R v G, PG - [2007] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v G, PG
[2007] SASC 85
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
9 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against conviction – appellant convicted of indecent assault of 11 year old girl at suburban swimming pool 27 years previously – at time of offending appellant was 37 years old and victim’s school teacher – whether directions to jury were adequate with respect to issues of delay, complaint, prior inconsistent statements and conflict in evidence – whether victim’s evidence that victim’s mother, who had since died, removed victim from school because of offending was admissible – held, appeal dismissed – viewed as a whole, directions to jury were proper – challenged evidence was uncontroversial and not objected to at trial.
Criminal Law Consolidation Act 1935 s 56, referred to.
R v Longman (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161; R v Doggett (2001) 208 CLR 343, applied.

R v G, PG
[2007] SASC 85
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ. I would dismiss the appeal on grounds 1, 3 and 4. I would refuse leave to appeal on grounds 2, 5 and 6. I agree with the reasons of David J for so deciding.
I add just this. This is a troubling case, based as it is on a single incident some 26 years ago, there being no evidence of any other interaction between the complainant and the accused that might tend to support the evidence of the complainant. I have read the trial Judge’s summing up several times, bearing in mind the criticisms made by Ms Davey, counsel for the appellant. For the reasons given by David J, I am satisfied that the trial Judge’s summing up was adequate to the occasion, and in particular was fair and balanced. Some judges might have emphasised some points a little more, and some might have emphasised some things a little less. But taking the summing up as a whole it is a fair summing up, and fairly and accurately presented the issues to the jury.
In those circumstances, there is no basis for interfering with the jury’s verdict, and it follows that the appeal must be dismissed.
GRAY J. I agree with the orders proposed by Doyle CJ and David J. I agree with reasons of David J and the further reasons of Doyle CJ.
DAVID J. After a trial by jury in the District Court, the appellant was convicted of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case alleged that, between 1 January 1980 and 30 April 1980, the appellant, whilst swimming in a swimming pool with the victim (whom I will refer to a “V”), touched her beneath her bathers in the area of the vagina. At the time, V was 11 years of age and the appellant was aged about 37. The appellant was V’s schoolteacher, and the incident allegedly occurred during a weekend when both had attended the swimming pool independently of each other.
The appellant admitted at trial that he had been in a swimming pool with V at about that time and, in fact, came into contact with her. However, he gave evidence that he did not touch the area of her vagina, and that any contact between the two of them was innocent and accidental.
Evidence was heard at trial that V complained to her friend (whom I will refer to as “J”) almost immediately after the incident took place, and the matter was reported to both the pool attendant and the school authorities. The appellant was made aware of the allegation almost immediately but, at that stage, the matter went no further. The allegation was not reported to police until April 2004, and the police first spoke to the appellant on 12 August 2004.
The appeal focuses on the trial judge’s directions to the jury on the question of recent complaint, the dangers of delay, and inconsistencies within V’s version of the incident. The appellant also argues that V’s evidence that her mother took her away from the school at which the appellant was a teacher was inadmissible. The appellant further complains about a direction the trial judge gave to the jury that there was a complete conflict between the evidence of the appellant and that of V.
Background Facts
At the time of the incident, which is alleged to have taken place between 1 January 1980 and 30 April 1980, V was aged 11 years and was in Grade 6 or 7. At that time, the appellant was 37 years of age and was V’s teacher. At the relevant time, V was living at home with her parents and brothers and sisters. Her mother has since died, about 15 years ago.
On the day of the incident, which was on a weekend, V was at a suburban swimming pool with J. V saw the appellant swimming laps and called out to him. After attracting the appellant’s attention, she and J jumped into the swimming pool and started playing with him. They were generally swimming with each other, and he was throwing them into the air. V gave evidence that at one stage the appellant pulled her over to him, sat her on his knee and put his hand inside the bottom of her bathers and started to touch her vagina. She said that he put his fingers on her clitoris and was moving them around, and he then moved to the entrance of her vagina and “put a finger in there”. She thought his finger was in her vagina up to the knuckle, but that it was not there for very long.
V gave evidence that she then made eye contact with J, got out of the pool and told J what had happened. She could not be more specific about what she said to J. They then went to the office and spoke to a male pool attendant and reported what had happened. Eventually her mother came and collected both girls from the pool. V gave evidence that she never saw the appellant again and never went back to the school she had been attending. When asked in evidence why she had left the school, she said “My mum refuse [sic] to take me back to the private school where Mr [G] taught”. Although not objected to, that evidence is the subject of one of the grounds of appeal.
It was put to V in cross-examination that over a period of time she had changed her story. I deal with the details of those inconsistencies when I turn to ground 2 of the notice of the appeal. It was also put to V that no inappropriate behaviour had taken place between the appellant and her. V was also cross‑examined extensively about her criminal record between the date of the alleged offending and the date of trial.
J gave evidence that she attended the swimming pool with V on the occasion that they saw the appellant. She thought that V was 11 or 12 years of age at the time, but was unable to specify the date. She remembered playing in the water with V and a man who was introduced to her as V’s teacher. J got out of the pool to go somewhere, and when she returned she noticed V getting out of the pool. V said to her “He’s just tried to put his hands down my pants”. That conversation was led by the prosecution as a recent complaint. V’s mother then collected them, and they went home.
J gave further evidence that V’s mother asked V what had happened, and V said words to the effect that nothing had happened. In cross‑examination, J also conceded that she was unsure whether V said the appellant tried to put his hands down her pants, or whether, in fact, he put his hands down her pants.
The former principal of the school (whom I will call “Ms H”) gave evidence that she received a telephone call about the incident from V’s parents on a Sunday afternoon. As a result, Ms H went to V’s home. Whilst there, in the presence of V and her parents and brothers, Ms H was told that the appellant had touched V on the breast at the swimming pool. Ms H gave evidence that she spoke to the appellant about that allegation. The appellant told her that he only put his arm around V. Ms H said that the appellant looked shocked.
The investigating police officer, Michael Clark, gave evidence that he first spoke to the appellant about the allegations on 12 August 2004. He conducted a formal interview, and the appellant denied that any inappropriate behaviour had taken place with V.
The appellant gave evidence at trial and denied touching V in the area of the vagina or behaving inappropriately with her. He admitted being in the swimming pool with her and could remember V pushing her buttocks into his groin whilst they were playing. He said that he had not caused that contact, and that he had not touched her in any inappropriate way and was shocked when she behaved like that. He said that he had immediately disengaged himself. The appellant gave evidence that he remembered the pool attendant speaking to him about an allegation being made by a girl. He had been so outraged by the allegation that he had spoken to Ms H and told her about it. The appellant said that he has no memory of seeing police at the pool and did not hear anything more about the matter until he was interviewed in August 2004.
Because of the period of time that had elapsed, neither side was able to establish whether the police went to the pool as a result of the allegation. It has also been impossible to locate the pool attendant who was spoken to, and V’s mother died about 15 years ago.
Grounds of Appeal
I turn to the grounds of appeal.
Ground 1
The learned trial judge failed to adequately direct and warn in respect of the delay in this matter.
The appellant complains that the trial judge’s directions to the jury about delay were inadequate. The case called for strong and clear directions about delay, as stipulated in R v Longman[1], Crampton v The Queen[2] and R v Doggett.[3] Although there was an immediate complaint, the police did not become involved until they first interviewed the appellant some 24 years later. The incident was isolated, was not part of alleged continuous conduct and was relatively brief. The evidence of V was also uncorroborated. In those circumstances, a clear and unequivocal Longman warning was called for. I set out the trial judge’s directions on delay:
[1] (1989) 168 CLR 79.
[2] (2000) 206 CLR 161.
[3] (2001) 208 CLR 343.
One feature of this trial is that, although, according to the prosecution case a prompt and fresh complaint was made to [J] to enhance the complainant’s credibility by showing consistency, and although, according to [Ms H], the [S] School and [V’s] parents were aware of the allegation later the same day or the following day, and although, according to [Ms H], the Catholic Education Office was informed (and decided to conduct no investigation and take no action) the matter was not proceeded with and the accused was not arrested and charged until 2004. And the matter did not come to trial until 2006. There was, thus, a delay of 26 years between the date of the alleged offence and this trial.
On the evidence as it is, there is no reason for you to conclude that that delay reflects adversely upon the complainant as a witness. But you may find that the delay, though not diminishing her credibility on that account, might diminish to a degree, her reliability as a witness purporting to recall certain happenings and conversations which took place so long ago. It is important for you to understand that the delay in proceeding with the charging and then prosecuting of the accused, does not necessarily mean that the allegation is false.
I say a number of things to you:
(1)There is no independent support for the complainant’s account. All you have is [V’s] evidence as to the specifics of what occurred standing alone. You have, alongside that, the evidence of what the accused stated during his record of interview. You have, of course, the accused’s denials in this courtroom, denials on oath.
(2)True it is that there is evidence of a prompt and fresh complaint made to [J], about which both females were, you might think, in general agreement as to what the complainant had said. That evidence may be used in the limited way that I have explained to you.
(3)This was, seemingly, an isolated incident during a normal relationship of teacher/student, when there had been no special or focused attention shown by the accused to his student.
(4)Your experience of life may be that there is a certain amount of fragility in youthful recollection and a certain amount of fallibility in memory going back more than 25 years, from adulthood back to childhood.
(5)The possibility of distortion or mental reconstruction or embellishment should not be overlooked.
(6) You may take it that, from the accused’s perspective, the delay has disadvantaged him in defending himself against allegations which he says were false, and has disadvantaged him in remembering matters of fine detail and, perhaps, in producing evidence to disprove the evidence of the complainant or to discredit her, although, as I have already directed you, the accused does not have to prove anything.
You may take these matters into account in assessing whether the prosecution has proved its case against the accused. You should, I think, scrutinise the complainant’s evidence with great care. I warn you that it would be dangerous to act upon the complainant’s evidence alone unless, bearing in mind the warning that I have given you, you are completely satisfied of its truth and accuracy.
…
There were a number of potential witnesses, ladies and gentlemen, people that you might have thought could have been called or would have been called as witnesses who were not called; that is to say, somebody from the [suburban] Pool to produce records, somebody from the [suburban] Council to say whether any complaints had been made and what investigations might have taken place. Mr [J] was referred to, and you have his witness statement before you, which was read by my associate. You might have thought that some further evidence might have been forthcoming from that office. You had a witness statement from Father [M]. You might have expected that another priest or some other religious person might have been able to throw some light on the situation. It was the subject of some discussion as to whether the police had attended at the [suburban] Swimming Pool. There was no evidence forthcoming about that police attendance. There might have been other people that you thought should or could have been called.
Detective Clark, the investigating officer and the person who conducted the record of interview, gave you some evidence, ladies and gentlemen, and I need not read it and identify it; he told you what he did by way of making inquiries at the [suburban] Council and for Pool records and the like. He told you of efforts he made to follow up with the Catholic Education Office and with the priests, and he said that he followed up about the suggested police attendance at the [suburban] Swimming Pool, and he said, you might remember in fairly picturesque language for a police officer, “I couldn’t establish one way or the other, no way”.
I have referred to witnesses not called and evidence not adduced in order to have you avoid doing something inappropriate. You should not draw any inference against the prosecution on account of the fact that you may infer (or may conclude) that a witness or witnesses who might have been called were not called. You should certainly not draw any inference adverse to the accused from the fact that witnesses were not here who might have been here. There is no onus, of course, on the accused to prove anything.
If you turn your minds to the existence (or the possible existence) of witnesses who were not called, I tell you (and direct you), ladies and gentlemen, that you should not speculate about what any potential witness not called might have said (emphasis in original).
Ms R Davey, counsel for the appellant, argues that the above directions are inadequate for a number of reasons. The main thrust of her argument is that the directions do not refer specifically and in enough detail to the difficulty experienced by the appellant in both giving evidence in court and answering questions in his record of interview because of the delay. She also argues that the judge erred in his directions by saying that the jury “may take these matters into account in assessing whether the prosecution has proved its case against the accused” (emphasis added).
Ms Davey argues that the jury had to be directed that they should take those matters into account not that they may take those matters into account. Ms Davey also argues about a direction given by the trial judge that the jury should not draw any inference against the prosecution on account of the fact that a witness who might have been called was not called. In other words, the judge directed the jury that they should not speculate about what any potential witness who was not called might have said. Ms Davey argues that this cuts across the Longman direction, because one of the aspects of unfairness about delay would be that the lapse in time could result in the loss of witnesses who might assist the defence.
In considering those matters, I am of the view that the trial judge’s directions on delay were appropriate in the circumstances and according to principle. He carefully instructed the jury that the evidence of V had no independent support, that this was an isolated incident, and that there is fragility in youthful recollection after such a long period of time. He also directed the jury that the delay had disadvantaged the accused in defending himself, and had disadvantaged him in remembering matters of fine detail and producing evidence to disprove the evidence of V or to discredit her. The trial judge then clearly directed the jury that they should scrutinise V’s evidence with great care, and that it would be dangerous to act upon her evidence alone (which was the case here and was clearly stated to be so) unless they were completely satisfied of its truth and accuracy. I add that the trial judge’s traditional direction that the jury should not speculate to the prejudice of either party about the witnesses that were not called does not cross the Longman warning. The judge clearly directed the jury that the delay may have disadvantaged the appellant’s ability to present evidence to disprove what V said at trial.
I would reject that ground of appeal.
Grounds 2 and 3
I have dealt with both grounds together because there is a certain overlapping in the evidence between the two.
Ground 2 complains:
The learned trial judge erred in the directions given with respect to alleged prior inconsistent statements made by the accused.
Leave is sought on this ground, having been refused by a single judge of this Court.
Ground 3 complains:
The learned trial judge failed to give adequate directions as to the complaint evidence. In particular:
(i)    he failed to give adequate emphasis to the inconsistencies in the account of [J];
(ii)     he failed to emphasize that the complainant told her mother that “nothing” happened.
(iii)     he failed to emphasize the evidence of [Ms H] of the complaint conveyed to her (a touching to the breast);
(iv)    he failed to adequately emphasize the difficulties in adequately testing the complaint evidence given the delay (emphasis in original).

Evidence of the complaint was given by J. I have already referred to her evidence, and the uncertainty as to whether she thought V said that the appellant tried to put his hands down her pants, or did put his hands down her pants. J also gave evidence that when V’s mother enquired as to what the problem was, V told her that nothing had happened.
A further inconsistency about the nature of the complaint was that Ms H gave evidence that V was present with her family when they informed her that the appellant had touched V’s breast.
Ms Davey argues that when directing the jury on the complaint evidence the trial judge did not emphasise these inconsistencies.
When dealing with the complaint evidence, the trial judge instructed the jury:
I now want to say something to you about the evidence of complaint. You heard me say something earlier about what we in the law call “complaint evidence”. There was some evidence of a complaint made by the alleged victim to [J]. That evidence was given specifically by [J] and in a general way by the complainant. It is a principle of our law that in general, the only evidence of the existence of facts or the occurrence of events which is permitted in our courts is evidence given on oath or affirmation from the witness box, and subject to cross-examination. This is an important safeguard in our criminal justice procedures. What a person says outside the court or other than in evidence in court is not generally evidence of what did or did not occur. It follows that what the complainant said to [J] is not evidence of what occurred. For evidence of what did or did not occur you must rely on the direct evidence given in court at this trial by the complainant or by the accused. They are the only persons who claim to know what happened under the water. There were no eyewitnesses.
The alleged complaint (and it is, ladies and gentlemen, an alleged complaint) to [J] comes before you because the making of a prompt complaint is, generally speaking, relevant in assessing the truth and reliability of the complainant giving evidence in the court. It may indicate to you that the complainant’s behaviour in making a prompt complaint was consistent with the occurrence of the behaviour about which she has given evidence in court, albeit many years later. It may assist you also in assessing her evidence by tending to negative or dispel any notion that the allegation was a matter of invention on her part. It is for you, members of the jury, to consider whether you accept the evidence of the complaint that was given in this courtroom by [J], and by the complainant herself, insofar as she provides support to [J], and if so, what weight you attach to it.
In deciding what weight to attribute to the complaint made in this case, and as to the credibility and reliability of the complainant, you should particularly bear in mind the circumstances leading to it and the context in which that complaint was made.
So it is that I make it clear to you, that you are not entitled to use (and must not use) the evidence of a complaint allegedly made by [V] to [J] as any evidence of the fact complained of. You are not entitled to use, (and must not use) the evidence of what [V] may have said to [J] as any evidence that the accused had, in fact, put his hand down her pants or somewhere near her vagina, or had tried to do so.
Evidence to the effect that a prompt and spontaneous complaint was made can only, as I have said, be used as evidence, firstly, to show the consistency, if consistency it shows, between her conduct in making the complaint at the first reasonable opportunity, on the one hand, and the story told by her in the witness box on the other hand. Secondly, evidence of a prompt and spontaneous complaint may be used to go towards rebutting the suggestion, the suggestion that her story was a concoction or fabrication (emphasis in original).
Further on in his summing up, when summarising the prosecution and defence cases, the trial judge referred to the inconsistencies in J’s evidence about the complaint. He said to the jury:
You will take into account of course, as I am sure you will, that [J] spoke on one occasion of the complainant saying to her “He put his hand down my pants” and on another occasion she said that “[V] had said he tried to put his hand down my pants” (emphasis in original).
The trial judge pointed that out in the context of reminding them of the evidence led from J about the complaint. During that part of his summing up, he drew the jury’s attention to Ms H’s evidence about V being present when she was told that the appellant had touched V on the breast.
The trial judge did not direct the jury about J’s evidence that at the swimming pool V told her mother that nothing had happened. Looking at the evidence as a whole this can be of little moment, because there was clear evidence before the jury that V must have told her mother something had happened shortly after that, as evidenced by the conversation between the family and Ms H.
In my view, the trial judge’s directions as to the complaint evidence were correct in principle, and clearly pointed out the inconsistencies in the various versions. In my view ground 3 should be dismissed.
Ground 2 complains of the trial judge’s directions in relation to prior inconsistent statements of the appellant. The trial judge directed the jury generally about inconsistent statements. He said the following:
I now want to say something to you about inconsistent statements. Where you find that any particular witness has made an inconsistent statement, that is to say, he or she has made one statement at one time and another statement at another stage, and those two statements are inconsistent with each other, that may help you (but it may not necessarily do so) to decide whether the evidence is reliable and which of the two statements is true and correct. And it may help you to decide whether the ultimate statement relied upon as evidence represents the truth. You see, you may conclude that the statement made later in time is true, or you may conclude that the former statement is true, and that the later statement is a matter of invention. Or you may even conclude that it would be unsafe to rely on either statement, and unsafe to rely upon the evidence of a person who has made inconsistent statements. But, if it is the position that a witness has made inconsistent statements, it does not necessarily follow that you should reject the whole of the evidence that he or she has given. You can accept some and reject some.
He then went on to point out an inconsistency between what V said to the police in the statement she gave in April 2004 compared to what she said in the second statement she gave on 6 July 2005, which is also what she told the court. In the former statement she said the appellant put his finger in the area of her vagina, whereas in the latter statement and her evidence, she said the appellant placed a finger inside the entrance of her vagina, perhaps up to the first knuckle. There is no complaint about that direction. However, the trial judge then went on and set out a number of inconsistencies between what the appellant had said in evidence and what he had said in his record of interview. There is no argument of any factual mistake by the trial judge in so doing, but there is a suggestion that the appellant’s inconsistent statements were given greater prominence than were the inconsistent statements of V. In my view, the argument has no merit as the trial judge clearly directed the jury as to the proper use that could be made of inconsistencies on either side, and the seemingly greater emphasis placed on the appellant’s inconsistent statements was as a consequence of there being a greater number of inconsistencies in his statements as compared to the inconsistencies in statements made by V. I would refuse leave to appeal on ground 2.
Ground 4
Ground 4 complains:
The learned trial judge erred in giving the direction at page 13 of the Summing Up “so there is a complete conflict; either what [V] told you is true, and the offence was committed, or it is a fabrication or a made-up story”.
Ms Davey argues that this direction is stark and simplistic. She argues that such a direction either takes away from the jury, or diminishes, an alternative possibility, namely that V was honest but mistaken about what happened. Ms Davey argues that that alternative possibility was a path to acquittal which was effectively denied to the appellant.
If that is all that was said on that topic there may be some merit in the appellant’s argument. However, the trial judge also said:
This case is not, ladies and gentlemen, a case of simply asking which of the two versions of the two people, the student and the teacher, do I prefer, which version do I prefer, that of the complainant or that of the accused? It is not, ladies and gentlemen, a matter of simply asking that question. It is a matter, in the final analysis, as to whether you can be satisfied (and satisfied beyond reasonable doubt) that the Crown has proved the charge.
I would dismiss that ground of appeal
Ground 5
The appellant complains:
The evidence at page 28 lines 25-28 was inadmissible and should not have been admitted.
Leave is sought, as it has already been refused on this ground by a single judge. I set out that passage of evidence:
Q.Can you tell us the reason why you went to [S] Primary School.
A.My mum refuse [sic] to take me back to the private school where Mr [G] taught.
The appellant argues that that evidence should not have been admitted because the mother’s reason as to why V was sent to another school is hearsay evidence.
The first hurdle to obtaining leave is the fact that there was no objection made to that evidence at trial. Also, V’s view of why her mother refused to take her back to the school was hardly controversial, as there was clear evidence during the trial that V eventually told her mother that some form of sexual assault had taken place. That is clear from the evidence of Ms H about the conversation she had with the family. In my view, that submission has no force. I would refuse leave to appeal on that ground.
Ground 6
Ground 6 was not pursued.
Conclusion
On grounds 1, 3 and 4, I would dismiss the appeal. On grounds 2 and 5, I would refuse leave to appeal.