R v Hatchard No. Sccrm-98-217 Judgment No. S111

R v HATCHARD
[1999] SASC 111

COURT OF CRIMINAL APPEAL: Millhouse, Prior and Duggan JJ

MILLHOUSE J. Broadly for the reasons given by Duggan J I agree that the appeal should be dismissed.
PRIOR J. I agree with the reasons published by Duggan J. The verdict is not unreasonable. It can be supported having regard to the evidence and the credibility findings made by the trial judge. No miscarriage of justice has been established. The appel must therefore be dismissed.
DUGGAN J. This is an appeal by the appellant against a conviction for the offence of rape. He was convicted at a trial by judge alone. It was argued on appeal that the learned trial judge failed to warn himself adequately of the danger of convicting on the unsupported evidence of the complainant on account of the lateness of the complaint. The appellant also claimed that the verdict was unreasonable because of the unsatisfactory nature of the evidence.
It was alleged at the trial that on 7th February 1994 the appellant had intercourse with the complainant without her consent by placing his finger into her vagina. The complainant was 19 years of age at the time of the alleged offence.
The allegations arose in the following circumstances. In August 1993 the complainant was involved in motor accident when she tore the cartilage of one of her knees. The injury caused her ongoing pain and some friends recommended that she undergo treatment by the appellant. He does not have any formal medical qualifications, but the complainant was told that he was able to relieve pain.
The complainant’s first visit to the appellant took place at a private home on 15th September 1993. The appellant asked her to lie on a treatment table and he attached two discs to her knee. The discs were connected to a machine and she said that they had a “biting” effect when the machine was turned on. In the course of discussion with the appellant during this treatment the complainant told him that she had a condition known as polycystic ovary disease which affected the reproductive system. She said he was aware of the nature of the disease, a matter which impressed her. He then told her that in the past he had assisted a number of women who had difficulty becoming pregnant and he suggested that he might be able to help her in this respect. She asked him how and he said that he could manipulate certain muscles which would have the effect of stimulating the ovaries. The treatment for the complainant’s knee was then completed and she left the premises after paying her account. She said she paid the money to a woman she believed was the appellant’s wife. Before she left the appellant suggested that she make an appointment for further treatment.
During a second visit to the appellant on 22nd November 1993 the treatment with the discs was repeated. When the discs were removed from the complainant’s knee the appellant commenced rubbing it with oil and he asked if he could go further and manipulate the muscles a little higher. According to her version, he told her that he was able to carry out manipulation of the muscles which helped women to achieve orgasm better and easier. He also asked whether she had orgasms when she made love to her husband. She said that the appellant asked her whether she would be interested in him carrying out his treatment on her. The complainant said she was embarrassed and did not know what to say when the appellant spoke to her about these matters on this occasion. She said in evidence that she said “No” when he asked her if she was interested in doing this for her. She then went home after paying for the consultation.
The complainant had no contact with the appellant again until 7th February 1994 when she went to see him for treatment after she had a horse riding accident. She injured her ankle and knee in the accident. The appellant asked her to lie on the examination table. He applied the discs and later massaged her knee. According to the complainant the appellant then began discussing the topic he had raised during the last visit concerning the complainant’s orgasms.
Eventually his hands moved up towards the complainant’s groin area as the massage continued and, according to the complainant, the appellant said:
“Whilst I’m here and massaging you and manipulating these muscles, would you like me to manipulate the muscle for you to help you enjoy sex and orgasm much easier?”
The complainant said she became flustered. She said she asked the appellant what it was that he did and he told her that there were certain muscles which he could manipulate to “stimulate the sexual parts”.    He did not say anything further as to what that involved. The complainant said that the appellant told her he needed to “manipulate the muscles up at this height because they are all connected”.   She said he was using medical terms.   The complainant said she got the impression that the appellant was talking so as to take her mind off what he was doing physically and it was then that he inserted his finger into her vagina.   She said he pulled her knickers to one side in order to gain access to her vagina. The examination-in-chief continued:
“Q     Did he at any stage put on a glove?
A      No.
Q      Were you expecting him to insert a finger into your vagina?
A      No.
Q      What was your response?
A...... I immediately pushed him away, and I was just flustered, very very upset.   I just got up off the bed and left the room.
Q      Did he say anything when you pushed him away?
A...... Yes, he said to me ‘What’s wrong?’   I can’t remember exactly what I said to him I was so upset I said something along the lines of ‘As if you don’t know’, and he just said to me that ‘I told you I was going to manipulate further for your knee’ and that, and I just said to him that ‘I wasn’t aware of you doing it internally’.
QAnd was that the case?
A...... Yes, I wasn’t aware.
QHad he ever mentioned anything about internal examinations?
A...... Never
. . .
Q...... Did he make any other comments to you after you pushed him away?
AHe just tried to say to me that I gave him permission to do it. That’s all that he said, and I just kept going, just walked out the door.”
The complainant gave evidence that her boyfriend was waiting outside for her on this occasion, but she did not tell him about the incident when she got into the car. She said she knew that he would be very upset and she was worried about him “doing something” if she told him.
I will return to the evidence of the complainant when discussing the arguments raised on appeal. The defence did not call any evidence at the trial.
The learned trial judge set out the complainant’s evidence in some detail in his judgment and stated that he had scrutinized it with particular care. He said he found her to be a witness of truth and, despite the late reporting of the matter, he found her to be reliable. His Honour said he did not take into account the fact that the appellant did not give evidence at the trial. He was satisfied beyond reasonable doubt that penetration of the complainant’s vagina took place; that the complainant did not consent to the penetration; and that there was no reasonable possibility that the appellant was mistaken and believed that the complainant had agreed to the digital penetration.
Ms Vanstone QC, for the appellant, pointed out that the case turned on what the complainant gave permission to the appellant to do and whether the prosecution had excluded the possibility that the appellant believed she consented to penetration. Ms Vanstone said that the time which had elapsed between the incident and the date of trial was of particular significance in this case because there were significant gaps in the complainant’s recall of the conversation which took place while she was on the examination table and leading up to the act of penetration. Ms Vanstone also pointed out that, on the complainant’s version, the appellant used a number of medical terms during this crucial conversation which the complainant had difficulty recalling. According to the argument, a verdict of guilty based on evidence with these deficiencies was unsafe and unsatisfactory.
Before dealing with these arguments it is appropriate to have regard to the delay and the reasons given by the complainant for the failure to report the alleged offence earlier. I have stated that the complainant said she did not report the matter to her boyfriend on the day of the incident because of her concern at his possible reaction. According to her, she said nothing to her boyfriend in the ensuing weeks because she was too embarrassed and ashamed at what had happened. She thought it might also cause trouble by reason of the fact that her friends had recommended that she go to the appellant for treatment.
However the complainant said that she told her boyfriend about the incident late in 1994. He told the friends who had recommended the appellant. There was some discussion as to what should be done, but it was not until September 1996 that the complainant contacted the police. Up until this time she said she had decided to put the matter behind her. She married her boyfriend in February 1996.
A short report of the matter was made to the police over the telephone on 22nd September 1996, but a full statement was not given to the police until February 1997. The complainant cancelled some appointments to see the police in the months leading up to the taking of the statement in February. The trial commenced on 31st August 1998.
Ms Vanstone has pointed out that some publicity was given to the trial of the appellant on other alleged sexual offences on women he was treating and it was suggested to the complainant that one of the reasons she had decided to report the matter to the police was because of the knowledge that other women had made similar complaints against the appellant. The complainant denied that this was so and said that she heard about the appellant’s alleged involvement in other matters a short time after she had gone to the police.
When her husband gave evidence he said at first that he and the complainant had no knowledge of the other matters until after the complainant reported her allegations to the police. However, after he had refreshed his memory from a statement to the police, he agreed that he and the complainant had heard about the other matters before she spoke to the police.
The significant delay in the reporting of allegations of sexual offences may be relevant in assessing the veracity of the complainant, although it is important also to bear in mind that there may be valid and understandable reasons for delay in reporting such conduct. Crofts v The Queen (1996) 186 CLR 427 at 434, 448. Crofts’ case was decided in the context of legislation requiring mandatory directions to a jury concerning delay in complaining, but the rationale underlying the legislation is relevant to cases such as the present. (See also Longman v The Queen (1989) 168 CLR 79). Delay is also relevant in assessing whether recollection has been affected and it is important to consider any difficulty which the delay might present to an accused person in defending a charge.
There is no reason to think that the learned trial judge overlooked the significance of the delay in making a complaint in the present case. After setting out a chronology of events relating to the making of the complaint he said:
“Because of the period of time between the alleged offence and the reporting of the matter to the Police, I direct myself that I must scrutinize with extra care the evidence of the complainant.”
At a later stage in his reasons he said:
“I find that [the complainant] was a witness of truth and despite the period of time between the alleged offence and reporting the matter to the police I found her to be basically reliable.”
It is apparent from his Honour’s remarks that he not only took the aspect of delay into account, but he administered a caution to himself to scrutinize the evidence carefully because of the delay. Nor can there be any doubt that he appreciated the ways in which delay was relevant to the case he was trying. They were canvassed by Ms Vanstone in the course of her address at the trial, authorities relevant to them were cited to the court, and the matters relevant to delay were discussed between the trial judge and Ms Vanstone in the course of her final address.
The trial judge also considered the aspect of delay in the context of the facts of the case. He summarised the reasons given by the complainant for not reporting the matter earlier. He said that despite the period of time between the alleged offence and the reporting to the police, he found the complainant to be “basically reliable”. The trial judge also addressed the argument that her evidence was unreliable because of her inability to remember all the conversations and, in particular, the medical terms used by the appellant. I would reject the argument that his Honour failed to pay sufficient regard to the possible reasons for the delay in reporting the matter as well as the potential for delay to render the evidence unreliable.
However, although the trial judge appears to have directed himself appropriately on this issue and focused his attention on those aspects of the evidence which required consideration by reason of the delay, that is not an end to the matter. It is claimed that the verdict was unreasonable and it is necessary for this court to consider the evidence for itself and to assess, in particular, the specific criticisms of it which have been made in the grounds of appeal and in the course of argument. The delay which I have been discussing is relevant also to this ground of appeal, but it must be considered in conjunction with other criticisms of the evidence raised by the appellant.
In support of her argument that there was consent to penetration or, at the very least, a reasonable possibility that the appellant believed that consent to penetration had been given, Ms Vanstone relied heavily on the following passage in the complainant’s cross-examination:
“Q.... There is the third appointment and he is already massaging up the muscle towards your groin and you said in your statement ‘He then said ‘Whilst I am here, and in this area, would you like me to help you with what we were talking about before? I could help you to have better orgasms and more often.   I can do that by manipulating the muscle in this area’.   I said ‘Does it make much difference?’    He said ‘Yes, I have helped many women to enjoy sex more’.   He kept saying ‘I can do it for you would like me to’.   I then replied ‘If you think it would make a difference you can if you would like’?
A      Yes.
Q      First, did you say that to the police?
A      Yes, I did.
Q      That is different, isn’t it, from what you said today?
A      Yes.
Q...... Can you explain why in your statement you have got the words ‘If you think it would make a difference you can if you want’ and today you said you just didn’t respond?
AInitially I didn’t respond and he just still - just kept massaging that area and I was just embarrassed at the time and then he said to me - I think I have even put it in my statement there - ‘Whilst I am in this area’. So when I went quiet I thought to myself if he means in this area, then he is talking about the manipulation on the inside of my groin area, like on my leg, like on the inside of my leg. That is when I then answered and I said ‘if you think it would make a difference’ - then I replied what I put there - is what I said, yes.
Q      What you said to the police was more accurate?
A      Than what?
Q      Than what you have said today?
A      Yes.
Q...... When you were talking to the police and giving the statement though, according to what you said at the time of this conversation and you saying ‘You can if you like’, he was already under your knickers stimulating that muscle that he had spoken of that was aligned with your knee?
ANot directly under my knickers, it was like on the knicker line. It is hard to explain, you know -
Q      You see my point now. I won’t deliberate quarter inches with you?
A      No.
Q      But, he was already right next to your pubic region, wasn’t he?
A      Yes.”

And later

Q...... What I am suggesting is you have told the police his hand was under your knickers he then said ‘While I am here and in this area’ et cetera?

A      Yes.
Q      I am suggesting that is the sequence in the statement?
A      Yes.
Q      Do you accept that?
A      Yes.
Q      He is already under your knickers massaging in the groin area?
A      Yes.
Q      Very close to your vagina, isn’t he?
A      Yes, not far, yes.
Q...... The he has raised the question of ‘Whilst I am here would you like me to help with what we were talking about before?’?

A Yes.
Q...... Then you had that discussion that you mentioned, asking him about it and he explaining it and, then you said ‘If you think it would make a difference, you can if you like’?

A      Yes.
Q      When you said that, he has [sic] already under your knickers, isn’t he?
A      Yes Only -
Q      Addressing the knee problem?
A      Only - only just, yes.”

This evidence must be considered in conjunction with the complainant’s concession that she cannot remember all that was said, particularly the medical terms which were used. Ms Vanstone said it was also relevant to take into account the complainant’s evidence that the appellant spoke of an alignment of the uterus and the womb.
However, the crucial distinction to be borne in mind is that between what the appellant said he was going to achieve on the one hand and how he was going to go about it on the other. At the time of the conversation which preceded penetration, the appellant was performing an external massage. It is true that he had extended this massage up to the point where one of his hands was just under the complainant’s knickers. But, on the complainant’s version, the appellant had said nothing about placing his finger in her vagina. According to her version she had no indication that this was going to happen. There had been talk of helping her achieve orgasms, massaging of muscles and aligning the uterus with the womb, but no reference to a procedure which would involve the appellant placing his finger in the complainant’s vagina. If this was so, then consent to penetration was not given. Furthermore, the penetration of the complainant’s vagina by the appellant was an action of such significance that the appellant could hardly have believed that he had permission to perform such an act based on the discussion as deposed to by the complainant. Failure to remember all the medical details which were used does not, in my view, cast any doubt upon the evidence which supports the view that there was no consent to penetration and no room for the appellant to believe that there was consent.
Ms Vanstone drew our attention to discrepancies in the complainant’s versions of the incident. She placed particular emphasis on a version said to have been given by the complainant over the telephone when she first reported the matter to the police. Constable Gregory, a police officer attached to the Police Sexual Assault Referral Centre, said she contacted the complainant on 18th September 1996 after being advised that the complainant wished to report a matter. She said her function was to obtain very basic details of the alleged incident. She said that immediately after the conversation she wrote down in a report the details given to her by the complainant. Constable Gregory refreshed her memory from the report when giving evidence. She said the complainant told her that the alleged offender had placed his hand in her vagina on two occasions to correct her knee and reproductive problems. The police officer also recorded that the complainant “consented to manipulations believing that it was part of her treatment”.

Ms Vanstone pointed out that the complainant’s version in evidence referred to only one occasion of penetration and it was also argued that the reference to consenting to manipulations was inconsistent with the appellant’s version when giving evidence.
The learned trial judge had this to say about the apparent discrepancy:
“The Defence understandably urged me to include that such material fatally flawed the complainant’s evidence. The complainant herself said that she cannot remember saying such things to the Police Officer on the telephone and the witness Joy-Ann Gregory said that what was on the Police Incident Report is the interpretation made by her of what was said. It is only in effect a screening process and was not shown to the complainant to check for accuracy. There is evidence before me brought out in cross-examination that when she spoke to her husband in late 1994 about the matter and indeed when she spoke to the Police on the 6th February 1997 in broad terms the allegation she then made were consistent with what she says in Court.
I observed the complainant very carefully when giving evidence. I have taken into account her cross-examination and the criticisms made of her evidence. I have scrutinized her evidence with extra care. In my view Exhibit P3 does not affect her reliability or credibility. I am of the view that Exhibit P3 is not a verbatim report of what the complainant said but is merely an opinion in summary form by the Police Officer as to what her complaint was. It was also over the telephone. It is at odds with the other statements she has given to the Police and to her husband. It is so different from those two statements as to the basic issues that I am of the view that the mistake has been made by the Police Officer and not by the complainant.”
I would not interfere with this finding. Apart from the fact that the trial judge was better placed to assess the credibility of the complainant, I think it is also understandable that there could have been a misapprehension as to what the complainant said on this occasion. It is appropriate to bear in mind that it was a telephone conversation between two strangers about a delicate and complicated incident. The summary occupied only nine lines of the police report. The complainant conceded in evidence that she had agreed to a manipulation for the purpose stated by the appellant, albeit that penetration was not mentioned or suggested. As I have attempted to point out, however, the real issue was whether there was consent or belief in consent to the penetration of the vagina. In the light of these considerations the precise nature of the complaint may well have been misunderstood in the course of the short telephone conversation.
Whilst considering the whole of the evidence in accordance with the requirements of M v The Queen (1994) 181 CLR 487 I have taken into account all the criticisms made of it by Ms Vanstone including further suggested inconsistencies, the wavering by the complainant as to whether she should report the matter and the suggestion that it was because she learned of the complaints about the appellant by other women that she finally made a complaint herself. However, after this independent assessment of the evidence and paying due regard to the benefit which the trial judge had of seeing and hearing the witnesses, I have reached the conclusion that the verdict is not unsafe or unsatisfactory.
In my view the appeal should be dismissed.

[1999] SASC 111

25 March 1999