R v E, DJ - [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

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.
Ground 1 complains of error in the judge’s finding that the evidence of APM was corroborated. This was said to be relevant to s 12A of the Evidence Act 1929 (SA) which is set out in the reasons of Anderson J. It provides, in essence, that in a criminal trial a judge must not warn the jury that it is unsafe to convict unless the evidence is uncorroborated and certain circumstances apply. As I followed it, the argument on this ground ultimately proceeded as an argument about whether the appellant’s denial of APM being at his house on the relevant weekend, if shown to be false, could amount to corroboration. As Anderson J has concluded, the judge was entitled to find that it did. However, I question whether the terms of s 12A apply to a judge sitting without a jury in any event. There was no argument on this point and so it is better not to express a final opinion about it.
ANDERSON J.
Introduction
The appellant appeals from a conviction in the District Court. He was found guilty by a judge sitting alone of the offence of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, APM, was his daughter who was aged 9 at the time of the offence.
The complaint relates to the events of one night, on or about Sunday 11 January 2009, at the appellant’s home. The appellant and the complainant’s mother, DM, had lived separately for a number of years but the appellant had access to APM on weekends and school holidays pursuant to orders made in the Family Court. The evening of Sunday 11 January 2009 was within a period during which DM and the appellant had arranged for APM to stay with the appellant. It was alleged that the complainant’s younger sister, CM, also stayed with the appellant on the occasion in question. The appellant denied that APM and CM stayed at his home on 11 January 2009.
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.
AC was pregnant with the appellant’s child. The appellant gave evidence that she had moved into his home. He initially said that she had moved in by the weekend of 10 and 11 January 2009, but later he said he did not know when the move occurred. The appellant said, however, that whenever it was that AC moved in, he was sure that she spent that particular weekend at his home. AC said that she commenced living with the appellant before the weekend of 10 and 11 January 2009 and lived with him continuously after that time. She said that neither of the children spent the weekend of 10 and 11 January 2009 with them. TE gave evidence to the effect that he last saw the children in the company of his son at a party in late December 2008. He said the next time he saw the appellant and APM and her sister was in March 2009. His evidence does not assist at all.
Amended grounds of appeal
The amended grounds relevant to this appeal are as follows:
1.The learned trial Judge erred in finding that the evidence of APM was corroborated.
2.The learned trial Judge erred in failing to adequately warn himself about the evidence of APM in the particular circumstances of the case.
3.The learned trial Judge erred in admitting and relying upon the notebook entries (exhibit P6) pursuant to s 34CA Evidence Act 1929, the evidence not being a “statement” made by CM to “a person”.
4.The learned trial Judge erred in
a. finding that all three out of court “statements” (statement of APM to mother on 3 July 2009; notebook written by APM on 3 July 2009 and interview between APM and police on 27 July 2009) had sufficient probative value to be admitted pursuant to section 34CA Evidence Act 1929;
b.     failing to exclude one or more of those “statements” in the exercise of his discretion; and
c.     relying upon all three “statements” as demonstrating consistency on the part of the complainant.
5.The learned trial Judge erred in his reliance upon APM’s diary (exhibit 5) including his use of the diary to buttress APM’s credit.
7.The verdict is unsafe and unsatisfactory, particulars of which include:-
a.     There was no corroboration
b.     The circumstances surrounding the making the allegation including
i.APM’s mother and the Applicant separated in 2004 with continuing animosity
ii.In February 2009, APM found out that the Applicant’s partner was pregnant
iii.In February 2009, the violent behaviour of APM’s mother’s partner caused the family to move into a domestic violence shelter, staying there until August 2009
iv.In February 2009, APM found out that her father did not want to see her
v.The strong desire of APM to see her father.
vi.APM and her sisters had been having counselling since 2008
vii.The strength of APM’s mother’s beliefs in January and February 2009 concerning prior sexual misconduct by the Applicant toward APM which were completely unfounded.
c.     APM did not make any allegation to her counsellor despite there being sessions between January and July 2009 with her counsellor
d.     APM made the allegation after seeing a child abuse magnet on the fridge at the domestic violence shelter
e.     APM’s mother “demonstrated” the touching after APM said “Daddy put his hands in my undies”
The judge of this court hearing the application for permission to appeal granted permission only in respect of grounds 2, 3, 4 and 5.
The appellant in this Court seeks again to argue grounds 1 and 7. The Court heard full argument on those proposed grounds. Permission to appeal was refused in relation to ground 6. Ms Chapman SC for the appellant advised that the appellant does not wish to pursue this ground. I will deal with the grounds, as counsel did, by combining grounds where practical.
Ground 1 (permission to appeal required)
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 285
Evidence 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.
The Victorian Court of Criminal Appeal in R v Kuster said at [16] and [17]:
[16]This Court has repeatedly rejected the notion that corroborating evidence must itself prove that the crime was committed and that the accused was involved in its commission. Thus, in R v Rayner, Winneke P observed:
In truth, the essence of corroboration is that it is evidence coming from a source independent of the person to be corroborated which renders that person’s evidence in a material particular more probable, in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission: R v Baskerville [1916] 2 KB 658 at 667 per Lord Reading CJ; R v Kendrick [1997] 2 VR 699 at 708.
Similar observations were made in R v Taylor. In R v Ngo, the Court said:
The locus classicus of what amounts to corroborative material is the decision in Baskerville. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove the crime was committed and that the accused was involved in its commission.
In none of these cases did the corroborative evidence, viewed in isolation from the evidence to be corroborated, prove the commission of the offence or that the accused was implicated in it.
[17]In BRS v The Queen, Brennan CJ observed that: “[I]t 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.” The essential quality of corroborative evidence is that it must independently “confirm”, “support” or “strengthen” the evidence to be corroborated, by rendering that “other evidence more probable”. It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.
[Footnotes omitted]
Whether APM was at the appellant’s house at the time the alleged offending was said to have occurred was one of the key issues in the trial. Both DM’s evidence and the text messages independently “strengthened” APM’s evidence on this key issue. In my view, the judge was correct in finding that the evidence called and accepted by him meant that the appellant’s denials were false. Therefore the evidence was capable of being corroborative of APM’s evidence. The judge correctly applied the principles set out above when he said at [149]:
[149]Corroborative evidence need not be evidence of the commission of the charged crime. The essence of corroborative evidence is that it “confirms”, “supports” or “strengthens” other evidence in the sense that it “renders the other evidence more probable”. It is not necessary that the corroborative evidence standing alone should establish any proposition beyond reasonable doubt. It is sufficient if it strengthens the evidence of the witness who requires corroboration by confirming or tending to confirm the accused’s involvement in the events as related by the witness.
[Footnotes omitted]
Because this ground is related to ground 2, in which permission was granted, I would grant permission on ground 1 but dismiss the appeal on that ground.
Ground 2 (permission granted)
Ground 2 states that the judge failed to adequately direct himself by way of a warning concerning the evidence of the complainant. Ms Chapman submits that a warning was required because, first, there was a delay in making the allegations, secondly, there was a motive to make up a story, and thirdly, APM had an ability to fabricate events as evidenced by her diary entry of 19 January 2009. In conjunction with the delay in making the allegation between early January and early July, Ms Chapman refers to the fact that APM visited a counsellor she was seeing regularly on Monday 19 January 2009 and no complaint was made to the counsellor.
Mr Kimber submitted that the judge dealt with both the question of delay and the topic of the complainant’s counselling in his directions to himself. His Honour dealt with delay in his reasons at [143] and directed himself to approach the complainant’s evidence with special care: see His Honour’s reasons at [151]. His Honour also dealt with the failure of the complainant to complain to her counsellor at [142] to [143] and [177] to [179].
There may be a number of reasons why the complainant would not mention the incident to her counsellor. There is no evidence as to the nature of the counselling or the type of questions the counsellor asked her. There is no evidence as to whether it was a counselling session in which the complainant responded to questions asked by the counsellor or whether it was a general discussion and if so upon what topics.

In relation to motive, Ms Chapman refers also to the upheaval in APM’s life and in particular her discovery of the fact that the appellant’s partner, AC, was pregnant and that her father was the father of the unborn child.
Mr Kimber submitted that the only evidence from APM about this was that she was not upset on hearing that AC was pregnant. It was not put to her that this in any way motivated a false complaint. I agree with Mr Kimber’s submission. In addition, the trial judge observed APM in the witness box and was able to assess her response to the questions asked.
Ms Chapman next referred to the diary entry that illustrates, in her submission, how the complainant had fabricated her evidence. She pointed to a diary entry for 19 January 2009. It read:
Go to dad’s house, do stuff with our dad, watch TV at dad’s house, have fun with daddy.
Mr Kimber submitted that this is not an entry as to what happened on the 19^th but an entry in advance or anticipation of APM going to her father’s house. I agree with that submission.
In relation to any warning required, the judge directed himself to approach APM’s evidence with special care. He did not specifically warn himself that it was unsafe to convict. Mr Kimber argues that under s 12A of the Act he was not required to do so. Two of the essential pre-conditions for the giving of the warning, as set out in s 12A, were not satisfied. APM’s evidence was found to be corroborated and no further warning was requested.
I do not regard the reasons advanced by Ms Chapman under this ground of appeal as amounting to sufficient reasons for a warning under s 12A(d). Even if the evidence was uncorroborated, no warning was requested as required by s 12A(d) and in those circumstances the judge adequately directed himself in approaching the evidence of the complainant with special care for the reasons he gives at [151]-[152].
In my view ground 2 is not made out and I would dismiss the appeal on this ground.
Grounds 3 and 4 (permission granted)
Much of the argument advanced by Ms Chapman in this appeal relates to grounds 3 and 4. These grounds relate to the admissibility of the three out of court statements referred to earlier. Section 34CA of the Act reads as follows:
34CA—Statement of protected witness
(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)In this section—
protected witness means—
(a)     a young child; or
(b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
It is the first of the preconditions for the admission of an out of court statement which is relevant in this appeal. The statement must have “sufficient probative value” to justify its admission. In this case there were three such statements as I have described. The first out of court statement admitted was APM’s complaint to her mother on 3 July 2009. The second was APM’s note in her notebook written on 3 July 2009, shortly after she made the complaint to her mother. Finally there was the interview with the complainant by the police on 27 July 2009.
In relation to all three statements it is conceded by Ms Chapman that the evidence in each case was admitted at trial without objection from defence counsel.
The basis of Ms Chapman’s submission in relation to these grounds was that if one out of court statement becomes admissible because it passes the “sufficient probative value” test, then any other statements of similar content should be analysed to see what additional probative value they have. She referred to Duggan J in R v J, JA (2009) 105 SASR 563. Duggan J said at [64] to [66]:
[64]It was submitted in Gately that a party cannot tender a statement under s 93A as evidence of the facts and, at the same time, call oral evidence from the maker of the statement upon the same subject. Hayne J rejected that proposition. He said:
The stated premise (s 93A(1)(b)) upon which s 93A is engaged is that the maker of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement “call as a witness the person whose statement is so admitted” (s 93A(3)). Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an “other party” to “call as a witness” the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence-in-chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called “as a witness”, not only “made available for cross-examination”. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such that the tendering party is precluded from adducing evidence‑in-chief from the maker about the matters dealt with in the statement. [Footnote omitted]
In my view the same result must follow under s 34CA.
[65]I would reject Mr Muscat’s argument that, if the prosecution chooses to examine the protected witness, the trial Judge should exclude the out‑of‑court statement as it would be no more than a previous consistent statement which did not enhance the complainant’s credit.
[66]The purpose of admitting a statement under s 34CA is not to enhance the complainant’s credit, but to provide to the court with material which may be used to prove the truth of the facts asserted in the statement. It is obvious that the defence might wish to draw attention to inconsistencies between the complainant’s version in a statement admitted pursuant to s 34CA and the complainant’s evidence in court. Against that background, the prosecution might assert consistency between the two statements. However, the principal purpose of the section is not to provide an occasion for demonstrating consistency or inconsistency, but rather to put forward a version which can be acted upon in the manner described in s 34CA(3).
[Footnote omitted]
Ms Chapman submitted that where there are proposed multiple out of court statements with substantially the same content, the only purpose for admitting more than one such statement is to enhance the credit of a witness. That is, by demonstrating consistency of their evidence.
In R v J, JA, the court was not asked to consider the admissibility of multiple out of court statements. Rather, it was asked to consider whether a witness could be examined in court when an out of court statement had been admitted pursuant to s 34CA. In determining that a witness could be examined, Duggan J referred to the High Court’s decision in Gately v The Queen (2007) 232 CLR 208. Gately involved the admission into evidence of a taped recording of the complainant’s evidence and the question whether, in addition to that recording, a written statement made by the complainant to the police was admissible under the provisions of s 93A of the Evidence Act 1977 (Qld). Hayne J stated at [105]:
[105]Secondly, a statement admitted under s 93A is admitted as evidence of the facts that the statement tends to establish; it is not admitted to bolster the credit of the maker of the statement. The general rule (94) that prior consistent statements of a witness are not admissible to bolster the credit of the witness is not engaged. Because the statement is admitted as evidence of the facts it tends to establish, the hearsay rule is engaged. But the statute provides an exception. It operates according to its terms. Whether or not the maker of the statement is called to give evidence, the statement of a child is admissible as evidence of the facts that the statement tends to establish, if the conditions specified in s 93A are satisfied.
Hayne J’s statements were accepted by the other members of the court on this topic. Ms Chapman further submitted that the trial judge erred because he relied upon the statements in an impermissible way. She submitted that the judge had used the statements to find that APM’s evidence had been substantially consistent, that is, consistent both in court and in the multiple out of court statements. She argued that this was an impermissible use of the statements.
Ms Chapman submits that the interpretation by the High Court of s 93A of the Queensland Act does not apply to s 34CA. Ms Chapman submitted that the words “sufficient probative value” are not included in the relevant Queensland legislation and as such, s 93A can be interpreted as providing a right to tender prior written statements. Ms Chapman submitted that s 34CA does not provide a right to tender out of court statements. She submitted that under s 34CA the court, where asked to admit multiple out of court statements, should be concerned with each of the out-of-court statements and whether they individually satisfy the “sufficient probative value” test.
Mr Kimber submitted that Hayne J in Gately was emphasising that, once the out of court statement was admitted, the truth of its contents was established provided the conditions of the section were satisfied: see Hayne J at [105].
Mr Kimber also referred to Martin CJ in R v Wojtowicz (2005) 156 A Crim R 237. The relevant Northern Territory legislation in this case contained the words “sufficient probative value”. His Honour set out the relevant section at [22] and said at [24]:
[24]It is readily apparent that a primary purpose of the reform package is to offer increased protection for children and other vulnerable witnesses. In that context s 26E creates an exception to the rule of hearsay evidence in respect of a child’s statement to another person if the court considers the evidence to be of “sufficient probative value as to justify its admission”. No other guidance is given as to the matters to which the court should have regard in determining whether to admit a statement pursuant to s 26E.
Mr Kimber analysed the statements from the point of view of whether they had sufficient probative value. Mr Kimber argued that s 34CA did not contemplate that there should only be one out of court statement admitted where there are subsequent statements each of which have the requisite probative value. He submitted that there is no prohibition upon a witness giving evidence of the same facts established by an out of court statement: see R v J, JA at [62]-[64]. Therefore, in many cases the section will operate so that there are two consistent bodies of evidence before the court going to prove the allegations. That is, the evidence of the protected witness at trial and any out of court statements.
Mr Kimber submitted that the only relevant pre-condition for admissibility was that each of the three statements has “sufficient probative value”.
Mr Kimber submitted that the first statement by APM to her mother was admissible pursuant to s 34CA for the truth of its contents. The judge found it to be of sufficient probative value as it related directly to the allegation the subject of the charge. There was nothing to show the statement to be inaccurate or unreliable and the trial judge declined to exercise his discretion to exclude it.
There was no objection to the notebook being admitted under s 34CA and the judge declined to use his discretion to exclude it. Again it was used as evidence as to the truth of its contents and Mr Kimber submitted that the trial judge was correct to admit it under s 34CA on that basis.
There was no reason why the notebook, as a statement in writing, should not be admitted. As Mr Kimber submitted, there is no definition of “statement” in the Act and such evidence is given a broad description: see R v J, JA at [15]:
[15]The court is empowered to admit evidence “of the nature and contents of a statement made outside the court”. This is a description of wide import. There is no reason why the answers given by the complainant in answer to the police officer should not be considered in their entirety as a statement for the purposes of the section
The notebook should have been introduced primarily through APM’s evidence rather than that of her mother. Her mother was called and gave evidence of the circumstances in which the statement was prepared and then read to her. In my view there is no miscarriage in those circumstances.
As to the police interview the judge found that it was conducted appropriately and there was no “improper leading or suggestion”: see reasons at [130]. Furthermore as His Honour says at [130] there was nothing to suggest any impairment of APM’s memory over the six months that had elapsed since the incident.
The judge explained in his reasons why he admitted the three statements under s 34CA. In particular His Honour said at [130]:
[130]In the present case, the three pre-conditions of admissibility were, in my view, satisfied in relation to each of the three items of evidence. As to the first requirement the statements had sufficient probative value (s 34CA(1)(a)). Each statement directly related to the allegation that the accused indecently assaulted the protected witness. There was no objective material to indicate that the statements were demonstrably inaccurate or unreliable. It is true that the complaint was made, and the notebook was written up, almost six months after the alleged offence. But such a delay does not of itself indicate unreliability. In relation to the complainant’s interview it was conducted appropriately by Det Sgt Martin. The complainant related her allegations without any improper leading or suggestion. Furthermore, there was nothing to suggest in the interview that due to the amount of time that had passed since the alleged offence that her memory was impaired in any significant way.
[Footnotes omitted]
In my view the trial judge’s analysis of the statements, and His Honour’s description of how and why he dealt with them as being sufficiently probative have not been shown to be in error. I would therefore dismiss the appeal on both grounds 3 and 4.
Ground 5 (permission granted)
The diary kept by APM at the time of the alleged offence was admitted by the judge initially pursuant to s 34CA. The judge on reconsidering the matter recanted on his earlier decision and said at [146] of his reasons:
[146]Because the diary could not be admitted under s 34CA I have not used any of the entries in the diary as evidence of the truth of the facts asserted in the entries. The contents of the diary are relevant only for the purpose of assessing the credibility and reliability of APM’s assertion that the alleged offence can be linked to Sunday 11 January 2009 by reference to the contents of the diary. In order to assess that evidence it is appropriate to consider the contents of the entry for 11 January in the context of the diary as a whole.
APM said that she made an entry in the diary within a day or so of the alleged incident. The judge sets out the relevant diary entry at [37] of his reasons. The entry for 10 January included the words, “We went to our daddy’s house until Monday. We haven’t seen him in a while”.
Then on 11 January the complainant wrote, “Today we are at our dad’s house. We watched Happily Never After and [CM] watched Ella Enchanted while me and my dad watched TV up in his room”.
The next three lines in the diary were crossed out and after those lines the complainant wrote, “I had fun with my dad”.
Forensic examination of the lines crossed out established that the words were, “Sometimes I don’t feel comfotarble [sic] with him because he touches me and rubbed [crossed out] masaged [sic] in places that I don’t like”.
APM said that she had crossed out the lines in her diary because her cousin had asked to look at her diary. She said that she later wrote in the words “I had fun with my dad” to give the impression that nothing had occurred between her and her father. The judge accepted APM’s explanation. He emphasised how he used the diary in the passage which I have set out earlier.
Ms Chapman submitted that the judge used the diary in an impermissible way, that is, as a prior consistent statement to bolster the credit of APM. She referred to the judge’s reasons at both [160] and [176]. There the judge said:
[160]I do not accept that APM might be mistaken about when she last saw her father. Nor do I accept that she might have fabricated the entries in her diary. In my view, it is of some significance that that part of the entry for 11 January which has been crossed out suggested that the accused had inappropriately touched her. I accept APM’s evidence that she crossed out that section in her diary and did so to conceal from her cousin what she had written about her father. To my mind, if APM was intent on fabricating a story it is surprising that she would have crossed out the very words that served to implicate him.
[176]There is nothing inherently implausible about APM’s various descriptions of the alleged incident and the surrounding circumstances. As I earlier pointed out the crossed out section of the diary was, in my view, a compelling contra indication of fabrication. Furthermore, her descriptions of the alleged incident are substantially consistent. The only aspect of those descriptions that Mr Amey suggested amounted to an indicator of unreliability was her evidence that she could not remember whether the accused touched her nipples or vagina first. To my mind, it is hardly surprising that a child might have difficulty remembering such a minor detail some 2½ years after the event.
Mr Kimber submitted that the judge properly admitted the diary for the purpose of assessing the credibility of APM’s allegation that the offence occurred on Sunday 11 January by reference to the entry in the diary for that day: see [146] of His Honour’s reasons. He submitted that the judge specifically directed himself that the diary could not be used for the truth of its contents.
As Mr Kimber pointed out, the defence had made the timing of the alleged offence a crucial issue at the trial. In particular, the alleged fabrication of the diary was made a key issue by the defence. The defence suggested that APM at the urging of her mother made false entries in the diary. Mr Kimber submitted that in those circumstances the use of the diary to assess APM’s credibility and reliability was legitimate.
Mr Kimber further submitted that even if the diary had been wrongly admitted there was no miscarriage of justice. He submitted that in any event it could be used as a prior consistent statement to refute the suggestion that the story of sexual abuse was invented in July 2009.

In my view the judge was correct in the way he instructed himself as to the use of the diary. He gave himself careful directions. He considered the way in which the diary could not be used and directed himself accordingly. In my view this ground of appeal should be dismissed.
Ground 7 (permission to appeal required)
Ms Chapman’s final submission was that the verdict of the trial judge was unreasonable and cannot be supported having regard to the evidence.
In M v R (1994) 181 CLR 487 Mason CJ, Deane, Dawson and Toohey JJ said at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[Footnotes omitted]
It is not sufficient on appeal to show that the evidence relied on by the prosecution is merely open to criticism: see R v Weetra (2004) 236 LSJS 238 at [28]. The question is whether the judge must, as distinct from might, have entertained a doubt about the guilt of the appellant: see R v Libke (2007) 230 CLR 559 at 596-597.
The judge made assessments of the evidence called by the prosecution and the appellant. He found that APM’s evidence was a “truthful and reliable account both in court and in the out of court statements”: see reasons at [154]. Likewise the judge determined that, although a somewhat hostile witness, DM’s testimony was “truthful and substantially reliable”: see reasons at [155].
In relation to the appellant the same cannot be said. His Honour thought that the appellant’s evidence was weak and he was not impressed with the appellant’s explanation denying that APM stayed with him on the weekend in question: see reasons at [167] and [168].
I will set out from the appellant’s written outline the factors which Ms Chapman submitted made the verdict unreasonable and not supported by the evidence.
a.The appellant and [DM] separated in 2004 followed by Family Court proceedings culminating in orders in mid 2007 with continuing tension.
b.At the end of 2005, [DM] commenced a new relationship. Her new partner was violent. She had a restraining order against him by December 2009.
c.APM and her sister were having counselling from 2008.
d.There was a significant argument between the appellant and [DM] in December 2009 concerning the children.
e.At the end of December 2009, APM found out that the appellant’s partner was pregnant.
f.In mid January 2009, the appellant advised [DM] that he could not see the girls, including APM, anymore. He sent an SMS to [DM] – “I think it is best you and the girls go on your way”.
g.On 19 January 2009, the girls really wanted to see their Dad. After that, they were distressed and could not understand why they couldn’t see their father.
h.APM’s diary contained an entry for 19 January 2009 – “go to dad’s house, do stuff with our dad, watch TV at dad’s house, have fun with daddy”. That event did not occur.
i.APM used her mother’s mobile phone on 21 January 2009 to send an SMS to the appellant. APM was upset that she did not get a response from the appellant. APM was upset because things had changed and they didn’t have any answers for why their dad was suddenly not having them for the last two weeks of the holidays.
j.The violence of [DM’s] partner caused her to move to a domestic violence shelter with her children including APM. They stayed there from February 2009 to August 2009.
k.APM changed schools in June 2009.
l.APM did not make any allegation to her counsellor despite there being almost weekly sessions with her counsellor between January and July 2009.
m.APM made the allegation after seeing a child abuse magnet on the fridge at the domestic violence shelter.
n.The SMS messages tendered by the prosecution were incomplete. They did not contain all the SMS messages between the appellant and APM’s mother; nor was there any evidence of voice calls records which featured significantly in the communications between the appellant and APM’s mother, particularly in regard to the communications around the time of the alleged offence. Instead, the records of those communications were left incomplete.
In my view, there is no basis to conclude that any of the abovementioned factors, taken either individually or as a whole, raises a significant possibility that an innocent person has been convicted. They were all matters for argument. However even taken as a whole they do not dictate a finding that the verdict is unreasonable. The breakdown of the matrimonial relationship between DM and the appellant and the fact that the appellant’s new partner was pregnant, were matters for the judge to consider. However, the judge was entitled to find the allegation proved despite these circumstances.
I have already dealt with the diary entry for 19 January 2009. It must be remembered that APM was 9 years old at the time of the offending. Although living with her mother she had clearly enjoyed spending time with her father.
In relation to the conduct of the complainant after 11 January 2009, apart from the diary entry of 19 January 2009 there is an SMS message sent by the complainant to the appellant on 21 January 2009. The message was that there was a photo of her in a newspaper. The appellant did not respond. It is clear that the complainant did miss her father and she said so in her evidence. She sent another text message to the appellant on 12 February 2009.
The judge specifically dealt with this issue at [179]. He said:
[179]… It does not surprise me that a child of nine years would suffer oscillating and conflicting emotions following a sexual offence committed against her by a father she had loved.
I agree entirely with His Honour’s comments.
In relation to the lack of any complaint by APM to her counsellor, as I have said earlier, there may be any number of reasons why a 9 year old would not discuss such matters with a counsellor. It might depend entirely on the questions asked by the counsellor and, as I have said, the nature and format of the counselling sessions.
In my view the criticisms of the strength of the evidence against the appellant are not made out. The judge gave himself detailed directions. In my view he has properly directed himself on all the relevant evidence and he has not been shown to have erred in admitting evidence which was irrelevant.
I would give permission to appeal on ground 7 solely because it overlaps with other grounds, but dismiss the appeal on this ground.
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.
In Eade v The King[3] (Eade) the appellant was convicted of indecently assaulting a five year old girl. The complainant had given unsworn evidence and for that reason corroborative evidence was required to support the conviction as a matter of law. The complainant’s evidence was that the appellant had given her money to buy two pies for him, which she took to his house, where he indecently assaulted her. Independent evidence was adduced which proved the purchase of the pies by the complainant and that she took the pies into the house. The prisoner had denied any knowledge of the child or that she had brought pies to his house. Knox CJ, Gavan Duffy and Starke JJ said of that evidence:
“this independent evidence established opportunity on the part of the prisoner to commit the crime charged, but did not itself corroborate or confirm the commission of any crime or that the prisoner committed it.”[4]
[3] (1924) 34 CLR 154.
[4] Eade v The King (1924) 34 CLR 154, 158.
The plurality held that corroboration could only be found in the appellant’s false denials of the complainant’s presence in his house:
“Now, if a jury be of opinion that the prisoner’s statements are false, then they may properly come to the conclusion that his falsehood indicates that the child’s story is true, and that he is telling lies in order to discredit the evidence of the other witnesses because he is unable to account for what they say they saw, in any way consistent with his own innocence. Corroboration may be found in independent evidence or in admissions of the prisoner, or in inferences properly drawn from his conduct and statements.”[5]
[5] Eade v The King (1924) 34 CLR 154, 158.
Isaacs J distilled the following propositions on the relationship between presence, false denials and corroboration:
“But, in addition to the central proposition laid down in Baskerville’s Case the decisions make clear the following propositions: -
(1) Opportunity of itself affords no corroboration in such a case.
(2)Opportunity may directly or inferentially be prima facie shown to be of such a character as to become corroborative evidence.
(3)Whether denial by the accused of any incident deposed to is such evidence of the character of opportunity as to be corroborative is a question of law dependent of the circumstances of the case.
(4)If in any given case a denial be legally corroborative, its weight as evidence varies with the circumstances, and that must be determined by the jury.”[6]
[6] Eade v The King (1924) 34 CLR 154, 159.
Whether or not a given piece of evidence is capable of amounting to corroboration must be adjudged against the issues at the trial. However, it is now well accepted that the corroborative nature of an item of evidence is not lost merely because an accused confesses and avoids it.[7]
[7] R v Lindsay (1977) 18 SASR 103; R v Stephenson (1978) 18 SASR 381; R v Kalajzich (1989) 39 A Crim R 415, 433; R v Yates [1970] SASR 302, 306.
It is plain enough that evidence of opportunity is relevant and admissible because it increases the probability that an accused has committed the offence. It does so in the sense that it renders him more likely to have committed the offence than others who did not have the opportunity, and simply because it negates the innocent possibility that he was not even present. However, more than that is required for corroboration. It is not easy to identify the additional quality referred to in the second of Isaacs J’s propositions, over and above relevance, which gives some evidence its corroborative character. In my view, evidence of surrounding events or circumstances is corroborative if those events or circumstances are materially more likely to be found if the offence was committed by the accused than if it was not. The likelihood of which I speak arises from common human experience of the causal relationships between events and circumstances. So it is that torn clothing or distress close to the time of an alleged assault may more probably be explained by its commission than by a motiveless plan to falsely accuse someone.[8] Such circumstances are much more likely to be the effect of the commission of the alleged crime than some other “innocent” event. So too, physical contact between a child complainant and an alleged perpetrator of a sexual offence which has no apparent innocent purpose, might more probably be seen as conduct preparatory to the offending, that is a causal circumstance, than a circumstance opportunistically exploited by the complainant to fabricate an accusation.
[8] R v Byczko (No1) (1977) 16 SASR 506; R v Berrill (1982) 5 A Crim R 431.
However, in this case there was an obvious innocent reason for APM’s presence at her father’s house. There is not a strong causal association between standing access arrangements and sexual assaults. In the generality of cases, there is nothing about the independently proved presence of a father in the same room as his daughter which makes her testimony that she was indecently assaulted by him more likely to be true than false. APM’s presence was not, in itself, corroboration.
However, in my view, the independent evidence of APM’s presence at the appellant’s house is evidence from which it may have been found that the appellant had falsely denied that she was with him. It was open, in my view, to conclude that even though the lie may have been told in an ill advised attempt to refute a false accusation, it was much more likely to have been told because the appellant was well aware of the truth of the accusation. On such a finding, consistent with the decision in Eade, the lie could, in my view, have amounted to corroboration.[9] However, the prosecutor at trial and on appeal, eschewed use of the lie as evidence of guilt. I am therefore bound to conclude that there was no corroboration.
[9] R v Tripodi [1961] VR 186, 193; R v Perera [1982] VR 901. But the proof of the lie must be proved aliunde to the evidence which requires corroboration see Pitman v Byrne [1926] SASR 207; R v Mercer (1993) 67 A Crim R 91; Tumahole Bereng v The King [1949] AC 253, 270; R v Lucas [1981] QB 720.
Nonetheless, for the reasons I have already given, the appeal must be dismissed.