R v D, JJ - [2014] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v D, JJ
[2014] SASCFC 29
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)
1 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
JURY - VERDICTS AND FINDINGS - MAJORITY VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES
EVIDENCE - WITNESSES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Following a trial by jury, the appellant was convicted of indecent assault (count 1) and carnal knowledge (count 2) against his cousin, “A”. The offences were alleged to have occurred in the period December 1973 to January 1974, approximately thirty years prior to A making a complaint to police. A turned 13 on 1 January 1974. The appellant was then 25.
The prosecution case depended entirely on the uncorroborated evidence of A. Her evidence was that count 1 occurred when the appellant, on the pretext of getting some lollies, led her away from a party at a mutual uncle’s house and into the front yard of a nearby house where he touched her vagina. Her evidence was that count 2 occurred approximately a week later when the appellant, having previously arranged with a different uncle and aunt for A to accompany him alone in his car in order to show him the way to a second aunt’s house, instead drove to a secluded pine forest where he had penile-vaginal sexual intercourse with her. There was no evidence of positive identification of the appellant as the offender by A.
The appellant appealed on the ground that the verdicts were unreasonable or cannot be supported by the evidence. He submitted that the combination of a number of features of her evidence should have raised a reasonable doubt as to whether the offences occurred at all, or if they did, whether it was the appellant who committed them.
Held (Peek J; Blue and Nicholson JJ agreeing, dismissing the appeal):
A’s evidence appeared to be credible and reliable both as to the occurrence of the incidents, the surrounding circumstances and the characteristics of the offender. The appellant made very substantial admissions as to his presence at a party and driving alone with A at a time some days after that party. The jury were entitled to reject the appellant’s denials and find beyond reasonable doubt on the basis of A’s evidence that the offences occurred and, having done so, were also entitled to find beyond reasonable doubt on the basis of the very strong circumstantial case that it was the appellant who committed both of those offences. [39]-[41], [43]-[49], [58]-[65], [71], [81]-[89]
The jury’s verdicts were supported by the evidence and were neither unreasonable nor unsafe nor unsatisfactory. [71], [89]
Criminal Law Consolidation Act 1935 ss 55, 56, 352(1), 353, referred to.
M v The Queen (1994) 181 CLR 487, applied.
R v Nguyen (2010) 242 CLR 491, discussed.
SKA v The Queen (2011) 243 CLR 400; BCM v The Queen [2013] HCA 48; Michaelides v The Queen [2013] HCA 9, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Unsafe or unsatisfactory"

R v D, JJ
[2014] SASCFC 29
Court of Criminal Appeal: Peek, Blue and Nicholson JJ

PEEK J. Appeal against convictions of indecent assault and carnal knowledge.
After a trial by jury, the appellant was convicted of one count of indecent assault upon the female complainant (to be referred to as “A”) contrary to s 56, Criminal Law Consolidation Act 1935 (the Act) and one count of carnal knowledge with A contrary to s 55 of the Act. The charges in the Information are particularised as follows:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] between the 25th day of December 1973 and the 1st day of January 1974 at Elizabeth, indecently assaulted [A].
Second Count
Statement of Offence
Carnal Knowledge. (Section 55 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] between the 2nd day of January 1974 and the 31st day of January 1974 at Parafield Gardens, unlawfully and carnally knew [A], a female of the age of 13 years.
A was born on 1 January 1961 and was 12 years of age at the time alleged in count 1 and 13 years of age at the time alleged in count 2. The appellant was born on 30 November 1948 and was 25 years of age at the relevant times. His christian name is John, which is a matter that is important, for reasons that follow.
The appellant and A are cousins. They shared a mutual Uncle S who lived at Elizabeth and a different mutual Uncle T who lived with their mutual Aunt M at Salisbury North.
As to count 1, the prosecution case was that, during a party at Elizabeth hosted by Uncle S on New Year’s Eve 1973, the appellant, on the pretext of taking A to buy some lollies from a shop, led her away from the party and into the front yard of a house where he touched her vagina thereby committing an indecent assault.
As to Count 2, the prosecution case was that, about a week after the party, the appellant visited the house at Salisbury North where A was living with Uncle T and Aunt M. The appellant had previously arranged with them to take A for a drive in a car for the purpose of A showing him where another aunt, Aunt T, lived. It is alleged that the appellant instead took A to a pine forest in Parafield Gardens where he had penile-vaginal sexual intercourse with her in the car.
There was a delay of about 30 years in A making a complaint to the police in relation to these matters. On appeal, counsel for the appellant specifically eschewed any complaint in relation to the Judge’s directions concerning that delay.
Majority guilty verdicts were returned by the jury following a second trial, the first trial having been aborted and declared a mistrial during the trial Judge’s summing up. The prosecution case depended in all essential respects upon the uncorroborated evidence of A. There was no admissible evidence of an identification of the appellant as “John” by A.
The ground of appeal
The appellant appeals following the certification by the trial Judge that the matter is fit for appeal, pursuant to s 352(1)(a)(ii) of the Act. There was only one certified ground of appeal, namely that the verdicts are unreasonable or cannot be supported having regard to the evidence.[1]
[1] In his written Summary of Argument, counsel for the appellant specifically eschewed any criticism of the trial Judge’s directions to the jury stating:
“… The Learned Trial Judge properly directed the jury on the following topics:
·Burden of Proof
·Assessment of witnesses
·Inconsistencies
·Identification/recognition and the problems associated with this evidence
·Section 34CB warning concerning forensic disadvantage to the Appellant
·Lies only relevant towards credibility
·A’s evidence needed to be subject to the ‘closest and most critical scrutiny’
Character Evidence”.
On the hearing of the appeal, counsel for the appellant applied for permission to amend the grounds of appeal to add the following additional ground:
The Learned Trial Judge erred in failing to direct the jury regarding an inconsistency between the Crown opening on the allegations concerning count 1 and the evidence of Ms Cooper on that topic, thus causing a substantial miscarriage of justice.
After hearing the parties’ submissions on the application to amend, the Court determined that it would proceed to hear the parties’ submissions on the original ground of appeal before reaching a concluded view on the application. The Court has determined for the reasons that appear in the transcript of argument (during which counsel all but conceded that the application was misconceived) that the proposed further ground of appeal is not arguable and that permission to appeal on the proposed ground of appeal would be refused. Accordingly, permission to add the proposed additional ground of appeal is refused.
Uncontentious background and family relationships
A gave the following uncontested evidence at trial. A was born in Naracoorte on 1 January 1961 and was the middle child in her family with an older sister and a younger brother. She lived with her mother and father until the age of five when she and her sister were sent to the Goodwood Orphanage in about 1966. She remained there until she was sent to the residence of her Uncle T and Aunt M at Salisbury North on 15 December 1972 at the age of 11. A’s relationship with Uncle T was good but Aunt M was quite strict and, in A’s words, it was “pretty horrific” living with her.
Count 1: The incident during the party at Uncle S’s house
A’s evidence-in-chief as to the conduct charged in count 1 was as follows. A attended a party at Uncle S’s house at Elizabeth on New Year’s Eve, 31 December 1973. A stated that this was memorable because she had previously visited him only once, long before the party and just before she was sent to the Goodwood Orphanage in about 1966 (when she was around five years of age).
The party had been a celebration of the New Year as well as of someone’s birthday. A had arrived at Uncle S’s house the night before, on 30 December 1973, and had been brought there early to help in setting up for the party. A estimated that “around 20” or “maybe 20, maybe 30” people attended the party and that people had begun to arrive in the afternoon while it was still light. A remembered that during the party someone was introduced as “John” generally to those present.[2] She gave the following description of “John”:[3]
[2] T40.
[3] T41.
QCan you describe the person who was introduced as John to us?
AHe wasn’t that tall, he had mousey hair, blue eyes.
QApproximate age?
AI thought probably around 22, 24.
QBuild?
AVery slim.
QEthnic appearance?
ANo, yeah, Australian.
QCaucasian?
AYes.
HIS HONOUR: You should have let the witness answer the question herself.
QDo you remember what he was wearing?
AI know he had jeans on.
QWhat about on the top?
AWell, I kind of think – I’m almost sure that I remember a leather jacket.
QWhat colour?
ABlack.
A gave evidence that this was the first time she had met John. She said that sometime during the party after that introduction, and after night had fallen, she passed John in the doorway of the back door. At this time John asked her if she wanted to go to the shop to get some lollies. A stated that she accepted that invitation and that they left Uncle S’s house together and walked down the street in the general direction of a group of shops with which she was familiar. A gave evidence that during this walk, the following incident occurred:[4]
[4] T42.
AAt some point after we turned, he took my arm and led me across the street into somebody’s front yard.
QCan you tell us in terms of time it took you to walk to there or distance, can you give us any idea of how far away it is?
AProbably at the most maybe 10 minutes maybe, if that.
QAt some point you stopped walking, is that right?
AYes.
QWhat happened then?
AThen he pulled me, not, you know, it wasn’t rough, but he guided me into somebody’s front yard.
QDid you go with him into the front yard?
AYep.
QWhat happened in the front yard?
AWell, I was standing with my back to the street and he was standing facing me and I remember him kneeling down in front of me blowing on my vagina with his mouth, yeah.
QWhat were you wearing that day?
AA dress. I always wore a dress. I wasn’t allowed to wear jeans.
QDid you wear anything under your dress?
AJust my underwear.
QWhen he kneeled in front of you, were you still fully clothed?
ANo.
QWhat happened in relation to your clothes?
AMy underwear was down.
QWho did that?
AJohn did it.
QAfter the blowing, what happened then?
AI’m pretty sure that he was fondling my vagina.
QSorry?
AFondling my vagina.
QOn the outside or inside?
AOutside.
QDid he touch the inside of your vagina at all?
AI can’t remember.
A elaborated on her use of the word “fondling” thus:
QYou used the term ‘fondling’, can you be more specific about what exactly the hand was doing?
ALike, you know, tickling, like how you would tickle somebody.
A gave evidence that following this incident, she and John returned to the party together and did not interact for the remainder of the night. She stated that John said nothing about the incident and that she did not mention the incident to anyone at that time because she thought no one would believe her. That night, she slept in a bedroom at Uncle S’s house and returned to Aunt M and Uncle T’s house the following morning.
Count 2: The incident in the car
A gave evidence that she next saw John about a week after the New Year’s Eve party when he came to Uncle T and Aunt M’s house during the day. A was in her bedroom and was called into the lounge room where she was instructed by Aunt M to direct John to their Aunt T’s house because he did not know where she lived. She did not want to go with John but did so because “you don’t say no to my nanna”.
A gave evidence that she left the house alone with John. She got into the front passenger seat and John got into the driver’s seat of his car which was parked out the front. John initially drove in the direction of Aunt T’s house but soon pulled over near A’s school, Salisbury North Primary School, and asked her if she knew “anywhere quiet”. A stated that she does not remember replying to that question. He then drove to a pine forest on the Waterloo Corner Road and eventually stopped in a position where the car could not be seen from the road. This journey took about 15 minutes and the following incident then took place:[5]
[5] T48-49.
QWhen the car came to a stop, what do you remember happening?
AI don’t - my memory is being in the back seat of the - being - laying in the back seat of the car.
QWhat happened when you were lying in the back seat of the car?
AJohn climbed in on top of me with his pants down and I could see him, you know, like holding his penis to guide it into place.
QWhat did he do with his penis?
AHe - put it in my vagina.
QWas he wearing clothes at that time?
AJeans and a T-shirt I think, it was warm.
QWhat happened to the jeans when he climbed on top of you?
AThey were right down around his ankles I think.
QWhat about your clothing, do you remember what you were wearing?
AI had a dress on - always wore dresses.
QAnything under the -
AJust my underwear.
QDo you have any memory about what happened to your clothing?
AI just know I didn’t have my underwear on.
QDo you remember taking them off?
ANo.
QHow did John enter the car?
AWhen I was lying down?
QYes.
AHe kind of balanced himself on one arm and then used his other arm to - to guide his penis.
QDo you remember which car door he used?
AThe driver’s passenger, rear passenger door.
QDo you remember how he was positioned on top of you?
AYeah. Yeah, in between my legs.
QWhere were your legs?
ALike one on the floor and one on the chair.
A gave evidence that after this incident John drove off in his car and that she walked home to Uncle T and Aunt M’s house. On her evidence, that was the last time she saw John. She gave evidence that she did not tell anyone at the time about what had happened to her “because I didn’t have anyone to stand up for me”.
A gave evidence that the fact that this incident involved a car trip alone with a male was memorable:[6]
[6] T53.
QAt around this time, did you go on any other car trips with men you didn’t know very well?
ANo.
QWith any men in blue cars, other than this time with John?
ANo.
QWere you allowed to do that sort of thing?
ANo.
QWhy was that?
ABecause my nanna was just like, you know - just wouldn’t allow me to do things, and she always had a suspicious mind about things, so, no, she wouldn’t allow me to do that.
It was A’s firm evidence that the person, John, who had interfered with her vagina during the New Year’s Eve party (count 1) was the same person who took her for the car ride and had penile-vaginal sexual intercourse with her (count 2). It was the prosecution case that this man “John” was the appellant.
The evidence of the appellant
While the appellant gave oral evidence at the first aborted trial, he did not do so again at the second trial. His evidence from the first trial was tendered by the prosecution as an exhibit[7] with the consent of the appellant and read to the jury by the trial Judge’s Associate. During that evidence the appellant denied having ever sexually interfered with A but he made a number of very significant admissions which are discussed below.
[7] Exhibit P14.
The party at Uncle S’s house
The appellant admitted that he had attended a party at Uncle S’s house on a Saturday night but asserted that the party occurred sometime during the summer of 1975. He gave evidence that he had moved from Naracoorte to Seaton in 1974 and on the Saturday morning of the party, his mother had arrived in Adelaide by overnight train from Naracoorte for the purpose of attending the party.
The appellant further stated that his then girlfriend (who will be referred to as Pauline) who was living at West Beach or Glenelg at the time, had driven the appellant and his mother in Pauline’s car to Uncle S’s house for the party. The appellant stated that he was suffering from severe alcoholism during that period and he was “too drunk to drive”.
The appellant gave evidence that once at the party, he devoted himself to drinking. He stated that he did not remember seeing A there and that the only event of that night he really remembered was leaving the house to check on his mother who at some stage returned to sit in the car as she was feeling unwell and that she may have been suffering from a migraine. After being reassured by his mother that she was fine, the appellant returned to the party. The appellant said that he also remembered being in the back seat of the car at some later time while his Uncle S and Aunt L spoke to his mother through the car window. He stated that he assumed that this was when he left the party with his mother and Pauline.
The appellant gave evidence that it was rare for his mother to come to Adelaide (given her age at the time and the nature of the trip from Naracoorte) and that she only visited Adelaide while he was living there on about two occasions.
The drive in the car with A the subject of count 2

The appellant gave evidence accepting many of the facts alleged by the prosecution in the context of count 2 but denying the occurrence of any sexual intercourse with A. His version was that his mother told him after the party at Uncle S’s house that Uncle T was suffering from cancer and had requested that he visit Uncle T. The appellant stated that he did so about a week or two after the party. He stated that he drove to Aunt M and Uncle T’s house using Pauline’s car and there saw A. The appellant gave the following evidence about what transpired:[8]
QWhat happened on the visit to Uncle T, with respect to her?
AMy aunty was in a tizz about - I still don’t really remember if it had all to do with she needed something from the shop, Michael was either supposed to have gone to the shop and got it or he hadn’t come home or he hadn’t come home from wherever the heck he was and gone to the shop for her and she got herself into a bit of a tizz, and my aunty was the type of person when she said jump, you jumped, you didn’t ask any questions. So she asked me to go and I got to find Michael or go to the shop and all that sort of stuff, and I didn’t know the area and so she told [the Complainant] to come and show me where the shop was.
[8] T123.
The appellant gave evidence that during the drive, A began to complain about how unhappy she was in living with Aunt M. She became very upset and began crying and exclaimed that she no longer wanted to live there. The appellant stated that he then pulled the car over before reaching the shop and put his arm around A in an attempt to comfort her. A then seemed to cheer up as she offered to show him her school.
The appellant gave evidence that they eventually got to the shop but he did not see Michael there. He estimated that the whole excursion took between 15 and 20 minutes. He stated that he and A then returned to Uncle T and Aunt M’s house in his car and that he had a cup of coffee with Uncle T and Aunt M after which he left as he wanted to resume drinking.
The appellant gave evidence that about a week after the car trip, A called him one evening. The appellant stated that he had not given her his phone number and that she must have found it in the phonebook. The appellant gave evidence as follows:[9]
[9] T127-132.
QDo you recall what was discussed on this first phone call contact?
AWell, it was all to do with the fact that she was and this sort of stuff but it was only fairly brief, brief call. She sort of, she was saying that she was unhappy but she was upset, you know, and that’s pretty much how the calls went, until the final one.
QHow many calls were there?
AI reckon there were - well, I think about five or six, I’m not sure.
QAre you able to tell us the time gap between the first call and the last call, that is what period of time are we talking about?
AIf I was to guess, I’d say a week, two weeks. I don’t know. It wasn’t every night.
QDo you recall the conversations on any of the calls prior to the last call?
ANo, not really. The last one I remember was because she was pretty upset and the fact that when I denied it she hung up on me and that bothered me a little bit because I knew she was upset by my answer.
QWhat had she requested?
AShe wanted to come and live with Margaret and myself because she was very unhappy where she was. She wanted us to take her in and look after her.
QWas that the only time that topic was raised?
AYes, on reflection the conversations prior to that were leading up to it because she would be saying about how unhappy she was and how she wanted to be living in somewhere better and all this sort of stuff, but she never actually said anything about coming and living with me and Margaret until that last conversation. … Well based on the topic, I would have to assume that she asked could she come and live with Margaret and myself, whether that would be all right.
QWhat was your response?
AI said no -
QDid you say why you refused?
AYes. Margaret was a nurse and she worked nightshift. I worked like as a casual boner and plus we were planning on leaving Adelaide, and we were leaving Adelaide. We were supposed to have been leaving in the December of 1975. As it turned out, we didn’t get away until February of ‘76, and I’m pretty sure I explained all this to her or tried to explain it to her but she was crying and then she just hung up the phone and that was it.
QWas that the last time you - ?
AThat’s the last time until now.
In cross-examination A strongly denied making any such phone calls.
Unreasonable or unsafe and unsatisfactory verdicts
The approach to be taken to s 353, Criminal Law Consolidation Act 1935 to a complaint that a guilty verdict is unreasonable or “unsafe or unsatisfactory” is that adumbrated in M v The Queen.[10] I also refer to the following statement of Hayne, Heydon, Crennan, Kiefel and Bell JJ in R v Nguyen:[11]
[33]The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.
[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.
As the plurality in M went on to point out:
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.
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. (Citations omitted)
[10] (1994) 181 CLR 487.
[11] (2010) 242 CLR 491, 499-500. See also: SKA v The Queen (2011) 243 CLR 400, 405-406 [11]-[14] (French CJ, Gummow and Kiefel JJ), 412-414 [39]-[45] (Heydon J), 421-422 [78]-[80] (Crennan J); BCM v The Queen [2013] HCA 48 [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ); Michaelides v The Queen [2013] HCA 9 [4] (French CJ and Crennan J).
The appellant’s approach on appeal was to ask the Court to have reference to two key questions (to each of which he urged an answer in the negative). The first was: “Was it safely proven beyond reasonable doubt that the alleged sexual incidents occurred at all?”. The second was: “If the sexual incidents did occur, was it safely proven beyond reasonable doubt that the appellant was the offender?”.[12]
[12] Although it was theoretically possible that the appellant may have committed only one of the two alleged offences, such a possibility was at all times disavowed by the appellant and would have been so inconsistent with the evidence of A as to be a perverse verdict. Nothing more need be said on the matter.
I turn to examine those two questions, and the appeal generally, in the way required by the High Court authorities referred to above.
Was it safely proven beyond reasonable doubt that the alleged sexual acts occurred at all?
Counsel relies on a number of matters, the cumulative effect of which is said to demonstrate that A was an unreliable witness such that the jury should not have been satisfied that the alleged sexual incidents in fact occurred at all.
A’s description of the events the subject of count 1
The appellant submits that A’s evidence as to the act the subject of count 1 is so unreliable that it should have raised a doubt about whether the offences occurred at all. The appellant refers to the divergence between the prosecution opening and A’s evidence as to the indecent assault in count 1. At trial, count 1 was opened by the prosecutor on the following basis:[13]
… She will describe how on the night of the party she was asked by the accused if she wanted to go to the shop with him to get some lollies. She went with the accused for a walk to the shop. She will describe to you that she was wearing a dress, something she had to do because her Aunt M would not allow to her to wear jeans. She will tell you on the way to the shops the accused took her and led her to the front yard of a house, behind a hedge. It’s night at this stage. There the accused pulled down [A’s] underwear and inserted his finger into her vagina. That act of inserting his finger in the complainant’s vagina is the charge of indecent assault, count 1.
(Emphasis added)
[13] T29.
The appellant submits that A’s evidence-in-chief departed from this description of the subject act in that her evidence was that the appellant had blown on, and then touched the outside of, her vagina rather than inserting his finger inside. Counsel contends that this divergence between the prosecution opening and A’s evidence must affect her reliability, evidencing as it does some prior inconsistent out of court statement by A.
One may accept that the statement by the prosecutor does evidence an assertion by A at some prior time of a then recollection of actual penetration. However, it is important to note that A’s evidence at trial was not a positive denial that penetration had occurred but rather an assertion of a lack of memory at the time of trial of penetration. Thus she was asked in evidence-in-chief:
Q Did he touch the inside of your vagina at all?
A. I can’t remember.
Importantly, defence counsel deliberately abstained from cross-examining A about this matter generally or in relation to a prior statement made by her in particular. Counsel (who appeared both at trial and on the appeal) accepted on the appeal that the decision to abstain from doing so was made for the understandable forensic reason of not raising the spectre of the more serious allegation of digital penetration or the time and circumstances in which that more serious allegation may have been made.
As a matter of law, the divergence between the prosecution opening and A’s evidence is not a matter which was in any way fatal to the prosecution case. As the Judge noted during the no case submission on count 1, A’s evidence of an external touching still established an indecent assault by the offender. As to the effect of the inconsistency on the reliability and credibility of A, it was a relevant matter but not of substantial weight in all of the present circumstances.
A’s description of the events the subject of count 2
As to A’s evidence on count 2, the appellant submits that the following evidence of A concerning the subject events lacks detail and specificity:[14]
[14] T72-73.
QYou say he inserted his penis into you?
AYes.
QDid he ejaculate?
AI can’t tell you that because the moments are -
QDid he?
AThe moment that he entered my vagina I blacked out. I can’t tell you what happened.
QSo you don’t know if he moved his penis up and down?
ANo.
QYou don’t know how long it went for?
ANo.
QYou can’t tell us whether you were injured because of the intercourse?
AI think that the lucky thing is that, you know, you don’t remember some things. I just remember him and I can see it in my mind of him going into me.
QThis was the man with mousey hair and blue eyes?
AYes.
QThe same man you said interfered with you about a week before?
AYes.
QYour next memory, I believe, is walking home?
AYes.
QDid you see him leave in the car?
ANot that I remember.
…
QDo you have an incomplete memory of this event?
AI have about 70% of memory from about the time I left the house to the time I returned to the house.
The appellant makes three submissions. First, he submits that it would be reasonable to expect A to give at least a general recollection of what occurred before and after the alleged act of sexual intercourse. He submits that A’s evidence leaves the allegations in “a sterile setting without any real life situation around it”; and without any description of how A and the offender ended up in the back seat of the car; and without any suggestion that either promises of gifts or threats were made by the offender to deter A from telling anyone what had happened.
These matters are of little weight. While A’s evidence may lack some detail, she was unshaken in her evidence as to how the act began, the nature of the act, and what happened afterwards in a general sense. There appears no reason to doubt the veracity of her account, especially when some of the missing pieces relate to the portion of the incident which would be the most painful for her to remember, as A herself claimed in evidence. Further, A’s inability to remember if there were any inducements or threats made to deter her from complaining of the offender’s conduct does not of itself undermine her account of the incident. The simple fact may be that there were none. On the prosecution case, some time had passed since the night of the party and the fact that he had been allowed to take A for a drive alone would have indicated to the offender that no complaint had been made. In those circumstances, the offender may have felt it unnecessary to make any such threats or inducements.
Second, the appellant refers to the fact that A initially told the police that during the alleged penile-vaginal sexual intercourse her legs were between the appellant’s legs rather than the appellant being between her legs, as she described in Court. A admitted this discrepancy stating “Yeah, I got it – I just, I’m a bit dyslexic a lot of the time.”
I consider that A’s initial statement describing the position of her legs during the incident was, in the circumstances of this case, an understandable slip and not indicative of unreliable evidence.
Third, the appellant refers to the cross-examination of A showing little memory of the car driven by the appellant on the occasion of count 2:
QAnd that on the occasion that you did go in a car with John, it wasn’t a pale blue car?
AI remember it being pale blue.
QCould it have been a white car?
ACould have been.
QCould have been a Hillman?
AI wouldn’t know one car from the next.
QAnyway, you believe it was four doors?
AYes.
I consider that A’s inability to remember details of the car is a minor and unsurprising matter given the time lapse and the facts that she may have paid little attention to such details at the time or may have lacked the knowledge or interest at that age to distinguish one brand or model of car from another.
These matters were highlighted in the defence closing address, and the Judge correctly informed the jury that it was up to them what was to be made of the inconsistencies identified by counsel. The jury were entitled to rely on A’s evidence despite the matters referred to by counsel.
A’s evidence as to timing and dates
The appellant further submits that A was shown to be unreliable as to dates and times and that this undermined her overall reliability. He relies in large part upon two formal statements made by A when she first approached police on 12 August 2003 (the August 2003 statement) and when she subsequently spoke to police in Tasmania on 28 June 2009 (the June 2009 statement).
As to count 1, A agreed in cross-examination that in her June 2009 statement she had told police that the party at Uncle S’s house was held sometime “around the time of my 12^th birthday which was on 1 January 1973”[15] and not on New Year’s Eve, 31 December 1973 as she stated in evidence. In explaining that discrepancy of one year, A stated:[16]
QWhat made you come to a different memory as to the time of the party being New Year’s Eve 1973?
ABecause I don’t think in time, so I don’t, you know, I find it hard to tell you on what date something happened last year that I did that was really important. I just don’t think in times.
[15] T59 (counsel quoting the June 2009 statement). The Complainant later corrected this before trial and her evidence at trial was consistent with that correction: see T77.
[16] T59.
As to the timing of count 2, A agreed in cross-examination that in her August 2003 statement she had told police that counts 1 and 2 occurred one day apart, whereas her evidence in Court was that count 2 occurred about a week after count 1. A had corrected her August 2003 version in a further statement given some time before giving that corrected version in Court.
In re-examination, A further emphasised her poor memory for dates:[17]
QWhy did you get the dates muddled up?
ABecause I’m just absolutely hopeless at dates.
[17] T77.
The appellant submits that A’s evidence as to dates and times, including her statement that she is “absolutely hopeless at dates”, demonstrates unreliability and that her evidence that the car trip did not occur in 1975 (as asserted by the appellant) should not be accepted. The appellant submits that this unreliability raises a reasonable doubt whether the appellant did in fact attend the same New Year’s Eve party of which A gave evidence, and in turn, as to whether the appellant was the offender.
In fact, A did give evidence in Court of dates consistent with the prosecution case and the demonstration of previous inconsistent statements as to timing does not establish per se that her evidence in Court was incorrect. For the argument of the appellant to have real force on appeal, it is necessary to demonstrate the real possibility of a different version as to timing which difference has specific consequences for the safety of the guilty verdicts.
The appellant relies on the appellant’s own evidence that both the party at Uncle S’s house that he attended and his later car trip with A occurred in 1975. The appellant submits that his evidence was fortified by the evidence of entries in three editions of the Adelaide Telephone Directory tendered by the prosecution during the second trial (the phone book entries).[18] Those phone books record no entry for the appellant in 1973/74 or 1974/75, but an entry for him giving an address at Seaton appears in the 1975/1976 edition.[19]
[18] Exhibit P7.
[19] See the evidence of Detective Tiss: T94-95, 105 (cross-examination).

As I understand the appellant’s submission, it proceeds thus. First, the phone book entries support the appellant’s evidence that he moved to Adelaide from Naracoorte in 1974. Second, the appellant’s evidence fixing the date of the party at Uncle S’s house as being in 1975 by reference to the date of his move to Adelaide (coupled with his assertions that his mother came to the party at Uncle S’s house and that she only visited him on a limited number of occasions once he moved to Adelaide) should be accepted. Third, the appellant’s assertion that he received a number of phone calls at his Seaton address from A “a week or so” after the car trip is somehow bolstered by the suggested proposition that A could only have sourced his number from the phone book which only contained a listing for him in Adelaide from 1975/76, thus suggesting that the car trip could have occurred no earlier than 1975.
On analysis, the cumulative effect of these matters falls very far short of establishing that the jury should have held a reasonable doubt about the appellant’s guilt.
As a matter of law (as it applied to the particular circumstances of this case), the dates of the incidents did not have to be proven to have been precisely as charged. Rather, it was necessary that the two particular incidents relied upon be sufficiently identified. This requirement was satisfied here. As to count 1, both the appellant and A gave evidence that they each attended only one party at Uncle S’s house; on the evidence of both, that party was around the start or the end of the year and probably a New Year’s Eve party.[20] As to count 2, both the appellant and A gave evidence that a car trip involving the two had taken place within a week or two of a party at Uncle S’s house and that there was only ever one car trip.[21] It cannot be contended that there was ever any doubt as to the incidents and occasions relied upon by the prosecution.
[20] T39 (the complainant); T118 (the appellant).
[21] T46 (the complainant); T122-123 (the appellant).
As to the matter of the implications for the overall reliability of A’s evidence, the suggestion that the party (and therefore the car trip) actually occurred in 1975 only emanated from the appellant and that suggestion was positively denied not only by A but also by Pauline.
A gave evidence specifically denying that the party occurred in 1975, that she did not recall seeing the offender with anyone during the party, and denying that she ever called the appellant on the telephone.
Pauline gave evidence that her relationship with the appellant had ended by late 1974 which negates the possibility of her attending a party with him held in 1975. Indeed, Pauline’s evidence was that she could not recall attending any parties with the appellant nor any parties at Uncle S’s address at all.
The bearing of the phone book entries
As to the bearing of the phone book entries upon the date of the party, the fact that an entry for the appellant does not appear until the 1975/1976 edition of the Adelaide Telephone Directory provides little support for the appellant’s contention that he did not live in Adelaide before that date. Obviously, he may have lived in the house for a time without the phone being connected. There is also the further possibility that he may have had the phone connected for a time before his number was included in a phone book. No evidence was given as to whether such inclusion was automatic or contingent upon some act or decision by the appellant.
Finally, it must be observed that the question of when the appellant moved to Adelaide is on one view irrelevant. Even if he were living at Naracoorte at the time of the party, there remains the real possibility that he could have travelled to Adelaide to attend the party (just as he stated that his mother did). Apart from the assertion of the appellant himself, there is simply no evidence bearing upon this matter.
The bearing of the phone book entries upon the suggestion that A telephoned the appellant
As to the bearing of phone book entries upon the suggestion that A telephoned the appellant, it must be remembered that this suggestion comes only from the appellant and is in no way supported by any other evidence. It was emphatically denied by A in evidence and is not logically bolstered by the dates of the phone book entries.
Matters affecting the appellant’s own reliability
At trial, the prosecution established important inconsistencies in the appellant’s evidence as to the date of the party and the car trip. In his record of interview, the appellant referred to the occasion of the party at Uncle S’s house as follows:[22]
[22] Exhibit P9, 5-6.
ADo you know where the party was?
QOh probably where Uncle S was living, somewhere in Salisbury I think, I don’t know where but the only reason I went was to take my mum and she came up from Naracoorte.
…
QAlright how’d you get there?
AI drove.
QYou drove?
AYeah.
QDo you know how you got back?
AI would have driven. I remember, I remember actually asking for, the police for directions to his place, I remember that, yeah. (Emphasis added)
In evidence-in-chief, the appellant asserted that this conversation with the police officer about directions did not occur on the way to the subject party but rather on a separate visit to Uncle S’s house at which he announced his engagement to Margaret (the engagement announcement). He stated:[23]
QDo you recall what time you got to the party?
AWhen I listened to that video thing, I said to the police that it was daytime because I stopped and asked directions but that wasn’t right. At the time I thought it was. It was another time when my brother Patrick, my wife Margaret and myself were going up to Uncle S’s, I was pretty drunk and I got lost and so there was a policeman pulled someone over so I went up and asked him directions. I don’t know why he didn’t arrest me, should have. That was daytime. But as far as this party thing, I don’t remember arriving there. I remember being there but that wasn’t uncommon. Sometimes I could be aware of being in a place but having no memory of how I got there.
[23] T119-120.
Counsel for the prosecution pursued this matter in cross-examination thus:[24]
[24] T141-142.
QWhen did this visit to Uncle S’s take place with Margaret?
AI don’t know.
QYou don’t know?
ANo.
…
QTell the members of the jury about the circumstances that you saw [A] on your visit with Margaret.
AWell, she was there. My uncle was there, my aunty was there, there was cousins there, there was some other man there and I mean, I didn’t specifically have a conversation with her or anything like that. She was just there because we told my uncle and aunty and he said ‘That calls for a celebration’ and we went to the football club where he was a member of.
QIsn’t this a visit with Margaret the occasion that you asked for directions?
AYeah, I think it was.
QYou remember that, do you?
AYeah, I remember because I thought afterwards how stupid I was because I was pretty drunk and I asked a policeman for directions.
The appellant proceeded to refer to a further and third occasion on which he met A (the Saturday afternoon visit):[25]
[25] T144-145.
HIS HONOUR
QYou never met her before that day?
AYes, I had seen her once before.
QWhen and in what circumstances?
APardon?
QWhen and in what circumstances?
AI had taken my dad and maybe my mum, but I’m not 100% sure about that, up to Uncle S’s. They had come up from Naracoorte and dad wanted to go out and see Uncle S. So, I drove him out there. They were in the kitchen talking. It would have – I am assuming it was a Saturday afternoon because local football was on the TV and his boys were watching TV and I went in and I sat on the couch with them and there was – [A] was there. I didn’t know who she was at the time but I remember thinking to myself that she reminded me of somebody but then somebody said who she was and I realised that she reminded me of her mother and that was the first time I had seen her since she was probably about four.
QDid you speak to her on that occasion?
AYeah, yeah I chatted to her and I chatted to the others. I mean, nothing specific.
QHow long did this chatting that she was included in go on for?
AJust probably during a break in the football or something like that. We weren’t there for very long.
QJust pause there. You said a break during the football. Approximately how long did the chatting go on for in terms of minutes?
AFive minutes.
QWere you introduced to her?
ANot specifically, no.
QWhen was this occasion in relation to the party that you went to at Uncle S’s?
AThis would have been months beforehand I think.
QDid you say a month or months?
AMonths I think but I’m only guessing here.
QApproximately how many months do you think?
AAs a guess, three, four, five, it is just a guess. It is just figures I’m pulling out of the air. I don’t know.
QNo more than six to the best of your recollection?
ATo the best of my recollection.
Thus, not only was the appellant’s evidence as to dates inconsistent with the evidence of A and Pauline, it was also internally inconsistent. As noted above, the appellant moved from asserting that the car trip was the first time he ever met A to identifying another two separate occasions on which he might have met her at Uncle S’s house, namely the engagement announcement and the Saturday afternoon visit. The appellant also conceded that he had confused the engagement announcement with the subject party at Uncle S’s house.
Conclusion as to the first question about the occurrence of the sexual acts
The cumulative effect of the above matters does not lead to the conclusion that the jury should have found A unreliable as to the occurrence of the sexual acts described by her. The inconsistencies in her evidence upon correct analysis are relatively minor. They are to be considered in light of her age at the relevant time, the passage of almost 30 years between the incidents and her first report to police, the subsequent interval of several years between that interview and the two trials and her admitted difficulties with dates.
The second question: “If the sexual acts described by A did occur, was it safely proven beyond reasonable doubt that it was the appellant who committed those acts?”
A’s description of the physical attributes of the offender comprised the following features: “mousey” hair; blue eyes; not overly tall; very slim; Caucasian/Australian in appearance; and about 22 to 24 years old. However, A also gave a further important description of a number of other non-physical attributes that the offender possessed. Putting aside for the moment the topic of hair colour, and on the basis of A’s evidence that the same male committed both count 1 and count 2, the class of persons falling within A’s full description of the offender’s attributes was quite limited. It only comprised males who:
·Had blue eyes;
·Were not overly tall;
·Were very slim;
·Were of Caucasian/Australian appearance;
·Were between about 22 to 24 years old;
·Attended a party at Uncle S’s house as an invited guest;
·Were introduced as being named “John” at that party;
·Went walking with A alone during the course of that party;
·About two weeks after that party attended at the house of A’s Uncle T and Aunt M in circumstances where he apparently knew those people and was permitted by them to take A on a drive with him alone.
It appears to be agreed that the appellant John has each of these attributes, with the possible exception of “walking with A alone during the course of the party”. As to that particular matter, the appellant gave evidence that he was so intoxicated during the party at Uncle S’s house that he could not say whether he went for such a walk or not.
Without more, it appears that the appellant faced a very strong circumstantial case and that it was well open to the jury to reject the appellant’s denials of guilt and to convict him of both charges. Thus the prosecutor at trial made the following cogent remarks in his closing address:[26]
… On the prosecution case, we are talking about the same party because the complainant told you she met a “John”. You remember he was in approximately the right age range to the accused, he was the right build, he was the right race, and obviously known to Uncle S or invited by Uncle S. You might wonder whether Uncle S has more than one person at a party of 20 or 30 of his family who is called John of the right age and build and race. You might wonder whether it’s likely that at most family affairs everyone in the family had named their children John who of course must have been born at approximately the same time. I suggest it’s conceivable there might be a John Senior and a John Junior but what about at the same age? But are the defence really suggesting or maybe suggesting that it was a different John who did count 1 to the complainant, a John who just happened to be the right age, the right build, the right race, but had blue eyes instead of hazel eyes, another John who just happened to interfere with the complainant a week before John did? In the prosecution’s submission it’s fanciful when you have the sworn evidence of the complainant to the contrary that the John who committed count 2, was the John who committed count 1. You might think that she might not forget the face and would have recognised him that second time. That’s all I’m going to say about identification. In my submission, it’s clear you have the right man for count 1 and count 2.
[26] T173-174.
However, the appellant contends that there was a significant difference in physical appearance between the offender described by A and the appellant as he had appeared at the relevant time such as to prevent a reasonable jury from finding beyond reasonable doubt that the appellant was that offender.
Counsel for the appellant tendered three photographs of the appellant during the cross-examination of the witness Pauline: exhibits D4, D5 and D6. There was no evidence as to when exhibits D4 and D5 were taken but Pauline gave evidence that exhibit D6 was likely taken around 1983, the child in the photograph being the appellant’s son who was born in 1981 and the photograph depicting a cake with two candles on it.
Pauline agreed in cross-examination that exhibit D6 depicts the appellant with a dark moustache and portrays the appellant in much the same way as she remembered he appeared when they were in a relationship between late 1973 and mid to late 1974. She also agreed that the appellant’s hair could be described as “dark” in exhibit D4 and “grey” in exhibit D5.
The appellant contends that it is a reasonable possibility that when he attended the party at Uncle S’s house, in the company of his mother and Pauline, he had both dark hair and a black moustache and that it is therefore a reasonable possibility that he is not the person described by A as the offender. The appellant maintains that this affects both counts 1 and 2 as it was A’s firm evidence, and the prosecution case, that the same person was the offender on each occasion.
There is little force in these submissions for the following reasons.
The matter of a moustache
As to the matter of a moustache, the evidence of Pauline that the appellant had a moustache when they were in a relationship was far from unequivocal:[27]
QDid he have a moustache when he was going out with you?
AI think so.
QDark moustache (sic)?
AI think so.
[27] T91-92 (cross-examination).
Even if it could be accepted that the appellant had a moustache at some time during his relationship with Pauline, there is no evidence as to whether he had it for the entire duration of the relationship or whether he shaved it off periodically and regrew it from time to time.
As counsel for the respondent correctly submits, A was never asked in cross-examination whether the offender had any facial hair. Thus the possibility that the offender was wearing a moustache is not actually inconsistent with the evidence of A. But even if one were to take the lack of reference by A to a moustache to mean that the offender was clean shaven, that is in no way inconsistent with the appellant being the offender since there is no evidence at all (even from the appellant) that the appellant was wearing a moustache during his attendance at the party at Uncle S’s house.
The colour of the appellant’s hair
Counsel asserts that evidence suggestive of the colour of the appellant’s hair being “dark” in the period 1973 to 1975 is to be contrasted with the description by A of the offender’s hair as “mousey”.
However, A did not elaborate on what she meant when she described the offender’s hair as “mousey” and nor was she asked to do so in cross-examination. It is possible that she may have been thinking of texture or thickness rather than colour.
Even if it be assumed in favour of the appellant that A was referring to a shade of brown, the acceptance by Pauline that the hair appearing in at least two of the photographs was “dark” in colour must be subject to a large range of uncertain factors, including the quality and condition of the camera taking the photograph, the lighting in the room at the time of taking the photograph, the position of the appellant in relation to that light, factors associated with the processing of the photographs and the aging of the print itself. Such factors might well cause a person’s hair colour in a photograph to appear to be lighter or darker in colour than it truly was at the time of taking the photograph.
Various factors might have affected A’s own perception of the offender’s hair colour, including the effluxion of time, leaving her with an incorrect memory concerning this particular matter.
If the means by which A, or the prosecution, sought to identify the appellant was substantially by reference to the colour of his hair, then the position would be very different. However it can be seen from the analysis above that the matter of hair colour was a most minor aspect of a strong circumstantial case upon which the jury relied to convict the appellant.
Importantly, the suggested divergence between A’s description of the offender’s hair as “mousey” in evidence and the appearance of the appellant as observable from the photographic exhibits D4, D5 and D6, and as described by the witnesses, were matters placed squarely before the jury for their consideration. The jury were well equipped to assess such matters and make a judgment whether there was any doubt as to the prosecution case that the appellant was the offender described by A.
Conclusion
I have considered all of the evidence as well as the submissions of counsel for the appellant and have carried out the review required by M v The Queen.[28] For the reasons set out above, it was well open for the jury to convict the appellant on both counts 1 and 2. All the evidence and circumstances, including the matters identified by the appellant on appeal, do not cause me to hold a doubt as to the appellant’s guilt and nor should they have caused the jury to entertain a doubt as to the appellant’s guilt on either or both counts. The appellant has not made out his ground of appeal.
[28] (1994) 181 CLR 487.
Proposed orders
1Permission to amend the grounds of appeal refused; and
2Appeal dismissed.
BLUE J. I agree.
NICHOLSON J. I agree with the reasons of Peek J and the orders proposed.