R v Cheng
[2015] SASCFC 189
•10 December 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHENG
[2015] SASCFC 189
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)
10 December 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Appeal against conviction. The appellant was convicted by a jury of, one count of persistent sexual exploitation of a child L who attended at a childcare centre run by the appellant’s wife.
Prior to empanelling the jury on 3 June 2015, the Judge questioned L via audio-visual link from the courtroom, in the presence of counsel and the appellant, and decided that L was capable of giving sworn evidence.
A DVD of L’s interview with police on 13 June 2014 was admitted into evidence pursuant to s 34CA Evidence Act 1929. The appellant contends that the Judge erred both in directing the jury that that interview was to be considered in the same way as evidence given in court by any other witness and in failing to give directions concerning that interview as was required by s 34D. The appellant also contends that the Judge erred in failing to direct the jury that they were required to scrutinise the evidence of the complainant with special care.
Held per Sulan and Peek JJ (allowing the appeal, setting aside the conviction and ordering a new trial):
2. Section 34CA makes a statement of a young child or vulnerable witness admissible. It does not declare it to be, or equate it with, evidence on oath in Court. The Judge misdirected the jury that L’s interview was L’s evidence-in-chief and was to be considered in the same way as evidence given in court by any other witness. A s 34CA statement is not to be afforded the status of sworn evidence or unsworn evidence given pursuant to s 9(2).
3. Section 34D requires a Judge to specifically direct the jury as to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of a statement admitted pursuant to s 34CA. The Judge was required by s 34D to direct the jury that:
- L’s June 2014 interview lacked contemporaneity with the alleged conduct, as the most recent event was alleged to have occurred about nine months prior to the interview and the earliest some three to four years prior;
- Such lack of contemporaneity was particularly important having regard to L’s cognitive development at relevant times corresponding to aspects of the evidence suggesting that L may have misunderstood certain matters;
- The interviewer conducted no inquiry as to L’s cognitive development at the time of the interview or whether she was then competent to give either unsworn or sworn evidence;
- A year later when L gave evidence in court in June 2015, it was not possible to assess what L’s level of competence had been a year earlier when the interview had taken place in June 2014;
- The interview had been conducted (by a police officer rather than an expert such as a qualified psychologist) in such a way that the atmosphere was made as informal as possible. The loose and highly leading nature of the introductory questioning (and the mono-syllabic replies) gave little, if any, assistance to an inquiry as to the extent to which L then understood the difference between truth and lies, or was aware of the true significance of the interview or of the true importance of being precise and truthful having regard to the seriousness of the subject matter.
- L’s interview was not evidence in a courtroom where the accused could contemporaneously ask that particular questions concerning matters important to his position be asked.
5. The Judge failed to give any of the above directions.
6. Independently of the requirements of s 34D, the combination of the above matters, together with the fact that the prosecution case depended on the evidence of one child with a cognitive development normal for her age at the times of the observations allegedly made by her, did require a Murray/Robinson warning to avoid a perceptible risk of miscarriage of justice. The Judge erred in failing to be satisfied that the general law required a warning in the above circumstances.
Per Stanley J (dissenting):
7. Given the state of the authorities, I am not satisfied that the judge’s direction to the jury in this case, equating the s 34CA statement admitted into evidence as the complainant’s evidence-in-chief, does constitute a misdirection. In any event, even if the instruction is considered to constitute a misdirection, I do not consider that it results in a miscarriage of justice. Ground 1 fails.
8. I disagree with the proposition that the provisions of s 9(4) apply to an out-of-court statement admitted pursuant to s 34CA. The lack of a specific direction in accordance with s 34D did not result in a miscarriage of justice. Ground 2 fails.
9. The effect of the direction for which the appellant contends is so similar to a warning that it is unsafe to convict that the warning could only be given if the conditions precedent set out in s 12A are satisfied. It was not suggested that “cogent reasons existed”. I do not consider that they did. Even if I am wrong in thinking that such a direction could only be warranted if cogent reasons were found to exist, I do not consider that the failure to give the direction for which the appellant contends resulted in any miscarriage of justice. Ground 4 fails.
10. I would dismiss the appeal.
Evidence Act 1929 s 4, s 6, s 6(5), s 9, s 9(1), s 9(2), s 9(2)(a)(i), s 9(2)(a)(ii), s 9(2)(b), s 9(4), s 12A, s 34CA, s 34CA(1)(a), s 34D, s 34D(1), s 34L; Criminal Law Consolidation Act 1935 s 50(1); Evidence Act 1977 (Qld) s 93A; Criminal Procedure Act 1986 (NSW) s 294AA, referred to.
Ewen v The Queen [2015] NSWCCA 117, distinguished.
R v Climas (1999) 74 SASR 411; The Queen v J, AP (2012) 113 SASR 529; The Queen v J, JA (2009) 105 SASR 563; R v Lomman (2014) 119 SASR 463; M v The Queen (1994) 181 CLR 487; R v Pascoe (2004) 90 SASR 505; R v Starrett (2002) 82 SASR 115; R v Whittingham (1988) 49 SASR 67; Bromley v The Queen (1986) 161 CLR 315; The Queen v BWT (2002) 54 NSWLR 241; R v Byerley (2010) 107 SASR 517; R v Cassebohm (2011) 109 SASR 465; Crofts v The Queen (1996) 186 CLR 427; R v Douglass [2010] SASCFC 66; Douglass v The Queen (2012) 86 ALJR 1086; R v F (CC) [1997] 3 SCR 1183; Fleming v The Queen (1998) 197 CLR 250; Gately v The Queen (2007) 232 CLR 208; R v Haak (2012) 112 SASR 315; R v J, AP (2013) 118 SASR 150; Longman v The Queen (1989) 168 CLR 79; R v Mattsson [2011] SASCFC 114; R v Morgan [1978] 3 All ER 13; R v Murray (1987) 11 NSWLR 12; The Queen v N, RC (2012) 112 SASR 399; R v Pahuja (1987) 49 SASR 191; Robinson v The Queen (1999) 197 CLR 162; Robinson v The Queen (2006) 162 A Crim R 88; The Queen v SJB (2002) 129 A Crim R 572; Tully v The Queen (2006) 230 CLR 234; R v Warsap (2010) 106 SASR 264; R v Williams [1988] VR 261; R v Wilson (No 2) (2007) 169 A Crim R 553, discussed.
R v CHENG
[2015] SASCFC 189Court of Criminal Appeal: Sulan, Peek and Stanley JJ
SULAN AND PEEK JJ
Introduction and overview
The complainant, L, was born on 23 February 2006. L attended at a children’s day care centre (the childcare centre) run by Helen, the appellant’s wife.
L was first interviewed by police on 13 June 2014 when eight years old. The interview (L’s interview) was aurally and visually recorded, no doubt on the basis that it would likely be the subject of an application to tender it pursuant to s 34CA of the Evidence Act 1929 (the Act). L therein alleged that the appellant had touched her on the outside of her vagina on a number of occasions when she was at the childcare centre, between when she was aged four years and seven years, with the last occasion occurring about nine months before the interview.
The appellant was arrested on that same day, 13 June 2014, and denied the allegations. He was charged with, and convicted by a jury of, one count of persistent sexual exploitation of a child. The Information appears as follows:
Shih Cheng is charged with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shih Cheng, between the 1st day of January 2011 and 31 December 2013 at Tranmere, over a period of not less than three days, committed more than one act of sexual exploitation of L, a person under the age of 8 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included touching L on her vagina.
The grounds of appeal
The appellant’s amended grounds of appeal (with their copious particulars omitted) are as follows:
1The Learned Judge erred as a matter of law in his directions to the jury in relation to the statement of the complainant received pursuant to section 34CA (hearsay statement) of the Evidence Act 1929 (SA) in that His Honour directed the jury that the statement was received as the complainant's evidence in chief.
2The Learned Judge erred as a matter of law in failing to direct the jury as to the application of the burden and standard of proof to the proper evaluation of the complainant's out of court statement in the context of the accused's evidence on oath denying the charge.
3 The verdict is unsatisfactory, unreasonable and against the weight of the evidence.
4.The learned judge erred in failing to direct the jury that they were required to scrutinize the hearsay statement and evidence of the young child with special care bearing in mind that proof of the accused’s guilt depended upon the hearsay statement of a young child (aged 8) and her evidence in court (aged 9), in circumstances where the accused had denied the offending on oath and there was no independent support for the young child’s account,
4.1 That scrutiny needed also to have regard to the factors that impacted upon the evaluation of the young child’s reliability
a. as identified in the particulars of ground one above.
b.the retraction in evidence of the allegation reported to her mother in 2012 and
c.the nonspecific nature of the allegations alleged to constitute the charge that reduced to a bare denial, the appellant’s ability to defend the alleged acts of persistent sexual exploitation.
The relevant provisions of the Evidence Act 1929
As at the relevant time, the relevant provisions of the Act were as follows:
4—Interpretation
In this Act, unless some other intention is expressed, or implied by the context—
child means a person under the age of 18 years;
…
sexual offence means—
(a) rape; or
(ab) compelled sexual manipulation; or
(b) indecent assault; or
(c)any offence involving unlawful sexual intercourse or an act of gross indecency; or
(d) incest; or
(da)any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or
(e)any attempt to commit, or assault with intent to commit, any of the foregoing offences;
…
statement includes a statement however made;
sworn evidence means evidence given under the obligation of an oath or an affirmation; and unsworn evidence has a corresponding meaning;
…
vulnerable witness means—
(a) a witness who is under 16 years of age; or
(b) a witness who suffers from a mental disability; or
(c)a witness who is the alleged victim of an offence to which the proceedings relate—
(i) where the offence is a serious offence against the person; or
(ii)in any other case—where, because of the circumstances of the witness or the circumstances of the case, the witness would, in the opinion of the court, be specially disadvantaged if not treated as a vulnerable witness; or
(d) a witness who—
(i)has been subjected to threats of violence or retribution in connection with the proceedings; or
(ii)has reasonable grounds to fear violence or retribution in connection with the proceedings; or
(e)in the case of proceedings for a serious and organised crime offence (within the meaning of the Criminal Law Consolidation Act 1935)—a person who will only consent to being a witness in the proceedings if he or she is treated as a vulnerable witness for the purposes of the proceedings;
young child means a child of or under the age of 12 years.
…
6—Oaths, affirmations etc
(1) An oath shall be administered and taken as follows:
(a)the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament or both) in his hand and, after the oath has been tendered to him, shall say “I swear”; or
(b)in any other manner and form which the person taking the oath declares to be binding on his conscience; or
(c) in any other manner or form authorised or permitted by law.
(2) Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath.
(3) A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law.
(4) An affirmation is to be administered to a person by asking the person “Do you solemnly and truly affirm” followed by the words of the appropriate oath (omitting any words of imprecation or calling to witness) after which the person must say “I do solemnly and truly affirm”.
(5) Every affirmation has, at law, the same force and effect as an oath.
(6) No oath or affirmation is invalid by reason of a procedural or formal error or deficiency.
…
9—Unsworn evidence
(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a) the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii) tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a criminal trial, the judge—
(a) must explain to the jury the reason the evidence is unsworn; and
(b)may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
…
12A—Warning relating to uncorroborated evidence of child in criminal proceedings
(1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—
(a)the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b) a party asks that the warning be given.
(2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adult.
…
34CA—Statement of protected witness
(1) A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b) —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2) A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3) Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4) In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5) In this section—
protected witness means—
(a) a young child; or
(b)a person who suffers from a mental disability that adversely affects the person’s capacity to give a coherent account of the person's experiences or to respond rationally to questions.
34D—Weight to be attached to evidence
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
34L—Evidence in sexual cases generally
…
(5) In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6) Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(7) In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
…
There are also further numerous provisions in ss 12, 13 and 13A for the making of arrangements to assist young children and vulnerable witnesses to give evidence comfortably and without embarrassment or distress.
The course of the trial
L was nine years old as at June 2015. The first trial commenced on Monday 1 June 2015 but was aborted the following day for reasons not presently relevant (the aborted trial). The second trial (the trial) commenced on Wednesday 3 June 2015, before the same Judge and a new jury, and concluded on Wednesday, 10 June 2015, when the appellant was convicted.
During the aborted trial, and prior to empanelling the jury, the Judge spoke from the courtroom (in the presence of the appellant and counsel) by audio-visual link to L in a different room. This brief dialogue was as follows:
AUDIOVISUAL LINK ACTIVATED
HIS HONOUR
Q Hello, can you hear us?
A Yes.
Q Are you L?
A Yes.
Q We are in a court here and I am a judge. Do you understand what a judge does?
A Kind of.
Q What do you think a judge does?
A He – I’m not sure.
Q He runs the court; did you know that?
A Yes.
Q Sort of the boss of the court in a way; do you understand that?
A Yes.
QWe might need to ask you some questions about when you were in childcare with Helen; do you remember that?
A Yes.
QWould you be able to answer some questions for the lawyers here about that if you were asked?
A Yes, that’s fine.
Q Would you tell the truth?
A Yes.
Q You understand it’s important in a court to tell the truth, don’t you?
A Yes.
Q What do you think it means to tell the truth?
A To not lie, and to know what you’re saying that’s real, true.
Q If you lie, that’s when you don’t tell the truth, isn’t it?
A Yes.
Q And it would be important not to lie, do you understand that?
A Mm-hmm.
Q Do you know about God?
A Yes.
Q What about Jesus?
A Jesus is God’s son.
Q Yes, and do you believe in God?
A Yes.
Q When you give your evidence, would you like to swear on the Bible?
A Yes.
Q What is the Bible?
A A Bible is a holy book has that history of God and Jesus and all the people.
QDo you understand that if you’re swearing on the Bible, you’re saying before God that you will tell the truth; do you understand that?
A Yes.
Q Would you do that, would you swear to tell the truth -?
A Yes.
Q- on the Bible. Okay. Do you understand that you will be asked some questions about Helen and her husband?
A Yes.
QAnd would you be prepared to tell the court, if you are asked those questions, the truth about some things about Helen and her husband?
A Yeah.
Q Thank you.
The Judge, after briefly referring to timetabling matters and deactivating the audio-visual link, then stated:
HIS HONOUR I’m of the view that the witness is sufficiently capable that she can give sworn evidence and that she understands that she is required to tell the truth.
In relation to s.34A, [clearly a reference to s 34CA(1)] I’m also satisfied that the statement has sufficient probative value to justify its admission, that L is a protected witness and that she is available to be called as a witness. I give permission for her to be cross-examined on matters arising from her evidence.
This statement by the Judge addresses two important matters.
The Judge’s decision that L would give sworn evidence
The first important matter addressed by his Honour’s above statement is the question of whether L, a nine year old child, was competent to give sworn evidence (as distinct from unsworn evidence under s 9(2) of the Act). No ground of appeal directly raises this matter, but since this Court is ordering a re-trial for other associated reasons, we should indicate that our view is that this short dialogue was not adequate to justify his Honour’s decision.[1]
[1] This is not to say that it might not be demonstrated by adequate means, including a more relevant and extended dialogue, at a re-trial that L is competent to give sworn evidence.
In R v Starrett, Doyle CJ (with whom Perry and Lander JJ agreed) stated:[2]
[15] The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial. (Emphasis added)
[2] (2002) 82 SASR 115, 119.
Given that a “child” is defined by the Act as “a person under the age of 18 years”, it is not necessary that a Judge conducts such an inquiry simply because the proposed witness is a child.
On the other hand, it is clear that many children will not be capable of giving evidence on oath, although they may be capable of giving unsworn evidence under s 9(2) of the Act. It is to be noted that it is enacted by Parliament in s 5 of the Young Offenders Act 1993, that a person under the age of ten years cannot commit an offence. This is because, in general terms, it is considered that a child of that young age will lack sufficient maturity and perception of the nature and consequences of his actions to bear criminal responsibility. In our view, if it is sought to make a child under the age of ten years bear the responsibility of giving evidence affecting the criminal liability of another person, the child should at least be subjected to a s 9 inquiry by the Judge to determine whether that evidence should be sworn or unsworn (or that the child is unable to give unsworn evidence).[3]
[3] Of course, the fact that a child under ten years may not, as a matter of law, commit the offence of perjury does not lessen the need for the Judge to be sure that the capacity of the child to give sworn evidence is established. Thus in R vClimas (1999) 74 SASR 411, Duggan J noted at 419 [44]: “A person under the age of 10 years cannot commit an offence (Young Offenders Act 1993, s 5). However, despite the absence of a criminal sanction for not telling the truth, it remains appropriate in the case of children of this age to regard the obligation to be truthful referred to in s 9(1) as alluding to the importance of telling the truth in the witness box as a serious matter which may have serious consequences for the accused. This is the nature of the obligation explained by King CJ in R v Whittingham but without the added aspect of a sanction.”
In R v Whittingham, King CJ stated:[4]
I think that judges should exercise great restraint as to making observations to a jury which might operate in the jurors’ minds to diminish the estimate of the importance of the oath. The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked.
I think that experience indicates that a great many witnesses are impressed by the solemnity of the taking of the oath or affirmation and they are influenced to comply with its obligations by a variety of considerations — in some cases religious, in some cases civic, and in some cases perhaps merely instinctive. By reason of such considerations, witnesses are more prone to be careful about telling the truth in their evidence in court than they might be on other everyday occasions.
For those reasons I think that a trial judge should refrain from making any observations to a jury which would diminish their appreciation of the solemnity and importance of the taking of the oath by witnesses.
[4] (1988) 49 SASR 67, 69.
The Court of Criminal Appeal in R v Climas, addressing s 9 of the Act in its present form,[5] approved[6] the approach of King CJ in R v Whittingham.[7] Summarising the present position in relation to s 9 of the Act, Lander J stated:[8]
[132] The presumption in s 9(1) is that a person of any age is capable of giving evidence under the obligation of an oath or an affirmation in any proceedings unless the judge otherwise determines for the reason given in the subsection.
[133] The statutory presumption can be displaced, as s 9(1) provides, if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
[134] Any inquiry therefore under s 9(1), if it arises, is as to whether the witness simply has sufficient understanding of the obligation to be truthful in giving evidence by taking an oath or making an affirmation. It is not an inquiry into the witness’s understanding of an oath or affirmation. Nor is it an inquiry into the witness’s religious beliefs or whether the witness has a belief in God. It is merely an inquiry into whether the witness has sufficient understanding of the obligation to be truthful under an oath or an affirmation. In that respect the Court will simply inquire as to whether the witness understands the meaning of truth and whether the witness understands that in giving sworn evidence there is an obligation to be truthful.
[135] The Act does not indicate what the understanding of the obligation to be truthful entailed in giving sworn evidence is. It must be more than simply an understanding of an obligation to be truthful otherwise the Act would only have required an understanding to be truthful in giving evidence and not included specifically ‘sworn evidence’.
[136] Because of the provision of s 9(2) it must be more than simply an understanding of the obligation to be truthful. That subsection allows for a person who understands the difference between a truth and a lie and also indicates that he or she will tell the truth to give unsworn evidence.
[137] Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated ins 9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. It is not simply the legal obligation which attaches to sworn evidence which is important.” Section 242 of the Criminal Law Consolidation Act provides for the offence of perjury for a false statement made under oath. Oath includes an affirmation (s 242(5)(a)). Because of s 5 of the Young Offenders Act 1993 (SA) no child under the age of 10 years can commit an offence. Although a child under the age of 10 years cannot be guilty of the offence of perjury a child under that age can give sworn evidence. That supports the proposition that the obligation to be truthful entailed in giving sworn evidence does not emanate solely from the legal sanction for failing to do so. The obligation arises from the public declaration in taking an oath or making a declaration, the accompanying recognition of the solemnity of that declaration, the recognition of the importance of truthfulness in the proceedings and the acceptance of the moral, and in the case of a person over the age of 10 years, the legal sanctions in failing to comply with that public declaration.
[138] Section 9(1) therefore, in my opinion, contemplates obligations attaching to sworn evidence which would not attach to similar statements made outside the Court even though social obligations would suggest that those extra curial statements should also be truthful.
[139] In my opinion, such a construction is consistent with the scheme of s 9(2) which provides for the taking of unsworn evidence. Unsworn evidence cannot be taken unless the Judge is satisfied that the person understands the difference between the truth and a lie and that the person indicates that he or she will tell the truth. Both of those criteria must be pre-requisites to giving sworn evidence as well as unsworn evidence. There must, therefore, be something more in sworn evidence apart from a recognition of the difference between truth and a lie and an undertaking to tell the truth. That recognition, in my opinion, embraces all the matters to which I have referred. (Emphasis added)
[5] The legislation had been in a quite different form when cases such as R v Schaeffer (1992) 57 SASR 423 and R v Simmons (1997) 68 SASR 81 were decided.
[6] (1999) 74 SASR 411, 416-417 (Duggan J); 436-437 (Lander J).
[7] (1988) 49 SASR 67.
[8] (1999) 74 SASR 411, 431-432.
In the later decision of the Court of Criminal Appeal in R v Pascoe,[9] the child witness, N, was aged ten at the time of trial. The Court adopted as the correct approach that of Doyle CJ in R v Starrett (reproducing paragraph [15] of his Honour’s judgment) and that of Lander J in R v Climas[10] (reproducing almost all of the paragraphs [132] to [139] of the judgment of Lander J above.
[9] (2004) 90 SASR 505.
[10] R v Pascoe (2004) 90 SASR 505, 510-511.
In Pascoe, Perry J (with whom Nyland and Gray JJ concurred) noted that N was questioned by both the trial judge and counsel for the prosecution and observed that it would have been better if he had been questioned by the Judge alone. His Honour then set out the questioning of N thus:[11]
[11] (2004) 90 SASR 505, 512-513.
HIS HONOUR
Q [N], could you give me your full name?
A [N].
Q You appreciate that you have been brought into a courtroom?
A Yes.
Q Where serious matters will be discussed. You understand that?
A Yes.
QThe man standing with the gown and the wig on is going to ask you some questions. Will you do your best to answer his questions?
A Yes.
MR PRESTON
QDo you understand that you are here in this courtroom to tell the court, when the Pascoe?
A Yes.
Q And do you know what it means if you were to take an oath to tell the truth?
A Yes.
Q What does it mean?
A It means that you have to tell the truth.
QSo if you were to tell the court what happened between your mum and Chris, if someone gave you the bible and asked you to tell the truth, would you know what that means?
A Yes.
Q What does it mean?
A It means that you really, really have to tell the truth.
Q And does it mean that you are not to depart from the truth in any way?
A No. It means that you have to tell the truth.
Q And that is what you understand an oath to mean?
A Yes.
HIS HONOUR
Q How old are you?
A 10.
Q Can you tell me your birthday?
A Yes, 3 June 1993.
Q And what class are you in at school?
A Grade 4.
Q And what is the name of your teacher?
A Miss [S].
Q And how many students are in your class?
A A couple.
Q Beg your pardon?
A I think there’s about 30.
Q About 30?
A Yes.
Q What are your favourite lessons?
A Football, and soccer and maths.
Q Do you have any Bible studies or religious instruction at school?
A No.
QI told you that you are in a courtroom. Do you understand that a courtroom is a very important place?
A Yes.
Q Because only the truth can be told in a courtroom?
A Yes.
QDo you realise that it is much more important to tell the truth in a courtroom than it is in the schoolyard or at home?
A Yes.
The Court held that this questioning did not support the Judge’s determination that N was capable of giving sworn evidence. Perry J stated:[12]
[48] After some further short discussion with counsel, the trial judge made a formal finding that the presumption in s 9(1) was not displaced, and he recorded a determination
[49] In my view, the questioning of N did not go quite far enough to provide a proper basis for the determination.
[50] N was not asked whether he understood the distinction between telling the truth and a lie. He was not asked whether he understood what a lie was.
[51] Neither was he asked whether he understood the importance of telling the truth by reference to any of the consequences or sanctions that might arise if he did not tell the truth.
[52] In considering whether the fact that those questions were not asked should lead to the conclusion that the inquiry was flawed, I have considered the recent decision of the Court of Criminal Appeal in R v P, BR.
[53] In that case Mullighan J (with whom Nyland and Anderson JJ agreed) referred to Climas and Starrett (supra), and concluded that the observations made in those cases did not “provide a formula to determine whether the presumption in s 9(1) is displaced”.
[54] While I agree that there is no rigid form of questioning which must be put in every case, and while cases will differ as to what is required, in this case I am of the view that the matters to which I have made reference ought to have been canvassed in order to provide a proper foundation for the determination required by s 9. [Citations omitted]
[12] (2004) 90 SASR 505, 513.
Under the present s 6 of the Act, it is clear that a belief in God, or a knowledge of the Bible, is not in any way a prerequisite to giving sworn evidence. Section 6(5) states that “Every affirmation has, at law, the same force and effect as an oath”. Accordingly a person who professes a positive disbelief in God or who for religious reasons refuses to swear on the Bible, but who accepts “the solemnity of … the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth”[13] may give sworn evidence, by affirmation rather than swearing on the Bible.
[13] R v Climas (1999) 74 SASR 411, 431 [137] (Lander J).
Under the present law, both of these options have the same status, force and effect. So it was that in the recent decision in R v Lomman, Kourakis CJ (with whom Peek J agreed) observed:[14]
[5] The element which disentitles a person from testifying in solemn form is an insufficient understanding of the critical importance of giving truthful testimony in maintaining the integrity of the trial process and ensuring the just administration of the law. That understanding includes an appreciation of the temporal consequences of giving false evidence. They are the concepts which must be explained in appropriate language to a witness whose capacity to testify solemnly is challenged. If a witness does not sufficiently understand the importance to the trial process of giving evidence truthfully but is allowed to give informal evidence, the judge must inform the jury of his or her finding to that effect. The judge’s focus in this case on the witness’s lack of biblical knowledge was misplaced and distracted the jury from that aspect of the judge’s finding which more fundamentally affected the jury’s assessment of her evidence.
[14] (2014) 119 SASR 463, 465-466.
In the present case, the trial Judge’s questioning was largely misconceived. His Honour’s questions about God and the Bible were relevant only to the mode of swearing in a witness and not to the vital anterior concepts which had to be explained in appropriate language to the witness, namely (in the words of Chief Justice in Lomman): a sufficient understanding of the critical importance of giving truthful testimony in maintaining the integrity of the trial process and ensuring the just administration of the law and an appreciation of the temporal consequences of giving false evidence.
It can be seen that the verdict would have to be set aside and a new trial ordered on the above basis alone. However, that would require an amendment of the grounds of appeal and since the appeal is to be allowed on other grounds of appeal it is unnecessary to pursue that matter further.
The Judge’s decision that L’s interview would be admitted under s 34CA(1) of the Act
The second important matter addressed by the Judge’s statement reproduced above at paragraph [9] is the admission of L’s interview under s 34CA of the Act upon the basis of a finding that “the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission …).[15]
[15] Section 34CA(1)(a) of the Act.
The transcript would appear to indicate that the Judge had not seen or heard the DVD exhibit P1 prior to the point of admission of the s 34CA statement. Certainly, the transcript reveals no discussion of the s 34CA statement having taken place, and no reference having been made to the date it was taken, its content, the circumstances in which the statement was made or to any other factors relevant to the required satisfaction by the Judge.
There then followed some discussion initiated by prosecution counsel in response to the Judge’s concluding words “I give permission for her to be cross-examined on matters arising from her evidence” (reproduced above). The prosecutor then correctly directed the attention of the Judge to the requirement of the present Act that defence counsel specify proposed areas of cross-examination and for the Judge to determine which would of such areas would be permitted.
These matters were then attended to, and shortly thereafter the jury was empanelled. The prosecutor opened his case and then called the first witness, Ms Chadbourne, the detective who had conducted the s 34CA interview with L. The DVD audio visual record of the interview was tendered during her examination-in-chief without further discussion of the requirements of s 34 CA. A copy of a transcript of that DVD was provided to the jurors as an aide memoire. Shortly thereafter a mistrial was declared.
On Wednesday, 3 June 2015 at 2:24pm the appellant pleaded not guilty before a fresh jury panel and a new jury was empanelled. In the absence of the jury the following dialogue occurred:
HIS HONOUR All right. I don’t have to repeat my rulings or my decisions yesterday in relation to her giving evidence?
DR SALU No.
HIS HONOUR They will stand. We will adjourn until about 3 o’clock.
ADJOURNED 2.42 P.M.[16]
[16] There is no ground of appeal concerning this procedure and we make no comment about it.
The prosecution later opened to the jury and then called the first witness Ms Chadbourne, and the DVD record of the interview was tendered during her examination-in-chief, received as exhibit P1, and played to the jury.
The factual assertions made by L in the s 34CA interview
The interview occurred on 13 June 2014 when L was eight years old.
L stated that “a few years ago”, when she was “about five or four” years old, the appellant touched her on her private part, which she indicated to be her vagina by indicating on a picture of a girl supplied by police.
L stated that on the first occasion, he touched her under her pants while she was watching television in the lounge; she said that she did not really know what he was doing and there were other children a bit younger than herself there. She said that such touching occurred in the lounge room on about five occasions.
L stated that the last time anything happened was about nine months before the interview, about October or September 2013, when her father was going to die. She stated that she was sleeping in the bed in the spare room at the day care centre with her eyes closed; that she felt the appellant (touching her); but when she opened her eyes he was not there. She said that she spoke to Helen about it and Helen said that the appellant was in his own bed sleeping at the time and suggested that L might have been having a dream.
Importantly, L also said that she got “nightmares like bad ones” when she was sleeping in the spare room because there was something in there, a coat stand, that “freaked her out”. She said that the appellant had touched her when she was sleeping in the spare room about three or four times.
Ms Chadbourne was later stood down and L was sworn to give evidence in the following manner.
The evidence-in-chief of L at trial
The evidence-in-chief at trial was brief and conducted by video link as follows:
HIS HONOUR
QHello L, how are you? You know me, I’m the judge. Can you see the lawyers? We can’t hear you. Can you hear us all right now?
A Yes.
Q We are going to get you to promise to tell the truth, okay?
A Okay.
QMy associate here, can you see him - you may not at the moment but he will go to a place where you can see him - he is going to ask you to swear on the Bible. Are you happy to swear on the Bible to tell the truth?
A Okay.
Q Are you happy to do that?
A Yes.
Q You understand that it means you’ve got to tell the truth?
A Yeah.
Q Wait for my associate. Have you got a Bible there?
A Yeah.
Q Can you see my associate now?
A Yeah.
L … SWORN
HIS HONOUR
Q The lawyers are going to ask you a few questions, okay?
A Okay.
Q Listen carefully to the questions, then you can answer them.[17]
[17] The respondent relied upon the questioning that had occurred in the aborted trial and no objection was taken to that procedure. The questioning in the subject trial (reproduced above) adds nothing to the questioning in the aborted trial.
L then gave some short evidence identifying some photographs. She was not asked about her s 34CA statement to police.
The cross-examination of L
In cross-examination, L said that the reason that she had nightmares when sleeping in the spare room was because there was a coat on a stand that made it look like there was a “monster, scary person” there; she agreed that photograph 20 indicated that stand. L agreed that on the occasion when she told Helen that the appellant had touched her in the spare room, Helen had said, “That can’t be right. Stephen’s in bed” and that “she had just seen him in bed”, after which she took L back to bed in the spare room.
L said that she would never be left at the house when only the appellant was there. She said that the appellant was stricter than Helen; that sometimes he would raise his voice and she didn’t like that; that he held her hand tightly when he was crossing the road with him after he picked her up from school;[18] and she did not like that because it made her uncomfortable; and she didn’t like him very much because of that.
[18] This was part of the appellant’s duties as authorised in writing by L’s mother, Ms C.
L agreed that when she was about five or six years of age, she fell over in the playground behind the day care centre and the appellant helped her and brushed some dirt off the front of her clothes; she said she felt a bit uncomfortable and told her mum that he had touched her private parts and that her mum said that she was going to speak to Helen.[19]
[19] L’s mother gave evidence that the vagina was referred to as a cookie in their family.
The evidence of Ms C (L’s mother)
Ms C (L’s mother) gave evidence that L liked going to the day centre. Ms C gave evidence of only one complaint being made by her daughter concerning the day centre. She stated:
Q You understand that you’re here concerning allegations relating to Stephen Cheng?
A Yes.
QWas there ever an occasion where L raised with you conduct between Stephen and herself?
A Yes.
Q What year was that?
A 2012.
Q As best you can, what words did L use to you?
A She said ‘Mummy, Stephen touched my cookie and I didn’t like it’.
Q In your family what does ‘cookie’ mean?
A Vagina.
Q When you heard that, what did you do?
AI didn’t know what to think of it. I was taken back by that, so obviously the first I thing I did was confront Helen about the situation and let her know what L told me.
Q Did you do that by person or phone?
A I did that by phone.
Q Did Helen give you an answer straightaway?
ANo, she said she was going to talk to Stephen and then she was going to come back and address me with that.
Q Did she do that?
A Yes.
Q How soon after?
A Pretty much straightaway.
Q When she came back to you, was that in person or phone?
A In person.
Q At your place or at the childcare centre?
A At mine.
Q As best you can, can you explain what was said between you?
AYes, she said that she spoke to her husband and that he spoke about an incident that happened at a playground when L fell off a swing, I believe, and hurt herself and he was just dusting dirt off of her.
Q When you got that response, how did you take that?
AI didn’t second-guess her, because to me it kind of made sense, and her being little, little kids tend to exaggerate, it could just be that she took it out of context, her being a little girl could have thought that happened.
…
CROSS-EXAMINATION BY MS DAVID
QJust one matter. In 2012 after L said to you ‘Stephen touched my cookie and I didn’t like it’ and you raised that with Helen, did you ask Helen to organise it so that Stephen spent less time with L?
A Yeah, I told her that I’d rather not have him around too much.
QAnd after that, did you also ask L on occasion after that ‘Look, has anything else happened that you don’t like?’
A Yes.
Q And she always said ‘No’, didn’t she?
A She did.
The evidence of the appellant
The appellant denied the allegations when arrested and in his evidence.
In brief summary, he gave evidence on oath that his English was limited; that he was married with two adult children; that he came to Australia from Taiwan in 1989 (but had returned to Taiwan from 1992-2000) and on their return in 2001, his wife established a day care centre where he assisted his wife. He denied L’s allegations of indecent touching.
The appellant said that there was an occasion when his wife had told him that L had said he had touched her in the spare room; he denied doing so and said that on that night he had gone to bed earlier than his wife who was doing her paperwork. He also said that there was an occasion when L had been playing with other children outside at the back of the house when she fell down and cried; she had a lot of sand on her pants and he rubbed it off to help her.
GROUNDS 1 AND 2 OF APPEAL
Grounds 1 and 2 of appeal are said to rely on the same particulars and have a deal of overlap. Since we are of the view that ground 1 of appeal is clearly established (for the reasons that follow), we see no need to further address ground 2 of appeal.
The s 34CA police interview with L
The transcript of the Detective Chadbourne’s interview of L held on 13 June 2014 started with a few innocuous “settling questions” and then proceeded in the following way:
CHADBOURNE No worries. Now, now when I talk to you, just let me know if you’re not, if you don’t quite understand something that I ask or if you’re not sure about something that I’m trying to ask you. Just let me know and I’ll try and ask it a different way so that we both get it, all right. Now, like I said before, you’re not in trouble, okay. That’s not why I’m coming here to talk to you, okay. Now don’t ever, ever be afraid about talking to Police about anything ‘cause we’re always here to help, all right.
L Mm.
CHADBOURNE Now with the stuff that I’m going to ask you about, I wasn’t there so the more that you can tell me about it, it helps me understand so even if you think there’s, it’s a little thing that I might already know, just tell me anyway, okay ‘cause I might not know it. All right. And you can use any words that you want to describe different things, okay ‘cause lots of kids use different words to describe different things and that’s totally cool, okay. Now, the stuff that I might ask you about like I said I talk to kids about lots and lots of different stuff so nothing will ever shock me or surprise me or make me angry, all right. I just need to know the truth and know exactly what’s happened, okay. Yep. So you know the difference between the truth and a lie.
L Yeah.
CHADBOURNE Yep, yep so it’s always the best thing to tell the truth, all right and it doesn’t matter if you think it might make me angry or, or, or sad or, or if it makes you happy or sad, just, we need to know the truth about what’s happening, okay. No worries. All right, now do you know what I’ve come to talk to you about tonight.
L About how I’m feeling.
CHADBOURNE Yeah, yeah, that’s part of it, yep so has anyone told you that the Police might come and talk to you.
L No.
CHADBOURNE Okay, that’s all right. That’s not a problem, all right. Now, why I’ve come to talk to you about today is I’ve heard that, that there’s been some stuff going on with the person that baby sits you.
L Yeah.
CHADBOURNE All right. Tell me about your, the person that baby sits you.
(Emphasis added)
The interview then proceeded to record L’s factual assertions concerning the appellant as summarised above.
One can, of course, understand the short term objectives of the police in seeking to be as informal as possible, adopting the supposed argot of the witness and minimising, rather than maximising, the seriousness of what was occurring.
We emphasise that the requirements of s 9 of the Act do not directly apply to the admissibility of a statement under s 34CA, but it must be firmly recognised that a consequence of the highly informal format adopted here is that the imprecise style and highly leading nature of the introductory questioning gives little, if any, assistance to a consideration of whether the complainant was aware of the significance of the interview and the necessity to be truthful.
For example, there was here nothing approaching the type of questioning that would approximate an inquiry as to whether the complainant could give sworn evidence. Further, it can equally be seen that, in the context of an inquiry as to whether the complainant could give unsworn evidence, there was nothing to satisfy the later observer of the recorded interview, having regard to both the wording and leading nature of the questions and the monosyllabic replies, that L understood the difference between truth and a lie.[20] It is also the case that the interviewer did not specifically tell L that it is important to tell the truth[21] and L did not clearly indicate that she would tell the truth.[22]
[20] Section 9(2)(a)(i) of the Act.
[21] Section 9(2)(a)(ii) of the Act.
[22] Section 9(2)(b) of the Act.
The Judge’s misdirections concerning the status of L’s interview
As was noted by Duggan J in The Queen v J, JA, s 34CA of the Act simply makes a statement of a young child or vulnerable witness admissible; it in no way declares it to be, or equates it with, evidence on oath in Court. Thus his Honour stated:[23]
[77] … I do not think it was appropriate to instruct the jury that the videotaped interview is to be considered in the same way as the complainant’s evidence in court without further explanation. That statement is correct insofar as it might reflect s 34CA(3) which permits the jury to use the out-of-court statement to prove the facts asserted in the statement. However, that does not imply that the assessment of each of these categories of evidence is to proceed along the same lines.
[78] The jury should be told that in the case of each category of evidence, the videotaped interview and the evidence in court, that they are at liberty, subject to their assessment of the evidence, to treat what was said as evidence of the facts, but that the assessment of each category must have regard to the circumstances relevant to it. Some aspects of the assessment are common to both categories, but others are not.
[23] (2009) 105 SASR 563, 579-580.
In similar vein, Peek J stated in The Queen v J, AP:[24]
[49] The decision in The Queen v J, JA addressed a number of the ambiguities in the drafting of s 34CA of the Act and is an important central authority. It emphasised that, unlike some legislation elsewhere, s 34CA does not deem a previously recorded statement to be the evidence-in-chief of the complainant at trial but rather enables such evidence to be adduced in support of the prosecution case as an exception against the rule against hearsay. As is self evident, the child will not have been under oath during the making of any such statement.
[24] (2012) 113 SASR 529, 542 [49].
However in the present case, and despite such decisions of the Court of Criminal Appeal, the Judge expressly equated exhibit P1 with examination-in-chief in a court.
When the prosecutor tendered the DVD record of the interview during the examination-in-chief of the first witness Detective Chadbourne, and proffered a transcript as an aide memoire (which was marked MFI P2), the Judge directed the jury:
Ladies and gentlemen, that is not an exhibit because the true evidence is what's on the DVD. The transcript is just someone’s attempt to take down, hopefully accurately but not necessarily accurately, what’s on the DVD. So you have to rely on the DVD not the transcript.
…
Parliament has provided that they can give evidence by way of an interview that is taken at a previous time in more comfortable surrounds and that evidence can be used as their evidence-in-chief.
…
You should use the evidence of what you hear on the DVD just like the evidence of any other witness who might come here and give evidence in the courtroom; that is it is not to be regarded as any better or any worse from the fact that it has been done this way.
The Judge in his summing up again directed the jury that the interview was the complainant’s evidence-in-chief:
As I have already mentioned to you, ladies and gentlemen, the complainant, because of her age, was permitted to give evidence-in-chief by use of an interview conducted with a police officer. The material in that interview is available for you as evidence of the truth of it. Normally witnesses must give their evidence in court. You also will have noticed the complainant was cross-examined out of the courtroom on a closed-circuit television. You will also have noted the complainant’s mother gave evidence with a screen between herself and the accused.
I remind you you should not draw any adverse inference against the accused from any of those facts. Courts are given various powers these days to alleviate embarrassment by an alleged victim of sexual offences and to assist witnesses in giving evidence. It does not mean I have made up my mind or made any decision as to who was in the right and who was in the wrong in this case. It is simply that the witnesses have sought it and I am obliged to assist them in the manner in which they give their evidence according to the provisions of the Evidence Act. You should assess their evidence in exactly the same way as you assess the evidence of any witness who gives evidence in the courtroom.
(Emphasis added)
His Honour later directed the jury as to the evidence of the appellant:
In this matter the accused gave sworn evidence. He was not obliged to give evidence, he had the right to remain silent in answer to the charge leaving it to the prosecution to satisfy you of all the ingredients of the charge. In this case, however, he elected to give evidence on oath. The effect of this is that in assessing his evidence and the weight to be given to it you should approach the task in exactly the same way as with any other witness. It is for you to decide what weight you are prepared to attach to the evidence of the accused in the same way as it is for any other witness.
(Emphasis added)
As to this last direction, the Judge had previously directed that L’s interview was “just like the evidence of any other witness who might come here and give evidence in the courtroom; that is it is not to be regarded as any better or any worse from the fact that it has been done this way.” The appellant was obviously just such a person who “gave evidence in the courtroom” and in the passage immediately above, the Judge confirmed that the evidence of the appellant was to be treated the same as any other witness.
There can be no doubt that the Judge directed the jury that L’s interview (exhibit P1) was L’s evidence-in-chief and was to be considered in the same way as evidence given in court by any other witness, including that of the appellant. These are serious misdirections. What is their effect on the convictions?
Failure to give required directions – the requirements of s 34D(1) of the Act
In The Queen v J, AP, Peek J set out a brief summary of some of the legislative changes to the common law system for trying a person for a serious criminal offence of the present type in South Australia thus:[25]
1. A video recording may be made of a child being questioned in the absence of the accused about the alleged conduct of the accused no matter how long after the conduct is alleged to have taken place.
2. There is no requirement to inform the accused of an intention to interview the child or to give him an opportunity to suggest lines of inquiry or any questions that should be put to the child as part of the process or to give him an opportunity to have a representative to be present and observe the process.
3. Such a video recording may be tendered in evidence and may by itself be sufficient to ground a conviction.
4. Even though a video recorded interview is received, the prosecutor may lead such evidence-in-chief as he or she chooses.
5. On the other hand, the accused may not cross-examine the complainant except in so far as he or she is able to secure advance approval of the trial Judge to the questions wished to be put in cross-examination.
6. The complainant if giving evidence may do so without being sworn even though it is clear that the complainant does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
7. There is no requirement that such unsworn evidence be corroborated.
8. If giving evidence, the complainant may give evidence from a different room via a CCTV system. (This is a procedure that may be adopted in other cases apart from those in which a recorded statement is tendered but such procedure will almost inevitably be adopted in such a case and was so adopted in the present case.)
[25] (2012) 113 SASR 529, 548 [72].
Neither do I accept the submission that the allegations made by L were of a non-specific nature. She was able to relate a particular aspect of the offending to an occasion where she got out of bed and complained to the appellant’s wife who was playing mah-jong with friends.
For these reasons ground 4 fails.
Conclusion
I would dismiss the appeal.
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