R v E, DJ

Case [2012] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v E, DJ

[2012] SASCFC 6

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kourakis)

17 February 2012

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - CHILDREN

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal from judge sitting alone - appellant convicted of aggravated indecent assault - whether out of court statements admissible pursuant to s 34CA of the Evidence Act 1929 - whether the evidence of the complainant was corroborated - whether general warning required - whether special warning required for judge sitting alone - whether diary kept by victim admissible - whether verdict unreasonable and not supported by evidence.

Held:  Appeal dismissed - judge correctly admitted out of court statements - judge correctly directed himself - evidence approached with special care - no other warning was required - judge correctly admitted diary - proper directions were given - verdict not unreasonable.

There was evidence which corroborated the evidence of the complainant as to complainant's presence at appellant's house on a given weekend: per Anderson J - Vanstone J agreeing - Kourakis J disagreeing.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Evidence Act 1929 (SA) s 34CA, s 12A and s 12A(d); Evidence Act (Qld) s 93A, referred to.
BRS v R (1997) 191 CLR 275; R v Kuster (2008) 191 A Crim R 449; R v J, JA (2009) 105 SASR 563; Gately v The Queen (2007) 232 CLR 208; R v Wojtowicz (2005) 156 A Crim R 237; M v R (1994) 181 CLR 487; R v McConnon (1951) SASR 22; R v Dossi (1918) 13 Cr App Rep 158; Eade v The King (1924) 34 CLR 154, discussed.
R v Lindsay (1977) 18 SASR 103; R v Stephenson (1978) 18 SASR 381; R v Kalajzich (1989) 39 A Crim R 415; R v Yates [1970] SASR 302; R v Byczko (No 1) (1977) 16 SASR 506; R v Berrill (1982) 5 A Crim R 431; R v Tripodi [1961] VR 186; R v Perera [1982] VR 901; Pitman v Byrne [1926] SASR 207; R v Mercer (1993) 67 A Crim R 91; Tumahole Bereng v The King [1949] AC 253; R v Lucas [1981] QB 720; R v Weetra (2004) 236 LSJS 238; R v Libke (2007) 230 CLR 559, considered.

R v E, DJ
[2012] SASCFC 6

Court of Criminal Appeal: Vanstone, Anderson and Kourakis JJ

  1. VANSTONE J: I agree with the orders proposed by Anderson J and broadly agree with his reasons for decision.  I would add the following observation.

  2. Ground 1 complains of error in the judge’s finding…

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R v E, DJ [2012] SASCFC 6
Case
[2012] SASCFC 6
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated indecent assault. The appellant, R v E, DJ, was convicted by a judge sitting alone. The appeal was heard by Vanstone, Anderson, and Kourakis JJ of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the trial judge had correctly admitted out-of-court statements made by the complainant pursuant to section 34CA of the *Evidence Act 1929* (SA), whether the complainant's evidence required corroboration and if it was sufficiently corroborated, whether a warning under section 12A of the Act was required or had been adequately given by the judge to himself, and whether the verdict was unreasonable or unsupported by the evidence. The admissibility of a diary kept by the complainant was also challenged.

The majority of the Court, comprising Vanstone and Anderson JJ, dismissed the appeal. They found that the trial judge had correctly admitted the out-of-court statements, noting that their admissibility was not opposed by defence counsel at trial. While Anderson J found that there was evidence corroborating the complainant's presence at the appellant's house on the relevant weekend, Kourakis J disagreed on this specific point. However, Kourakis J agreed that the appeal should be dismissed, reasoning that even if section 12A of the Act applied to a judge sitting alone, which he doubted, the obligation to give a warning did not arise as the appellant's trial counsel had not requested it. He further noted that the trial judge had scrutinised the complainant's evidence with special care, and that the judge's finding of corroboration did not improperly influence his determination of guilt. The Court also held that the diary was correctly admitted and that proper directions were given.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

APM’s first complaint was made to her mother on 3 July 2009 and she was interviewed by police on 27 July 2009.Background APM when called to give evidence at the trial was allowed to refresh her memory from a diary entry which she said she made shortly after the alleged incident. In addition to her oral testimony, the prosecution led three out of court statements of APM for the purpose of establishing the truth of their contents. The out of court statements were:·First, an oral statement made by APM to DM on 3 July 2009. APM told DM that she had been touched in an inappropriate way by the appellant. She went on to describe the incident to DM. Defence counsel at trial did not challenge that this was a statement which was admissible under s 34CA of the Act.·Second, a written statement made on the same day by APM immediately after the oral statement and read out by APM to DM. After APM spoke to DM she asked for a notebook to record in writing what had actually happened between her and the appellant. She wrote down the details of the incident in the notebook when DM was not present. Immediately after she finished writing, APM read out to DM what she had written. Again there was no objection to the admissibility of the notebook from defence counsel.·Third, an interview between APM and a police officer on 27 July 2009. The admissibility again was not opposed by defence counsel at the trial. These out of court statements were admitted pursuant to s 34CA of the Evidence Act 1929 (SA) (“the Act”). There was no objection from defence counsel to this course. On appeal, the admission of those statements into evidence is challenged notwithstanding that they were admitted with the consent of defence counsel. DM gave evidence, in particular to establish that APM was at the home of the appellant at the relevant time. The appellant, who gave evidence, denied that APM was present at his home over that weekend and stated that he last saw her on 28 December 2008. Telephone records were produced in relation to conversations leadings up to that weekend between DM and the appellant. The judge found that those records in conjunction with the oral evidence did establish that APM was at the appellant’s house on that weekend. CM was also alleged to be present in the appellant’s house when the alleged offending took place. APM told the court that she left her sister watching TV in the lounge room and she went into the appellant’s bedroom to watch TV with him. She said that at this time, while they were both sitting on the bed, the appellant rubbed her nipples underneath her singlet and rubbed her vagina inside her underpants. APM said that whilst she was being touched by the appellant he asked her “if it felt nice”. She said she did not know whether she was touched first on her nipples or her vagina. She said she thought the appellant was drunk at the time. As I have said, the appellant denied that the incident could have taken place because he said that APM was not at his home on the weekend of 10 and 11 January 2009. To support this evidence he called his father, TE, and his then partner, AC.

Evidence

Evidence Before The Court

This appeal ground relates to the trial judge’s finding that the evidence of APM was corroborated. The trial judge did so in considering whether a warning under s 12A of the Act was required. Section 12A applies only where there is uncorroborated evidence of a child.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 adults. Ms Chapman argued that the judge was wrong in finding that APM’s evidence was corroborated. She argued that the corroboration appears to be in relation to APM’s evidence that the offending occurred when she was staying at the appellant’s home on 11 January 2009. The judge found at [150] that the evidence from DM and the text messages between DM and the appellant sent between 8 July 2009 and 11 July 2009 supported APM’s evidence in that respect and that the combined force of all this evidence refuted the appellant’s contrary assertion. He said:[150]In the present case, I am satisfied, for reasons that I will elaborate on shortly that DM gave truthful evidence in relation to APM spending the weekend of 10 and 11 January 2009 with the accused. I am also satisfied that the text messages sent during the period Thursday 8 July - Sunday 11 July 2009 support APM’s evidence in that respect. DM’s testimony and the text messages separately, and conjunctively, tend to strengthen the complainant’s evidence. That body of evidence serves to show that APM was, contrary to the accused’s assertion, in his custody on the weekend of the alleged offence. Ms Chapman submits that neither the evidence placing APM at the appellant’s house on that weekend, nor his denial (found to be false) that she was there, could amount to corroboration of the indecent assault. Mr Kimber SC for the Director submitted that corroborative evidence does not have to illustrate precisely that the crime charged was committed by the accused. He says it is sufficient that the evidence said to be corroborative renders a person’s evidence on a material fact more probable. He relies on Brennan CJ in BRS v R (1997) 191 CLR 275 at 284 and the Victorian Court of Criminal Appeal in R v Kuster (2008) 191 A Crim R 449 at [17]. In BRS v R Brennan CJ said at 284:Where corroboration is sought for the evidence of a complainant in a case involving sexual intercourse, it is not necessary that the corroborative evidence should tend directly to prove the act of intercourse.And also at 285Evidence need not tend to prove a “similar fact” offence in order to be corroborative; it is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends.

Decision

Reasons for decision

ANDERSON J
I have had the opportunity of reading the reasons of Vanstone J. I agree there is a question of whether the terms of s 12A of the Act apply to a judge sitting without a jury.Conclusion It follows from my earlier reasons that I would dismiss the appeal. In relation to the two grounds on which permission is required, grounds 1 and 7, I would grant permission. However, I would dismiss the appeal. KOURAKIS J: I agree that the appeal should be dismissed. I agree with the reasons of Anderson J save for his conclusion that there was evidence which corroborated the evidence of APM. However, my view that APM’s evidence was not corroborated does not affect the result of this appeal for the following reasons. Even if one were to assume that s 12A of the Evidence Act 1929 (SA) (the Act) applied on its terms to a trial by judge alone, a proposition that is most doubtful, the obligation to give the warning does not arise unless a party to the proceedings asks that the warning be given. The appellant’s trial counsel did not ask the Judge to warn himself. Accordingly, the only question on appeal is whether the way in which the Judge approached the complainant’s evidence has resulted in a miscarriage of justice. In my view, it has not. Even though the Judge did not formally give himself a warning in accordance with s 12A of the Act, he accepted that it was necessary to scrutinise APM’s testimony with special care and he did so. Finally, even though the Judge, in my view, wrongly found that the independent evidence that APM was with her father on the access weekend corroborated her evidence for the purposes of s 12A of the Act, in determining whether the appellant had indecently assaulted APM in the way she alleged the Judge did not reason that APM’s proven presence, in itself, made her account of the events more likely to be true. It remains for me to explain my conclusion that APM’s presence at her father’s house on an access weekend does not corroborate her account of sexual offending on that weekend. I commence by observing that if the appellant had admitted that APM was at his home on the weekend in question, but had denied the commission of the offence, his admission, or other independent evidence of her presence, could not corroborate APM’s evidence of its commission. If it were otherwise, the evidence of a complainant would be corroborated by the mere proximity of the accused even where there were obvious and innocent reasons for that proximity. The proposition that mere presence, even close presence, between the accused and the complainant is, in my view, not supported by the authorities. In R v McConnon[1] the conviction of a school teacher for the indecent assault of his student was quashed on appeal and a retrial ordered, because it was held that the teacher’s admission that he might on occasion have touched students when standing at their desks to help them with their work was not corroboration. In R v Dossi[2] the appellant’s admission to fondling two young children was held to be corroboration, because the jury were entitled to find that in all the circumstances an innocent explanation for that conduct was less likely than a guilty one. Nonetheless, the Court of Appeal held that the mere presence of the children in the company of the appellant was not corroboration. [1] (1951) SASR 22.[2] (1918) 13 Cr App Rep 158.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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