R v H, Mg - [2008] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, MG
[2008] SASC 264
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
3 October 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS
Appellant convicted of four counts of indecent assault - appeal against conviction - complainant cross-examined generally on her history - alleged motive to lie about complaints not put to complainant in cross-examination or in closing address - trial judge directed jury not to speculate on a possible motive to lie - whether direction on motive to lie gave rise to a real risk of a miscarriage of justice.
Held: Because defence did not clearly suggest specific motive to lie in cross-examination or in closing address, the directions given on the evidence and on defence case as to not speculating about motive were appropriate and correct - appeal dismissed.
R v Sluczanowski [2008] SASC 185, distinguished.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appellant sentenced to imprisonment for 4 years with a non-parole period of 2 years - permission to appeal against sentence - appellant was full-time carer for his 91-year-old mother - whether sentencing judge properly took into account effect of imprisonment on appellant's mother - whether sentence should have been suspended.
Held: Sentencing judge properly took into account all submissions relating to appellant's mother's health - appropriate balance between general deterrence and mitigating factors - appropriate exercise of discretion not to suspend sentence - permission to appeal refused.
R v Richard [2006] SASC 60, considered.

R v H, MG
[2008] SASC 264
Court of Criminal Appeal: Duggan, Anderson and Kelly JJ

DUGGAN J. I would dismiss the appeal against conviction and refuse permission to appeal against sentence. I agree with the reasons prepared by Anderson J.
ANDERSON J.
Introduction
The appellant was found guilty by a jury of four counts of indecent assault on the same complainant which took place between 1969 and 1975. The appellant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. The appellant appeals against his conviction for those offences and also seeks permission to appeal against the sentence which was imposed.
Background
The victim of the sexual assaults alleged against the appellant was his stepdaughter. The offending allegedly began when the complainant was about 6 years of age and ended when she was about 13 years of age. In addition to the four counts charged, the complainant also gave evidence of other uncharged acts of sexual abuse.
The appellant and complainant ceased contact in 1978, when she was 16 years of age. In 1999 the complainant confronted the appellant at Denial Bay on the west coast of South Australia and told him on that occasion that he had “fucked up her life”, but did not give details of how the appellant had done this.
In relation to the counts of indecent assault, the complainant gave evidence of an incident which occurred at a house at Peterborough, where she, her mother and the appellant were living at the time. She said that she was lying in her bed when the appellant came into the bedroom and knelt alongside her bed. He put his hand under the blankets and quilt and placed it on her vagina. He tried to insert his finger inside her vagina. She felt his finger go inside her and she recalled that it was very uncomfortable. That incident took place in July 1969. The complainant identified it by reference to other events which occurred at that time. This incident was the first count of indecent assault, and at that time the appellant was 32 years old.
The family moved to Myponga in around 1970. At that time the appellant was driving a milk tanker around the area. The complainant gave evidence that the sexual abuse resumed at Myponga. She said that it occurred regularly, and in particular on the nights that the appellant returned home from attending at the local hotel for a darts evening. She said that the appellant would sometimes lie on top of her and that she could feel his penis between her legs, but she does not recall any penetration. She said that the appellant would also put his hand under the blankets and would insert his fingers inside her vagina. On other occasions he would stay out of her bed and put his hand under the blankets and into her pants.
In relation to the second count, the complainant said she was in the bath when the appellant knelt down and tried to wedge his hands between her legs. She said that the appellant tried to get his fingers into her vagina.
The third count also involved an occasion at Myponga. At that stage her mother was absent in hospital. The appellant told the complainant that she had to sleep in her mother’s bedroom because her mother was away. She said that the appellant pulled her underwear down and that he placed his fingers on the outside of her vagina and then inside her vagina. She said that the appellant lay on top of her and rubbed his penis on her vagina, but she could not remember whether he had an erection or whether he ejaculated.
The family moved from Myponga to Para Hills in 1973 or 1974. The appellant drove a passenger bus and a delivery truck at that time. The complainant gave evidence of further sexual interference similar to that which had occurred at Myponga. This involved the appellant coming into her bedroom and touching in the area of her vagina, and penetrating her vagina with his finger. The complainant said that at Para Hills the appellant touched her breasts, which he had not done previously.
The fourth count involved an incident which the complainant said occurred in the front cabin of the appellant’s truck. The complainant said that this was before she turned 13 years of age, which was when she started menstruating. She said that the sexual abuse ceased when she started menstruating. She said that in this incident the appellant kissed her and touched her breast and attempted to wedge his hand between her legs into her vagina. She could not remember actual penetration of her vagina by his finger on this occasion. She said that he was attempting to wedge his hands between her legs to prise her legs open.
The incident in 1999 at Denial Bay was an occasion when her stepfather and her mother had travelled up there to visit a relative. The complainant said that she then drove up there specifically to confront the appellant. It was then that she told him “You fucked up my life”.
The complainant gave a statement to police about the sexual interference by her stepfather after she heard a radio broadcast which indicated that an amendment to the law allowed abuse cases to proceed, notwithstanding a previous time limit within which proceedings had to be commenced.
Argument on appeal against conviction
Mr Stokes for the appellant argued only one ground in relation to the convictions. He put it to the court that there was cross-examination of the complainant sufficient to show that the defence had raised a motive to lie on the part of the complainant and that the topic of a motive to lie had not been dealt with correctly by the trial judge in his charge to the jury.
Mr Stokes pointed to the cross-examination regarding the occasion when the complainant went to Denial Bay. The transcript shows that the complainant was cross-examined about what had happened to her from the time the family split up in 1978 to that occasion in 1999. The topics included the various relationships she had been involved in, difficulties she had had with her children, and financial problems. The theme of the cross-examination was that she held the appellant to blame in some way for the break up of the family. The complainant denied this. Mr Stokes argued that it could be implied from the cross-examination that the cross-examiner was attempting to extract a motive for the complainant to tell lies about the indecent assaults or the uncharged acts.
Mr Kimber for the Director of Public Prosecutions suggested that it was “half-hearted” cross-examination, at best. No questions were put to the complainant suggesting that she had lied and invented the allegations which she had made regarding the individual counts, or the uncharged acts. There was some general cross-examination in testing the complainant in relation to each of the complaints, but none suggesting that she had a motive to lie or what the motive might be.
Mr Kimber argued that not only was no motive suggested in cross-examination but that the appellant’s counsel’s closing address and the absence of any complaint from the appellant's counsel following the summing up by the learned trial judge, showed that this was not a case in which the trial judge was required to put to the jury any defence case based on the complainant’s motive to lie.
The trial judge’s directions
The trial judge directed the jury as follows:
You will recall an answer [the victim] gave at the end of her cross-examination by Ms Fuller when she asked rhetorically “Why on earth do you think I would be sitting here and putting myself through this after 40 years? ... Why on earth would I be sitting here to make all of this up?”
I remind you, and I direct you, that the defence do not have to put forward or provide, let alone prove, any motive that [the victim] had to lie about, or make up, things she said happened to her at the hands of her stepfather. [The victim’s] evidence gains no legitimate credibility from an absence of a motive to lie.
I direct you that you must not speculate on what motive [the victim] might have had to lie about what she said happened to her. Your deliberations will not be assisted by asking yourself that question.
On this aspect, Mr Stokes argued that this was a case similar to that of R v Sluczanowski [2008] SASC 185, recently decided by this Court.
In that case, the appellant had been convicted of two counts of rape. At trial, the appellant’s counsel raised the issue of motive on the part of the complainant to fabricate her allegations. Specifically, there was a suggestion that she had two distinct motives to lie. First, in her examination-in-chief she was asked why she did not tell her family about the incidents of rape, to which she said she did not want to upset anyone, especially members of her family. Secondly, she said that she thought she might have been pregnant. In cross-examination she agreed that she was very concerned about being pregnant. It was not directly put to the complainant that she had lied about the incident because of regret which she felt afterwards and the concern she might have for what others would think of her. In closing, defence counsel addressed the jury on the basis that they should consider these two motives which might exist.
The trial judge in Sluczanowski directed the jury as follows:
The third matter is reference by Mr Caldicott to any motive [the complainant] might have had for making up false allegations against the accused. It was never put to [the complainant] that she had a motive of any type to make up any of these allegations of rape. So you must consider that when assessing Mr Caldicott’s submission to you. But I tell you, ladies and gentlemen, that your deliberations will not be assisted by you speculating as to whether [the complainant] had any motive to make false allegations of rape against the accused.
On appeal, the appellant argued that the trial judge erred in giving this direction. The appeal was allowed by this Court. Whilst the motives had not been put to the complainant in cross-examination, it was held that having been raised in the address, they remained to be considered. Duggan J explained (at [47]):
In my view, the jury should have been told that, despite the fact that the issue of motive was not raised with the witness, they should nevertheless consider the possibility of a motive to lie.
And further (at [49]):
A direction not to speculate as to whether the complainant had a motive for making false allegations is appropriate if made in response to a prosecution submission along the lines of the rhetorical question “why should the complainant lie?” However, it is inappropriate when put as a general proposition in a case where, as here, there was evidence which required the jury to consider whether the complainant had a particular reason for making false allegations.
The difference between the matter under appeal and Sluczanowski is that in Sluczanowski defence counsel clearly suggested in closing that there were two specific motives for the complainant to have lied. The appellant’s counsel in this trial did not suggest any motive to lie.
Mr Stokes for the appellant submits that although the issue of motive was not ever specifically put to the complainant in cross-examination, it nevertheless could be implied from the questions put to her. He also submits that the issue of motive was raised again in defence counsel’s closing address.
I do not agree with these submissions. The issue of motive was raised, as suggested by Mr Kimber, at best in a very half-hearted manner. It was never approached directly and if counsel had wished to do so, it was an easy step to take to make that next allegation that the complainant was fabricating her story. If one considers the evidence, the address of counsel, counsel’s comments in the absence of the jury and the failure of counsel to complain about the directions, it leads to the conclusion that the appellant’s counsel was not suggesting that a possible motive to lie arose on the evidence or that counsel had raised that issue for the consideration of the jury.
The court in Sluczanowski held that the need to direct the jury on a motive to lie arose both from the evidence which was given by the complainant and from the address of counsel. Therefore the direction that was given in Sluczanowski was not appropriate because it removed from the jury its consideration of whether there was a motive to lie.
It is my view, however, that the similar direction given in this case was quite appropriate to the way in which the defence case was conducted.
After the passage I have referred to earlier at [17], the trial judge in addressing the jury in the matter under appeal said:
If you thought that Ms Fuller, at any time during her address to you when she drew attention to the evidence that between 1978 and 2003 [the victim] had abusive relationships with partners who drank heavily, she had a difficult child and she feared abandonment because she did not feel she had received unconditional love from her mother and stepfather, if you thought Ms Fuller was inviting you to speculate on any motive [the victim] had to lie you should not do so.
Mr Stokes suggested that this direction was incorrect. He submits that by directing the jury in this way, the jury had withdrawn from their consideration a matter relevant to the motive of the complainant and her credibility. He argues that the issue of motive was there in the evidence and should have been left for the jury to consider.
I disagree with Mr Stokes’ submission. The trial judge was addressing the issue of failure to prove any motive and how the jury should handle that. In effect, he was explaining to the jury that they should not think that defence counsel had suggested any motive and that it should not draw any inferences from the cross-examination.
It is therefore my view that the directions given on the evidence and on the defence case as to not speculating about motive were quite appropriate and correct in this matter. I would therefore dismiss the appeal against conviction.
Application for permission to appeal against sentence
The appellant was sentenced to 4 years imprisonment with a non-parole period of 2 years. The appellant was 71 years of age. In the application for permission to appeal against sentence, Mr Stokes relied on the health of the appellant’s mother, for whom the appellant cared. She was 91 years of age and the appellant was her full-time carer. She was dependent upon him to perform her normal daily functions.
The issue of the appellant’s mother’s ill health was properly considered by the trial judge. He referred to it in some detail in the sentencing remarks. At page 9 of the sentencing remarks he states:
There is also compelling evidence before me as to how these allegations, the trial and the guilty verdicts have affected your mother. You, at the age of 71 years, are now the sole carer for your mother who is aged 91 years. She is not only aged, but infirmed with significant medical health problems. Her doctor has now written she is much more frail than she was a couple of years ago, and he has seen her deteriorate quite significantly in the past two to three years. He thinks that a lot of that can be attributed to the court proceedings in which you have been involved. He wrote that she is anxious most of the day with feelings of sadness and with a poor sleep pattern. He does not think these symptoms will improve with pharmaceutical prescriptions. A recent fall has resulted in a permanent right shoulder injury which will, he wrote, restrict her independence. He wrote that your mother is more reliant on you for looking after her on a day-to-day basis.
A clinical forensic psychologist examined your mother on 21 May 2008. He diagnosed her to be depressed and anxious, although there were no obvious signs of dementia or serious neurological impairment. Your mother described to him having been depressed for the last two years. She had become socially avoidant and withdrawn. She told him that the family is well-known in the local area and she has become reclusive and anxious about having contact with friends and others. She told him that she had suffered panic attacks in the last two years. They had increased in severity and regularity since your trial. She did not suffer such attacks prior to being informed of your situation.
The psychologist wrote that your mother enjoyed a good level of psychological functioning until approximately two years ago. He wrote that she has a strong sense of morality and ethics and has always enjoyed an extremely close emotional relationship with you. She is fearful of your ability to cope should you receive an immediate term of imprisonment. She also expressed serious doubts about her own capability to manage without further deterioration, physically and mentally. He wrote that she has become highly anxious and avoidant of social contacts, those having been important elements in her previous positive functioning.
Further, at page 11:
In considering the appropriate sentence for you ... It is also appropriate and important to take into account the effects that your immediate imprisonment would have on those who are dependent on you. In your case, there is particularly your mother who seems to be reliant upon you for her day-to-day needs. Those needs appear to have magnified over the last two or three years by these allegations being made against you, and by your being charged with, tried for, and convicted of them. You are now your mother’s sole carer.
Finally, at page 12, in relation to whether the sentence should be suspended:
Your elderly mother would suffer and may not be able to cope if you are not there to care for her.

In my opinion, these passages show that the judge took into account all of the submissions which were put to him on this aspect.
Whilst the effects of imprisonment upon family members can be taken into account and can be used to mitigate a sentence (see R v Richard [2006] SASC 60), in my view, there is nothing to show that the sentencing judge did not properly balance the aspect of general deterrence for serious offences of this kind as against those mitigating factors. The sentencing remarks show a balanced approach to weighing all of the various matters and then an exercise of a discretion by the sentencing judge.
In the circumstances, it is my view that permission to appeal against sentence should be refused.
KELLY J. I would dismiss the appeal for the reasons given by Anderson J.