R v GRIMWOOD

[2011] SASCFC 163

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v GRIMWOOD

[2011] SASCFC 163

Judgment of The Court of Criminal Appeal

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

22 December 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

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

Appeal against conviction – appellant found guilty by trial judge of four counts of sexual intercourse contrary to s 49(3) Criminal Law Consolidation Act 1935 – appellant was stepfather of complainant’s friend - whether verdict was unreasonable and unsatisfactory having regard to the evidence.

Held: appeal dismissed – conviction largely based on trial judge’s acceptance of complainant’s evidence over that of the appellant – evidence strongly supported complainant’s testimony – inconsistencies and alleged implausibilities in complainant’s evidence not significant enough to displace trial judge’s findings as to complainant’s credibility - findings of the trial judge were open and reasonably made based on the evidence.

R v GRIMWOOD
[2011] SASCFC 163

1. VANSTONE J:     I agree that the appeal should be dismissed for the reasons given by Kourakis J.

2. KOURAKIS J:     The appellant was found guilty, after a trial by judge alone in the District Court, of four offences of unlawful sexual intercourse.  He appeals the consequential convictions on the ground that the Judge’s verdicts were unreasonable and unsupported by the evidence.  The offences were alleged to have occurred between the first day of January 1985 and 31 December 1986.  The complainant was born in 1970 and the appellant was born in 1948.  The complainant, to whom I shall refer to as C, was about 15 years of age at the time of the offences.  The appellant was the stepfather of C’s school friend and was 22 years her senior.  The offences came to trial some 25 years later as it was not until January 2007 that C reported the offending to the police.

3. The Judge’s verdict of guilty was essentially based on his acceptance of C’s testimony and his rejection of the appellant’s evidence.  Having regard to the Judge’s advantage in assessing the testimony of the witnesses, the inconsistencies  and improbabilities in C’s evidence on which the appellant relies do not leave me in any doubt of the appellant’s guilt.  I would dismiss the appeal. 

4. My reasons follow.

   The Evidence

5. During 1985 C befriended the appellant’s stepdaughter, SD.  The appellant, his wife and SD lived in a town in the Adelaide Hills.  C lived with her family in another nearby hills town.  The sister of SD, T, was at that time living mostly away from home.  On the occasions when C stayed overnight at SD’s home she slept in T’s bedroom. 

6. The offence charged by the first count was the first occasion on which the appellant had sexual intercourse with C.  C testified that on one of her sleepovers in the winter of 1985, she and the appellant stayed up watching television after SD and her mother had gone to bed.  According to C, whilst they sat watching television alone the appellant placed his hand on her leg.  He continued to touch her with increasing sexual intimacy in a course of conduct which culminated in penile vaginal intercourse.  C’s testimonial account of the conduct was detailed and coherent.  For example, C testified that just before intercourse took place she told the appellant that she was concerned that she might fall pregnant.  According to C, the appellant responded by demonstrating a cutting movement with two fingers and saying the word “snip.”  C understood that to be a reference to a vasectomy.  The appellant acknowledged in his evidence that he had been vasectomised “earlier in the piece.”  The appellant denied C’s testimony.  SD testified, in the defence case, that she and C always went to bed at the same time. 

7. C testified that the appellant asked her not to tell anyone about his conduct.  For reasons which included the very vulnerability that the criminalisation of sexual conduct with children is intended to protect, the complainant did not disclose the appellant’s sexual offending and continued to visit the appellant’s home.  C testified that she idolised and trusted the appellant.  C also explained that she did not disclose the conduct because of her own feelings of guilt.

8. C testified that on her subsequent visits to the appellant’s home he flirted with her.  She also gave evidence of uncharged sexual offending.  With respect to one of those incidents, C described being alone with the appellant in the lounge room on an occasion when he used wooden chocks or wedges to prevent the sliding doors leading into that room from opening.  C testified that she and the appellant then engaged in some intimacy before being interrupted by the appellant’s wife pulling open and unhinging the sliding doors.  In her police statement, C described an occasion when sexual intercourse took place after the lounge doors had been wedged but did not mention ever being interrupted by the entry of the appellant’s wife.

9. C acknowledged in her testimony that the lounge room incident had “blurred a bit with others that are similar.”  In cross-examination C explained what she meant by blurring in this way:

   ABecause it’s blurred – look, you know, I would have thought there was, but, yeah, it – we were close, you know, we were close together.  I’m sorry, I can’t recall if the intercourse happened, it happened, when it happened.  The door is opened, we’ve been together, I’ve – we’ve panicked, I’m back on the seat and they’re having a conversation.  That’s how I recall it.

   QSo is it the case that when you say “we were close”, that could include that you’d been having intercourse.

   AYes, it could include that.

   QAnd, similarly, on your evidence, I think you’ve also said that it could have been that you were kissing.

   AYep.

   QI think your evidence is to the effect that there may have been intercourse involved on this occasion but you can’t be sure.

   AThat’s correct. 

10. C testified that there were two or three other occasions on which sexual intercourse took place in the lounge room after the others had gone to sleep.  However, she said of those incidents that “[t]hey are actually a little blurred.  These incidents I can specifically recall I think because of the panic stations and I think that’s why it is sitting with me quite clear.”  C estimated that she had engaged in sexual conduct with the appellant in the house on four to five occasions in total.

11. C gave evidence that the unlawful sexual intercourse which was charged in count two of the information was one of the occasions when they had intercourse in another room of the house and it occurred in about September 1985.  C testified that in that month she was undertaking work experience through her school with a bike shop in Aldgate.  According to C, the appellant proposed a ruse whereby C would report in to work that she had missed her bus and the appellant would pick her up and take her to his home.  C testified that they arrived at the appellant’s home in accordance with his plan at about 9:00am and then had sexual intercourse in the appellant’s matrimonial bed.  C testified that on that occasion she observed that the appellant’s penis was circumcised.  She also enquired of the appellant how he and his wife engaged in intercourse.  When giving evidence the appellant denied any such occasion but acknowledged that he was circumcised. 

12. C gave evidence that whilst making the bed after the intercourse had taken place they heard the sound of a car, or a door closing.  According to C, that sent the appellant and her “into panic stations.”  At the appellant’s suggestion C hid in the bedroom.  C testified that whilst hiding she heard SD ask the appellant if someone was in the house with him.  C then heard the appellant manoeuvre SD to another part of the house allowing her to make her escape by jumping a hedge or fence into the street from where she was later picked up by the appellant.  The appellant denied any such occasion had occurred.  SD testified that she undertook work experience in the Adelaide office of the business in which the appellant was also employed at the same time that C was doing work experience in 1985.  SD could not drive at the time.  SD could not recall an occasion when she returned home mid morning during her placement to find her stepfather home.  The appellant agreed in his evidence that he sometimes worked afternoon shift.  I acknowledge that C’s account suffers from the absence of any explanation of why and how SD returned from, or did not attend, her work placement on that day.  On the other hand the same circumstances are capable of explaining the specificity of C’s recollection and make the occasion an unlikely one on which to fabricate an allegation.

13. The offence charged by count three of the information was alleged to have occurred about two months later in December 1985.  C testified that she was invited to stay with the appellant and his family at the Moana Caravan Park.  According to C, the appellant and his family had commenced their vacation at the caravan park and the appellant returned alone in his car to take her to Moana to join them.  C testified that the appellant had told her that he was returning home to water the garden when he picked her up.  When he was interviewed by the police the appellant told them that he did sometimes return from Moana to water the garden. 

14. C testified that on the way to Moana they first drove past Meadows where the appellant stopped at his mother’s house.  From there the appellant drove to McLaren Flat and stopped the car on an unsealed road where they had sexual intercourse.  About six months before the trial C took police to the road in McLaren Flat on which she claimed the appellant had stopped.  C gave detailed evidence about where the car was parked.  C also took police to the appellant’s mother’s house.

15. The appellant gave evidence that each year he and his family spent a week, starting with Boxing Day, at the Moana Caravan Park.  The appellant testified that his wife and SD were also passengers in the car when he drove C to Moana and that nothing untoward happened on the drive there.  However, when he was interviewed by police the appellant had told them that he could not remember driving C down to Moana at all.  The appellant’s wife did not give evidence.  SD testified that the appellant came down to Moana from the beginning of the holiday.  SD also testified that she and her mother were in the appellant’s car when he picked up C to take her to Moana.  According to SD they all stopped at the appellant’s parents’ house in Meadows to pick up home made biscuits.  The appellant was the only person to leave the car at that time.  SD accepted that her evidence was based on the usual sequence of events for going on that annual holiday, rather than on a particular recollection of the occasion on which C accompanied them. 

16. The offence charged in the fourth count was unlawful sexual intercourse alleged to have been engaged in during the stay at Moana.  C testified that she and the accused ran along the beach every morning of the holiday.  C had competed at a state level in BMX bike racing and was a keen swimmer and runner. The appellant acknowledged in his evidence that C was a fitness fanatic.  He admitted that he and C ran together on the beach at Moana.  C’s evidence was that on one morning they ran into a gully behind the sand dunes where they had intercourse which was brief because of the discomfort caused by the sand.  C testified that when they emerged from the sand hills they saw a woman, JT, who was known to both of them, on the beach.

17. The appellant, tellingly, gave an account in his evidence-in-chief of an occasion when he and C took turns piggy backing each other into the dunes as a form of exercise.  He testified that it was on that occasion that they saw JT.  C denied any piggy backing activity.

18. SD had no memory of the complainant and her stepfather jogging.  The Judge considered that evidence an indication of her unreliability.

19. During 1986 the friendship between C and SD waned.  It was common ground that C nonetheless visited the appellant at the Royal Adelaide Hospital in May 1986 where he was recovering from a crush injury to his hand which he had sustained in a work accident.  C testified that, at the appellant’s request, she shut the door and sat on the bed where they started to kiss.  They were interrupted when the matron entered the room and demanded that the door be left open.  The appellant denied any impropriety on the occasion of C’s visit.  C herself was hospitalised in June 1986.  It was common ground that the appellant and SD visited her during that stay.

20. C reported to police that she had attended a Dolly Parton concert with the appellant.  In her evidence she acknowledged that after speaking to others she now thought that her recollection of the concert was mistaken.  C did testify however that the appellant often played and sung the Dolly Parton song “Islands in the Stream.”  That evidence was not contradicted.

21. C also gave evidence that during 1986 the appellant took her to a motel in O’Connell Street.  C could not remember whether they engaged in any sexual activity there.  C testified that she recalled being in the car park of the motel but did not recall the details of what occurred thereafter in the motel room.  The appellant denied that he stayed overnight in a motel with C.

22. C testified that in mid 1986 the appellant took her for a drive in a “red sporty car.”  During that drive C told the appellant that it was not fair that the relationship continue and ended it.  The appellant denied any such drive but disclosed in cross-examination that after his work injury in 1986 he sold his TRX motor vehicle and bought an iridescent blue Nissan Gazelle two door coupe.

23. When she was 17, C’s boyfriend was J.  C testified that on the first occasion she slept with J he asked her whether she had been with anyone else before.  According to C she replied “[y]eah, one other person, Trevor Grimwood.”  C testified that her boyfriend did not seem to react to her disclosure.  J later married T, one of the appellant’s stepdaughters.  J was called in the defence case and testified that C never disclosed her relationship with the appellant to him.  J gave evidence that whilst in the relationship, C introduced him to SD and that he was told that SD’s mother was living with the appellant.  J testified that the appellant was at that time well known to him as a former leading SANFL footballer and Magarey medallist.

24. C gave evidence that she saw the appellant at the Mount Barker Christmas Pageant in 2006, on the opposite side of the street from which she stood.  C’s husband crossed the street and exchanged words with the appellant.  That incident prompted her to complain to the police in January 2007.

25. In cross-examination C accepted a proposition put by the appellant’s trial counsel that she was “morphing” various incidents.

26. Notwithstanding her acceptance of that proposition C maintained that there was no mix up with the first occasion saying:

    The first one really stuck in my mind.  That was – that was the biggest thing in my life, like that was just a big -.

27. C also accepted the proposition put to her in cross-examination that she was reconstructing what had happened but it is clear from her subsequent answers that by “reconstructing” she meant her efforts to remember. 

    The Reasons

28. In his reasons the Judge commented on C’s detailed evidential account of events and her “calm and objective” demeanour.  He described C as an impressive witness.  The Judge accepted the prosecutor’s submission that “there was a richness of detail in the complainant’s account of her sexual relationship” with the appellant which gave it “the ring of truth.”  The Judge accepted that C had given “extraordinarily clear evidence” of the charged incidents. 

29. The Judge did not accept the submission put by the appellant’s trial counsel that the account of the escape from the house after the offence charge in count two was implausible.  The Judge observed that it was improbable that C would fabricate the account of sexual intercourse in the car on the way to Moana if it was the case that SD and her mother were in the car on that occasion.  The Judge did not accept that the account of sexual intercourse in the dunes was implausible.  Nor did he consider that the failure to recall whether sexual activity had taken place in the motel was significant, reasoning that if C had fabricated that occasion she could just as easily have invented an account of sexual activity in the motel.

30. The Judge took into account the long period of time between the offending and the initial report to the police but accepted that the delay was explicable on the basis of C’s realisation that her participation in the activity was wrong and her consequential feelings of guilt. 

31. The Judge referred to, and took into account, the inconsistency between C’s statement to the police and her evidence about the occasion on which the appellant’s wife abruptly entered the lounge room.  The Judge concluded, however, that there was nothing sinister about the inconsistency.  The Judge also referred to C’s assertion in her statement to the police that she had attended a Dolly Parton concert with the appellant.  The Judge’s favourable assessment of C’s evidence was not shaken by that inconsistency because, in his view, it was on a peripheral matter.  

32. The Judge also referred to C’s acceptance of the proposition put to her by the appellant’s counsel that she was “morphing” various incidents.  However, in his view, that answer, in context, was limited to questioning about the first incident which C went on to explain was still clear in her mind.

33. The Judge accepted the prosecution submission that the uncertainty in C’s evidence about the uncharged acts did not “provide a reason for not accepting the evidence of the complainant as to the charged events.”

34. The Judge rejected the testimony of SD that she had always gone to bed at the same time as C.  He found that SD “was not an independent witness and was clearly trying to support the accused.”  The Judge formed the view that her evidence relating to count one was not based on actual recollections, but “at best was reconstruction of what might have occurred.”  The Judge did not find SD’s evidence persuasive. 

35. As to J’s testimony the Judge said:

    I do not regard the fact that J did not support her evidence that she told him about the relationship as a reason not to accept the evidence of the complainant.  J was clearly a supporter of the accused.  Also the events in question were more than two decades ago and there is no reason why the conversation referred to by the complainant should have made any significant impact on his mind.  The evidence of J does not go to the actual offending itself.  The consequence of J not supporting the evidence of the complainant is simply that there is no evidence of an initial complaint. 

36. The Judge found that there was “no evidence of uncharged acts to be considered.”  In context, that finding was to the effect that no particular uncharged act had been proved beyond reasonable doubt and that he would, therefore, not reason from C’s general evidence of other sexual conduct that the appellant may have committed the charged offences.  It was not a finding which implied any adverse assessment of C’s testimony. Indeed, the Judge later expressly acknowledged that sexual intercourse may have taken place on the occasion that the lounge room doors had been wedged with the chocks.  The Judge’s approach was, if anything, unduly favourable to the appellant. 

1. In summary the Judge concluded:

   I accept the evidence of the complainant beyond reasonable doubt notwithstanding the fact that there was no independent corroboration of her evidence.  I have scrutinised her evidence carefully.  I accept that there was an enrichment of detail in her evidence.  She gave her evidence calmly, objectively and in a way which was highly persuasive.  She was an impressive witness.  I accept her evidence notwithstanding the fact that her memory was not perfect and there are minor inconsistencies between what she told police officers and her evidence to the court on peripheral matters.  There are no inconsistencies in the evidence of the complainant as to the core evidence, that is, her evidence as to the four alleged offences themselves. 

   Arguments on Appeal

2. On appeal, the appellant essentially relied on the inconsistencies in C’s account to which I have already referred.  In addition, the appellant complained that the Judge’s finding that J would not have any reason to remember the conversation in which C told him that she had had sex with the appellant was completely at odds with ordinary human experience.

3. Before dealing with the appellant’s particular complaints, I make the following general observations. 

4. In my view, several features of the evidence strongly supported the credibility and reliability of C’s testimony.  C’s account of the relationship and the conduct is coherent.  Her detailed account of the incidents readily allowed contradiction but was, in fact, largely confirmed.  C’s complaint to the police was not tainted by any apparent collateral motive. 

5. C’s knowledge of the appellant’s vasectomy and circumcision, and her admitted visit to the appellant’s hospital bed, individually and together strongly support her account of a sexual relationship.  The appellant’s attempted explanation in evidence that C learnt of his vasectomy from a conversation about whether he intended to have children with his wife is improbable.  It is difficult to believe that a 15 year old school girl would broach the subject with the father of her friend, a man 22 years her senior, and even more difficult to understand why the appellant would volunteer the fact of the vasectomy in response.  I acknowledge that even a guess hazarded about circumcision has a significant probability of being correct, but the risk of contradiction makes fabrication unlikely.  Finally, a school girl is not likely to visit the father of her friend in hospital alone, unless there is something more to their relationship.

6. On the other hand there were, plainly enough, significant inconsistencies and admitted errors of recollection on C’s part.  Whether or not they precluded satisfaction of guilt beyond reasonable doubt was, in my view, necessarily dependent on an assessment of C’s testimony.  They are not in themselves, discrepancies or weaknesses of such a nature as to preclude acceptance of C’s testimony.  They are explicable by the fading of memory over time.  Moreover I, like the Judge, am much more impressed by C’s detailed account, and by the confirmation of much of that detail.  Such a bold fabrication of a detailed account, replete with opportunity for contradiction, is unlikely.  Imagining the sexual relationship can be dismissed as fanciful for similar, and other, reasons.  In any event if I had, on the face of the transcript, entertained a doubt, it must necessarily in the circumstances of this case, dissipate in the light of the Judge’s assessment of the witnesses’ oral testimony.

7. I turn to the inconsistencies which were emphasised by the appellant.  They leave me in no doubt about C’s credibility and reliability for the following reasons.

8. In my view, the evidence about the “morphing” and “reconstructing” C’s recollection is not surprising and does not detract from the weight of her evidence.  It is a function of the effect of time on memory.  That evidence was carefully considered by the Judge who nonetheless found C’s evidence of the charged evidence to be reliable.  I see no reason to come to a different conclusion.   I have reached the same view with respect to the uncertainty of C’s evidence about the uncharged acts and for similar reasons.

9. The “Dolly Parton” evidence is an example of the extent to which recollections can be falsified but it was, as the Judge observed, a very peripheral matter and was not associated with an allegation of sexual misconduct in her testimony.

10. In my view, C’s frank acknowledgement that she could not recall the events in the motel room even though she recalled being in the car park, is consistent with the sometimes random way in which recollections of some details are retained and others are forgotten.  The appellant’s counsel suggested that C’s failure to remember when she gave her evidence whether or not sexual intercourse took place in the motel indicated some uncertainty on her part as to what she had told the police and a fear that she may be contradicted.  That submission is mere speculation.  C was not cross-examined as to any such inconsistency.

11. The appellant also submitted that aspects of C’s testimony were implausible.  I do not accept that submission and am not persuaded that those matters give any cause to doubt C’s testimony for the following reasons.

12. I accept that in the ordinary course school friends like C and SD would be expected to go to bed at the same time when staying over at each others house.  However, it is of some significance that they were sleeping in different rooms.  It is not known what may have preceded the decision of the appellant and C to stay up on the first occasion, but thereafter the reasons for doing so, on C’s account, are obvious enough as are the explanations that they may have given the others for doing so.

13. The Judge considered and rejected the submission that the “escape” from the house, after the offence charged in the second count, was implausible.  I accept that the account is unusual but on the face of it unusual measures were called for given SD’s unexpected return to the house.  The account is not for that reason implausible. 

14. As to the account of intercourse in the dunes being implausible, in my view it is, on its face, credible and supported by the detail which C gave about it and by the account of JT’s presence.  Moreover, as I have already observed, the appellant’s explanation for their presence in the dunes is improbable.

15. Nor do I regard C’s testimony about her visit to the hospital to see the appellant after he injured his hand to be improbable.  The appellant’s admission that the visit took place supports C’s account of the relationship between them and the reason for the visit.  To my mind, C’s testimony, including as it does the detail of the matron’s opening of the closed door, is on its face credible.

16. I turn finally to the primary ground argued on appeal concerning the way in which the Judge dealt with J’s evidence.  At the time that J was C’s boyfriend, J was a footballer.  J knew of the appellant as a well known footballer and Magarey medallist.  In my view, if J had been told by C that her only previous sexual experience was with the appellant it is unlikely that he would have forgotten it.  Given C’s testimony that it was J who actually asked about her previous experiences, it is also likely that he was paying attention to the answer.

17. However, it is clear from the passage from the Judge’s reasons which I set out above, that the possibility of J not taking in, or forgetting, the conversation was only a supplementary reason given by the Judge for accepting C’s evidence despite J’s denial.  The primary reason that the Judge discounted J’s evidence was that he was in the appellant’s camp.

18. Moreover, the Judge rightly observed that an acceptance of J’s evidence simply meant that there was no objective or independent support of C’s evidence of that disclosure.  It did not give any real reason to doubt C’s credibility overall. If C’s accusations were false and deliberately so, she would hardly fabricate a complaint which she knew could be denied by J, whom she then knew was in a relationship with T.  J’s testimonial denial of the complaint being made does not give me any reason to doubt C’s account.  It is plain to me from the structure and context of the Judge’s reasons that he did not consider that the absence of independent support for C’s testimony about the disclosure to J affected, in any way, his assessment of C’s credit and reliability.

    Conclusion

19. I would dismiss the appeal.

20. STANLEY J:        I would dismiss the appeal.  I agree with the reasons of Kourakis J.  I have nothing further to add.