R v F, CJ - [2011] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v F, CJ
[2011] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Peek)
22 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES
Appeal against conviction - following trial by judge alone, appellant convicted of two counts of gross indecency against a young girl - whether evidence of girls to effect that they had been invited to expose their bodies to appellant was properly admitted and used - whether defence counsel was deprived of adequate opportunity to address the court - effect of significant delay between end of trial and verdict - whether trial judge failed to consider properly the effect of complainant's cognitive impairment on her reliability - whether trial judge failed to give adequate weight to his finding that evidence of certain witnesses was inconsistent - whether convictions were unreasonable and not supported by evidence.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 278; Juries Act 1927 (SA) s 7, referred to.
R v Beard [2004] SASC 411, applied.

R v F, CJ
[2011] SASCFC 2
Court of Criminal Appeal: Vanstone, White and Peek JJ

VANSTONE J: The appellant stood trial in the District Court before a judge sitting without a jury upon three counts of indecent assault and two counts of gross indecency. The charges alleged conduct between August 1989 and September 1992. The complainant in each count was a girl then aged less than 12 years. The appellant was acquitted on counts 1, 2 and 3 but convicted for the two gross indecency charges. He now appeals against those convictions, arguing a number of grounds mainly arising from the reasons for the verdicts published by the judge. He also complains about the admission of certain evidence and argues that the long delay between the final submissions of counsel and publication of the verdicts is such a fundamental flaw in the trial process as to give rise to a miscarriage of justice.
The appellant obtained permission to appeal from a single judge. During the appeal hearing he sought to amend his appeal notice to add a further two grounds.
Background
Despite the fact that the appellant was acquitted of counts 1 to 3 it is necessary to discuss in these reasons the evidence relevant to those counts.
At the relevant time the appellant was working as an artist. His studio was in his home at Henley Beach. He lived in that house with his wife. The complainant, whom I shall call “V”, was a neighbour of the appellant. Her mother and the appellant and his wife were close friends and V would often visit the appellant and his wife in their home.
Two other girls used to visit the appellant’s home on a regular basis. They were of a similar age to V. I shall refer to them as “H” and “L”. V’s account had both of them present during the incident which formed the basis of count 1.
Count 1 was said to have occurred when V, H and L were playing in the appellant’s studio, where he was painting. V said that the three girls stood in a line and pulled their tops up whereupon the appellant touched the chests of all three of them, rubbing their nipples. When asked why they had pulled their tops up, V said that, while she could not recall any particular conversation on that occasion, on other occasions the appellant had said things like “Let’s see if you’re turning into a woman”.
Count 2 was an allegation relating to an occasion when V and H went swimming with the appellant at Henley Beach. She said that, whilst in the water, the appellant asked them if he could feel to see if they were developing into women. He then lifted their swimwear and rubbed their nipples.
Count 3 alleged a similar touching, again in the appellant’s studio, when he was painting. This was alleged to have occurred in the presence of L. Again, the appellant was said to have rubbed V’s nipples in the same way, as well as touching L’s nipples.
Statements of the girls H and L did not support V’s claim of being touched by the appellant on these occasions. However, they gave strong support for such events, short of touching, having occurred and for the appellant often encouraging them to expose their bodies.
The two gross indecency charges were of a more serious nature. Count 4 was described as occurring in the appellant’s outside studio or shed, on an occasion when the appellant was working on a wooden sculpture. V said that on this day she was alone with the appellant. On this occasion they played what she had been accustomed to calling “the mouse game”. That involved her kneeling in front of the seated appellant. She would tickle his inner legs, extending to the groin, whereupon the accused was said to have opened his flies. She described him then saying to her “I can feel a mouse. Where is the mouse heading to? Will it find the cheese?” She said that she understood the cheese to be the accused’s penis. She was then encouraged to take his penis from his pants and to begin stimulating it. This went on for some minutes and the accused groaned, but did not ejaculate. Afterwards V was rewarded with some chocolate taken from the appellant’s refrigerator.
V said that during the summer she would often swim with the appellant. Afterwards she would shower with him in a downstairs bathroom before going into the house. She said in evidence that she and the accused would be naked in the shower – if no other persons were with them – and that he would sometimes touch her, and her him. She said they would play what she called “the name game”, which meant giving his penis a name and involved stimulating him to an erection.
Count 5 was the last of such incidents and occurred when she was aged ten or eleven years.
Grounds of appeal
Counsel for the appellant was Ms Powell QC, who also appeared for him at the trial. She argued the various grounds in a number of groups, where the grounds amounted to aspects of the same argument. I shall discuss the grounds of appeal in the same manner.
Grounds 1, 2 and 12; and 14 and 15
These grounds complained of the admission and use of the evidence of H and L. During the appeal hearing the appellant sought permission to amend the notice of appeal to add two further grounds. These covered further facets of the argument as to the receipt and use of the evidence of H and L. These grounds were added because it was considered by counsel that the existing grounds as drafted did not completely comprehend the arguments that counsel wished to put. In order to explain the arguments it is necessary to set out a little more of the unusual history of the proceedings.
Prior to the matter coming before the trial judge, a different information containing not only the five counts already mentioned, but also charges in which H and L were complainants, came before Judge Shaw for trial. At that stage the trial was to be by jury. Before any empanelment Judge Shaw dealt with an application for separate trials in relation to the allegations of each complainant. That application proceeded pursuant to s 278(2) of the Criminal Law Consolidation Act 1935 which provides the power to order separate trials on charges joined in the same information. The section was amended relatively recently by the addition of s 278(2a). That subsection is in the following terms:
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)subject to paragraph (b), those counts are to be tried together;
(b)the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c)in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
After hearing argument Judge Shaw made an order for separate trials. Her stated reasons for so doing were quite brief. Understandably, they did not address the question of how the exculpatory parts of the evidence of H and L would be presented upon the trial in respect of V’s allegations. For reasons which need not be explained, the appellant then made a late application for trial by judge alone. That application was made pursuant to s 7 Juries Act 1927. Judge Shaw granted that application, but also agreed that she should arrange for the matter to be allocated to another judge. Prosecution counsel undertook that, were that to happen, he would not seek to re-argue Judge Shaw’s ruling.
When counsel for the prosecution opened the case to the eventual trial judge, he did not foreshadow calling H and L. Quite early in the proceedings, senior counsel for the appellant advised that she would ultimately make adverse comment about the prosecution case based on the failure to call H and L. Not surprisingly, counsel wished her client to have the benefit, in some way, of the exculpatory statements made by them in relation to counts 1, 2 and 3. Prosecuting counsel referred to the undertaking he had given, apparently perceiving that he would breach it by calling H and L. The trial judge indicated that he considered that the evidence of H and L was essential to the unfolding of the narrative and that he wished to hear their evidence. Discussion ensued as to the extent of the evidence those witnesses could give, consistent with Judge Shaw’s ruling. In essence, as I understand it, the argument was that at least some of their evidence had been implicitly ruled inadmissible by Judge Shaw, having regard to the terms of s 278. Counsel for the prosecution took the view that if the witnesses were to be called, then he would lead from them only a truncated account of their dealings with the appellant. He would not seek to lead any evidence from H and L of allegations made by them of offences against themselves. However, he was not prepared to constrain their evidence in the more dramatic way advocated by the appellant’s counsel. The appellant argues that the stance taken by the prosecution was not only contrary to the undertaking given, but resulted in the appellant losing the benefit of Judge Shaw’s ruling.
The appellant complains that he was misled by a statement made by the judge in the course of this argument as to the use that he would make of the evidence of H and L. At one point the judge said this:
If the accounts given by either of those witnesses are in any way contrary to [V’s] evidence as to this count (referring at this stage to count 1) then I will take that variance into account in determining the credibility and reliability of what [V] said.
The appellant claims that, while the judge used the evidence of the two witnesses to discredit V in relation to counts 1 to 3, he also used it as general support for the unusual behaviour exhibited by the appellant towards the girls and perhaps for proof of a prurient interest in all three girls, and most importantly in V, which counsel contended amounted to impermissible propensity reasoning. The appellant argues that the evidence of H and L, insofar as it contained uncharged acts by the appellant against them, was inadmissible – as being covered by Judge Shaw’s ruling – and that because of the way in which the evidence ultimately came out, counsel was denied the opportunity of adducing evidence of contamination of the evidence of H and L.
In my view there is no substance to these complaints. Whatever Judge Shaw might have intended to comprehend in her ruling, it cannot be that she anticipated that the court hearing the charges and indeed the appellant would be denied the benefit of the evidence of H and L upon his trial for V’s charges. It would be extraordinary to exclude evidence of eye-witnesses located in the very room where an alleged offence took place; but all the more so where that evidence was exculpatory. In any event, Judge Shaw’s ruling was not concerned with the admissibility of eye-witness evidence, so much as whether charges based on the evidence of different complainants should be heard and determined by one jury. In my view there was nothing arising out of Judge Shaw’s ruling to prevent the judge from proceeding as he did.
Whether the prosecuting counsel ultimately proceeded in a manner contrary to his earlier undertaking, or his view of it, is not strictly an issue. His difficulties were brought about first by the appellant’s counsel foreshadowing adverse comment if the witnesses were not called and then by the judge indicating that they should be called. Plainly, the appellant’s counsel was attempting to receive the benefit of the evidence of the two girls inasmuch as they could not recall or did not see any indecent touching of V; but at the same time was arguing that their accounts should be stripped of any damaging material. I do not consider that such a position was open to defence counsel. For the evidence to have any weight, enough of the surrounding circumstances of the events described by the two witnesses had to be elicited. There are very strict limits upon the extent to which a witness’s evidence can be expurgated. Witnesses must be permitted to respond truthfully to all questions asked of them. It is quite unrealistic to contemplate either that an account distorted to the point of falsity may be presented to a court, or that the court will be permitted only to use that part of the account that benefits the defence. Accordingly, if the appellant were to have the benefit of the evidence of H and L – to the effect that they recalled no touchings of V as alleged in counts 1 to 3 – he had also to suffer any adverse impact of their evidence that he encouraged them to expose their bodies to him.
I think it is quite wrong to suggest that the appellant lost the benefit of Judge Shaw’s ruling. Had the full accounts of H and L been before the judge, potentially they could have been used as similar fact evidence, so as to bolster V’s evidence of counts 1, 2 and 3. In fact the judge did not use the evidence of H and L in proof of a prurient interest in the girls, or in proof of a propensity to deal indecently with girls. He directed himself not to do so: [130]. The paragraphs upon which counsel relied as indicating a propensity use do not support the argument: [103], [243], [246] and [249]. There is no point in reproducing them. Moreover, although the judge accepted that the appellant “on more than on occasion had the three girls line up in front of him, … and expose themselves …”, he acquitted of counts 1 to 3.
The complaint that defence counsel was misled by the judge’s above statement cannot withstand the scrutiny of a reading of the entirety of what passed between the bench and bar table on this topic. It would be extraordinary for a judge to indicate that he or she would only take account of evidence so far as it helped the party and, in my view, the judge made no such assertion. I do not accept that counsel was constrained by the way in which evidence from the two eye-witnesses found its way into the trial. There was ample opportunity – especially before a judge sitting alone – to have matters investigated or witnesses recalled if that were needed to alleviate any inconvenience caused by the fact that the evidence of H and L was not addressed in the prosecution opening. No details have been placed before us as to what further material might have been presented to bolster any argument going to contamination.
In my view there is no substance in this group of grounds.
Grounds 3 and 4
The essence of the complaint raised by these grounds is that, either the judge failed to provide opportunity for defence counsel to conclude her closing address, or that there remains a perception that, because of the chronology of the final days of the trial, there was a denial to defence counsel of such an opportunity. The grounds are expressed in the following way:
Ground 3 – The trial judge erred in stating his reasons for verdict that, on 7 December 2009, he had adjourned to consider his verdicts.
Ground 4 – In the alternative to ground 3, the failure to hear further submissions gives rise to the appearance of a miscarriage of justice.
I have not reproduced the particulars of ground 3, which includes the contention that on 7 December at the time of the adjournment of the matter, the defence had not completed its final address.
In order to understand the grounds, it is necessary to set out some of the chronology of the final stages of the trial.
The evidence before the judge concluded on 17 August 2009. The matter was then adjourned to 1 September, but that date had to be abandoned due to the appellant having been involved in an accident. December 7 was then fixed for closing submissions. By the time the matter resumed on that date, both prosecution and defence had filed detailed written submissions. That allowed prosecuting counsel at least to be quite brief in his oral submissions. Defence counsel then commenced her oral submissions. As the luncheon adjournment approached, the judge asked senior counsel whether she had much more material to put to him and she responded in this way:
I haven’t really. I know we’ve all been very busy since the submissions were made and I imagine that your Honour might want to ask us back at a time when we can be more, if you like, if we can be more conversational, if I can put that without being disrespectful, about some of the submissions.
I read this statement as suggesting to the judge that counsel had concluded the formal part of her submissions but anticipated questions from the bench. At this point the judge indicated that he had not had opportunity to refresh his memory of the evidence prior to the resumption. Senior counsel then indicated that she would prefer to adjourn and allow the judge to consider the transcript before completing her submissions. The judge observed that he had noted a couple of questions that he wished to put to senior counsel. It was agreed that the matter would be adjourned to a date to be advised, not before the middle of January 2010. Many months then passed.
On 30 August 2010 the judge’s judicial support officer wrote to both parties in the following terms:
The judge has asked me to indicate to you that he is ready to deliver his verdicts but notes from the transcript that he had in mind reconvening and giving you both an opportunity to deal with any queries. I have been asked to communicate to you that he does not have any queries to raise with you. However, in case you cut short your submissions on the basis that there would be another opportunity to address the Court, then His Honour is prepared to reconvene.
He has in mind delivering his verdicts before mid September so if there are to be any further matters raised could you let me know within the next week or so, and I will list the matter at a mutually convenient time.

The material before this Court indicates that on 1 September prosecuting counsel replied, indicating that he had no further submission to make, but noting that there was a question whether defence counsel had completed her oral submissions. On 15 September the solicitor for the appellant telephoned the support officer indicating that there was no further submission on behalf of the appellant. On the following day counsel were advised that the verdicts would be delivered on 7 October 2010. That in fact occurred.
The first question is whether the appellant was precluded from making any further oral submissions to the court. It is clear from the events I have outlined that the judge, through his support officer, made plain that he was prepared to reconvene if there were further submissions to be put. That offer was declined by those representing each side.
The other aspect of the argument is that, from the point of view of the defence, there was no purpose in taking up the offer of further time, because the terms of the support officer’s letter indicated that the judge was “ready to deliver his verdicts”. It is argued that the reasonable observer would have concluded from the train of events that the judge’s mind had been made up and that no purpose would be served in making further submissions.
It can readily be acknowledged that the way in which matters were left on 7 December 2009 was unsatisfactory. It would have been better to have allowed defence counsel to conclude her oral submissions on that date. Another day could have been fixed in case the judge had questions to put to either side. However, that is not to say that there has been any irregularity which would cause the reasonable observer to apprehend pre-judgment. As seen, the judge indicated a preparedness to hear further submissions and that opportunity was not utilised by the appellant. It is true that the support officer’s letter is unhappily worded, in the sense that reference is made to the judge being “ready to deliver” verdicts. However, in the context of what had gone before, that seems to me to amount to no more than an indication that the judge had nothing to raise with counsel. In my opinion there is no reason to infer that the judge had closed his mind to any further submissions. Plainly, the judge could have changed his mind about all or any of the verdicts at any time.
In my view there is no substance in these grounds.
Grounds 5, 6 and 7
These grounds focussed on the significant delay which unfortunately occurred between the end of the trial and delivery of the judge’s verdicts. It is asserted that by failing to deliver his verdicts in a timely manner, the judge deprived himself of the “decisive advantage normally available to the finder of fact” (ground 6) in assessing credibility and that the loss of that advantage is manifested in the failure to articulate adequately the reasons for accepting the evidence of V and her mother in preference to that of the appellant and his witnesses. It is further alleged in ground 7 that the delay amounted to a flaw in the trial process of such a fundamental nature as itself to constitute a miscarriage of justice.
The trial in this matter commenced on 5 August 2009. The evidence was completed on 17 August. In the course of dealing with earlier grounds I related the chronology from that point. As mentioned, on 1 September there was an adjournment of the trial to 7 December, due to the appellant having been admitted to hospital. Such oral submissions as there were occurred on that day. There is no apparent explanation for the long delay between 7 December 2009 and 30 August 2010, the latter being the date of the letters written to counsel by the judicial support officer. There was a further delay after the response by the appellant’s solicitor, before the delivery of the verdicts and the written reasons on 7 October 2010.
In support of these grounds, senior counsel for the appellant pointed to the fact that, as the judge found, the prosecution case was wholly dependent on the evidence of V. Counsel put that although the judge found that V’s evidence accorded “with other evidence in the case” which he found acceptable, the only other evidence which he cited in this regard was that of V’s mother and that of her grandfather. Counsel made the point that, in respect of the mother, the judge’s findings were mixed. Upon the topic of nude modelling, he found that her evidence was “erratic” and he did not accept her evidence that she did not know that V was modelling nude in the appellant’s life drawing class: [150]. Counsel pointed out that much of the balance of the mother’s evidence was not contested. Having regard to the rather limited acceptance of the mother’s evidence, counsel suggested that its use in bolstering V also had to be limited. In respect of V’s grandfather, the judge found that he was credible and reliable about events, but “somewhat unreliable as to their timing”: [151]. The appellant drew support from the grandfather’s evidence as to the timing of the complaint, but in that respect the judge rejected his evidence. Again, counsel put that evidence which was accepted by the judge in only a qualified way could give limited support to V’s evidence. Both the topic of nude modelling for drawing classes and the topic of the timing of the complaint were major issues of dispute in the trial. (The judge’s treatment of each of them is the subject of separate grounds of appeal.) Counsel used what she put were “deficits” in the judge’s analysis and reasoning process in relation to those topics in support of her argument that the reasons of the judge were deficient having regard to delay. As will be seen, I remain unpersuaded as to those suggested shortcomings.
Senior counsel for the appellant relied on the discussion of the principles applicable where there has been a long delay between a trial and judgment in Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (2004) 140 FCR 17 at [66]-[82]. There the Full Court of the Federal Court considered an appeal against a judgment given some 21 months after a trial. The claim was one against a real estate agent who had been retained to advise in relation to proposed investments in real estate. Damages had been sought for negligence, breach of fiduciary duty and breach of contract. The Court noted the careful scrutiny which an appellate court needs to give to published reasons, where those reasons are delivered after a lapse of a significant period after the trial. The Court observed that such a delay tends to erode the advantage which a trial judge has in ordinary circumstances, having seen and heard the witnesses: [70]. The Court said that whereas in the normal course the trial judge’s assertions about the evidence could be accepted as implying a detailed consideration of the evidence, that was not necessarily so after a significant delay. The Court said that, there, a more comprehensive statement of the relevant evidence could have served to demonstrate that delay had not affected the decision: [71]. Whereas in the usual case a failure to refer to competing evidence would not ground an inference that it had been overlooked, no such assumption could be made after a long delay. Therefore, the trial judge was obliged to explain in more detail why witnesses had been accepted or rejected: [72]. If the judge was able to demonstrate by way of reasons given, that full consideration had been given to all the evidence, then confidence in the decision would be maintained: [73]. The Court held that in the face of the long delay which there occurred the trial judge needed to undertake a more comprehensive statement of the relevant evidence than would normally be required. That might involve reference to contemporaneous documents: [81]. The Court observed that the principles concerning delay were common to both civil and criminal cases: [82].
Ms Powell QC also referred to R v Maxwell (1998) 217 ALR 452, a decision of the Court of Criminal Appeal of New South Wales. There the Court dealt with an appeal against conviction for murder after a trial by judge alone. There was a delay of ten months between the conclusion of the trial and the judge’s decision. In discussing the issue of delay, the Court made these observations (at 462):
Delay is not, however, of itself, a ground of appeal. Nor does the delay in and of itself indicate that the trial miscarried or that the verdict is in any manner unsafe. Nevertheless, a comparison between the judgment and the issues in the trial may indicate that the effect of delay has been such as to constitute a miscarriage of justice.
The Court referred with approval to the decision of the English Court of Appeal in Goose v Wilson Sandford & Co (1998) 142 SJLB 92. The English Court had referred to the effect of weakening public confidence in the judicial process which delay between trial and judgment could have. The New South Wales Court went on (at 463):
Public confidence in the judicial process is of particular significance in the administration of the criminal law. Indeed one of the most important aspects of the welfare and stability of Australian society is the hard earned, but widespread, belief that judges administering the criminal law do so with competence, fairness and impartiality. The administration of criminal justice is of great significance in the preservation of the liberty of Australian citizens. This court must be rigorous in ensuring that judicial conduct in the course of criminal trial does nothing to disappoint the high expectations which the community as a whole has of the judiciary in this regard.
Although mere delay is not a ground of appeal, this court must apply the strictest of scrutiny to a criminal judgment which may have been affected by the inevitably adverse consequences of delay.
The Court ultimately found that the quality of the judgment was not such as to meet the more comprehensive analysis required after a delay of that nature.
The appellant also relied on statements to similar effect in Mt Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [28]-[36]. There a single judge of the Supreme Court of Western Australia had heard a trial concerned with the compulsory acquisition of land and as part of that trial had to determine its market value having regard to certain statutory criteria. The trial ran for some three and a half months and nearly 800 exhibits were tendered. Closing submissions were taken over four days, concluding on 15 September 2000. In February 2002 the trial judge sat again to hear submissions upon a recently delivered High Court authority. Some ten months later judgment was delivered. The focus of the appeal grounds was the adequacy of the reasons given, particularly having regard to the lengthy delay. In the event the Court did not have to determine whether the arguments going to these matters were determinative, being content to decide the appeal on other bases. However, the Court discussed the relevant principles, referring to the leading cases. It had this to say in relation to an appellate court’s consideration of a complaint of inadequacy of reasons where delay may have had an impact:
Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell. Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve.
The Court noted that the trial judge had available to him a full transcript of the evidence as well as the various exhibits. However, it observed that, even so, the delay might lead to a suspicion that the task had become too much for the trial judge or that ultimately he had been unable to grapple adequately with the issues.
There are further statements, to essentially the same effect, in Monie & Ors v Commonwealth of Australia (2005) 63 NSWLR 729 upon which Ms Powell also relied.
Ground 7 raises a different aspect of the complaint of delay. Senior counsel argued that the fact of delay could give rise to the appearance of a miscarriage of justice and that in order to maintain public confidence in the administration of justice, this Court should not tolerate verdicts delivered after an unreasonably long lapse of time. Reference was made to Cesan v The Queen (2008) 236 CLR 358, a case in which the High Court quashed convictions for federal offences after a jury trial in the New South Wales District Court holding that, because the trial judge had been asleep during significant parts of the trial, there had been a miscarriage of justice. Senior counsel for the appellant referred to the judgment of French CJ and in particular to this statement (at 381):
The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process has not been followed.
By analogy, Ms Powell QC argued that a delay in delivering verdicts, of the order of that which occurred here, could suggest to the reasonable observer that the judicial process was not being followed and could bring the criminal justice system into disrepute. She referred to the statement of French CJ at 385 to the effect that some failures of the judicial process could be seen as so fundamental as to result in the trial being incurably flawed.
Counsel accepted that the argument rested on an analogy to the factual situation in Cesan and tended to go further than the ratio decidendi in that case. There, in the plurality judgment, the appeal was allowed on the basis that evidence showed that the jury was distracted from paying attention to all of the evidence because of the fact of the trial judge sleeping (at 393).
I accept that there was in this case undue delay. There is no apparent explanation for the delay after the time when oral submissions were taken and until the time when the reasons and verdicts were delivered. It seems to me that if there were to be any relevant explanation it would have to be linked to events in the case itself. Any explanation in terms of matters personal to the judge would not likely have any impact on the arguments made by counsel or the principles at stake.
It is to be observed that the judge’s reasons are lengthy. They run to over 46 pages of single spaced typescript. In my experience they are much longer than those typically delivered by judges who hear such trials without a jury. Not only are the reasons lengthy, they are also comprehensive in terms of the issues of dispute in the case. All relevant issues are addressed. Indeed, arguments put by defence counsel are related in much greater detail than is customarily done. The reasons are highly analytical. Rather than containing lengthy tracts of narrative about the evidence, they proceed by way of topics. The evidence of the witnesses is therefore dealt with in an integrated manner. The judge has demonstrated a sure familiarity with all the evidence in the trial. In my view the conclusions are closely reasoned. The judge demonstrates by them that he has confronted what might be thought to be deficiencies in the evidence of some of the prosecution witnesses and why in some cases – including the evidence of the mother and grandfather – he was prepared to reject certain parts of their evidence but yet rely on the main thrust of it.
I consider that the finding of the judge to the effect that the evidence of V was supported by other evidence was plainly open to him. I have already discussed the way in which the evidence of H and L presented a two-edged sword to the appellant. But more particularly, the general evidence of the easy familiarity between the two households and the nature of the relationship between V and the appellant, coupled with the judge’s acceptance of the mother and grandfather on the two contentious issues mentioned, provided ample support and justification for the judge’s finding as to the honesty and reliability of V.
I would add that the judge warned himself in terms of Longman v The Queen (1989) 168 CLR 79, acknowledging the potential that the accused might have suffered a forensic disadvantage because of the delay in prosecuting the matters. He further directed himself that it would be dangerous to convict on V’s evidence without scrutinising it first with great care. I consider that the close analysis of all the issues in the case which the judge demonstrated by his detailed reasons is such as to meet the requirements set out in the cases to which I have referred where significant delay is an issue. If reasons such as these are not seen to be adequate in terms of demonstrating that the delay has not had an impact upon the trial process, then, it seems to me, that would be tantamount to saying that delay is of itself sufficient to indicate a miscarriage of justice. That is simply not the law.
In relation to the more specific contention in ground 7, senior counsel frankly admitted that the argument rested, to a degree, upon an extrapolation from the analysis of French CJ in Cesan. The other members of the court did not concur in those reasons. Having considered Ms Powell’s argument on this ground, I have reached the view that it adds little to grounds 5 and 6. That is because, if the quality of reasons in a case where there has been long delay is such as to satisfy the appellate court that the delay has not affected the curial process, then, equally, the reasonable observer would be so satisfied. However, in so saying, I do not acknowledge that any principle in the form sketched by Ms Powell is established. Although the elapse of such a long period between final submissions and delivery of verdicts is unsatisfactory and regrettable, I do not consider that in this case a miscarriage of justice resulted.
Ground 8
In this ground the appellant complained that the judge erred in failing to bring to account the possibility that V had suffered some cognitive impairment as a result of injuries she sustained as a baby in a car accident.
It was put to us that in response to evidence elicited from V’s mother that, from her point of view, her daughter’s memory was “fantastic”, the defence tendered a report of Professor Simpson dated April 1992. It was suggested this was done to rebut the mother’s contention and to alert the judge that he needed to carefully consider whether the aftermath of the injuries might have had any effect on V’s memory.
Neither Professor Simpson nor other report writers referred to by him were called in evidence. In his report Professor Simpson referred to the opinions of other experts who suggested that in about 1992 V had a “subtle but pervasive deficit in verbal memory” and a “marked deficit in visuo-motor and visuo-spatial skills”. It seems plain from Professor Simpson’s report that he took into account both opinions in reaching his own views. Those views were that V had, at the time, significant learning difficulties and social immaturity, but that her difficulties were slight.
The appellant complains that in his treatment of the topic the judge failed to deal with the defence argument that, not only did this material raise a question as to V’s reliability, but it also called into question her assertion, and that of her mother, that the sequelae of her accident had never had any affect on her memory.
I do not consider that this argument is of much moment. By the time V’s mother gave her evidence, the accident and its possible effects must have seemed very remote. It would be difficult indeed for the mother to look back over a period of some 18 years and discern what difference her daughter’s injuries might have made to her memory. In my view the only possible relevance of the evidence – outdated as it was – was to alert the judge that there might be some organic influence on V’s account of the events.

In fact the judge dealt at some length with this issue and, in my opinion, was entitled to discount the importance of the earlier expressed opinions of Professor Simpson and to be guided by his own impression of V’s evidence.
I do not consider there is any merit in this ground.
Grounds 9 and 10
Ground 9 complains of the limited use which the judge made of his rejection of one aspect of the evidence of V’s mother. It is argued that having, correctly, found against the mother in her denial that she would have permitted V to model nude at life drawing classes conducted by the appellant between July and November 1991, the judge failed to give adequate weight to that finding.
Evidence called by the defence established to the judge’s satisfaction that V had modelled nude at least once at such classes in the time span mentioned. In her evidence V could not remember having done so. V did recall modelling nude for the “Balancing Act” sculpture. Her mother’s evidence was that she did not believe she would have permitted nude modelling by V, although on a fair reading of her evidence she did not completely discount the possibility. The judge described the mother’s evidence on this topic as “erratic”, but not untruthful. The appellant complains of that benign treatment of what was found to be inaccurate evidence.
From the appellant’s point of view this topic had relevance in relation to establishing the time frame in which V’s initial complaint was made. Ground 10 dealt with that topic. That ground complains that the judge was in error in finding that V’s complaint to her grandmother occurred in September or October 1992, as against prior to May 1992. On the defence case if the complaint was made at the earlier time, then it was said that the prosecution faced a profound difficulty in explaining why, in April 1992 when V saw a psychologist and made a complaint about a separate indecent assault apparently committed upon her, she did not also complain of the appellant’s offending against her.
It was clear that the initial complaint in relation to the appellant’s conduct was made by V to her grandmother. At the time V was staying with her grandmother, her mother being away. During that period the appellant telephoned and asked if V could pose nude for life drawing classes. V said she did not want to. After the telephone call V and her grandmother discussed the issue and V was said to have told her grandmother that she had previously modelled nude for such classes and that her mother was aware of it. She also told her grandmother that she and the appellant bathed and showered nude together. A few days later V’s mother returned home and was met at the airport by the grandmother. V’s mother was told of this disclosure when she returned home.
The day after, V’s grandfather and uncle confronted the appellant at his home in relation to these matters. The grandfather’s evidence was that this occurred prior to 26 February 1992. That was consistent with the appellant’s contention that the disclosure was made in relation to modelling for the “Balancing Act” sculpture, which was displayed during the Adelaide Festival of Arts in March 1992. The appellant contended that V’s mother and grandmother had falsely represented the date of the disclosure conversation as being later in the year to make explicable that V had not raised the issue with the psychologist.
Irrespective of the date of the disclosure to the grandmother, the question arises why V did not raise the appellant’s alleged conduct with the psychologist in May 1992. Her own explanation for that was that she did not know that it was wrong for someone in the appellant’s position with respect to her to do the acts constituting the offending. It appears from the psychologist’s notes that V did tell her that the appellant paid her two dollars to pose nude. In her evidence V could not recall making this assertion. In May 1992 the offending by the unrelated person was reported to the police and V made a statement in relation to that offending.
In his reasons the judge carefully considered these issues and the competing evidence going to them. After the elapse of such a long period from the events themselves to the evidence given about them, it would not be surprising that witnesses could be mistaken about the timing of events. It would be natural that the witnesses would more accurately recall the events, as against the chronology of them. True it is that the grandfather of V claimed to have confronted the appellant during the period in which he was still working, that is, prior to his sixty-fifth birthday. Therefore he had a tangible reason for placing the timing of the confrontation earlier rather than later. However, V and her mother and grandmother also linked the disclosure to the mother’s interstate trip. In the circumstances, all these matters were for the decision of the trial judge. As I said, he examined the competing evidence and arguments and in my view was entitled to reach the conclusions that he did. In particular he was entitled to accept the explanation of V for not complaining to the psychologist, or indeed to the police, of the appellant’s conduct towards her. Moreover, the telephone request of V made by the appellant for nude modelling was not said by her or her grandmother to be referable to “Balancing Act”. It could equally have been for life drawing classes. In my view the appellant’s carefully constructed argument on both these issues assumes detail which is not present in the evidence.
I consider there is no substance in these two grounds.
Ground 11
This ground, as argued by senior counsel, complained that various findings were made in relation to witnesses, being findings contrary to the appellant’s case, without adequate explanation. It was put that, whereas it was usually open to a judge sitting alone to prefer the evidence of one witness against that of another, without providing reasons for so doing – as to which R v Beard [2004] SASC 411 provides authority – in a case of significant delay between trial and verdicts, it was not open to the trial judge to proceed in this way. The appeal ground itself provided references to various paragraphs of the reasons of the judge where it was said that there was inadequate explanation for preferring one witness’s evidence to that of another.
As can be seen, this ground is closely allied with grounds 5 and 6 which I have already addressed. I do not accept that, merely because a matter is attended by significant delay, a judge might not simply prefer the evidence of one witness over that of another without giving reasons. The essential rationale of the line of authority of which Beard is an example remains good for cases where there has been a long delay. As I have observed in the course of dealing with grounds 5 and 6, the quality of the judge’s reasons in this case and the comprehensive way in which he approached the analysis of the various issues in the case is such that this ground cannot be sustained.
Ground 13
This ground asserts that the convictions are “unreasonable and cannot be supported having regard to the evidence”. Upon the appeal hearing, counsel put that this ground amounted to an amalgam of all the more specific grounds. No additional arguments, oral or written were made. Inasmuch as I have not found any of those grounds made out, this ground falls away.
I might add that in dealing with the grounds of appeal I have read most of the evidence in the case and in particular have examined the evidence of V. In my view her evidence reads convincingly. It is detailed. It demonstrates a good recollection of her thoughts and feelings at the time of these events. In relation to the counts for which the appellant was convicted, there is quite graphic detail about the appellant’s conduct and the games which he devised to encourage her to behave as he wished, which is compelling.
Conclusion
In my view none of the grounds of appeal has been made good. The appeal should be dismissed. I would make the following orders:
1. grant permission to appeal on grounds 14 and 15;
2. dismiss the appeal.
WHITE J: I agree with the orders proposed by Vanstone J and with her reasons.
PEEK J: I agree with the orders proposed by Vanstone J and I agree in substance with her reasons.