a single trial.
[21] R v B [2010] SADC 149 at [117]-[120].
There are a number of other matters indicating the appropriateness of a single trial.
The applicant contended that the allegations against him were the result of collusion and concoction by T and C. His trial counsel also raised the possibility that each complainant may, subconsciously, have transferred possible conduct by their natural father to the applicant. Those two matters by themselves indicated that a joint trial of all charges was appropriate.
Further, this Court has referred on many occasions to the clear public policy against requiring victims of sexual offences, in particular children, to give evidence on more occasions than the interests of justice strictly require.[22]
[22] R v Arthur (1991) 163 LSJS 18 at 21; R v K, MC [2009] SASC 141 at [28]; R v M, BJ [2011] SASCFC 50 at [38].
Further again, each of T and C were able to give some evidence which was directly confirmatory of the evidence of the other. For example, C gave evidence that she had seen the applicant on one occasion in the lounge room apparently touching the breasts of T, and that upon “a few occasions” she had entered T’s bedroom unannounced and had seen the applicant standing behind T and leaning over her.
Finally, both T and C gave evidence of an incident in the applicant’s caravan, which was parked at the time in the driveway of the Modbury house. The Judge found that T and C were describing the same incident.[23] The evidence of each was to the effect that the applicant had exposed his penis to C. This was an uncharged act. This evidence was capable of demonstrating that the applicant was willing to expose himself to C even in circumstances in which he might be seen by T. This was capable in turn of giving rise to an inference that the applicant would have been unlikely to take such a risk unless he was also engaging in conduct of a sexual kind with T.
[23] R v B [2010] SADC 149 at [91].
In my opinion, when regard is had to all these matters, it can be seen that Ground 1 has no merit. I would refuse permission to appeal in relation to Ground 1.
Ground 2 – Cross‑Admissibility of Evidence
By Ground 2, the applicant submitted that the Judge’s reasons indicated an inconsistency on his part concerning the use of cross-admissible evidence.
The Judge considered that it was not necessary to determine whether the evidence of T and C was cross-admissible as part of the proof of any of the charges involving the other. That was because he found that the evidence of each complainant considered by itself proved beyond reasonable doubt the counts concerning that complainant. That being so, it was not necessary for him to determine whether proof of the offences concerning each complainant was aided by the evidence given by the other in relation to the offences concerning that complainant.[24]
[24] Ibid at [117], [121].
The applicant submitted that, despite the Judge saying that it was unnecessary to determine the issues of cross-admissibility, his reasons indicated five ways in which he had in fact used the evidence on the basis that it was cross‑admissible. It was said that each such use involved an error of law.
Context and Nature of the Relationship
The applicant’s first submission concerned the Judge’s use of the evidence of uncharged acts. After summarising the evidence concerning the uncharged acts, the Judge continued:
[92]The whole alleged course of events provides a context in which it is said that the charged incidents occurred. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between the complainants and the accused.
[93]The evidence of the uncharged acts along with the evidence going directly to the charges can be used by me in determining what, if any, weight I am prepared to place on a complainant’s evidence. The evidence may assist me in concluding that a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the charges.
[94]The evidence of the uncharged acts could be used to assist in explaining the background against which the offence came about and could be used to help explain why the complainant might be unclear about precise dates of the offences charged.
Counsel emphasised [92] and [93] in particular, submitting that they indicated that the Judge had used the whole course of events as disclosed by the evidence of both T and C, including their evidence of uncharged acts, to assess the evidence regarding all of the charged acts. Counsel submitted that such a use involved the use of the evidence of one complainant as part of the proof of a charge concerning the other.
This submission cannot be sustained. The Judge said expressly that he used the evidence of the uncharged acts concerning one complainant only in relation to his consideration of the charged acts concerning that same complainant. The Judge said:
[98]I find the uncharged acts all proved beyond reasonable doubt. The evidence assists in explaining the background of how the offences came about and why each complainant was on occasions unclear as to the precise date of the allegations. I make it clear that I use the uncharged acts in the same way as I have approached the evidence of T and C. I have used the uncharged acts relating to T only to assist assessing the credibility of T. I have not used the uncharged acts alleged by T in my assessment of the credibility of C. I have approached the evidence of uncharged acts alleged by C in the same way.
(Emphasis added)
There is no reason to doubt that the Judge did assess the evidence of T and C in the way described in this passage.
I note in addition that in [93] the Judge said that he would use the evidence of the uncharged acts in determining what, if any, weight he was prepared to place on “a complainant’s” evidence, and not on “the complainants’” evidence.
Rejection of the Evidence of J
The applicant submitted that the Judge had also used the evidence of T and C on the basis that it was cross-admissible in his rejection of the evidence of J on those topics on which it differed from T or C. The applicant referred first to the Judge’s rejection of J’s evidence that, after the applicant had moved out of the Modbury home, he had not again slept there overnight and that his visits to their home had generally been for the purposes of meals only. In particular, J said that after the applicant had moved out, he had not come to the house after finishing a nightshift in order to sleep, and that after February 1988 the applicant being in the pool with either T or C was not even a “proposition”.[25] The Judge’s rejection of this evidence was a significant finding because Count 9 (the applicant jiggling C against his erect penis after coming off night shift) and Count 10 (the indecent assault by the applicant of C in the backyard swimming pool) were said to have occurred after the applicant had moved out of the Modbury home.
[25] Ibid at [193].
J also said that she had not seen any inappropriate conduct by the applicant even though, after the initial involvement of the Department in late 1985, she had been vigilant and had watched the applicant (and in later evidence, the girls) “like a hawk”.[26]
[26] Ibid at [207].
The Judge’s reasons contain a detailed assessment of J’s evidence.[27] He considered that her evidence was often contrary to proven objective facts and that she had little independent recollection of events.[28] The Judge considered that despite J’s claims to the contrary, she had continued her emotional and sexual relationship with the applicant for some time after he ceased residing in the Modbury home.[29] He rejected J’s evidence concerning the time of her intended marriage to the applicant,[30] and rejected J’s assertions of vigilance after the issue of the applicant’s sexual interference with T and C had first been raised by the Department of Community Welfare.[31] This included a rejection of J’s evidence that she had watched the applicant and the children “like a hawk”.
[27] Ibid at [179]-[209].
[28] Ibid at [220].
[29] Ibid.
[30] Ibid at [203].
[31] Ibid at [208].
The applicant’s present submission faces a major difficulty. The Judge’s reasons indicated that he rejected much of J’s evidence because it was demonstrated to be unreliable by the extracts from the departmental files which the applicant himself tendered at the trial and because in some respects it was internally inconsistent. The Judge did not use the evidence of T and C, individually, or in combination, to reject J’s evidence. Instead, the Judge reasoned, in effect, that the unreliability of J’s evidence (which unreliability was established independently of the evidence of T and C) meant that it did not have the effect of raising a doubt about the reliability of the evidence of T or C.
The Judge found that the documentary evidence indicated J’s unreliability in a number of respects:
(a)in relation to her intended marriage to the applicant, J could recall only one proposed date (December 1989), whereas the departmental documents indicated that there had been more than one such plan with the wedding first planned to take place in either late 1985 or early 1986.[32]
(b)J maintained that the first occasion upon which the Department had spoken to her was a few months before the relationship ended (in 1989) whereas the first departmental record is dated 15 January 1986.[33]
(c)J had no recollection at all of any contact with the Department of Community Welfare office at Tea Tree Gully and yet the agreement of 11 February 1988 (referred to earlier in these reasons) was prepared in consultation with departmental officers at that office.[34] The terms and nature of that agreement suggest that J must have had some detailed contact with that office.
(d)After February 1998 J had still permitted the applicant to visit the Modbury home. This was despite the conditions of the agreement of 11 February 1988. On some of these visits J herself had found the applicant present with one of the girls in a bedroom while unsupervised.[35]
[32] Exhibit D5.
[33] Ibid.
[34] R v B [2010] SADC 149 at [196].
[35] Ibid at [198].
The Judge rejected J’s evidence that she had supervised the applicant closely, noting that J had acknowledged that the applicant was still accustomed, even after he ceased living in the Modbury home, to walk around the house by himself and to enter the girls’ bedrooms.[36]
[36] Ibid at [207].
The Judge referred also to other aspects of J’s evidence indicating that her recollection of events between 1986 and 1989 was limited. He concluded that J was “a poor witness who had little independent recollection of events”.[37]
[37] Ibid at [220].
As I have indicated, the Judge rejected J’s evidence by reference to the documentary evidence and to J’s own evidence, and not by reference to the evidence of T or C.
Concoction
The applicant’s third submission concerning the use of the complainants’ evidence on the basis that it was cross-admissible derived from the Judge’s reasons for rejection of the submission that each of T and C had, after some form of collusion, concocted their respective allegations. The Judge considered that concoction was not a reasonable possibility.[38]
[38] Ibid at [131].
In the course of his reasons for that rejection, the Judge referred to two aspects of the evidence: the evidence of T and C as to how they had come in 2002 to make a report of the applicant’s conduct to the police; and the evidence of C of action which she had taken as a child by way of “looking after” T in relation to the conduct of the applicant which indicated her knowledge or belief about at least some of that conduct.
As to the former, each of T and C gave evidence of a conversation which they had had in about 2002 when they made the decision to go to the police. Each denied knowing at that time of the specific details of what had happened to the other, and each denied discussing those details in the conversation. The Judge accepted that evidence and found that neither T nor C knew the substance of the allegations made against the applicant by the other.[39] In this respect the prosecution evidence of the initial and separate complaints made by each complainant was important, as that evidence indicated that complaints had been made well before the conversation in 2002.
[39] Ibid at [130].
As I understood the applicant’s submission, it was to the effect that the Judge had used the evidence of each of T and C as supporting the credibility of the other in relation to the suggestion of collusion, and that this amounted to a use of the evidence in a cross‑admissible way.
It is to be remembered that not every use of evidence of two or more complainants in a trial of the present kind is use for a cross‑admissible purpose. Cross‑admissibility refers to the use of the evidence of a complainant in relation to one count as part of the proof of a count relating to another complainant. However, when one complainant witnesses some or all of the conduct alleged by another, and gives evidence of what he or she observed, that evidence is not admitted because it is cross‑admissible. It is “eye witness” evidence which is admitted because it is probative of the conduct alleged, in the same way as if it was given by a witness who was not also a complainant.
Evidence led to negate the possibility of concoction is of a similar kind, whether led from another complainant or another witness.
In a case like the present in which the possibility of collusion or concoction is raised, the enquiry is whether the witnesses have, since the time at which the conduct alleged against the accused is said to have occurred, colluded. It is not an enquiry about the alleged conduct of the accused but an enquiry about possible conduct of the witnesses which may explain their evidence implicating the accused in the crimes with which he is charged. This differentiates evidence relating to the possibility of concoction from cross‑admissible evidence.
Before a jury can use the evidence of two or more complainants on the basis that it is cross‑admissible, it will usually have to consider the possibility that the witness’ evidence is a result of concoction, suggestibility or a process of infection from, say, media publicity. A jury which cannot exclude that possibility is unlikely to be able to be satisfied beyond reasonable doubt of the truth of the evidence of at least one of the complainants, and probably of both. Lord Wilberforce referred to the need to exclude the possibility of concoction in Director of Public Prosecutions v Boardman[40] when he said:
The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.[41]
Lord Wilberforce went on to explain that he used the words “a cause common to the witnesses” to include not only the possibility of concoction but also the possibility that a similar story may have arisen by a process of infection from media publicity or simply from fashion.[42] Understood in this way, the enquiry about the possibility of concoction is preliminary or related to the use of evidence for a cross‑admissible purpose but not itself such a use.
[40] (1975) AC 421.
[41] Ibid at 444.
[42] Ibid.
In concluding in the present case that the evidence of T and C was not the result of collusion, the Judge no doubt made use of his overall assessment of their honesty and reliability. That assessment derived in part from his assessment of the evidence that each had given concerning the applicant’s conduct in relation to them. However, such a use was not a cross‑admissible use of the evidence of one complainant in the proof of the conduct alleged by the other, as it did not involve a use of the evidence of either T or C in relation to one count as part of the proof of another.
Accordingly, I would reject the submission that the Judge’s consideration of the possibility of concoction involved a cross-admissible use of the evidence of T and C.
In any event, there is no reason to suppose that in making this finding the Judge did not make the same independent assessment of the evidence of T and C which he had made in relation to their respective evidence of the applicant’s conduct in the counts concerning them individually.
The second aspect of the evidence to which the judge referred was C’s evidence that when she was about 10 years of age she had taken some action to “look after” T when she knew that the applicant was in the house. She said that on a number of occasions she would barge in to T’s room unannounced and, on at least three or four occasions had seen T at her desk with the applicant standing behind her and leaning over her. The Judge accepted that evidence. He said:
[129] I accept C’s evidence about those incidents. They are similar in detail to what her mother observed. They are consistent with T’s evidence about the presence of the accused in her room. The fact that C and T had an understanding of “looking after each other” does not affect my assessment of the question of concoction. As mentioned, I accept the evidence of the complainants and their mother about this topic. It does not affect the evidence that T and C gave about their knowledge of abuse of the other or how they came to give their statements to the police.
This evidence of C was capable of supporting T’s evidence in relation to the conduct which was the subject of Count 2, and capable of supporting T’s credibility more generally. It was also capable, as the Judge recognised, of indicating that C had at least some knowledge or belief concerning the applicant’s conduct in relation to T, and therefore providing a basis for concoction by C when she described similar conduct by the applicant towards her.
However, although the Judge accepted that T and C must, while in the Modbury home, have had some understanding about the applicant’s conduct in relation to the other, he found that their knowledge of such conduct was limited. It is implicit in this finding that he considered that the knowledge of each was insufficient to give rise to a realistic possibility of concoction or that their evidence was prompted by a mutual desire to support the other. This was but a step in the Judge’s reasons for his rejection of the suggestion of concoction.
Substitution of Complainant’s Father
The next suggested use of the evidence of T and C on the basis that it was cross‑admissible related to the Judge’s rejection of a suggestion by trial counsel that it was T’s and C’s own natural father who had engaged in the conduct now attributed to the applicant. Trial counsel had submitted to the Judge that he “could not exclude as a reasonable possibility that in some way the complainants had subconsciously substituted the applicant for acts perpetrated by their father and/or someone else”.[43]
[43] Ibid at [225].
The Judge rejected this explanation as fanciful, saying “the evidence of the complainants points unambiguously to the accused as the perpetrator of the sexual abuse”.[44] As I understand the applicant’s submission, it was that the Judge’s reference to the complainants in the plural indicated a cross-admissible use of the evidence.
[44] Ibid at [226].
I would reject the applicant’s submission. The position may have been plainer if the Judge had said that the evidence of each complainant considered independently pointed unambiguously to the accused as the perpetrator of the conduct alleged by that complainant. That is the effect of the Judge’s conclusion and, when his reasons are read as a whole, the Judge’s reasoning is clear enough. The passage upon which the applicant relies is, in my opinion, no more than the Judge expressing in an economical way the conclusion which he had reached in relation to each of the complainants separately.
The Reasons as a Whole
Lastly, on the topic of cross-admissibility, the applicant submitted that the reasons read as a whole indicated that the Judge had assessed the reliability of the witnesses in the trial by reference to all of the evidence relating to all of the charges.
This submission was not developed in any detail. It is contra‑indicated by the Judge’s twice repeated statement that he accepted the evidence of each complainant in relation to each count concerning that complainant independently of the evidence of the other, and by the Judge’s separate consideration in the reasons of the evidence concerning each count.
The applicant’s submissions face a further difficulty. Although the Judge said that it was not necessary for him to decide the issue of cross-admissibility, he was satisfied that the prosecution evidence did establish a system or pattern or underlying unity such as to make it improbable, considered objectively, that the events had occurred other than as alleged by the prosecution.[45] That being so, it seems that the Judge would have found, had it been necessary to do so, that the evidence of each of T and C was cross-admissible in relation to the charges involving the other. That being so, it is difficult to see how Ground 2, even if made out, could have led to a miscarriage of justice.
[45] Ibid at [119].
Error of Law
This ground of appeal also contended that, not only had the Judge made a cross-admissible use of the evidence of T and C, he had erred in law in doing so. However, the applicant directed scarcely any submissions to this complaint, and I regard it as unnecessary to address it.
Conclusion on Ground 2
To the extent that it is necessary to do so, I would grant the applicant permission to appeal on Ground 2 but would dismiss that ground.
Ground 3 – Inadequate Reasons
Counsel submitted that the Judge had rejected the evidence of J, referred to above, without giving adequate reasons.
The submission was that the Judge should have given detailed reasons for rejecting these particular pieces of evidence especially as, on some topics, J’s evidence had been supported by that of either T or C.
Counsel referred to a number of authorities, including R v Keyte[46] and R v Sweeny,[47] concerning the content of the reasons to be given in a trial by judge alone. Reference may also be made to Fleming v The Queen.[48] It is not necessary to review the authorities in these reasons. It is clear enough that a judge conducting a trial by judge alone should give a sufficient explanation for the verdict to enable the parties to understand the reasons for that verdict and to enable an appellate court to discharge its function. The extent of the reasons required will depend upon the circumstances of the individual case and the issues in the case.
[46] [2000] SASC 382; (2000) 78 SASR 68.
[47] [2008] SASC 300
[48] [1998] HCA 68; (1998) 197 CLR 250.
In the present case, the evidence of J was capable of being exculpatory in some respects of the applicant and it was accordingly an important part of the defence case. It was therefore appropriate for the Judge to give adequate reasons explaining his rejection of J’s evidence.
In my opinion, the Judge’s reasons satisfy that requirement. The Judge’s discussion of J’s evidence extended over some 30 paragraphs of his reasons. The Judge set out quite clearly his reasons for regarding J’s evidence as unreliable: she was demonstrated by reference to the contemporaneous documents to have an unreliable memory; she was confused about a number of the events and the sequence in which they occurred; and her own evidence indicated that she had not, as she claimed, been vigilant in her supervision of the applicant. If she had, the incidents in which the applicant was found alone with one or other of the complainants in their bedroom would not have occurred.
The applicant submitted that the Judge should, in relation to each topic on which he rejected J’s evidence, have given separate reasons for that rejection. It was not appropriate, so the argument ran, for the Judge to have dismissed J’s evidence in a “sweeping” way. Rather, the Judge should have considered whether J’s evidence, on any individual topic, was reasonably possible so as to have precluded the charges being established beyond reasonable doubt. Related to this was a submission that the Judge should have addressed separately those aspects of J’s evidence which, although in conflict with the evidence of C, received some support from the evidence of T.
The applicant did not cite any authority for the broad‑ranging proposition that the Judge should have given separate reasons in relation to each topic on which he rejected J’s evidence. In my opinion, it should not be accepted. It was not necessary for the Judge to repeat, in relation to each topic in J’s evidence which he did not accept, his satisfaction that she was not a reliable witness. To have done so would not have added to the sufficiency of the reasons, and would only have prolonged them.
This ground of appeal is not made out.
The complaint concerning the rejection of J’s evidence on topics on which it “was supported by T’s evidence” stands somewhat differently. As noted earlier, the Judge regarded the evidence of T and C as having “a quality and coherence about it that was compelling”. The rejection of J’s evidence on topics upon which it was supported by T involved therefore the Judge declining in part to act on evidence which he regarded as both honest and reliable. It would have been desirable therefore for the Judge to have disclosed his reasoning process in this respect.
However, read as a whole, the Judge’s reasons indicate a careful and close appraisal of the evidence. It was open to him to reject the evidence of a witness on a particular topic. In the context of what otherwise appears to be detailed and careful reasons, I would not regard this particular omission as indicating a material insufficiency in the reasons.
Ground 4 – Burden of Proof
In his summary of the witnesses at the commencement of his reasons, the Judge said;
[11]In relation to J, I accept that she was an honest witness. However there were aspects of her evidence which were confusing and in parts simply contradictory and incorrect. I cannot accept all of her evidence. Generally speaking I prefer the evidence of the complainants to that of their mother where there is a conflict.
(Emphasis added)
Later in the course of his detailed consideration of J’s evidence, the Judge said:
[202]I am unable to accept much of the evidence of J. The documentary evidence proves a number of events and the dates on which those events occurred.
(Emphasis added)
The applicant also referred to other passages in the Judge’s reasons in which the Judge said that he did not accept J’s evidence or at least all of it.
Counsel for the applicant submitted that the emphasised sentences in the passages quoted above indicated that the Judge had misapplied the burden of proof. The submission was that by approaching the matter on the basis of whether he preferred, or could accept, some or all of the evidence of J, the Judge had failed to consider whether her evidence did at least give rise to a reasonable possibility of the applicant’s innocence and, accordingly, whether the charges had been proved beyond reasonable doubt. Put slightly differently, the submission was that the Judge could have found that J’s evidence gave rise to a reasonable doubt about the applicant’s guilt even if he did not prefer it, or did not accept it in its entirety. The submission was that, by adopting the approach of considering whether he accepted or preferred J’s evidence, the Judge had failed to take it into account in assessing whether the charges had been proved with the effect that he had reversed, albeit subtly, the onus of proof.
Counsel referred in this respect to R v Calides;[49] Prater v Rowbottom[50] and Harris v Mill.[51] In the last of these, von Doussa J said:
In a sense the key issue in many trials is credibility, but to pose the question as “who to believe” is apt to be misleading and cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides.[52]There is a very real risk that the enquiry will become: “Which of the parties giving the competing stories is to be preferred”. The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.
[49] (1983) 34 SASR 355 at 358-9.
[50] Unreported, Supreme Court of South Australia, White J, 12 March 1991.
[51] Unreported, Supreme Court of South Australia, von Doussa J, Jdgmt No 592, 7 April 1988.
[52] (1983) 34 SASR 355.
Reference may also be made to Liberato v The Queen.[53] In that case, Brennan J (although in dissent as to the result) made the following statement of principle:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as including the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.[54]
[53] (1985) 159 CLR 507.
[54] Ibid at 515. See also Murray v The Queen [2002] HCA 26 at [23] (Gaudron J), [57] (Gummow and Hayne JJ); (2002) 211 CLR 193 at 201-2, 212-3; R v Tran & Tran [2011] SASCFC 51.
Taken at face value, the passages in the reasons upon which the applicant relies for the present submissions can be construed as indicating that the Judge did reach his verdicts by considering whose evidence he preferred or accepted. As the authorities referred to above indicate, such an approach is wrong in principle.
However, there are other indications. The Judge reminded himself on a number of occasions that the onus lay, on all issues, with the prosecution and he correctly identified the facts of which he had to be satisfied beyond reasonable doubt in order for the prosecution to succeed.[55] Further, the passage in [11] of the Judge’s reasons about which the applicant complains appears in an introductory part of the Judge’s reasons in which the Judge gives an overview of the witnesses called by the prosecution together with a brief statement of his impression of their evidence. It indicates only that, while the Judge was prepared to regard J as an honest witness, he did not regard her evidence as wholly reliable.
[55] R v B [2010] SADC 149 at [7], [56], [77], [81], [98], [230]-[231] and [237].
As noted earlier, the Judge assessed the evidence of J in considerable detail and gave detailed reasons for his rejection of J’s evidence as reliable. Having given those reasons, the Judge did not proceed immediately to his verdicts. The Judge went on to consider the statements made by the applicant when interviewed by the police and then referred in detail to the submissions made on the applicant’s behalf by his then counsel. It was only then that the Judge expressed his conclusion that both T and C were “honest, truthful and reliable witnesses” whose evidence he accepted beyond reasonable doubt.[56]
[56] Ibid at [230].
Read as a whole, the Judge’s reasons disclose a clear appreciation and application of the criminal onus of proof. They are inconsistent with the Judge having reasoned in a simplistic fashion from his rejection of J’s evidence that the applicant must be guilty and are inconsistent with his having failed to apply the correct test.
Read in context, the Judge’s statement in [202] that he was unable to accept most of the evidence of J can be seen as part of his explanation that J’s evidence did not give rise to a doubt which was not excluded by the other prosecution evidence.
Ground 5 – Unreasonable Verdicts
By Ground 5, the applicant submitted that each of the verdicts was unreasonable and not supported by the evidence. The applicant complained again of the Judge’s rejection of J’s evidence, submitting that there was no proper basis upon which her evidence, as a reasonable possibility, should have been rejected. He submitted that T’s and C’s memories were at least as unreliable as that of J and that there was no proper basis upon which the Judge could accept them as reliable but not J. He emphasised the lies which each of T and C admitted having made to the Department of Community Welfare during the course of its investigations which had commenced in late 1985. Finally, he submitted that the lapse of more than 20 years between his alleged conduct and the trial together with the lack of specificity about many of the charges had caused him a significant disadvantage.
The principles upon which this Court should act when considering whether jury verdicts are unreasonable or cannot be supported by the evidence have been discussed by the High Court on a number of occasions. In M v The Queen[57] Mason CJ and Deanne, Dawson and Toohey JJ said:
The question is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand” … [T]he question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.[58]
(Citations omitted)
This statement of principle was recently affirmed by the High Court in R v Nguyen.[59]
[57] (1994) 181 CLR 487.
[58] Ibid at 492-3.
[59] [2010] HCA 38 at [33].
In short, the Court must consider whether the Judge must, as distinct from might, have entertained a doubt about the applicant’s guilt. It is not sufficient for the applicant to show that there was material which might have led the Judge to conclude that the applicant’s guilt had not been proved.[60] Nor is it sufficient for the applicant to show that the evidence is open to criticism in some respect.[61]
[60] Libke v The Queen [2007] HCA 30 at [113]; (2007) 230 CLR 559 at 596-7.
[61] R v Shueard (1972) 4 SASR 36 at 39; R v Weetra [2004] SASC 337 at [28]; (2004) 236 LSJS 328 at [28].
With these principles, and the applicant’s complaints in mind, I have reviewed the entire evidence at the trial.
The Judge was conscious of the disadvantage which the age of the complaints caused the applicant. Twice in his reasons he referred to the need to keep in mind the forensic disadvantage to the applicant because of the age of the complaints and of the need in that circumstance to scrutinise carefully the evidence of the complainants.[62]
[62] R v B [2010] SADC 149 at [7], [228]-[229].
A delay of 20 years in the prosecution of criminal charges will usually result in at least some disadvantage to the accused. However, in the present case, any such disadvantage was tempered by the fact that, at least from early 1986 (and probably earlier), the applicant was aware of the suggestion that he was sexually interfering with T and C. The Department of Community Welfare records recorded that the applicant and J had deferred their planned marriage in late 1985 as a result of the departmental concerns. Further still, the applicant signed the agreement in February 1988 concerning his residence at the Modbury home and his interaction with the complainant in order to provide for the “protection” of T and C and to protect him from suspicion. This was not a case of an accused person being made aware for the first time many years after the event of the allegations regarding his conduct.
I note that the applicant did not contend that there were witnesses who were now unavailable to him or that other evidence had been lost. It is true that there was a lack of specificity in the dates upon which the prosecution alleged that the offences had occurred. Bearing in mind the nature of the alleged offences, and the ages of the complainants, this was almost inevitable. It is a common feature in charges of the present kind.
The failure of T and C to report the applicant’s conduct to the Department of Community Welfare at any time during their involvement with the family from at least 1985 to early 1989 was a matter which required careful attention. The Judge referred to the Department’s involvement in some detail and to the evidence of each of T and C that they had lied to the Department.[63] Counsel for the applicant at trial made the obvious submission that they had not lied to the Department but had truthfully reported at that time that the applicant had not engaged in any inappropriate conduct. Counsel also made the point that the evidence of T and C that they had lied concerning a serious matter detracted from the reliability of their evidence generally.
[63] Ibid at [48].
The Judge referred specifically to these submissions and rejected them.[64] He said that he accepted beyond reasonable doubt the explanations given by the complainants for not making a report to the Department. Those explanations, recorded earlier in these reasons, are not implausible. In my opinion, it was open to the Judge to accept them as truthful.
[64] Ibid at [219].
A review of J’s evidence indicates that much of it was confused and inconsistent with the contemporaneous documents of the Department of Community Welfare (tendered by the applicant himself). That review suggests that there was good reason for the Judge to reject J’s evidence as being unreliable. It is true that T and C were children at the time and J an adult, but the better memories of the former may well be attributable to the fact, as they alleged, that they had been the subject of the applicant’s conduct, and J had not. It is pertinent to note that by his cross-examination of J and the closing submissions, trial counsel for the applicant had also impugned the reliability of J as a witness. I also note again J’s evidence that despite speaking to the applicant after the Department’s intervention, she had “caught him” at least three or four times in T’s bedroom leaning over T’s shoulder as she was doing her homework.
In my opinion, it was open to the Judge to be satisfied beyond reasonable doubt of the applicant’s guilt on the 10 counts. This was not a case in which the Judge must, as opposed to might, have had a doubt about any or all of the charges.
This ground of appeal is not made out.
Deferment of Sentence
The applicant was on bail both before and during his trial. The Judge returned his verdicts of guilty together with published reasons, on 6 December 2010, and then adjourned the matter for submissions concerning sentence. As a result of further adjournments, the matter was not listed again before the Judge until 23 February 2011.
In the meantime, the applicant had filed in this Court his application for permission to appeal. That application was heard by a single Judge on 10 February 2011 and refused on 14 February 2011.
On 23 February 2011, the Judge acceded to the applicant’s request that the sentencing submissions be deferred further, pending the determination of the application for permission to appeal which he foreshadowed renewing before this Court. This was against the opposition of counsel then appearing for the Director of Public Prosecutions. The Judge adjourned the matter to 5 May 2011, and on that day adjourned it again to 16 June 2011.
The end result is that at least six months will have elapsed between the delivery of the verdicts and the commencement of the sentencing submissions. During the whole of this period the applicant has been on bail. Such a delay is undesirable.
In my respectful opinion, it is generally inappropriate for trial judges to defer sentencing following a guilty verdict while the defendant pursues an appeal. The verdicts of a jury or of a judge sitting without a jury are not provisional or contingent upon the outcome of an appeal. They are final determinations and ought to be treated as such. The deferment of sentencing pending an appeal also has the potential to give rise to an appearance that the Judge entertains some doubts about the correctness of the verdicts.
In general, the interests of justice, of the community, of victims, and of offenders themselves are best served by sentencing taking place as soon as practicable after delivery of a guilty verdict. This permits early finalisation of the charges, avoids uncertainty especially for victims and defendants, promotes efficiency in the discharge of the Court’s functions, and engenders confidence in the administration of justice.
Sentencing in this manner also avoids the wastage of this Court’s resources which can occur when a later appeal is commenced against the sentence. If the defendant is sentenced soon after the convictions, it will usually be possible for both the appeal against conviction and any appeal against sentence to be heard by the one court. This is not possible when the defendant has not even been sentenced by the time this Court hears the appeal, or the application for permission to appeal, against conviction.
I do not intend to indicate that there may never be cases in which it will be inappropriate for a trial court to defer sentencing until after the conclusion of any appeal. It is possible to envisage some circumstances in which a deferment will be appropriate. Such cases are, however, likely to be uncommon. In general, it will be inappropriate for sentencing submissions or sentencing to be deferred pending the exercise of appeal rights.[65]
[65] See also R v Abdulla [2011] SASCFC 20 at [68]-[71]; (2011) 109 SASR 258 at 279.
Conclusion
For the reasons given above, I would grant permission to amend the notice of appeal to substitute Grounds 1 and 2 for existing Grounds 1 and 2. I would refuse permission to appeal on Ground 1 but grant permission on Grounds 2, 3, 4 and 5. I would however dismiss the appeal on those grounds.
PEEK J: I agree with the orders proposed by White J and with his reasons for those orders.
In relation to the matter of deferment of sentencing, I accept that the usual position will be that sentencing may proceed prior to the resolution of an appeal against conviction but, like the Chief Justice, I would specifically note that there may be some cases in which it is preferable to defer sentencing.
To give just one example of the context in which such a deferment may arise for consideration, assume that a difficult question of law arises during the course of a jury trial and the trial Judge is required to rule on it in circumstances where he or she considers that the matter is quite finely balanced. If the ruling is against the accused, the Judge may retain real reservations as to the correctness of that ruling. However, if the accused is then convicted, and the Judge is required to sentence prior to an appeal being heard, the Judge will not be entitled to take that doubt, or an assessment of the consequent probability of a successful appeal, into consideration when assessing sentence. If the offence is a serious one, the Judge may be constrained to pass a sentence of custodial imprisonment. Of course, much will depend upon the circumstances of any particular case, but it is not difficult to postulate a case where deferment would be the preferable decision. An obvious example might be a Judge holding a high level of doubt as to the legal validity of the conviction as referred to above, coupled with an obligation to impose a sentence of custodial imprisonment on a vulnerable person with no prior convictions who will lose his or her employment upon going to gaol.
As I say, such is only an example and I do not intend to exclude the possibility of a deferment in circumstances of a trial Judge holding a high level of doubt as to the validity of the conviction on a more general basis (such as might be conveyed by the unsafe and unsatisfactory rubric), perhaps coupled with other factors of the type I have mentioned above.
Of course, I agree with White J that a verdict of guilty is a final verdict in the sense that it is not provisional or contingent upon the outcome of an appeal. Nevertheless, the fact is that convictions are not infrequently quashed on appeal and sometimes the correctness of that appellate decision is positively confirmed by the subsequent discovery of the true culprit.[66] However, appellate vindication may sometimes be very cold comfort to an innocent person who is quite wrongly sent to prison and suffers the disastrous consequences that that may sometimes entail.
[66] The case of Mallard v The Queen (2005) 224 CLR 125 is a well known example.
The safety net of a right of appeal is an essential and critically important part of the criminal justice system and, although the primary responsibility for the appellate process will fall on the Court of Criminal Appeal, the trial Judge also has a part to play when considering a deferral of sentence. In my view, Judges’ discretion in this area should not be unduly curtailed.
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