R v J, AP

[2013] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v J, AP

[2013] SASCFC 121

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)

14 November 2013

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

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

CRIMINAL LAW - PROCEDURE - WITNESSES - OTHER MATTERS

Appeal against conviction by jury. The appellant was convicted upon a re-trial of one count of persistent sexual exploitation of a child. The complainant, who is the appellant’s daughter, was between five and six years old during the relevant period. At trial, two interviews with the complainant by a psychologist were tendered pursuant to s 34CA of the Evidence Act 1929 (SA). The complainant gave evidence at the first and second trial.

(1) Whether the verdict of the jury is unsafe and cannot be supported having regard to the evidence

(2) Whether the trial Judge should have warned the jury in terms of s 12A of the Evidence Act 1929 (SA).

Held by Kelly J, dismissing the appeal (Kourakis CJ and Stanley J agreeing):

(1) There was no substantial inconsistency in the complainant’s account of where and in what circumstances the sexual acts were performed, or the number of incidents of sexual exploitation (at [22]-[23]).

(2) The complainant’s lack of memory at the time of the first trial does not suggest unreliability of her initial disclosures (at [31]).

(3) The evidence of the psychologist did not raise doubt as to the complainant’s reliability (at [34]).

(4) The fact that a young child when giving evidence some years after an event may have given inconsistent accounts about matters peripheral to the actual events does not amount to cogent reasons for the purpose of s 12A of the Evidence Act 1929 (SA) (at [41]).

(5) None of the circumstances relied upon by the appellant, either alone or in combination, warranted the giving of a warning under s 12A of the Evidence Act 1929 (SA) (at [46]).

(6) Appeal dismissed.

Held by Kourakis CJ:

(1) Until the question of the relationship between ss 12A and 34CA of the Evidence Act 1929 (SA) is decided, it is probably best for trial judges to treat a statement admitted pursuant to s 34CA of the Evidence Act 1929 (SA) as if it were the evidence of a child for the purposes of s 12A of the Evidence Act 1929 (SA) (at [4]).

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 12A, s 34CA, referred to.
R v Mattsson [2011] SASCFC 114; R v Haak (2012) 112 SASR 315, applied.
Douglass v The Queen (2012) 86 ALJR 1086, distinguished.

R v J, AP
[2013] SASCFC 121

Court of Criminal Appeal:  Kourakis CJ, Kelly and Stanley JJ

1. KOURAKIS CJ:   I would dismiss the appeal for the reasons given by Kelly J.

2. For the reasons given by Kelly J there are no cogent reasons to doubt the reliability of the complainant’s evidentiary accounts of the offending. The applicability of s 12A of the Evidence Act 1929 (SA) (the Evidence Act) to evidence received pursuant to s 34CA of the Evidence Act does not therefore arise. That question depends on whether the term “a child’s uncorroborated evidence” as used in s 12A of the Evidence Act includes “evidence … of a statement made outside of the Court” which may be admitted pursuant to s 34CA of the Evidence Act.[1]

   [1]    R v Haak (2012) 112 SASR 315, [38].

3. A failure to give a warning if and when one is required by s 12A of the Evidence Act would be an error of law which, subject to the operation of the proviso, may result in an order for a retrial.

4. For that reason and until the question of the relationship between ss 12A and 34CA of the Evidence Act is decided, it is probably best for trial judges to treat a statement admitted pursuant to s 34CA of the Evidence Act as if it were the evidence of the child for the purposes of s 12A of the Evidence Act.

   KELLY J.

   Introduction

5. The appellant was convicted after a trial by jury of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending was between 28 February 2009 and 14 June 2010. The complainant was during the relevant period aged between five and six years. She is the child of the appellant who was in a relationship with the complainant’s mother for about 13 years. The parents separated in March 2009. The offending was alleged to have occurred at the appellant’s house during occasions when the complainant and her brother stayed there overnight.

6. The alleged offending consisted of a number of sexual acts performed upon the complainant by the appellant including acts of indecent assault, unlawful sexual intercourse, procuring an act of gross indecency and committing acts of gross indecency.  The specific conduct was said to be occasions when the appellant touched the complainant on the vagina, placed his finger inside her vagina, urinated upon her and other occasions when the complainant touched the appellant on the penis or he touched her with his penis. 

7. The appellant appeals the conviction on two grounds. The first, that the verdict of the jury cannot be supported having regard to the evidence and the second, that the trial Judge should have warned the jury in terms of s 12A of the Evidence Act 1929 (SA) (“Evidence Act”). In support of the first ground the appellant pointed to what were alleged to be numerous inconsistencies in two interviews of the complainant on 16 July 2010 and 14 July 2011, the evidence of a psychologist about the cognitive reasoning ability of children of the age of the complainant at the time when she gave her interviews, and the difficulties in testing the complainant’s statement in cross-examination due to her lack of memory about the circumstances surrounding the offending.

8. Before dealing with each ground of appeal it is helpful to summarise briefly the relevant background. 

9. The relationship of the complainant’s parents ended in about March 2009.  As a consequence the appellant moved out of the house.  The complainant and her brother continued to live with their mother, however both children had regular contact with the appellant both during the day when their mother was at work and overnight several times each week.  These arrangements were agreed between the parties.  There were no Family Court proceedings and there is no suggestion that before June or July 2010 the arrangements were anything other than amicable.

10. The complainant turned six in February 2010. In June 2010 she first made a complaint to her mother, the details of which I will refer to later in these reasons. As a consequence of that complaint the police were contacted and the complainant was interviewed by a psychologist on 16 July 2010. She was reinterviewed on 14 July 2011 as a consequence of a proofing session with a prosecutor from the office of the Director of Public Prosecutions. During those interviews, which were tendered under s 34CA of the Evidence Act at the trial, the complainant described various actions of a sexual nature between the appellant and herself when the complainant was six.

11. The appellant was convicted at the first trial which took place in March 2012.  The Court of Criminal Appeal set aside the conviction and a second jury convicted the appellant on 26 March 2013.  The complainant was eight years old at the date of the first trial.  By the time of the second trial in March 2013 she was nine years old.  More than three years elapsed between the period of the alleged offending and the date of the second trial.  Moreover it was almost three years between the date of her first interview and the evidence she gave at the second trial.

12. At the trial both interviews with the complainant were tendered pursuant to s 34CA of the Evidence Act. The complainant gave evidence briefly and permission to cross-examine, albeit on a limited number of topics was granted.

    Unsafe verdict

13. Against that background I turn now to consider the first ground of appeal namely that the verdict is unsafe and cannot be supported having regard to the evidence at the trial. 

14. In support of this ground of appeal the appellant pointed to a number of aspects of the out of court statements made by the complainant to the psychologist which, in counsel’s submission, rendered the evidence of the complainant unsatisfactory. Those aspects included the alleged inconsistencies in the two interviews which the complainant had with the psychologist; further inconsistencies between the statements she made to the psychologist and what she later said at both the first trial and second trial; and the complainant’s lack of memory about the circumstances surrounding the offending which it was argued made it difficult to effectively cross-examine the complainant. Further indicators of the unreliability of the complainant were said to lie in the fact that the child did not give appropriate context when recounting what happened between her father and herself; the lack of consistency about what sexual acts occurred, where they occurred in the house and the number of times it happened; the fact that the complainant lost concentration at various points during the interview and at one stage asked the psychologist what they had been talking about; the fact that the complainant claimed to enjoy the incident of digital penetration and described the appellant as having a happy face while this was said to be occurring; and the age of the child who was six at the time when she first recounted these incidents. Finally, the context in which the allegations first arose, namely a marital separation, was said to be a relevant factor both in assessing the complainant’s reliability and whether or not a warning under s 12A of the Evidence Act should have been given.

15. The appellant submitted that the numerous inconsistencies in the accounts given by the complainant in two interviews with a psychologist, together with inconsistencies which arose out of her evidence at the previous trial and her evidence at this trial, should give rise to a real concern about the reliability of the account given by the complainant.  In making this submission the appellant placed reliance on Douglass v The Queen.[2] 

    [2] (2012) 86 ALJR 1086.

16. In Douglass the appellant was convicted of one count of aggravated indecent assault of his three year old granddaughter.  The allegation was that the appellant there caused the child to hold his penis on one single occasion while the two were alone in a shed.  The appellant gave evidence on oath.  He denied ever being inside a shed alone with the complainant or that she ever touched his penis.  The appellant challenged the adequacy of the trial Judge’s reasons for verdict and complained that the verdict was in any event unsafe. 

17. On appeal to the High Court the Court upheld the appeal on the ground that the verdict was unsafe and unsatisfactory.  As the Court’s analysis of the evidence shows, the decision turned very much on the facts of that case.  There were a number of features of the child’s evidence and the evidence as a whole which led the Court to conclude that the trier of fact could not have been satisfied beyond reasonable doubt of the reliability of the child’s evidence. 

18. The facts here are far removed from the facts in Douglass.  I deal first with the claimed inconsistencies in the account of the complainant in the first and second interview.  They were said to lie in the fact that the complainant was not consistent about where and in what circumstances the appellant urinated upon her, her account of digital penetration by the appellant on a number of occasions and the circumstances in which she touched the appellant’s penis.  There was another complaint about a further incident of indecent assault which was said to have occurred in the kitchen.  The complainant did not disclose that incident until the second interview in July 2011. 

19. It is correct that the child did in the second interview in 2011 say that there was an occasion when the appellant urinated upon her in the bathroom.  In the first interview the complainant told the interviewer about an incident which seems to have occurred in the bedroom and the lounge, however it is reasonably clear that the incident in the lounge was an incident where she urinated upon the appellant and not vice versa.  What is not in dispute however is that the complainant always made a complaint that there was more than one episode of the appellant urinating upon her.  Her use of the word “sometimes” in the first interview was made in the context of her telling the interviewer that sometimes it happened in the lounge and sometimes in the bedroom. 

20. There is obviously greater potential for confusion when a complainant who is a young child gives evidence about a variety of sexual acts over a period of time, than when a child is asked about a single incident.  Here what is important is that the complainant always alleged that there was more than one incident of urination and that there was more than one incident of digital penetration.

21. The fact that the complainant recalled a year later in 2011 that there was an incident of urination in the bathroom does not in my view detract from her overall reliability. 

22. This is particularly so in light of the fact that the complainant in the first interview told the psychologist that it happened on more than one occasion.  The appellant’s submission that the complainant’s account of the incident of urination changed from being in the bedroom to the bathroom cannot be sustained when the evidence is analysed as a whole.  On reading the whole of the second interview in conjunction with the first interview, I do not consider there is in fact any inconsistency.  The complainant consistently stated in both interviews that there was an incident of urination which occurred in the bedroom – she confirmed that in the second interview.  It was simply the case that in the second interview she remembered that it also occurred in the bathroom. 

23. Nor do I consider that there is any substantial inconsistency in the complainant’s account as to the number of times when it happened.  On one reading of the first interview, the incident she refers to in the lounge appears to refer to an incident in which the complainant urinated on the appellant.  This is the reference to the lounge incident which the appellant also seems to be referring to in his record of interview.  The fact that the child was asked further questions in the second interview about the incident in the bathroom and proceeded to give further detail does not render her account inconsistent.  It is clear that in the second interview the complainant is describing an incident that occurred in the bathroom, as distinct from the incident which occurred in the bedroom.

24. Similar complaints were made in relation to the complainant’s account of the digital penetration which occurred.  In the first interview the complainant said that it occurred sometimes.  After being asked a number of questions about what happened in the shower when the appellant washed her, the complainant disclosed that the appellant was allowed to touch her rude spots.  She went on to say “and sometimes inside my fan”.  It was common ground that the complainant referred to the vagina as her fan.  Her account of the digital penetration contained details which, in my view, are consistent only with the child having actually experienced that. 

25. This is the incident which the complainant referred to in both interviews and which she appeared to remember best because the cat Blacky was present. 

26. It was submitted that the following question and answer given by the complainant detract from her reliability in recounting this incident.  The complainant was asked:

    Q.You can’t remember okay.  ‘Cos you were saying that sometimes daddy gives you kisses on the mouth or on the tummy when you are in bed with each other, okay, is there anything else that happens when you are in bed with daddy?

    A.No

27. The question was asked after a passage when the complainant had just disclosed in some detail the circumstances surrounding the appellant washing her in the shower.  Read in its context, I do not consider that the answer given by the complainant there necessarily constitutes a denial that anything else did occur. 

28. The fact that later in response to non leading questions in the same interview the complainant gave details of further incidents involving digital penetration is not necessarily inconsistent with her earlier answers.  This is particularly so in light of the fact that the complainant had already disclosed to her mother that the appellant “sticks his fingers in my fan”.

29. Having viewed and read both of the interviews of the complainant in 2010 and 2011 I have no misgivings about her reliability.  Even though the disclosure in 2011 of the further incident of indecent assault in the kitchen came after questioning about the different rooms in the appellant’s house, it is obvious that the complainant spontaneously volunteered information about the incident in the kitchen after the word ‘kitchen’ was mentioned. 

30. It must be borne in mind that the complainant is a young child.  She was only six years old at the time of the offending.  From the outset she disclosed multiple incidents involving inappropriate sexual contact with her father. 

31. The fact that by the time of the first trial the complainant could not remember some of the things she told the interviewer, whilst indicative of a lack of memory at the relevant time, does not point to unreliability about her initial disclosures.  The complainant never resiled from the truth of the things she told the psychologist in the interviews.  It must also be borne in mind that she was giving evidence a year after the first interview and well over a year after these things were said to have happened to her.  By the time of the second trial the complainant was giving evidence about matters which occurred over three years before.  This is a long time for any witness but especially in the life of a child. 

32. In any event the jury had the benefit of seeing both the interviews and of assessing the complainant in the witness box.  Moreover the salient evidence given in cross-examination at the first trial was also before the jury in the form of an agreed fact.  It was for the jury to assess her answers in cross-examination and give them such weight as they saw fit bearing in mind her age, the lapse of time between the trial and the events said to have occurred and the other evidence at the trial. 

33. In this respect some of the evidence at the trial, including the evidence given by the complainant’s mother and some of the matters referred to by the appellant in his record of interview with the police supported, to an extent, peripheral details recounted by the complainant.  The jury were entitled to form their own view about the mother’s evidence that the complainant was able to wash herself at the relevant times and to assess that evidence in light of the appellant’s statement in the record of interview that he had to wash the complainant and teach her how to wash herself.  Other important features of the complainant’s evidence, including the fact that both the appellant and the complainant did shower together from time to time and that a special brush was used, were to some extent confirmed by the appellant in the record of interview.

34. The interviews of the complainant were lengthy, comprehensive and indeed skilfully conducted.  In this context it is convenient to deal briefly with the appellant’s submission that the evidence of the psychologist raised doubt as to the complainant’s reliability. Insofar as it related to cognitive reasoning, that evidence was applicable to children generally, and did not raise doubt in relation to this particular complainant. The evidence of the psychologist was largely limited to the need to avoid asking leading questions. I do not consider that the interviews contained leading questions.

1. Furthermore, the trial Judge drew all of the alleged infirmities in the complainant’s evidence to the jury’s attention. Leaving aside for the moment whether the trial Judge should have warned the jury in terms of s 12A of the Evidence Act, he gave a strong direction concerning inconsistencies and how the jury were to approach such inconsistencies. He said:

   As Mr Mead rightly placed emphasis on it, I am going to remind you of some of what [the complainant] said in answer to a lawyer's questions in March of last year.

   As you will recall, [the complainant] said she could not remember being asked these questions and giving these answers. As she, thus, did not clearly agree she gave these answers, the law allowed for it to be proved that she had in fact said them and it was then proved that she had said them by way of agreed fact.

   Much of what she said on that occasion was inconsistent with what she said in answer to Mr Mead's questions. In particular, on the occasion in March of last year she was asked if she could remember ever seeing her dad's doodle and she said 'No', but in answer to Mr Mead she said she had seen her dad's doodle when she lived with him at Millicent.

   She was also asked in March of last year whether she had a memory of the accused touching her on the fan and she said 'No'. But in answer to Mr Mead she said that the accused had touched her on the fan.

   She was also asked in March of last year whether it was the case that her father never touched her on the fan other than when he was washing her and she said 'Maybe', whereas to Mr Mead she said that he touched her on the fan on other occasions.

   Also in March of last year she said that she and [J] occupied the same room at the accused's house and that [J] would wake up early and that she would sometimes go into the accused's room and go on sleeping because [J] was keeping her awake and that she thought that this would always happen. But in answer to Mr Mead she said she could not remember any of these things.

   You, thus, have inconsistencies in the sense that she said things on the occasion in March of last year that are either inconsistent with what she said in her interviews or what she says now or both.

   What she said in answer to the lawyer's questions in March of last year is not proof that what she then said was true, but you can use any inconsistencies which you find to exist as material which might reflect adversely on her overall credibility and reliability in relation to what she said in the interviews and what she said in evidence before you.

   What is to be made of these inconsistencies, either alone or in combination with any of the other inconsistencies which Mr Mead has identified for you, are, as I told you yesterday, matters for you to determine.

   As I also told you yesterday, determining the significance which might or might not be attached to any inconsistency or combination of inconsistencies is essentially a matter of fact and degree and also of common sense.

   An inconsistency or combination of inconsistencies might be so dramatic that it might entirely destroy any confidence that you might otherwise have had in [the complainant’s] credibility and reliability, both in what she said in her interviews and thus her statement and in evidence, or it might be so trivial that you might be inclined simply to let it pass.

   Do any inconsistencies or combination of inconsistencies touch on important matters, or are they peripheral or incidental? Is there an explanation consistent with the essential aspects of what she said in her interviews and thus in her statement being nonetheless believable and reliable? Obviously the more significant the inconsistency the greater the risk that it is not.

   There can be no doubt that the prosecution case turns entirely on [the complainant] and what she said in her statement and that you cannot convict unless you are satisfied that the essential aspects of what she says in her statement - that is to say, the essential aspects of what she said during the interviews - are both truthful and reliable. Although what she said by way of complaint to her mother may - and it is only a 'may' - have the capacity to demonstrate consistency on her part, which in turn may enhance her credit. It provides nothing by way of independent evidence that that which she complained of actually happened and there is, thus, absolutely no independent evidence which has any capacity whatsoever to confirm or support the account she gave in her statement or to confirm anything that she said in evidence.

   You will thus have to examine what she said in her statement, that is to say, what she said during the interviews and what she said in her evidence, with the greatest of care and in the greatest of detail, bearing in mind as you do so that there is no independent evidence which has the capacity to confirm or support her account of sexual abuse at the hands of the accused.

2. There has been no complaint, nor could there be in light of that passage in the summing up, that the trial Judge did not bring all relevant matters relevant to the credit of the complainant to the attention of the jury in the context of directing them about how to approach inconsistencies in the evidence. 

   Section 12A warning

3. I turn now to the second ground of appeal which is that the trial Judge was obliged to give a warning in terms of s 12A of the Evidence Act.

4. Counsel for the appellant identified a number of aspects of the complainant’s evidence which he contended called for a warning to be given under s 12A. The first was the fact that the child claimed to enjoy the digital penetration and described the appellant as having a happy face when these things were happening. The second was that the child appears to have lost concentration during the interview and at one stage asked the psychologist what they had been talking about. The appellant also relied on the numerous alleged inconsistencies in the interviews of the complainant and in the evidence given at the second trial. Finally, the context in which the allegations first came to light, namely a marital separation, was said to have been a factor which should have been given some weight in the circumstances when deciding whether or not to give a s 12A warning.

5. The evidence demonstrates that in fact the parties separated in March 2009 and the arrangements made with respect to the children thereafter were quite amicable.  The complainant first made a complaint to her mother in June 2010.  There is no evidence that before that date the separation had been anything other than amicable. 

6. The appellant did claim in the record of interview that the relationship broke down completely after the complainant’s mother met a man in Portland.  However there is no evidence that that breakdown occurred prior to June 2010.  It is evident that the complainant’s mother and the children moved to Portland in September 2010.  That is well after the complaint by the child and the interview with the psychologist in July 2010. 

7. It is undeniable that the child was of very tender years, being only 6 at the date when the offending was said to have occurred and when she first complained to her mother. However there is no suggestion that age per se means that a direction under s 12A of the Evidence Act is required. As Sulan J (with whom David and Stanley JJ agreed) observed in R v Mattsson,[3] the fact that a young child when giving evidence some years after an event may have given inconsistent accounts about matters peripheral to the actual events, does not amount to cogent reasons for the purpose of s 12A of the Evidence Act. He said:[4]

   The question of what amounts to “cogent reasons” will depend on the circumstances in each case. The fact that a young child, giving evidence some years after the event, may have given inconsistent accounts about matters peripheral to the actual events do not, of themselves, amount to cogent reasons. The fact that there are some issues for the jury to consider, and even for the jury to be concerned about, does not mean that there are cogent reasons to justify a warning in terms of s 12A. For cogent reasons to exist, they should be compelling, convincing and powerful. What amounts to such reasons will depend upon the circumstances of each case. An error in the date or time when events occurred may, in some cases, be crucial, whereas, in others, it may be of less significance. In some instances, the exact description of where an offence is alleged to have taken place may be of great importance to the assessment of a child’s reliability, whereas, in other cases, it may throw little light on that issue.

   [3] [2011] SASCFC 114.

   [4]    R v Mattsson [2011] SASCFC 114 at [20].

8. For the reasons I have discussed in the context of the first ground of appeal I do not consider that any of the inconsistencies relied on by the appellant were so great as to cast any real doubt as to the reliability of the complainant.  Indeed there were some features of the interview with the psychologist which point to the opposite conclusion.  For example, it is doubtful whether the complainant could have described the way “it” felt (referring to the penetration of the vagina) and the way the “wee” felt and looked (referring to the acts of urination upon her) if she had not actually experienced those things happening.

9. The only real inconsistency in the complainant’s account between the first and second interview was her further recollection that there was an incident of indecent assault which also happened in the kitchen.  Even so the complainant’s account of the circumstances in which the kitchen incident occurred is compelling.  She remembered that incident because on that particular occasion she and her father were waiting for some pies to cook and the complainant loved pies. 

10. In short, there were many aspects of the complainant’s account which had the ring of truth about them. 

11. The warning which the trial Judge did give in relation to the inconsistencies while prudent was generous given that there was some other evidence which tended to support the complainant’s account.  The complaint made by the child to her mother was entirely consistent with the things she later told the psychologist.  Some of the things said by the appellant in the record of interview may well, depending on the jury’s view of them, have been found to be inculpatory.  For example, the appellant’s account of teaching the complainant how to wash herself and his explanation that she may well have touched his penis in that context was, at best, most unusual. 

12. For these reasons I do not consider that any of the circumstances relied on by the appellant, either alone or in combination, warranted the giving of a warning under s 12A of the Evidence Act.

13. The trial Judge’s direction in relation to the inconsistencies was strong.  He specifically directed the jury to bear each of the inconsistencies raised by the appellant on this appeal in mind when assessing the truthfulness and reliability of the complainant’s evidence.  He reminded the jury that there was no other evidence other than the evidence of the complainant. 

14. Having reviewed the whole of the evidence I have concluded that it was open on the evidence for the jury to be satisfied beyond reasonable doubt.  I have no misgivings about the verdict.

15. I would dismiss the appeal.

16. STANLEY J:  I would dismiss the appeal.  I agree with the reasons of Kelly J.