R v Haak

[2012] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v HAAK

[2012] SASCFC 19

Judgment of The Court of Criminal Appeal

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

14 March 2012

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

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - OTHER MATTERS

Appeal against conviction – appellant convicted on trial by judge alone of one count of unlawful sexual intercourse – complainant was aged five years at time of offence and six years at trial – complainant gave unsworn evidence and two out-of-court video statements were tendered pursuant to s 34C Evidence Act 1926 – appellant relied on inconsistencies and improbabilities in the evidence - whether the trial judge erred in failing to warn himself pursuant to s12A Evidence Act 1929 (SA) – whether, having regard to the evidence, the verdict was unreasonable and not supported.

Held: appeal dismissed – the deficiencies in the complainant’s evidence relied upon by the appellant do not provide cogent reason to doubt her evidence or provide reason to doubt the soundness of the convictions.

Evidence Act 1929 (SA) 9, 12A, 34CA; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) 12; Evidence Act 1995 (Cth) 164, 165, 165A, 165B; Eividence Act 1995 (NSW) 164, 165, 165A, 165B; Evidence Act 2001 (Tas) 164, 165, 165A, 165B; Evidence Act 2008 (Vic) 164, 165, 165A, 165B; Evidence Act 1977 (Qld) 93C; Evidence Act (NT) 9C, 21A(3); Evidence Act 1906 (WA) 36BD, 50, 106D; Criminal Procedure Act1986 (NSW) 133(3); Criminal Procedure Act 2004 (WA) 119(3), referred to.
R v Pahuja (1987) 49 SASR 191; R v Morgan [1978] 3 All ER 13, discussed.
R v Douglas [2010] SASCFC 66; R v Miller [2006] SASC 83; R v R [2008] SASC 35; R v HS (2004) 90 SASR 28, considered.

R v HAAK
[2012] SASCFC 19

Court of Criminal Appeal:       Sulan, Kourakis and Stanley JJ

1. SULAN J: I would dismiss the appeal.  I agree with the reasons of Kourakis J.

2. KOURAKIS J:      On 31 August 2011 the appellant was convicted on one count of unlawful sexual intercourse following a trial by judge alone in the District Court.  The particulars of the offence alleged digital vaginal penetration of the complainant, C, a five-year old girl, over the Queens Birthday long weekend in June 2010.  The appellant was acquitted on a count of digital anal penetration alleged to have been committed on the same occasion.  The Judge entertained a reasonable doubt about the commission of that offence because the complainant failed to make any mention of it when she was first interviewed by a psychologist several days later.

3. The prosecution case relied largely on the unsworn testimony of C and statements of C, in the form of video recordings, made during two interviews with the psychologist to whom I have already referred. The statements made to the psychologist were admitted pursuant to s 34CA of the Evidence Act 1929 (the Act).  The admission of the interviews is not questioned on this appeal.

4. The appellant appeals his conviction on the grounds that the Judge failed to warn himself in accordance with s 12A of the Act and that the verdict was unreasonable and could not be supported on the evidence.  I will assume for the purposes of the first ground, even though I very much doubt the proposition, that a Judge sitting without a jury is obliged to administer the warning contemplated by that section to himself or herself.  However, I would dismiss the appeal on both grounds because the inconsistencies and improbabilities on which the appellant relies give no cogent reason, within the meaning of that term in s 12A of the Act, to doubt C’s evidence and do not give any reason at all to doubt the soundness of the convictions.

   The Evidence

5. On the long weekend of June 2010 C was staying with her father in accordance with standing access arrangements.  C’s father shared the house with his girlfriend and her two sons who were then aged 14 and 10.  The eldest son slept in a caravan in the yard.  C’s father invited the appellant and his two young sons, who were then aged four and two, to his house for a barbeque on the Saturday of that weekend, and to stay overnight.

6. After the barbeque the appellant and his two sons slept together on a mattress in the family room.  C went to bed in her own room which had doors opening into the family room.  C’s father slept in another room with his girlfriend.  Nothing of significance occurred when everyone awoke the next morning.  After breakfast C’s father drove the appellant and his sons to the train station to travel home.  C did not make a complaint to her father whilst she stayed with him for the remainder of the weekend. 

7. On the holiday Monday following the weekend, C returned to her mother’s care.  On the same day C complained to her mother of the appellant’s conduct.  Whilst preparing for a shower, C told her mother that at her father’s house a man called Matt had got into bed with her and touched her fanny and her bottom.  C’s complaint to her mother was admitted pursuant to s 34M of the Act, as evidence of initial complaint; the prosecution did not rely on it as to the truth of its contents.

8. C was interviewed by a psychologist on the next day, 15 June 2010 (the first interview). During the first interview C stated that her daddy’s friend came into her room and asked if he could sleep with her.  She later said that the friend was called Matt and that he had been sleeping with his sons on mattresses in another room.  C stated that Matt wiggled his finger in her fanny and that she asked him to stop, but he did not.  C said that she tried to call out to her dad but that the appellant kept wiggling his finger until she fell asleep.  She claimed that he touched her fanny heaps of times.  During the first interview C said that she was wearing her pyjamas at the time.  C described the appellant’s face as happy at first but that he became scared when he realised that she had awoken.  C said he had an angry face when he was touching her and that he was hitting her on her stomach.

9. C was interviewed again by the same psychologist on 25 January 2011 (the second interview).  In the second interview, C mentioned that she had gone to the toilet before the appellant came into her room and had noticed that he was not on the mattress.  C stated that the appellant came into her bedroom and looked at her before wiggling her fanny and then her bum.  C shouted “stop it.”  C informed the psychologist that she believed that the appellant then went home because a short time later she noticed that he was not sleeping on the mattress with his sons.  Later C told the psychologist that Matt had “disappeared” and that she did not know where he went.  C recalled that the appellant had an angry face when he was first looking at her, but then he smiled.  C could not recall what she was wearing at the time but knew she was wearing clothes.  She did not recall wearing pyjamas.  C said that she saw the appellant on the mattress in the morning.

10. At the time of the trial C was aged six.  C was permitted to give unsworn evidence after an examination on the voir dire by the Judge but the prosecutor did not examine her in chief about the offending.  In cross-examination, C stated that she knew that it was the appellant who came into her room and touched her because she recognised him and “because his boys were being naughty and I was thinking because Matt was being naughty at dad’s house, and his boys get that from Matt”. C also testified that the appellant had been acting strangely and that she knew he was going to do something to her.  When challenged in cross-examination C maintained that the appellant had touched her fanny and bum but was unable to elaborate on what she had meant in the first interview when she said that the appellant had wiggled his finger “inside my fanny”.  C testified that she could not remember what she was wearing at the time.

    Ground one – s 12A Evidence Act

11. Section 12A of the Act provides:

    12A—Warning relating to uncorroborated evidence of child in criminal proceedings

    (1)In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—

    (a)     the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and

    (b)     a party asks that the warning be given.

    (2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.

12. It is necessary for reasons which will appear shortly to also set out s 9(4) of the Act which provides:

    9—Unsworn evidence

    (4) If unsworn evidence is given under this section in a criminal trial, the judge—

    (a)     must explain to the jury the reason the evidence is unsworn; and

    (b)     may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. - evidence

13. The appellant complains that the Judge failed to warn himself in accordance with s 12A of the Act, and that he failed to properly consider counsel’s request to so warn and to give adequate reasons for not doing so.  If the Judge did not warn himself in accordance with s 12A of the Act, and a warning was required by that section, the appellant will have established an error of law.  If a warning was not in law required, the Judge’s failure to properly consider the request that he do so, and to give reasons for not warning himself, cannot affect the soundness of the conviction.  Therefore, at least in the circumstances of this case, nothing turns on the alleged inadequacy of the Judge’s consideration of the request of counsel for the appellant, and of his reasons for not warning himself.

14. The Judge’s consideration of how he should approach C’s evidence appears in the following paragraphs of his Honour’s judgment[1]:

    “Where unsworn evidence is given, the law says the court should be aware of the need for caution in deciding whether to accept the evidence, and the weight to be given to it.[2] …

    The law also says that it is not unsafe to convict on a child’s uncorroborated evidence unless there are cogent reasons in the circumstances of the case, apart from the fact that the witness is a child, to doubt the reliability of the child’s evidence.  The law also provides that a court should not regard the evidence of children as inherently less credible or reliable, or requiring more careful scrutiny, than the evidence of adults.[3] …

    In reaching these conclusions I have carefully considered all the matters raised by defence counsel in his recent address, and I have indeed approached the matter with the caution that he has suggested.  I do not regard it as a reasonable possibility that the accused [sic] dreamed the events or that the perpetrator was misidentified or someone else, as he submitted.  Counsel referred to a number of other comments C made which he submitted affected her reliability and credibility, such as what she said about the accused living at the train station, the time she was asleep, whether the accused also hit her as she said may have happened when she was asleep per her first statement, and other matters.  I consider all of those things were a young person trying to honestly answer, and where inaccurate were honest mistakes or misrecollection, which I find do not affect the truthfulness of reliability of her other evidence to which I have referred.[4] 

    [1] R v Haak [2011] SADC 135

    [2] Paragraph [13]

    [3] Paragraph [18]

    [4]    Paragraph [77]

15. The first of those paragraphs is in my view directed to s 9(4) of the Act and is not a warning of the type contemplated by s 12A.

16. The second paragraph appears to be a discussion of the legislative policy underpinning s 12A of the Act. The question whether a conviction is unsafe, if it is ever to arise, is for the Court of Criminal Appeal, not a trial judge, to determine. Section 12A of the Act is expressed in terms of whether or not a warning should be given and it would have been better had the Judge turned his mind to the terms of the section itself. The paragraph does not give any indication of the Judge’s view as to whether there were cogent reasons within the meaning of that term in s 12A(1)(a) of the Act to doubt C’s reliability.

17. The caution mentioned in the third paragraph is also more naturally understood to refer to s 9(4) of the Act and not 12A for two reasons. First, the Judge never found, as he was obliged to before he could give himself the s 12A warning, that there were cogent reasons to doubt C’s evidence; indeed in that very paragraph the Judge found that the matters pressed by the appellant’s counsel did not affect C’s reliability.  Secondly, the Judge did not in that passage speak in terms of the warning required by section s12A of the Act, that it was unsafe to convict on C’s uncorroborated evidence.

18. For the above reasons, I accept that the Judge did not warn himself in accordance with s 12A of the Act and that he did not do so because, in his view, there were no cogent reasons to doubt C’s reliability.  On the other hand, I reject the submission, made during oral argument, that the passages cited in any way reversed the onus of proof.

19. I also take the view that C’s evidence was not corroborated.  The mere presence of the appellant in an adjoining room which allowed him an opportunity to commit the offence is not corroboration.  The prosecution did not argue otherwise, at least for the purposes of this appeal.

20. It follows therefore that, on the assumption that s 12A of the Act applies in a trial by judge alone as it does in a jury trial, if there were cogent reasons to doubt C’s reliability the appellant will have demonstrated an error of law.  It is to that issue that I now turn.  Before turning to C’s evidential accounts, it is necessary to consider the meaning of the term “cogent reasons” in the context of s 12A of the Act.

21. The submissions on appeal proceeded largely on the assumption that a warning must be given if there is any cogent reason whatsoever to doubt the reliability of the child’s evidence.  The difficulty with that construction of s 12A of the Act is that the warning which is identified, and prohibited by the section, must be the same warning which is to be given in the exceptional circumstances identified by subparagraphs (a) and (b).  For reasons which I explain below, the warning to which the primary prohibition is directed is the warning which was frequently given, in accordance with a common law rule of practice, before the enactment of s 12A of the Act, that it is unsafe to convict on the uncorroborated evidence of children for reasons connected to their immaturity.  Indeed s 12A of the Act itself identifies the prohibited warning as one that it is unsafe to convict on “a”, not “the”, child’s uncorroborated evidence.    

22. The proper construction of s 12A of the Act and the meaning of “cogent reasons” must be informed by the mischief it was intended to remedy.  I start by observing that before its amendment, in 2008, s 12A of the Act, merely abrogated the “rule of law or practice requiring a judge in a criminal trial to warn a jury that it is unsafe to convict on the uncorroborated evidence of a child.”  An understanding of that rule of practice, and the terms of the warning which it once required, allows the change effected by s 12A of the Act to be identified.

23. In R v Pahuja[5] (Pahuja),  this Court considered the terms of s 34i of the Act, as it then was.  The section was the first legislative abrogation of the rules of law and practice requiring a jury to be warned that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim of a sexual offence.

    [5] (1987) 49 SASR 191, 214.

24. A question arose in Pahuja as to whether s 34i also abrogated the common law rule of practice that a jury be warned not to convict on the uncorroborated evidence of a child.  The majority in Pahuja, Cox and Johnston JJ, held that it did not.  King CJ dissented.  Cox J described the common law rule of practice concerning the evidence of children in these terms:

    The common law rule is that the jury should be warned, in a criminal case, against acting on the uncorroborated evidence of a child, that implicates the accused, although they may do so if they are convinced that the witness is truthful and reliable.[6]

    [6] R v Pahuja (1987) 49 SASR 191, 215

25. Cox J went on to observe that the rule was not limited or restricted to a child witness in a sexual offence trial and for that reason held that s 34i did not abrogate the rule of practice relating to the evidence of children.  Cox J then further elaborated on that rule of practice in these terms:

    It is not a strict rule of law that a corroboration warning must be given in the case of a child who gives evidence against an accused person, but it is a sound rule of practice and the verdict may be set aside for failure to conform with it.  I think that V was of an age that called for a warning of some sort, but not necessarily the full warning that would have been needed in the case of a younger child.  That was a matter on which the Judge was entitled to exercise his own judgment: Cf R v Morgan [1978] 1 WLR 735 at 739; [1978] 3 All ER 13 at 16-17…

    In Hargan (supra) the witness was fourteen and a half.  The judges spoke of the need for corroboration in the case of a child, but the matter was complicated because the child witness was also the prosecutrix in a sexual case.  The terms of the appropriate warning had to be suited to that feature of the case as well as to her tender years.  In Hester the practice, in the case of a child witness who gave sworn evidence, was put in the footing of their possibly imperfect comprehension of events and of questions put to them or their own powers of expression: [1973] AC 296 at 325.  However, his Honour also referred to the English case of R v Dossi (1918) 13 Cr App R 158, where the possibility of small children being under the influence of others – sometimes their parents – and being apt to allow their imaginations to run away with them and to invent untrue stories, was also seen as a danger.  Usually it could be expected that the warning would take such matters into account, as well as the matter of comprehension.[7]  (Emphasis added)

    [7] R v Pahuja (1987) 49 SASR 191, 216 - 217

26. Johnston J also commented on the form of the warning about child witnesses in the course of explaining why, he too, thought that s 34i of the Act did not abrogate the rule of practice with respect to the evidence of children.  Johnston J said:

    The rule about giving the warning in the case of an accomplice and the case of the alleged victim in a sexual offence, is rigid.  In the case of the evidence of children, there is an element of flexibility in that the rule is intended to be applied to the evidence of young children and there is an area of discretion reserved to the trial judge as to whether having regard to all the circumstances, there is the need to give the full warning in respect of a particular child of a particular age: R v Morgan [1978] 1 WLR 735; [1978] 3 All ER 13.[8]  (Emphasis added)

    [8] R v Pahuja (1987) 49 SASR 191, 223

1. It is convenient to set out the passage from the judgment of Roskill LJ in R v Morgan[9] to which both Cox and Johnston JJ referred:

   We do not think it possible to state as a general proposition what the age is above which it becomes unnecessary for a judge to give a warning such as I have already mentioned.  This is an example of a situation where the trial judge is much better placed to consider the matter than any appellate court can be.  The judge will, in those circumstances, obviously apply his mind to the problem and ask himself the question whether, having seen this boy in the witness box, he was of an age which made it desirable to give this warning.  He might say to the jury: “If you think that this boy is of an age where the sort of risks exist against which the rule regarding corroboration is a safeguard, then you should look and see what corroboration exists.”  This is the type of problem which falls within the general discretion of the judge …”[10]  

   [9] R v Morgan [1978] 3 All ER 13

   [10] R v Morgan [1978] 3 All ER 13, 16

2. I will refer to the form of warning described in the above passages as the child witness warning.  It is apparent from the above cited passages that the child witness warning was meant to address the imperfect comprehension and powers of expression of children, their capacity for imagination and their susceptibility to influence.  Its purpose was to alert juries to the potential unreliability of a child’s testimony because of his or her juvenile immaturity.  It is also apparent that the rule proceeded from a recognition that, even though there was a risk of miscarriage in relying on the evidence of children, whether a child witness warning was required depended on the age of the child and the particular circumstances of the case.  Importantly, the rule remained a discretionary rule of practice and did not harden into a rule of law.  It remained a discretionary rule of practice because it was recognised that the intellectual and psychological development of children varied greatly depending on the age of the child and that, even as between children of a similar age, their cognitive capacity may vary.

3. The 2008 amendment[11] to s 12A of the Act, which brought it into its current form, effected a recommendation made in the Layton Report.[12]  The Layton Report expressed concern that notwithstanding the bare abrogation of the rule of practice by s 12A, as it then stood, judges continued to warn juries about convicting on the evidence of child witnesses, and continued to suggest that their testimony, as a class, should be viewed with suspicion.

   [11] Section 12 of the Statutes Amendment (Evidence and Procedure) Act 2008.

   [12] See Recommendation 94 in Layton, R (2003) Our Best Investment: A State Plan to Protect and Advance the Interests of Children: Child Protection Review, Government of South Australia.

4. It appears to me therefore that the purpose of the amendment of s 12A of the Act was to ensure that the child witness warning, which judges had continued to give notwithstanding the abrogation of the rule of practice, was not given as readily.  The section was calculated to eliminate the child witness warning where there was no good reason to think that the juvenile immaturity of the child witness materially undermined the weight of his or her evidence.  For example, in the absence of a particular developmental disability, it is difficult to see why a warning would generally be required for child witnesses in their late teenage years.  If warnings were given indiscriminately, irrespective of the cognitive development of the particular child witness, the effect would be to suggest that the evidence of children, as a class, was inferior to the evidence of adults.  The consequences of that implication in trials of sexual assaults, where the accused is often an adult and the alleged victim a child, obviously concerned the legislature enough to amend s 12A of the Act

5. In my view, understood in its historical context, it is the child witness warning which is prohibited by the first part of s 12A(1) of the Act and it is that warning which may nonetheless be given if there are cogent reasons to doubt the reliability of the child’s evidence. Whether or not there are cogent reasons to give a child witness warning can only be meaningfully assessed by reference to the content of that warning. In my view, the warning required by s 12A of the Act is that it is unsafe to convict on the particular child witness’s evidence because there are cogent reasons, “apart from the fact that the witness is a child”[13], to doubt the reliability of his or her evidence because of his or her state of cognitive development, psychological immaturity, susceptibility to influence, or other youth related circumstances.  Inconsistencies between the accounts given by the child, a paucity of detail, or the inclusion of fanciful details all may, depending on the circumstances, raise the prospect that the child’s testimony is affected by such factors.  It is not possible to be definitive about the features of a child’s evidence which will engender that concern.  However, only when the cogent reasons to doubt the child’s testimony are related to the juvenile immaturity to which the child witness warning alerts juries must a judge warn the jury that it is “unsafe to convict on a child’s uncorroborated evidence.”

   [13] Section 12A(1)(a) of the Act.

6. Other inconsistencies, improbabilities or weaknesses, which are not related to the developmental factors which may detract from the reliability of a child’s testimony, may call for a special comment or warning in the circumstances of the particular case.  That however is another matter altogether and is entirely within the discretion of the trial judge. 

7. If s 12A of the Act were to be construed so as to require a warning where the cogent reasons are unrelated to the child witness’s intellectual developmental or psychological maturity and dependence, the effect will be to treat the testimony of children generally as inferior evidence.  For example, a warning may be given when an adult witness gives doubtful identification evidence, or evidence of events which occurred in the distant past or when he or she was intoxicated.  Such warnings are given as a matter of practice and seldom are juries told that they should not convict unless the testimony is corroborated.  The purpose of s 12A of the Act was not to mandate for child witnesses warnings such as those, which need not be given with respect to adult witnesses whose evidence is affected by the same infirmity.  There may be cogent reasons to doubt the reliability of a 17 year old witness because he or she was drunk, or was in a poor position to see or hear the events described, or was a notorious liar.  It would be absurd, in those circumstances, to require a judge to warn a jury that it is “unsafe to convict on a child’s uncorroborated evidence” because the warning would not in any sense be related to the reason for doubting the child’s witness’s evidence.

8. Section 12A(2) of the Act is a prohibition against suggesting that the evidence of children is inherently less credible or reliable as a class, in comparison to the evidence of adults. If a warning about the cognitive development or susceptibility to influence of a child witness is given, it must be directed towards the capacity of the particular witness, as a child witness, to give reliable, coherent and independent evidence and must not suggest that, as a general rule, the evidence of an adult carries more weight than that of a child. However, neither s 12A(2) of the Act, nor the requirement in s 12A(1)(a) that these be cogent reasons “apart from the fact that the witness is a child” contraindicate my conclusion. The warning, if given to a jury, must be directed to the dangers of convicting on the uncorroborated evidence of a child witness with the imperfect comprehension and powers of expression, susceptibility to influence or other juvenile attributes of the particular child witness which give cogent reasons to doubt the reliability of his or her testimony.

9. In this particular case, C was very young at the time of the offending and when she gave evidence.  I accept that some aspects of C’s evidential accounts which the appellant contends give reason to question her reliability reflect her limited cognitive development.  However, for reasons elaborated below in relation the unreasonable verdict ground of appeal, properly understood, those features of C’s evidence do not give any cogent reason to think that her evidence of the offence itself might be the false product of her still developing, juvenile cognitive capacity. 

10. My conclusion that there were no cogent reasons to doubt C’s reliability is sufficient to dispose of the first ground of appeal.  However, I make the following observations on two further issues of construction with respect to s 12A of the Act which arose in the course of the appeal. 

11. First, there is a question as to whether the word “evidence” in s 12A of the Act includes statements admitted pursuant to s 34CA of the Act. I acknowledge that evidence of an out-of-court statement admitted pursuant to s 34CA is, strictly, not the evidence of the child who made the statement. Evidence of the statement is given by the person to whom the statement was made. Nonetheless it should be treated, for the purposes of s 12A of the Act, as evidence about which a warning may be given if there are cogent reasons to doubt its reliability. Section 34CA and s 12A were both substantially amended by the Statutes Amendment (Evidence and Procedure) Act 2008. The very purpose of s 12A of the Act would be substantially defeated were a narrow construction given to the phrase “a child’s evidence.”  It is unlikely that Parliament so intended when it contemporaneously amended both sections.

12. Secondly, I observe that counsel for the Director of Public Prosecutions conceded that s 12A of the Act applied to a trial by judge alone.  In my view, s 12A does not apply to a trial by judge alone.  The text of s 12A plainly cannot apply on its own terms to such a trial.  For myself I see no difficulty in the differential application of the section depending on whether the tribunal of fact is a judge or a jury.  The distinction is based on rational grounds.  The very rationale of the child witness warning, even though its validity may be questioned, is that the judiciary has a corporate awareness of the latent infirmity of the otherwise apparently reliable evidence of children which an ad hoc jury may not.

13. The failure of a trial judge to address in his or her reasons a danger of which, as a matter of law or practice, he or she would have reminded a jury may, in a particular case, demonstrate a miscarriage of justice or amount to a failure to give adequate reasons, but they are altogether different questions.[14]

    [14]Cf: R v Douglass [2010] SASCFC 66 Doyle CJ, Anderson and David JJ; R v Miller [2006] SASC 83, Doyle CJ, Perry and Nyland JJ; R v R [2008] SASC 35, Gray, Sulan and White JJ; R v HS (2004) 90 SASR 28, Duggan, Besanko and Anderson JJ.

14. However, a comment in the second reading speech on the Statutes Amendment (Evidence and Procedure) Bill 2008 (Amendment Bill) about an amendment of s 9(4) of the Act made at the same time as the amendment of s 12A suggests that Parliament believed that both sections would apply to jury trials and trials by judge alone.[15]  Before the amendment to s 9(4) of the Act, it applied “if unsworn evidence is given under this section in a trial by jury.”  The amendment deleted the phrase “in a trial by jury” and replaced it with the phrase “in a criminal trial.”

    [15] South Australia, Hansard, Legislative Council, 28 February 2008, 1945 – 1959 (The Honourable P Holloway)

15. The second reading speech given in support of the Amendment Bill claimed that the effect of that change was that s 9(4) of the Act would thereafter apply to trials by judge alone.  Presumably therefore, Parliament thought that s 12A of the Act, as amended, in which the same phrase is used, would also apply to a trial by judge alone.[16]

    [16]   By contrast legislation in a number of other jurisdictions expressly limits the obligation to give a warning to trials by jury.Parts 4.4 and 4.5 of the Commonwealth Evidence Act (Evidence Act 1995 (Cth), ss 164, 165, 165A and 165B) deal, in part, with corroboration requirements and the giving of warning to the jury, including with respect to the evidence of children.Relevantly, the application of each provision dealing with the giving of a warning to a jury by a judge is expressly predicated on there being a jury present.The equivalent New South Wales (Evidence Act 1995 (NSW), ss 164, 165, 165A and 165B), Tasmanian (Evidence Act 2001 (Tas), ss 164, 165, 165A and 165B) and Victorian (Evidence Act 2008 (Vic), ss 164, 165, 165A and 165B) provisions replicate the Commonwealth position. A similar approach is taken in other jurisdictions, confining the application of provisions requiring judicial warnings to juries to when a jury is present. See eg Evidence Act 1977 (Qld), s 93C with respect to warning regarding hearsay evidence; Evidence Act (NT), s 21A(3) with respect to evidence of a vulnerable witnesses.Other provisions however, are less explicit in confining the application of such provisions to trials by jury. See eg Evidence Act 1906 (WA), ss 36BD, 50 and 106D; Evidence Act (NT), s 9C with respect to corroboration of evidence given by a child.

16. In my respectful opinion, the view expressed in the second reading speech is premised on a surprisingly expansive view of the scope of judicial construction.  The distinction between judge and jury in common law criminal trials is far too entrenched to allow a construction of the term “jury” which would bring judges within its denotation.  If such a construction were contemplated, even for a moment, other intractable difficulties arise.  A warning is after all a communication from one person putting another person on notice, and not a soliloquy.  If a court were to persevere with this construction it would next need to read into the section words about precisely how the Judge is to warn himself or herself.  The nature of common law jury trial allows that question to be answered quickly in the case of a warning to a jury; it is given in the summing up.  But what of the Judge’s soliloquy?  Should it be uttered in open court just before his or her verdict is reserved or during that quiet, lonely period of reflection in chambers?  Should the warning also be recorded in the reasons themselves?  In my view, only by legislation can the hope expressed in the second reading speech be effected and that is beyond the power of the judiciary.  It must be left to this State’s legislature to deal with.  There are numerous interstate models to which it can turn for inspiration.[17]

    [17]   See Criminal Procedure Act 1986 (NSW), s 133(3); Criminal Procedure Act 2004 (WA), s 119(3). The effect of those provisions is that, where a judge would ordinarily be required to warn, or not to warn a jury as to a particular circumstance, the trial judge must take the requirement or prohibition into account.

    Ground 3 – Unreasonable and not supported by the Evidence

17. The inconsistencies in C’s accounts of the offending which were identified by counsel for the appellant can be summarised as follows:

    ·C did not mention anal penetration in the first interview.

    ·In the first interview C told the psychologist that the appellant touched her until she fell asleep but in the second interview she said that she waited and then he was gone.

    ·C’s statement to the psychologist that she was touched heaps of times was not included in the complaint made to her mother.

·In the first interview C said she was wearing pyjamas but in the second interview said that she was wearing clothes. 

·C claimed that she was unable to recall the alleged offending when she was proofed by the DPP in November 2010.  

·In the first interview C described the appellant hitting her, but had not mentioned that when she complained to her mother and the medical examination of C had not revealed any support for the allegation.

·C was unable to explain in cross-examination what she meant by ‘inside’ her fanny.

·C’s descriptions of events which followed the offending were inconsistent.

·C’s accounts of the appellant’s presence on the mattress and her description of him disappearing were inconsistent.

1. In addition, counsel for the appellant referred to improbabilities in C’s accounts.  He emphasised that no-one in the house had heard C yell at the appellant to stop.  The appellant’s counsel drew attention to the way in which C linked her identification of the appellant with the naughtiness of his children.  He also submitted that there was a real danger that C had imagined the offending because of her account of being asleep when the abuse started and falling asleep before it ended.

2. To my mind, the inconsistencies and improbabilities on which the appellant relies do not detract in any material way from C’s clear and coherent account of the offending itself. 

3. The failure to mention anal penetration in the first interview is relatively insignificant given the terms of C’s complaint to her mother on the previous day.  The appellant had the benefit of an acquittal on the count alleging anal penetration.  The doubt held by the Judge as to the commission of that offence, because C did not refer it in the first interview, does not detract from the coherence and consistency of C’s account of vaginal penetration.  To my mind, the most probable explanation for C’s failure to mention anal penetration in the first interview is that as a child, C did not appreciate the importance, which adults would attach, to recounting that detail.

4. The inconsistency as to precisely when C fell asleep is, to my mind, a minor one.  Importantly, there is no dream like quality in C’s account of the offending.  It is matter of fact and realistic.

5. C’s statement in the first interview that she was touched heaps of time is an elaboration of the offending that I would not expect her to have volunteered to her mother.  The inconsistencies with respect to C’s apparel and the events which followed the offending are to my mind also immaterial.  I observe here that C’s father testified that C went to bed wearing her clothes on that night because she did not want to change into her pyjamas.

6. It was an agreed fact at trial that, when proofed by the DPP in November 2010, C claimed that she did not remember the alleged offending.  The agreed fact went on to record that C also told the DPP that a person called Jen was helping her to forget.  C’s mother testified that she took C to a counsellor called Jen to help C deal with the trauma of the assault.  The second part of the agreed fact satisfactorily allays the concern about the first part.

7. The reference to being hit on the stomach in the first interview was made after an account of the offending had already been given in which there was no mention of being hit on the stomach.  It was made only after the psychologist explored an answer given by C that she would recognise the appellant if she saw him again and that she would stay away from him.  When asked why she would stay away C replied that the appellant might hit her because he does that every time.  When pressed as to how the appellant had hit her, C was ambivalent and her description is not a convincing one.  In my view, those answers may reflect warnings C was given after the event about why she should stay away from strangers generally or the appellant in particular.  However, even accepting that C’s account of being hit on the stomach is doubtful, it does not, in my view, materially diminish the credibility and reliability of her overall account. 

8. C’s inability in cross-examination to elaborate on questions of anatomy is an indication of her limited powers of expression and communication but does not, to my mind, cast doubt on her capacity to correctly comprehend the conduct which was perpetrated against her.

1. C’s differing accounts of the appellant’s whereabouts after the offending do not, of themselves, establish any internal inconsistency or improbability in C’s account.  They may simply reflect the appellant’s movement about the house during the night.  The use of the word “disappear” by a child of C’s age means no more than that she lost sight of the appellant.

2. There are many reasons why C might not have been heard even if she did yell out.  In any event, her statement in the second interview that she yelled out may have meant only that she tried to yell out.

3. C’s reference to the naughtiness of the appellant’s children can be understood as an attempt to retrospectively explain the conduct which was perpetrated against her.  If C was assaulted on that night, the evidence overwhelmingly pointed to the appellant.  C’s father was cross-examined.  It was not put to him that he had assaulted his daughter.  There is no possibility that C could have confused her father’s girlfriend’s children, or the appellant’s very young children, for the appellant.  There was no other adult with whom C might have confused the appellant.  She correctly described him by his name.  Indeed at one point during the first interview the psychologist incorrectly referred to the appellant as Michael, prompting C to laugh at her mistake.

   Conclusion

4. I acknowledge that it is the combined affect of the inconsistencies which must be assessed.  I have done so.  I also accept, as I have already indicated, that some features of C’s accounts are the product of her limited cognitive development and command of language.  However, those features are relatively minor in comparison to the consistency and coherence of the core of her description of the offending.  In my view, having regard to C’s description of the conduct, the reliability of her evidence is enhanced, not undermined, by her youth.  I have formed the strong view that the inconsistencies more probably reflect C’s capacity to recall and relate ancillary detail than any mistake on her part about the appellant’s conduct.  The aspects of C’s testimony on which the appellant relies do not give me any reason to think that C’s account of the offending might be the false product of her limited cognitive capacity.  I find therefore that there were no cogent reasons to give the child witness warning.

5. If I were to consider the appellant’s complaint based on s 12A of the Act by reference to the Judge’s obligation to give reasons and the possibility of a miscarriage, I would also dismiss the appeal.  The Judge’s reasons show that he carefully scrutinised C’s evidence against the criticisms which have been made.  In my view, the Judge has adequately explained why he convicted the appellant on C’s evidence notwithstanding her very young age.

6. The Judge had the advantage, albeit limited given the course of the evidence in this particular case, of assessing C’s testimony.  That assessment in turn informed his evaluation of the statements made in the first and second interviews.  The Judge was favourably impressed by C’s testimony and formed the provisional view that it was truthful and accurate.  He found that C was spontaneous and convincing in her first interview. 

7. The Judge found the appellant’s evidence less convincing.  The Judge preferred the evidence of C’s father about the quantity of alcohol which the appellant consumed on the evening.  The Judge found that the appellant had “well over a full bottle of bourbon” and was “obviously drunk.”  He found that the appellant deliberately minimised his drinking.  He referred to the criticisms of C’s evidence which were repeated on this appeal.  He then concluded:

   I consider all of those things were a young person trying to honestly answer, and where inaccurate were honest mistakes or misrecollection, which I find do not affect the truthfulness or reliability of her other evidence to which I have referred.

8. Having regard to the assessment of the evidence made by the Judge, and having considered the matters pressed by the appellant’s counsel, I am left in no doubt about the appellant’s guilt.  The verdict was not unreasonable.

9. I would dismiss the appeal

10. STANLEY J:         I would dismiss the appeal.  I agree with the reasons of Kourakis J.  There is nothing that I wish to add.