R v D No. Scgrg-97-293 Judgment No. S6608

[1998] SASC 6608

R  v  D

Court of Criminal Appeal  :Doyle CJ, Cox and Matheson JJ

Matheson J

The appellant was convicted in the District Court by  majority verdicts of a jury on three counts of unlawful sexual intercourse. The particulars of each count were as follows:

"First Count                
D between the 1st December, 1993 and the 17th December, 1993 at Whyalla, had anal sexual intercourse with Donna S, a person of the age of 10 years.

Second Count             

D between the 30th November, 1994 and the 25th December, 1994 at Whyalla, had vaginal (sic) sexual intercourse with Donna S, a person of the age of 11 years, by causing her to perform an act of fellatio upon him.

Third Count                 

D on the 29th March, 1995 at Whyalla, had vaginal sexual intercourse with Donna S, a person of the age of 12 years."

Donna S was the step-daughter of the appellant.  She was fourteen years of age at the time she gave evidence at the second trial.  At the first trial the appellant was also convicted, but the Court of Criminal Appeal set aside those convictions and ordered a re-trial (see R v D Unrep Jt No S6151delivered 26 May 1997).

The first count related to an occasion in December 1993.  Donna said that on the way back from the fish and chip shop, the appellant drove into the bush, off the highway, and sent Donna’s two brothers off to collect cans and bottles.  Donna said that the appellant told her to pull her pants down.  She did so and he thereupon anally penetrated her with his penis.

The second count was said to have occurred near Christmas 1994.  Donna said that, whilst in a shopping centre car park, the appellant instructed her to suck his penis.  She testified that she did so, whilst she was in the front seat and her two brothers and her sister were in the back seat.  Her mother was in the shopping centre at the time.

The third count related to what was alleged to have been the final sexual encounter between Donna and the appellant on 29 March 1995 at her home in Whyalla and in her mother’s bed.  On that occasion her mother was absent overnight.  Donna said that she was forced to suck the appellant’s penis, following which he penetrated her vaginally.

Mr Cuthbertson, who appeared for the appellant before this Court on the second appeal, criticised the learned Judge’s summing up in a number of respects.  The most serious criticism was that the learned trial Judge erred in directing the jury that certain alleged admissions made by the appellant to two witnesses, namely the complainant’s mother, who I will call C, and her mother’s friend, who I will call S, need not have been proved by the prosecution beyond reasonable doubt, as they were in the nature of corroboration. 

There was no requirement in this case that the complainant’s evidence be  corroborated.  However, his Honour gave what is commonly called "a corroboration type warning" to the jury.  He said:

"If, on your view of the evidence, there is no other evidence apart from what Donna has said, which you accept, which directly points to the accused having performed the acts of sexual intercourse in the respective counts, you can still convict if that evidence of Donna proves the sexual intercourse beyond reasonable doubt on that count.

However, in the absence of any such supporting evidence which you accept, I, as the judge, who is experienced in these types of cases, warn you that it would be dangerous to convict on any count based solely on an acceptance of Donna’s evidence until, after careful scrutiny, you are thoroughly satisfied of its reliability and that it does prove guilt beyond reasonable doubt.  This warning does not mean that you cannot convict, if you see fit, based on Donna’s evidence alone, but you must be extremely careful and sure before you did so."

The alleged admissions were made in the course of a telephone call by the appellant who was then in the Adelaide Remand Centre.  Apparently he rang the house of an acquaintance  who told him that C and S were there.  C gave evidence-in-chief that in the course of speaking to her husband on the telephone on that occasion, he said (to quote her evidence) "he done it to Donna and as soon as he said that, I handed the ‘phone to S and I went outside and broke down".  In cross-examination this exchange occurred:

"Q.    He said to you, didn’t he, that if he had done it, meaning if he had abused Donna, that if he had done it, he would have pleaded guilty by now.  That’s what he said to you, wasn’t it.

A.     I can’t recall the exact words.

Q.     But you don’t deny it could have been those words, do you.

A.     No, I don’t."

S said in evidence-in-chief that when the telephone was passed to her the appellant said "I did it to Donna".  She was asked in cross examination if she said anything about the alleged admission to the detective when she signed her statement several weeks later.  She said that she was pretty sure she did.  However, Detective Willing gave evidence that if she had told him of that admission on the 20th April he would have noted it, but it had not been noted.

In his evidence, the appellant admitted that he spoke to his wife on the telephone when he was in the Adelaide Remand Centre.  He claimed that he said to her "Look, if I had have done it to Donna, I would have pleaded guilty to the police, but I didn’t do it, I wouldn’t do that to the children".  He denied speaking to S at all.  The appellant was not cross-examined on the topic.

After dealing with this evidence, his Honour turned to consider other submissions made by defence counsel which he alleged impugned the credibility of C.  His Honour then continued:

"If you reject the evidence-in-chief of C about this admission you still have the evidence of S about it.  If you think the two are acting in collusion in saying it, that is that they cooked it up between them, then you would also reject the evidence of S about it.

If not, you need to consider how credible was the evidence of S about it and the denial of the accused.  You may well think that S lied about not having dobbed in Adam Taal to the police about impersonating a wildlife officer, but that’s for you.  If she had told such a lie on that occasion, could she also have told another lie about this alleged admission?  That is for you to consider.

To give support to the evidence of Donna, it is not necessary that you find that this admission has been proved beyond reasonable doubt.  For this purpose it is sufficient you accept it so that it confirms the evidence of Donna that the accused did sexually abuse her in some way.  If you find the admission was made by the accused, then you would convict if, on the whole of the evidence which you find proved, the guilt of the accused on a count has been proved but, if not, you would acquit.  If you do not find that the admission was made, then you must bear in mind the warning which I gave you earlier if you are minded to convict on the evidence of Donna alone." (my emphasis)

After the jury had retired, the appellant’s then counsel, Mr Kourakis QC, criticised this passage, and unsuccessfully asked for a re-direction.

The looseleaf Australian edition of Cross on Evidence at par. 15165 states that "the corroborative evidence does not need to be proved beyond reasonable doubt" and refers to Doney v The Queen (1990) 171 CLR 207 at 211. However, that is not correct. In their joint judgment in Doney at 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ), what the court actually said was:

"It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see Baskerville; Reg. v Hester [1973] AC 296 at p325." (my emphasis)

Mr Cuthbertson referred the court to judgments of the High Court in McKinney v The Queen (1991) 171 CLR 468, one of the so-called Mason Court’s early decisions as to the need to exercise care in regard to confessional evidence. In their joint judgment at pp475-477, Mason CJ, Deane, Gaudron and McHugh JJ said:

"A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end …

The question which is inevitably raised by a challenge to police evidence of confessional statements is, as earlier noted, whether it is a reasonable possibility that the police evidence is untruthful, which, in the circumstances, entails the possibility that police witnesses have perjured themselves and conspired to that end.  That is a different question from the question whether the police have, in fact, perjured themselves and conspired to that end."

At p483, Brennan J, as he then was, said:

"In every case where the prosecution case depends solely on a confessional statement that is uncorroborated and is challenged, a judge must direct the jury that they cannot convict unless they are satisfied beyond reasonable doubt that the confession was made and that it was true.  In some cases, it may be necessary to distinguish between those parts of a confessional statement which are inculpatory (the confession) and those parts which are exculpatory (a justification or excuse) and to give a direction that the jury must be satisfied beyond reasonable doubt that the exculpatory parts are untrue.  Mutatis mutandis, similar directions must be given when the confession is part only of the prosecution case."

In Evans v The Queen (1985) 38 SASR 344, the court had to consider the circumstances in which lies could amount to corroboration. King CJ, with whom Jacobs J agreed, referred to the leading case of Reg v Lucas (1981) 1 QB 720. In that case Lord Lane CJ set out what he described as four requirements for a lie told out of court to be capable of amounting to corroboration. After quoting therefrom, King CJ said at 347-348:

"I think that as a result of Chamberlain v The Queen (1984) 58 ALJR 133 a fifth point should be added relating to onus of proof. That case is authority for the proposition that a fact or facts from which guilt is to be inferred must be proved beyond reasonable doubt. Whatever questions may remain to be explored as to the precise reach of that decision in relation to evidentiary facts, it clearly applies to a fact which is to be relied upon as corroboration. It follows, in my opinion, that before a lie can be used as corroboration, the tribunal must be satisfied beyond reasonable doubt from evidence other than that of the witness whose evidence requires corroboration, that it is a lie and must also be satisfied to draw the inference beyond reasonable doubt that the lie results from a consciousness of guilt on the part of the accused.".

It must be observed that his Honour’s judgment pre-dated the judgments of the High Court in Shepherd v The Queen (1990) 170 CLR 573.

I also refer to what I said in R v Schlaefer (1992) 57 SASR 423 at 439.7 to 441.1.

In this case the Crown relied substantially on the evidence of the complainant. Apart from the alleged kissing incident - and the trial judge mentioned that only in passing, the only other evidence implicating the appellant was the alleged admission. The trial judge’s direction was therefore extremely important. I have reached the conclusion that it was erroneous, and that for this reason in itself the appeal must be allowed. I prefer to stop short of holding that every alleged corroborative fact must be proved beyond reasonable doubt. For example, circumstantial evidence can afford corroboration, and it may be that individual items thereof need not be so proved, see Shepherd v The Queen, supra, and as to lies as corroboration, see Edwards v The Queen (1993) 178 CLR 193 at 210. Here, however, the evidence in question, if accepted, not only afforded corroboration, but in its nature had in itself the capacity to lead to a conclusion of guilt. The jury should not have been directed that they need not be satisfied beyond reasonable doubt of the admission.

Mr Cuthbertson also complained that the learned trial judge should have drawn attention to the non-specific quality of the alleged admission.  I agree that it was necessary for his Honour to point out that fact to the jury, and to ask them to consider whether it was actually an admission of guilt on all or any of the counts. 

Another serious complaint made by Mr Cuthbertson was that the learned trial Judge failed to direct the jury on the medical evidence.  At the end of the summing up, Mr Kourakis unsuccessfully asked the judge to do so.

The medical evidence was relevant to the first and third counts.  Focusing on the third count, the complainant said that during that particular act of sexual intercourse the appellant had his penis in her vagina for "about twenty to thirty minutes".  She did say "it only went in a little way".

She was examined by Dr S.P. Cowie at Whyalla on 30 March 1995 at about 7.30 pm.  He examined her vaginal area.  He noted that the opening of the vagina was mildly red and that the hymen was slightly less pronounced than expected for her age.  He could see no conclusive sign of sexual abuse.  He did not note any abrasions to the labia.  The complainant did not give any history of pain in the area of her vagina in going to the toilet.

She was examined again in Adelaide on 4 April 1995 by Dr Leslie Woodard-Knight, a doctor employed in the Child Protection Unit.  She found that the complainant’s genitalia and anus were normal.  She said there can be penetration of the anus by an erect penis without any permanent scars or changes being visible on examination.  She said that injury after penile penetration to the anus was uncommon, but that on occasions a fissure or tear injuries were found.  There was nothing of that nature in this case.  With regard to the allegation about penile vaginal penetration on the 29 March, she said that if there was penetration of the vagina through the hymen she would expect to see an injury, but if penetration was not to that extent she would not necessarily see evidence six days later.  She said the hymen was about a centimetre from the opening of the vagina.  Twenty-four hours afterwards there might be redness or minor abrasions to be seen.  She said in the case of penetration that continues with a hard penis for something like half an hour you would be more likely to find abrasions.  In that situation it would hurt or sting if the victim urinated.

It is probably correct to say that the medical evidence was equivocal, but the appellant’s counsel relied on the absence of any finding confirmatory of the complainant’s evidence.  If this complaint stood alone, I might not interfere, but I consider that an adequate summary of the defence by the trial judge really did require a summary of the medical evidence, even if defence counsel had referred to it in his address.

I now turn to another ground of appeal.

"The Learned Trial Judge erred in directing the jury that evidence that Donna had masturbated a few times and that vaseline had been placed on her genitalia because it was sore should not be used against Donna in the trial because she was not given an opportunity to deny it or explain it."

This complaint arose from a passage in the cross-examination of the accused which it is necessary to set out in full:

"Q.    You gave evidence earlier that that vaseline bottle that we can see in the pictures, the only purpose of having that was for your cracked lips;  is that right.

A.     No, only cracked lips.  We have used it - might be once or maybe twice in all the times we’ve been married that we used it for sex.

Q.     You also used it when you had intercourse with your daughter Donna S.

A.     No, Ms McGrath, no.  I also would like to point out, Ms McGrath, that Donna S, she come in there a couple of times during we were married, and said that she had a sore private, and my wife asked me to get the cotton buds and she put some vaseline on her private.  I wasn’t there, I was outside.  And she done that, and apparently she had masturbated herself a few times.

Q.     Had you seen her do that.

A.     Well, I have seen her over at Jill’s - or I should say Nancy Ingram’s place - with her hands in her pyjamas;  taken the blanket away from her top and had her hands down there when my wife was going to check on the children when they were asleep at Jill’s place.  I took her hands out of there and pulled the blanket up and put her hands on top of the blanket.  Then the next day, she’d say ‘I’ve got a sore private’.  I told my wife to explain to her.  So I said ‘Have you been playing with it?’, and my wife went and put some vaseline on her private.

Q.     You’ve never told anyone this before, have you.

A.     What do you mean?

Q.     You didn’t tell the court about this last time.

A.     No, I didn’t.  I did mention it to Mr Mancini about it, but that didn’t go forward.

Q.     You just made that up then, didn’t you.

A.     No, I did not just make it up then either.

Q.     Is that the only occasion you say you saw Donna masturbate herself.

A.     What do you mean another time?  No.

Q.     You saw her on other occasions.

A.     She done it a few times over at Doug and Jill’s place, yes.

Q.     What are the other occasions that you have seen her do this.

A.     What do you mean?

Q.     You have told us of one occasion that you have seen her do this.  What’s another occasion.

A.     When we’d go to Doug and Jill’s place and play cards.  I did mention it to Mr Kourakis, but he didn’t wish to have to it go forward, leave it out.

Q.     Did you tell your wife about Donna doing this.

A.     Yes, I told me wife about it, and she didn’t do nothing about it.  Nancy Ingram knew about it too.  She just said - ask Cathy to explain it to you."

After the addresses and before his Honour summed up, Mr Kourakis informed his Honour, in the absence of the jury, that the appellant had in fact instructed the defence about the complainant masturbating.  I do not think Mr Kourakis can be criticized for this in all the circumstances, but he could not expect that this would necessarily deflect all adverse criticism.  However, in the circumstances, I think his Honour went too far.  He said:

"                 In his cross-examination the accused alleged, for the first time in this trial, that Donna had masturbated herself a few times and that Vaseline had been placed on her genitalia by her mother because it was sore, apparently as a result of the masturbation.

There is a legal rule which says that if such an allegation is to be made against a witness, it should be put to the witness in her cross-examination, so that she can have the opportunity to answer it.  You may think, as a matter of fairness, that that allegation of the accused, if you are prepared to give any weight to the accused’s evidence about it, should not be used against Donna in this trial because she was not given an opportunity to deny it or to explain it, but that is a matter for you.

While we’re on this piece of the accused’s evidence, it may also indicate that the accused had not previously told his lawyers about it, as you might have expected he would do in preparing his case for trial and that he was making it up as he went along.  He claimed, of course, that he had told his lawyers about it.  If you are of the view that he had not told them about it, that may affect your view of his general credibility.

You should also take into account on this the possibilities that he did tell his lawyers, but they either forgot to put it to Donna in her cross-examination, or they, for various forensic reasons, elected not to pursue it in evidence."

In my opinion, it would have been better if the learned judge had omitted the last two paragraphs.    

Mr Cuthbertson also complained that:

"the learned Trial Judge failed either adequately or at all to direct the Jury about the reasons for his warning that it would be dangerous to convict on the uncorroborated evidence of a child Complainant and in particular should have given specific directions on the possibility of a child failing to appreciate the significance of making a false accusation and the fact that a child may be easily influenced in the making of a false complaint."

I would reject this submission.

I have already quoted, supra, the "corroboration-type warning" his Honour gave the jury.  Earlier his Honour directed the jury thus:

"Donna was between 10 and 12 years of age when she says that the acts of intercourse occurred and she was 14 years of age when she gave her evidence to you.  Obviously, you need to take her age into account when assessing her evidence and to draw on your experiences in life of dealing with children in that age group.  She did not have the maturity and the sophistication of an adult and you may think she did not even look or act her age of 14.  It is for you to consider the extent to which her age may have affected her ability to remember what did happen and to articulate it correctly to the police and you and whether her age may be relevant on whether she may have acted under the influence of other people.  She said that she was not good at arithmetic and at remembering dates.  When she was asked in cross-examination how much older she was than her younger sister Rebecca, she was able to say that she was 14 and Rebecca was 11, but was unable to give a direct answer to the question - because apparently she could not subtract 11 from 14.  Perhaps that was because of the pressure and the nervousness of the witness box or perhaps it was indicative of her lack of intellectual skills.  That’s something that you will have to consider.  We who are adults, and I suspect particularly those of us who are parents, have a strong tendency to be protective of children - not just our own children; any children - and perhaps particularly children who appear to be weak and vulnerable.  Our natural inclination is to want to stand up for children and to be easily outraged when other adults have possibly exploited them or abused them.  However, we need to put aside our emotions and our inclinations in this direction when we are considering whether a child has told us the truth or not and to look calmly, dispassionately and rationally at the evidence which we have on which we are to base our decision.  Assessing the credibility of a young person can much be a much more difficult task than assessing the credibility of an adult.  I believe our experiences of life show that sometimes children are patently truthful and honest, but sometimes they can be cunning and devious.  In cases which turn on the evidence of children and young people, the law still requires proof beyond reasonable doubt before there can be any conviction.  That is the same as in any other case.  The onus of proof is not lowered merely because a child is the alleged victim."

It may have been better if the two passages had followed each other, but I can not think that the jury overlooked the link between the two passages.

There were other grounds of appeal, but the only one worthy of mention was the complaint about his Honour’s direction to the jury concerning the witness Adam Taal who was called by the appellant. On the defence case, it was perhaps surprising that the appellant’s then counsel did not question Taal in chief about whether he was present on the occasions to which counts 1 and 2 related. His Honour directed the jury that they could infer that the reason that the questions were not asked was that the answers would not support the appellant’s case. His Honour also referred to the fact that the appellant’s counsel did not cross-examine Donna as to whether Taal was present or not. The appellant’s counsel referred to R v Manunta (1990) 54 SASR 17 at 23. It is true that the prosecutor could have cross-examined Taal, and did not do so, but she may quite reasonably have preferred to comment on the omissions of counsel for the appellant. Another judge might have referred to the prosecution’s omission, but I do not think that was essential. The court was referred to Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389. At p418 Handley JA said:

"There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates ‘as the most natural inference that the party fears to do so’. This fear is then ‘some evidence’ that such examination in chief ‘would have exposed facts unfavourable to the party’: see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.

There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949-951."

I am not persuaded that his Honour’s directions on this aspect of the evidence were erroneous.

I would allow the appeal, set aside the convictions and order a retrial. Whether the appellant should actually be tried again will be for the DPP to decide.  In reaching that decision, he may deem it proper to take into account that there are some weaknesses in the Crown case, that the appellant has already undergone two trials and has spent 18 months in custody.

Doyle CJ

In my opinion the appeal should be allowed, the convictions should be set aside, and a retrial should be ordered.

I agree in substance with the reasons of Matheson J.  I add only this.  In my opinion it is not necessary to consider whether and when corroborative evidence must be proved beyond reasonable doubt or establish any proposition beyond reasonable doubt.  The answer to those questions will depend upon the circumstances of the particular case.  Moreover, in this particular case corroborative evidence was not required as a matter of law.  Whatever the answer to those questions might be, in my opinion the alleged admission in the course of the telephone conversation had, standing alone, the ability to lead the jury to a conclusion of guilt.  For that reason, as Matheson J says, the jury should not have been directed that they need not be satisfied beyond reasonable doubt of the admission.  To so direct them, in my opinion, gave rise to a danger of the jury basing a conclusion of guilt upon a finding not made beyond reasonable doubt.

Cox J

In my opinion this appeal should be allowed.  I agree in substance with the reasons of Matheson J and I agree also with the additional remarks of the Chief Justice.