R v F, RPJ

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v F, RPJ
[2019] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hughes)
27 June 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction.
Following a trial by jury, the appellant was found guilty of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (count 1) and not guilty of one count of gross indecency (count 2) and not guilty of two counts of unlawful sexual intercourse (counts 3 and 4). At the time of the alleged offending the complainant was between six to eight years old and the appellant was the partner of the complainant’s mother.
At trial, the complainant gave direct evidence of the matters she heard, saw and felt with respect to count 1. The complainant’s evidence for count 2 was contradicted in part by evidence from the complainant’s mother, and the complainant’s evidence for counts 3 and 4 relied on certain inferences she had drawn years later when recalling the incidents with the appellant.
The principle ground of appeal was that the verdict of guilty on count 1, was factually inconsistent with the verdicts of not guilty on counts 2, 3 and 4, such as to be unreasonable and not supported by the evidence.
Held per Nicholson J (Kourakis CJ and Hughes J agreeing) dismissing the appeal:
1. The verdicts returned by the jury are not so inconsistent as to render the conviction on count 1 unreasonable and unsupported by the evidence.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348, discussed.
MFA v The Queen (2002) 213 CLR 606, considered.

R v F, RPJ
[2019] SASCFC 68
Court of Criminal Appeal: Kourakis CJ, Nicholson and Hughes JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Nicholson J.
NICHOLSON J.
Introduction
Following a trial before a jury in the District Court, the appellant was found guilty by majority verdict of the offence of indecent assault (count 1).[1] He was acquitted, again by majority verdicts, of the alleged offences of gross indecency (count 2)[2] and unlawful sexual intercourse with a person under 12 years (counts 3 and 4).[3] The appellant now relies on just the one ground of appeal in relation to the conviction on count 1.[4]
The verdict of guilty on count 1, in particular having regard to the verdicts of not guilty on the remaining three counts, was unreasonable and/or cannot be supported having regard to the evidence.
For the reasons that follow, I would dismiss the appeal.
[1] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to subsection 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to subsection 49(1) of the Criminal Law Consolidation Act 1935 (SA) as it stood at the time of the alleged offending.
[4] Permission to appeal on grounds 2 and 3 in the notice of appeal was earlier refused by a Judge of this Court. Initially, the appellant pursued his statutory right to have permission for grounds 2 and 3 reconsidered by the Court of Criminal Appeal. However, both grounds were later abandoned.
Background
The complainant was born on 11 July 1996. Each alleged offence was particularised in the Information as having occurred between 28 March 2003 and 28 May 2005 during which period the complainant was between six and eight years of age. However, according to the evidence of the complainant, all of the charged incidents and a number of uncharged incidents occurred either within the same school holiday period or within a period of weeks or months and when she was seven or eight.
Prior to, during and after the particularised period, the appellant was in a relationship with and lived with the complainant’s mother. They, together with the complainant, lived in a number of different houses in a South Australian regional area. All of the charged and uncharged incidents were said to have occurred at the Mitchell Avenue house, where just the three were living for most of the particularised period. The appellant had started living with the complainant’s mother when the complainant was one and a half years old. The relationship between the complainant and the appellant was that of child and parent; she called him “dad”.
According to the complainant, all of the alleged sexual incidents occurred when she and the appellant were on their own in the house. She said that her mother worked with her grandfather from time to time at which times she left the complainant at home with the appellant.
The evidence
The prosecution case depended entirely on the jury accepting the complainant’s sworn evidence with respect to each charged incident beyond reasonable doubt and in the face of the appellant’s denials given under oath. However, the prosecution also called a number of other witnesses.
The evidence of the complainant’s boyfriend
The complainant’s high school boyfriend for about one year in or about 2011 gave evidence of a conversation with the complainant at his grandparents’ house which took place early in their relationship.[5] She told him that she had been abused by her stepfather when she was five or six years old. He could not remember whether she told him the nature of the abuse but did remember her saying that it had occurred more than once.
[5] The complainant said that such a conversation occurred at this location and about one or two months into their relationship.
The evidence of other family members
The prosecution also adduced evidence from the complainant’s mother, maternal grandmother, maternal grandfather and paternal aunt. Each gave evidence concerning the work habits of the complainant’s mother with a view to demonstrating the nature and extent of opportunities available to the appellant to be at home alone with the complainant during the particularised period.
The complainant’s mother also gave evidence about the complainant generally, her relationship with the appellant, the appellant having assumed a parental role and herself having left the complainant in the appellant’s sole care regularly over the years when she was working or otherwise needed to leave the house. The complainant’s mother gave evidence on two discrete topics of some relevance to the defence in a manner that will become apparent later in these reasons.
She said that she would normally be responsible for bathing the complainant and would shower with her when she was young – “I’d just hop in, and you know, quickly get in and do it all at the same time”. However, she agreed, during cross-examination, that she did not shower with the complainant after about the age of three.
The second topic of potential relevance concerned what was referred to during the trial as the “food” or “tasting” game. This is a game where the first player must close their eyes while the second player places an undisclosed item of food in their mouth. The first player has to guess the item of food. The complainant’s mother, in her examination-in-chief, said that she used to play this game with her sister when they were young but she did not remember playing it with the complainant, although they might have played it once. During cross-examination, she said that she had no specific memory of ever playing it with the complainant and no memory of playing it in front of the appellant. However, she would have told the complainant about the game.
The evidence of the complainant
I turn now to review the complainant’s evidence concerning the alleged offending.
Count 1 – indecent assault
The complainant said that count 1 (indecent assault) was the first incident of sexual misconduct. One morning, when in the house with just the appellant, she went into the bedroom he shared with her mother to see if the appellant was awake. He got out of bed wearing only boxer shorts, stood in front of her and took out his penis. The appellant took the complainant’s hand, put it on his penis and then moved her hand back and forth. The complainant asked to the effect, “Is this OK?” to which the appellant responded to the effect, “Yes, this is fine, as long as we don’t do it for too long”. The complainant said that the appellant had an erection but she could not remember if he had ejaculated. She said that she did not understand what was happening but did not think much of it.
The complainant said that after the count 1 incident, the same thing happened on up to five other occasions. She was unable to provide additional detail. On this topic of uncharged alleged sexual misconduct, the complainant said this.
Q.Did this same action happen on any other occasion.
A.Yes.
Q.What can you recall about that.
A.So I remember exact same sort of interaction happened a few times. I couldn’t say a specific number, I’m not sure but it did repeat just a few times.
Q.Where would that have taken place.
A.In the same area, in the bedroom.
Q.How many times.
A.I would say five or maybe just a little bit less, just a handful of times.
Q.Are you able to recall any other details about those occasions.
A.Nothing specific that I can remember that is different.
Q.How long after the first occasion that you’ve described to the court did those other occasions of sexual assault happen.
A.I’m not sure exactly.
I interpolate here that the Judge provided a relatively standard direction to the jury concerning how it should treat this evidence of alleged uncharged acts and with respect to which the appellant makes no complaint. Her Honour directed, correctly in my view, that the jury should not make any use of any uncharged act unless they accepted that it occurred and as to the proper process of reasoning if making use of any proved uncharged acts, including the permissible and impermissible uses of such evidence.
Count 2 – gross indecency
According to the complainant, the next charged alleged sexual misconduct “definitely” took place after the count 1 alleged incident – “at the most, within a few months, certainly not years”. However, she was uncertain whether or not it occurred after all of the uncharged alleged incidents. She described coming to be in the shower with the appellant and what took place in these terms.
… This took place in the bathroom. So I remember being in the shower with [the appellant], which wasn’t specifically unusual. Mum wasn’t home, she was working in – with my grandpa, doing electrical work. Mum and I would – she would often shower with me and things like that but it was just [the appellant] who was home and we were in the bathroom. He had his back to the wall where the shower was, which is where the shower head is and then he was facing me and I was facing him, so I was able to see the wall and the shower head. We were in the shower and he – I don’t remember the specific words – he asked me to move his penis back and forth, like had been done before in the shower. He told me that it was to help him clean himself and it would help the shower go quicker and to save water, to save money, if we could be quicker in there and help him clean himself, like he would help me wash my hair.
The prosecutor returned to this alleged incident a little later in the complainant’s evidence.
Q.In your evidence before, you said that you were asked to move his penis back and forth.
A.Yes.
Q.What did you do next.
A.I did that. I moved his penis back and forth with my hand.
Q.How did your hand get onto his penis.
A.I put it there.
Q.Can you recall which hand it was.
A.No.
Q.Do you recall how long it went for.
A.No.
Q.Why did it stop.
A.I don’t remember specifically.
Q.Can you describe what his penis felt like, at that time.
A.Again fleshy, warm.
Q.Did he ejaculate.
A.Not that I remember.
Q.What did you think at the time.
A.Nothing specific. This was something that had happened before and, like I said, I did think it sounded reasonable to want to save water so it just felt like something to be done, to do.
Q.Was there any other conversation.
A.Not that I remember.
As to whether or not the complainant had showered with the appellant on other occasions, the complainant said this during examination-in-chief.
Q.Did you think anything of having a shower with [the appellant].
A.No.
Q.Had you had a shower with [the appellant] before.
A.I don’t remember specifically but it’s certainly possible, it wouldn’t - it felt normal so.
She was challenged on this during cross-examination.
Q.After the incident in the shower that you’ve described, did you ever again shower with your mother.
A.Possibly but I don’t remember specifically.
Q.You never spoke to your mother about having showered with [the appellant].
A.Not that I remember.
Q.Did you only ever shower, on your evidence, once with [the appellant].
A.It could have been more, but I don’t remember.
Q.You don’t remember. Well, do you remember whether after the incident you’ve described you ever showered with him again.
A.Not specifically.
Q.I suggest you never showered with [the appellant].
A.I remember showering with him at least that once.
Q.What do you mean by that. When you say ‘at least that once’, are you saying that you might have a memory of showering with him on other occasions.
A.I don’t have a specific memory of showering with him otherwise, but it didn’t feel like a strange thing to do, to shower with him. If it felt normal to me then I think it’s entirely possible that I had showered with him previously, but I couldn’t say exactly.
Q.But you reckon it may have just been once.
A.Yes, probably.
Q.What’s the maximum time [scil: maximum number of times] you say it could have been.
A.I couldn’t say.
Q.And how often did you shower with your mother.
A.I couldn’t say.
The complainant, in her examination-in-chief, also said that the appellant’s explanation that her helping to clean him would save water and money sounded reasonable. She was aware, growing up, that money was an issue and that saving money or “not spending excess money” was a priority.
Count 3 – unlawful sexual intercourse
This alleged incident[6] was said to have occurred “a short while; days, maybe weeks, maybe months” after the shower incident. The complainant went into the bedroom where the appellant was alone in bed; the complainant’s mother was not home. The appellant asked the complainant if she wanted to play the food game. She said “yes” and complied with his instructions to hop in the bed with her eyes closed while he went to get food. She could not say if he definitely left the room or not but at some point he told her they were going to begin. The complainant still had her eyes closed.
… and he put – to my knowledge, he put his penis in my mouth and I recoiled and I pulled away and I felt uncomfortable. I didn’t know. At the time I didn’t know exactly what it was, but it didn’t feel right and I said that I didn’t want to play any more and he said ‘It’s just a banana, you’re over-reacting, I don’t know what your problem is’. And I, at that point I also had recoiled in bed, I moved a little further away from the edge of the bed where I had been laying and I pulled the covers up to my eyes and I repeated you know ‘I don’t want to play this any more’ and that was all. But he was upset about what had happened.
[6] The first of two similarly described incidents.
The complainant amplified her evidence-in-chief with respect to this first “food game” incident. She said:
(i)that when the game was suggested she was happy about it because she had played the game before with her mother and enjoyed it;
(ii)that what was put in her mouth “felt warm and round and fleshy”;
(iii)that at the time she did not see and did not know what the item was;
(iv)that she worked out what it was years later, when she was about 14 or a little younger – “once I had seen and touched a penis like knowingly”;
(v)that she did not recall seeing any food in the room when she first opened her eyes.
Count 4 – unlawful sexual intercourse
The complainant described a second occasion when much the same type of incident occurred. This was not long after the first such occasion. She was asked if she wanted to play a game.
I said ‘Yes’. But was aware and remembered the incident that had happened beforehand but I don’t know, I didn’t know whether you know it may have been a banana I just knew that I felt, it didn’t feel right at the time but I was willing to play again.
The complainant used similar language, as before, to describe the second such incident.
So the same thing happened. I hopped into bed, I closed my eyes and I covered my face. And I stayed that way until he told me to move the covers, keep my eyes closed and the same thing happened. To my knowledge, he put his penis in my mouth and again I recoiled and said that I didn’t want to play it any more and that I, that no, I didn’t want to do that. This time he was visibly more angry and he just stated again ‘You know it’s just a banana you’re over-reacting, I don’t know what the problem is’. He felt quite upset. To me, I remember feeling scared and confused because he was quite angry over my reaction.
Again, the complainant said that she didn’t see what was in her mouth at any time but that “it was warm and round and fleshy” and when she opened her eyes she didn’t see any food in the room. This time she described her manner of later making a sexual connection in these terms.
Q.As a seven-year-old did you think this was sexual at the time.
A.No.
Q.When did you make that connection.
A.When I was older and started to learn about you know sex and sexual things. You know, at school and on TV and things like that when I became aware.
Evidence of initial complaint
The complainant said that the first person she told was her high school boyfriend with whom she was in a relationship “in 2011 until 2012”. They were at his grandparents’ house and she told him in general terms about the three types of incident with the appellant that occurred when she was seven or eight and living at Mitchell Avenue.
The evidence of the appellant
The appellant was cross-examined at length. He agreed that the complainant had been left alone with him from time to time but repeatedly and consistently denied all of the allegations of improper behaviour. He first heard of the allegations “years ago when … first charged and arrested”. The appellant said that, to his knowledge, the complainant never saw him without a shirt.[7] He denied any knowledge of the tasting game as had been described or anything like it and denied that it had ever been played by anyone, or referred to, in his presence. He denied ever showering with the complainant. He agreed that the complainant had showered with her mother but only “when she was very, very young”. He denied that the complainant would often come into his bedroom and wake him up, but not that she did not come in at all.
[7] He said he had a skin condition and as a consequence always wore a shirt.
The nature of the appeal

The appellant relies upon the ground of appeal provided for in subsection 158(1)(a) of the Criminal Procedure Act 1921 (SA) which is in these terms.
(1)The Full Court, on any … appeal against conviction, will only allow the appeal if it thinks that –
(a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or …
The appellant’s ground of appeal has been articulated in this general form. However, the focus of the appellant’s complaint is on the asserted factual inconsistency between the guilty verdict with respect to count 1 and the not guilty verdicts with respect to the other three counts, in a context where, as the appellant observed, “in respect of each and every count, the complainant provided the sole substantive narrative in support …”.
The overarching approach required of an appellate court where a verdict is said to be unreasonable remains that as laid down by a plurality in the High Court in M v The Queen.[8]
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)
The plurality further observed.[9]
[I]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(Footnotes omitted)
[8] [1994] HCA 63, (1994) 181 CLR 487 at [7], 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[9] [1994] HCA 63, (1994) 181 CLR 487 at [9], 494-495.
A conclusion that a guilty verdict is factually inconsistent with verdicts of not guilty on other counts is a conclusion that the first verdict is unreasonable in the sense articulated in M v The Queen,[10] sometimes described as unsafe or unsatisfactory.[11]
[10] R v Blair [2005] SASC 319 at [35] and see generally, R v H, GJ [2008] SASC 274, (2008) 102 SASR 82 at [23]-[29].
[11] R v Blair [2005] SASC 319 at [35].
In MacKenzie v The Queen,[12] Gaudron, Gummow and Kirby expressed the test for factual inconsistency with respect to different counts as follows.
[12] [1996] HCA 35, (1996) 190 CLR 348 at 366.
Where as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
(Footnotes omitted)
In MacKenzie, the plurality proceeded to make a number of observations, material to a criminal jury trial, to the following effect:[13]
(i)the respect for the function which the law assigns the jury has given rise to a reluctance to make a finding of inconsistent verdicts;
(ii)thus, if there is a proper way in which verdicts may be reconciled so to permit the conclusion that the jury performed its required function, that conclusion generally will be accepted;
(iii)if there is some evidence to support the impugned verdict it is not for the appellate court, on this ground, to substitute its own view of the facts;
(iv)the view may be taken that the jury simply followed the Judge’s instruction to give separate consideration to the prosecution case with respect to each count; and
(v)the view may be taken that the jury took a merciful view of the facts with respect to one or more counts.
[13] MacKenzie v The Queen [1996] HCA 35, (1996) 190 CLR 348 at 367.
Nevertheless, there will be cases where factual inconsistency becomes evident. The plurality in MacKenzie put it this way.[14]
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.
(Footnote omitted)
[14] MacKenzie v The Queen [1996] HCA 35, (1996) 190 CLR 348 at 368.
It must also be kept in mind, as was submitted by the respondent, that a not guilty verdict does not necessarily imply disbelief or a want of confidence in a complainant’s evidence but perhaps a cautious approach taken by the jury to the heavy responsibility undertaken.[15]
[15] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34].
The Judge’s directions
The Judge provided conventional directions on the topics: that the jury was at liberty to return different verdicts with respect to the four charged counts, that is, that the counts do not necessarily stand or fall together; that each offence charged is a separate offence and must be considered separately and independently; and that it was open to the jury to accept part whilst rejecting part of any witness’s evidence. There was no objection taken to the Judge’s directions in these respects either at trial or on appeal. Immediately following the separate consideration direction the Judge added the following.
Of course, if you accept the credibility and reliability of one particular witness in respect of one of the counts, that might affect your opinion of that witness’s credibility generally and might affect your consideration of the other counts. But in the end, your attention must be to the individual charges and whether or not the prosecution has proven the elements of that particular charge separately considered beyond reasonable doubt.
Consideration
I start with the inconsistency said to arise between the verdicts of guilty of count 1 on the one hand and not guilty of counts 3 and 4 on the other. The starting point is that the jury accepted the complainant’s evidence and rejected the appellant’s denials, beyond reasonable doubt, with respect to the former but was not prepared to do so with respect to the latter. However, it does not follow, necessarily, that the jury found the complainant’s evidence with respect to counts 3 and 4 as being either not credible or not reliable. Rather, all that can be concluded is that the jury was not persuaded beyond reasonable doubt by her evidence that those offences had been committed.
There is a straightforward potential explanation for this. The complainant did not see what was put in her mouth at any time on either occasion she and the appellant played the food game. She felt and described the object, each time, as “warm and round and fleshy”. She was told it was only a banana. The description she gave might be seen as consistent with it being a banana. Her evidence to the effect that it was “to my knowledge” the appellant’s penis was plainly a product of reconstruction and a conclusion arrived at years later when the complainant was in her mid-teens. She was quite candid about this.
Further, with respect to counts 3 and 4 the complainant gave quite different reasons as to her process of reasoning when, as a teenager, she drew the inference that the appellant had inserted his penis into her mouth. With respect to count 3, she said she worked it out years later “once I had seen and touched a penis like knowingly”. With respect to count 4, she made the connection “when I was older and started to learn about you know sexual things. You know at school and on TV and things like that when I became aware”.
In these circumstances, a careful jury may well have been prepared to accept the complainant’s direct evidence of the matters she heard, saw and felt – treating her as entirely honest and reliable in these respects – but not been prepared to draw beyond reasonable doubt the same inference later arrived at by the complainant.
As far as count 1 is concerned, the complainant described a completely different type of event. She provided direct evidence which, if accepted by the jury as honest and reliable, was sufficient to establish the offence.
This different evidentiary basis for count 1 as compared with that for counts 3 and 4 is sufficient to reject the contention that the respective verdicts should be seen as a matter of logic and reasonableness as necessarily inconsistent. If the jury reasoned in the way postulated above, they will have been faithful to the Judge’s separate consideration direction.
I turn now to consider count 2. There is little, if anything, about the complainant’s evidence in support of count 1 that viewed objectively rendered the applicant’s account intrinsically unreliable. Further, she gave evidence of up to five similar (uncharged) incidents. The jury were properly directed about the permissible and impermissible uses of that evidence. One permissible use was that the evidence may assist the jury to conclude that the complainant’s evidence of the charged acts was reliable. Plainly this use would have most force when considering the similar charged act in count 1. Acceptance beyond reasonable doubt of the complainant’s evidence concerning count 1 was entirely open to the jury.
I express this view, notwithstanding that with respect to her accounts of both count 1 and count 2 the complainant acknowledged making a prior inconsistent statement which was relied on by the appellant both at the trial and on appeal. In her evidence, the complainant said that, on the occasions of count 1 and count 2, the appellant had an erection on the basis that she remembered the penis being “hard”. However, at an earlier trial she had described the penis on each occasion as feeling “soft and fleshy” and when asked whether it was erect she answered, for each occasion, “I don’t exactly recall”. In re-examination at the second trial, over objection, the complainant said that when, at the first trial, she used the term “soft”, she was referring to the texture of the penis not the state of the erection.
The Judge provided an orthodox direction as to the use the jury might make of a witness’s prior inconsistent statement specifically illustrated by reference to this evidence. Quintessentially, what was to be made of these prior inconsistent statements was a matter for the jury, properly directed as it was. Nevertheless, the context is important. The complainant was giving evidence, whilst in her early twenties, of events said to have taken place when she was no older than eight and sexually naïve. There was understandable potential for reconstruction to intrude, particularly given the greater sexual awareness and experience now available to the complainant in her early twenties.
In that context, there is a significant difference between the fact of holding a penis and the fact of its state of erection particularly bearing in mind that the latter notion can incorporate a spectrum of states from completely flaccid to fully erect. Common sense suggests that, at the time, the attention of a naïve eight year old was likely to be focussed more on the former than the latter. Further, any recollection some 13 or more years later is likely to be less reliable insofar as the state of the penis is concerned as compared with the fact of its presence. Put simply, the fact that a complainant may be unreliable in her recollection of a detail such as the state of the penis would not necessarily lead to a reasonable jury rejecting her evidence that the incident itself took place.
Part of the Judge’s direction was as follows.
Prior inconsistent statements go only to the reliability or credibility of a witness's evidence. If a witness gives sworn evidence before you that is significantly different from evidence given on a prior occasion, a jury must exercise caution before accepting the sworn evidence of that witness given before them. It will be for you to assess the significance of each inconsistency you find proven. Does it touch on an important issue in the case, or is it peripheral or incidental? If it does touch upon an important issue, is there an acceptable explanation consistent with the witness's evidence being believable and reliable. Obviously enough the more significant the inconsistency, the greater the risk that the sworn evidence will be unreliable.
It was open to the jury to put aside this prior inconsistent statement as being “peripheral or incidental” and to view the complainant’s evidence, including that in re-examination, as being born of innocent reconstruction. The question of the state of the penis was not a material fact in issue. Ultimately it was not necessary for the jury to make a finding. However, it was open to the jury to find the complainant to be unreliable as to her evidence concerning the state of the penis, although still an honest witness, yet be willing to accept beyond reasonable doubt other more central aspects of her evidence.
This reasoning applies with respect to both count 1 and count 2 and does not serve to justify the different jury outcomes; indeed to the contrary. However, there are other evidentiary concerns with respect to count 2 which may well have given the jury more cause for pause.
According to the complainant, count 2 occurred relatively soon after count 1 and relatively soon after some or all of the uncharged conduct and when she was about seven or eight. However, the evidence of the complainant on the topic of showering was in stark contrast to that of her mother. Further, the complainant’s evidence on the topic of showering with the appellant had a fragility about it for want of a better term. Ultimately, it is readily understandable that the jury might have entertained a doubt that the complainant showered with the appellant at all during the particularised period (when the complainant was between six and eight).
The complainant said that she remembered “being in the shower with [the appellant] which wasn’t specifically unusual”. However, during cross-examination she gave quite non-committal evidence as to the extent of her showering with the appellant and, in effect, conceded that it may have been just the one occasion. The relevant exchange is set out earlier in these reasons. The jury might have been concerned that the complainant had been unable to justify or explain her evidence in chief that showering with the appellant “wasn’t specifically unusual”.
This concern can be allied to that arising from the contrast in the evidence of the complainant and her mother on the topic of showering together. The complainant, in the context of her description of count 2,[16] said that “mum and I would – she would often shower with me and things like that …”. The context suggested that often showering with the mother and the not unusual showering with the appellant took place at about the same period in her life and, in particular, at the time of count 2. However, the mother gave evidence that she would normally be responsible for bathing the complainant and would shower with her when she was young but not after the age of three. The appellant also gave evidence that the mother only showered with the complainant when she was “very very young” and denied that he ever showered with the complainant. There was no evidence from the mother to the effect that the complainant, as an older child (or at all) showered with the appellant.
[16] The full passage of the complainant’s evidence on this topic is set out earlier.
It may have been open on the evidence for the jury to accept the complainant’s account of the shower incident on the basis that the appellant persuaded the complainant to have a shower with him on just this one occasion. However, they may legitimately have been concerned that the complainant was remembering an incident that had occurred when she was very much younger and well outside the particularised period of offending. In addition, and if so, the possibility of unreliability as to who she was with and unreliable later reconstruction would be enhanced.
Alternatively, the potential problems with the complainant’s showering evidence, as just outlined, may simply have been sufficient to cause the jury to take a cautious approach to deciding whether or not facts essential to count 2 had been established.
Conclusion
It does not follow from any of the foregoing that the jury necessarily doubted the honesty of the complainant. It was open to the jury, given the young age of the complainant at the critical time and the lengthy delay before giving evidence, for it to take a cautious approach to assessing the reliability of the complainant’s evidence particularly with respect to counts 2, 3 and 4. Count 1 was a far more straightforward exercise.
One can never know the process of reasoning in fact undertaken by the jury. However, in my view the verdicts are quite consistent with the jury having adhered to the separate consideration direction, having taken the liberty to accept as reliable some but not all of the complainant’s evidence, and having taken a cautious, perhaps merciful, approach bearing in mind the heavy responsibility that was upon it.
On an application of the earlier identified principles, taken from MacKenzie, to the evidence in this matter I am not persuaded that the verdicts returned by the jury are so inconsistent as to render the conviction on count 1 as unreasonable in the sense articulated in M v The Queen. At a more general level, and upon an application of the test or approach established in M v The Queen, following my review of the whole of the evidence, I am not persuaded that the verdict on count 1 is unreasonable and cannot be supported having regard to the evidence.

I would dismiss the appeal.
HUGHES J: I agree with the reasons given by Nicholson J. The appeal should be dismissed.

[2019] SASCFC 68

27 June 2019

Key Legal Topics

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Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing

Statutory Construction