R v Jessop

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JESSOP
[2016] SASCFC 93
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
26 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
Appeal against conviction.
The appellant was tried before Judge alone in the District Court on two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA), against the 11 year old daughter of his then partner.
The appellant was convicted of the first count, which alleged that the appellant had touched the complainant’s genitalia with his hands. He was acquitted of the second count, which alleged that he touched her genitalia with his penis.
The complainant was not called to give evidence, due to her age and intellectual disability. The Judge refused an application for a stay of prosecution. The appellant appeals against that refusal.
The appellant appeals against his conviction on the grounds that the conviction is unsafe and unsatisfactory; that the Judge reversed the onus of proof on certain factual issues; and that the Judge erred in treating the evidence of the accused differently from other witnesses.
Held per Kourakis CJ (Vanstone and Kelly JJ agreeing), dismissing the appeal:
1. The decision not to call the complainant did not compromise the Court’s capacity to evaluate the prosecution evidence.
2. There is no reason to entertain doubt about the verdict due to the strength of the prosecution case.
3. The errors of law alleged are not made out on a proper reading of the Judge’s reasons.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v Jessop [2015] SADC 168; Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34, considered.

R v JESSOP
[2016] SASCFC 93
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: The appellant was tried before a Judge alone in the District Court on two counts of aggravated indecent assault[1] against the 11 year old daughter of his then partner in the early hours of 21 October 2013. The complainant, EB, was not called to give evidence. The prosecution relied on the observations of EB’s mother MB, evidence that the DNA profile of a swab taken of the appellant’s fingernails matched EB’s DNA profile, and a medical examination of EB.
[1] Criminal Law Consolidation Act 1935 (SA) s 56.
The appellant sought a stay of the prosecution on the ground that it was as an abuse of process because the prosecution did not propose to call EB. The application was dismissed. The appellant appeals against that refusal (Ground 1).
The trial proceeded and the appellant was convicted of the first count, which alleged that the appellant touched EB’s genitalia with his hands. He was acquitted of the second count which alleged that he touched EB’s genitalia with his penis. The appellant appeals against his conviction on count 1 on the grounds that:
·It is unsafe and unsatisfactory (Ground 3);
·The Judge reversed the onus of proof on certain factual issues (Ground 4); and,
·The Judge erred in treating the evidence of the appellant differently from other witnesses (Ground 5).[2]
[2] The appellant abandoned ground 2 on the hearing of the appeal.
I would dismiss the appeal. The decision not to call EB did not compromise the Court’s capacity to evaluate the prosecution evidence which was called and there is no likelihood that the Court would have reached a different verdict on the first count if she had been called. The prosecution case was a strong one and there is no reason to entertain a doubt about the verdict. The errors of law alleged in the remaining counts are not made out on a proper reading of the Judge’s reasons.
Reasons for not calling EB
On the application for the stay of proceedings the prosecutor informed the Judge that EB had an intellectual disability affecting her speech, her command of language and her general intellectual functioning. The Judge was informed that the alleged offending was committed about a month before EB turned 12 and that she was 13 years of age at the time of trial. The prosecutor informed the Court that shortly before the trial the appellant’s solicitor had been advised by letter that EB would not be called ‘due to her age, intellectual disability and the possible emotional harm that may result from her being required to attend Court’.
The appellant accepts that EB was not called for the reasons given. The appellant does not allege any collateral or strategic purpose for the decision not to call her.
The evidence of the offending
The prosecution relied on four strands of evidence at trial:
1MB’s evidence that she saw the appellant leaning over EB on a couch late at night;
2DNA evidence matching profiles of material on the appellant’s hands with EB’s DNA profile;
3A positive and presumptive test for blood on the appellant’s hands; and
4Medical evidence about the age and causes of injury to EB’s genitals.
MB gave evidence that EB has a learning disorder known as Global Development Delay. She explained that EB finds it difficult to pronounce words and learn new concepts.
MB testified that on 20 October 2013 her son was in hospital overnight. She and her children (including EB) visited him in hospital in the afternoon. They were accompanied by the appellant. Later, they all returned home and the children went to bed at the normal time around 7.00 pm. MB and the appellant went to bed shortly afterwards, around 8.00 pm. EB had her own bedroom which was adjacent to the master bedroom in which MB and the appellant slept.
MB gave evidence that when she woke at about 3.15 am on 21 October 2013 she noticed that the appellant was not beside her. She got up and walked down the hallway. The hallway light was on. At the end of the hallway, and just as she was about to enter the dining room, she heard a ‘rustling noise’ coming from the lounge room. She walked into the lounge room and saw the appellant coming off the lounge. As he moved out of the way, she saw that EB was underneath him. MB described the appellant getting off the lounge with his belly facing downwards to the lounge. Both the appellant and EB’s heads were facing the same direction. MB noticed that the appellant was ‘puffing a lot, panting, puffing’. MB was unable to see the clothing they were wearing, because it was dark in the lounge room.
MB testified that she immediately asked what was going on and the appellant replied that EB had just woken up. MB testified that EB always slept in her own bedroom and never in the lounge room.
The appellant then walked out of the lounge room into the kitchen/dining area. MB asked him again what he was doing but the appellant did not reply. The appellant walked into their bedroom and sat down on the side of the bed. MB told EB to go to her room and shut the door.
MB testified that when they returned to the master bedroom she told the appellant that she couldn’t believe he had done ‘this’, and that she would call the police. MB directed the appellant to ‘get his stuff and get out’. The appellant asked her to give him ‘enough time to prove I didn’t do it’. The appellant claimed that he had been sick for weeks. MB testified that she did not believe him because she had spent much time in the preceding days in his company and she ‘kn[e]w he wasn’t sick’. MB testified that at this time the appellant’s hands and body were shaking.
The appellant left his dark pair of Nike ‘parachute pants’ which he had been wearing on the floor, and changed into his jeans. MB did not touch the pants and left them in the same spot on the floor. The appellant did not change his underwear or the dark shirt he had worn to bed that night. The appellant gathered his belongings and left the premises.
MB then rang the police. The uniformed police officers who arrived took EB’s clothing and the appellant’s pants from the floor. MB testified that to her knowledge, EB did not have any injuries to her vaginal area prior to that night.
In cross-examination MB denied that the appellant was standing in the hallway just outside of the lounge room. MB insisted that he was getting up off the couch, his chest facing down with EB beneath him.
The appellant testified that he and MB had been in a relationship for six or seven months when the incident occurred. In that time he often slept overnight at MB’s house. The appellant confirmed that on 20 October 2013 he, MB and her four children visited MB’s son in hospital. On their return home later that night the appellant drank some bourbon, and MB some whisky. The appellant testified that he and MB went to bed at around 10.30 to 11.00 pm.
The appellant said that the only time he got up during that night was to go to the toilet. When he sat up he first lit a cigarette and then he put pants on to go to the toilet. From there he went to the fridge to get a drink. While there he heard a noise coming from the lounge room and went there to investigate. He said that the hallway lights were on.
The appellant testified that on entering the lounge room, he found EB sitting on the couch wearing a pyjama set of long pants and a long shirt. The appellant’s evidence was that he stood at the doorway and observed EB sitting on the couch. He asked EB why she was up, and received a mumbled response. According to the appellant MB then arrived and asked him what was going on. The appellant replied ‘I don’t know, I just got here’. MB then asked him ‘have you been touching my daughter’, to which he replied ‘no’. MB told the appellant that she wanted to talk to EB. The appellant returned to their bedroom. The appellant claimed that throughout that time he was still smoking his cigarette. If the appellant was smoking a cigarette the position MB testified seeing the appellant in over the couch would have been difficult to maintain. However it was never put to MB that the appellant was smoking when she saw him in the lounge room.
The appellant testified that when MB returned to the bedroom she again asked him if he had touched EB. The appellant again denied touching EB. MB asked him to get his stuff and get out. He collected his tools, keys, and dog, and left. As he was packing up MB told him she was going to call the police. The appellant denied asking for, or saying that he had, ‘time to prove’ that he did not do it. After leaving the house, the appellant was picked up by a work colleague.
The appellant denied lying down on top of EB. He denied touching her vagina with his fingers and penis.
The appellant testified that at the time of the incident, he had abrasions to his knuckles as a result of injuring himself at work.
In cross-examination, the appellant gave evidence that he was naked when he went to bed but that he put on his jeans when he got up to go to the toilet. At first he denied wearing his black track pants, and claimed that both MB and he had the exact same pair of Nike track pants but conceded that the pants in Exhibit P3 ‘could be’ his. He also agreed that he could have worn them at some stage, possibly throughout the weekend. The appellant then also agreed that the pants he put on to go to the toilet could have been the track pants. The appellant denied that he was wearing a shirt during the incident. Later again he accepted that he had been wearing the track pants and when MB asked him to leave the house, he changed into jeans.
In cross-examination the appellant testified that EB was sitting upright in the middle of the sofa. He first claimed that it was not unusual that EB was up because the children sometimes got up at night to watch TV. However, he then agreed that the TV was not on at the time and also conceded that he had never before observed EB in the lounge in the early hours of the morning.
The appellant denied leading EB into the lounge room and testified that he did not enter the lounge room at all.
The prosecution called Dr Taylor the principal scientist for forensic statistics at the Forensic Science Centre.
Dr Taylor explained that biological material can be transferred from one person to another person through contact. The contact may be nonsexual, such as shaking hands, but can also occur through sexual activity from skin to skin contact. Contact transfer is to be contrasted with the transfer of bodily fluids.
Dr Taylor also explained that secondary transfer is the deposit of DNA material from its source to another location through an intermediary. Secondary transfer of DNA can occur in various ways. For example, a bodily fluid may be transferred to another person’s hand and then deposited onto another part of the body or clothing.
Secondary transfer will often result, on subsequent analysis, in the identification of mixed DNA profiles from a combination of the biological material of two or more persons.
Dr Taylor testified that he examined the DNA profiles of a sample taken from the inner front crotch of the appellant’s track pants, and another from the inner rear buttock of the track pants. The statistical weighting that biological material from EB contributed to the former was 270,000 and to the latter 4.4 million. Dr Taylor explained the derivation of the statistical weighting as follows:
ASo from the tape lift of the inner front of the trackpants we obtained a mixed DNA profile and that could be described as originating from the three individuals. Now, one of those individuals we assume is Jessop because they are his trackpants, we would expect to find his DNA there. We then went on to compare the reference DNA profile of [EB] to that mixed DNA profile and we considered two possible scenarios to explain the evidence that we’d obtained. One is that the sources of DNA were Jessop, [EB] and an unknown person and the other is that the sources of DNA were Jessop and two unknown people, so [EB] was not a source of DNA. Now, when we considered those two scenarios we calculated the likelihood ratio. In this instance it was 270,000 in favour of the first description, so in other words what that means is the probability of obtaining that mixed DNA profile is 270,000 times more likely if the sources of DNA were Jessop, [EB] and an unknown person, rather than Jessop and two unknown people. Now, because there is a few likelihood ratios in this report, what I will say from here on is an abbreviated version of that. So if I was to give the same result in the abbreviated version I would say there is a mixed DNA profile which we’ve interpreted as coming from three people, one of which is Jessop, we’ve compared [EB]’s reference profile to it and obtained a likelihood ratio of 270,000 in favour of her inclusion. When I say that, I ask that you remember there is those two competing propositions or those two competing scenarios in the background that go into making up that likelihood ratio. From the second sample, which was a tape lift of the inner rear of the trackpants, we obtained a mixed DNA profile which we interpreted as a four-person mixed DNA profile. We assumed that Jessop was one of these four people. We then compared the reference DNA profile of [EB] to that mixture and obtained a likelihood ratio of 4.4 million in favour of her inclusion to that mixture.
Dr Taylor explained that the calculation of the likelihood ratio is affected by the quantity of DNA material from each source which is isolated from the sample:
AYes, as a general trend, the size of the likelihood ratio can be correlated to how much information from that person may be present in the profile. So as less and less information from that person is present the likelihood ratio will drop and drop and eventually the absence of that information will mean that you start favouring their exclusion from the profile. So in this particular example if we are talking about the penile swab, when we analyse that mixed DNA profile which we’ve said has come from two contributors, the mixture proportions that we’ve come up with or that our analysis has come up with is 96% for one of the contributors and 4% for the other contributor. That is, 96% of the mixed profile can be described as one person’s contribution and 4% is described by the second person’s contribution. Now, in this instance the 96% aligns with Jessop’s reference DNA profile, so he would be the larger contributor to that mixture, and if [EB] is a contributor she would be the 4%.
Dr Taylor testified that DNA profiling cannot identify the biological source or origin of material. Nor could DNA profiling determine whether the source of DNA was epithelial cells or skin cells.
The DNA profiles of the swabs taken from the appellant’s left hand, left fingernails and right hand matched the DNA profiles of both EB and the appellant. The likelihood ratio for the hypothesis that EB rather than an unknown person contributed to the mixed profiles on the swab from the left hand was 23 billion and between 2 and 3 billion for the swabs taken from the left hand fingernails and right hand. On analysis the swabs of the right palm, fingers and nails of the appellant did not produce any of the DNA profile of the complainant.
On analysis the penile swab taken from the appellant produced traces of EB’s DNA profile that was in the second highest category of likelihood, ‘very strong support’. The likelihood ratio was 4,100 to one which Dr Taylor described as giving very strong support to the hypothesis that EB was the contributor of that material. Ratios in the billions were described by Dr Taylor as proving ‘extremely strong support’ for the hypothesis.
Presumptive tests for blood were performed on swabs taken from the appellant. Traces of blood were found on the appellant’s right fingernails, right hand, left fingernails, and right palm/finger swab. No blood was detected on the left palm/finger swab or the left hand swab. The evidence of Mr Taylor was that he could not determine whose blood it was. It was simply blood that was found on the appellant’s hands. No express evidence was given about the nature of the presumptive test, whether false positive tests were sometimes given, and the frequency and reason of any false positive test. The trial Judge treated the presumptive test as an item of circumstantial evidence. If the evidence had stood alone, it would be a very weak indication of the presence of blood. However, the combination of the DNA profiling, the evidence of the vaginal injury to EB, and the positive reaction to a presumptive test for blood on the left fingernail and left hand strongly supported a finding of guilt on the first count.
No biological material capable of providing a DNA profile was found on the complainant’s underwear taken by the police. However, the evidence did not show whether EB was wearing the underwear taken by the police at the time of the incident.
The prosecution called Dr Deepa Jeyaseelan, a medical practitioner who works in the Child Protection Service of the Department of Paediatrics at the Flinders Medical Centre. Part of their role includes completing forensic medical examinations of children who have experienced abuse or neglect. Dr Jeyaseelan examined EB on 21 October 2013 between 2.00 pm and 4.00 pm. Dr Jeyaseelan observed a number of injuries to the area of EB’s vagina.

First, there were roughened areas of redness of the external tissue to the left side of the genital structure at the perineum and the labia majora. The probable cause was a friction or abrasion like injury caused by applying a crushing force over the skin from contact with another object, such as a finger or penis.
Secondly, there were internal vaginal injuries to the hymenal membrane, specifically bruising and swelling. There were also two lacerations to the hymenal membrane that were ‘V’ shaped. Although the two lacerations were not actively bleeding during the consultation, Dr Jeyaseelan testified that in her clinical experience there was no circumstance in which lacerations of that kind would not have bled at the time of impact. A likely cause of the injuries was a blunt penetrative trauma to the hymen such as with a finger or the attempted insertion of a penis. The injuries were caused from between 12 to 48 hours earlier.
The Judge’s reasons
The Judge found the following facts established by the evidence:[3]
[3]    R v Jessop [2015] SADC 168 at [119].
·    That at about 3.15am on 21 October 2013, MB awoke to find the Accused no longer asleep in the bed beside her. She investigated and found him in the lounge room.
·    When she first saw him, he was getting up from the lounge where he had been lying face down with her daughter EB who was lying face up underneath him. He was puffing and panting at that time.
·    After he got up from the lounge, EB got up, MB told her to go to her room.
·    MB confronted the Accused, the Accused denied he had done anything to EB.
·    The conversation continued in the bedroom. The Accused continued to deny any wrongdoing. His hands and his body were shaking at that time.
·    The trackpants that he had been wearing when he was in the lounge room were removed by him and left on the floor.
·    The police were called and attended shortly thereafter. They seized items of clothing including the trackpants that the Accused had been wearing and the underpants and sanitary pad from EB.
·    When EB was medically examined 12 hours later, she had injuries to her genital area consistent with blunt force trauma and penetration of the hymen. The injuries to the hymen were lacerations that would have bled at the time they were caused. These injuries would have been caused approximately 12 to 48 hours prior to the medical examination occurring.
·    Upon examination of the clothing items at the forensic science centre, blood was located in the underpants and on the sanitary pad collected from the complainant. She was not menstruating at the time.
·    DNA was located in the front and rear of the track pants. EB was a contributor to the profiles obtained.
·    Samples were obtained from the Accused by the police 13½ hours after the incident in the lounge room.
·    No semen was detected on any of the samples. This is consistent with the Accused not having ejaculated at any stage.
·    The swabs analysed from the Accused’s right fingernails, the right hand, the left fingernails and the right palm, gave a positive result to the presumptive test for blood.
·    EB was excluded as a donor of the DNA from the right hand fingernails of the Accused.
·    EB was a contributor to the DNA located on the left hand, under the left hand fingernails and from the right palm, fingers and nails, and the right hand of the Accused.
·    The DNA of EB was located on the penis of the Accused.
·    EB was in the company of the Accused and her Mother, and there had been no incidents observed by MB or the Accused that could have given rise to the injuries observed at the medical examination in the relevant timeframe.
The Judge ‘[did] not regard the failure to call [EB] as a fundamental defect going to the root of the trial that presents unfairness that cannot be overcome in this case’ and for that reason refused to grant a permanent stay.[4]
[4] Ibid at [14].
The Judge found MB to be a credible and reliable witness, and that her actions following the alleged assault were entirely consistent with the observations she had made. MB’s testimony regarding the appellant’s placement and wearing of the track pants, as well as her conversations with him, were accepted by the Judge.
The Judge rejected the evidence of the appellant as not credible because it lacked detail and cogency, even though ‘he had been on notice from the time of alleged incident of the allegation and the police involvement’.[5]
[5] Ibid at [118].
The Judge noted that the evidence of Dr Taylor regarding the DNA test results was not challenged. The cross-examination was directed to the transfer of DNA. The defence contended that it did not exclude possibilities consistent with innocence.[6]
[6] Ibid at [113].
The Judge accepted the evidence of Dr Jeyaseelan in its entirety. The Judge referred to ‘the weight which is to be given to the united force of all the circumstances’ of the case, as ‘[o]ne piece of evidence may resolve a doubt about another’.[7] The Judge rejected the possibility that the injuries were self-inflicted on the strength of the observations of MB, the nature of the injuries, the finding of blood in her underpants and on the sanitary pad, and the conclusions drawn from the DNA and forensic testing.
[7] Ibid at [42].
The Judge found beyond reasonable doubt that the accused sexually interfered with EB on 21 October 2013, and that his testimonial denials were not ‘reasonably, possibly true.’[8] The Judge found beyond reasonable doubt that the appellant had ‘used his fingers to touch the Complainant in the area of her genitals’.[9]
[8] Ibid at [121].
[9] Ibid at [123].
The Judge explained that she could not be certain that the appellant had touched EB with his penis because it was possible that his hand came in contact with his own penis after he had touched her. In those circumstances secondary (or tertiary) transfer of biological material from his hand to his penis and yet further transfer onto the tracksuit pants was possible. The Judge was not satisfied that the prosecution had excluded the possibility of such transfer. The Judge was therefore not satisfied that the second count was proven beyond reasonable doubt, and the appellant was acquitted on that count.
Grounds 1 and 3: Stay of proceedings – miscarriage of justice
The reasons proffered for not calling EB are, on their face, valid reasons. The appellant does not contend that EB was not called for any other reason. This is therefore not a case of the prosecution pursuing an improper purpose which requires the prosecution to be stayed.
The failure to call an important witness may foredoom a prosecution to failure. However, again as can be seen from the recital of the prosecution evidence above, that was not this case. This possible ground for a stay is also not applicable.
For present purposes I accept that it is arguable that it is an abuse of process to maintain a prosecution without calling a material witness or witnesses if the failure to call that witness or witnesses will necessarily result in a miscarriage of justice. However, the stay having been refused and this matter coming before the Court of Criminal Appeal as an appeal against conviction, it is not necessary to consider that question further. The question is simply whether there has been a miscarriage of justice having regard to the evidence which was called and the conduct of the trial as a whole. [10]
[10] Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34 at [64].
There can be no principle that the failure to call the victim of an offence will generally result in a miscarriage of justice. Charges of murders must still be prosecuted. So too must charges for offences against persons who by reason of intellectual or other disability cannot communicate at all. The ultimate question is whether the evidence in fact called is capable of proving the offence beyond reasonable doubt in the absence of evidence from the victim. The subsidiary question is whether the absence of the victim necessarily compromises the capacity of the tribunal of fact to reach a verdict of guilty beyond reasonable doubt having regard to the matters about which he or she may have testified.
The appellant contends that if the complainant had been called her testimony on five matters may have cast a doubt on his guilt. The five matters are:
1The interaction between the appellant and EB on the couch immediately before MB made her observations.
2Whether EB engaged in activities in the day or so leading up to the alleged assault which may have caused the injury found on medical examination.
3Conversations between MB and EB both before and after the appellant left the house.
4Allegations of sexual abuse which EB had made against others.
5Inconsistencies in EB’s interview with the officers from the Child Protection Service.
I deal with each in turn.
On the appeal both the appellant and the Director consented to the Court receiving a transcript of questioning of EB by officers of the Child Protection Service. I would receive the transcript for the limited purpose of determining whether the failure to call EB has resulted in a miscarriage of justice. On a fair reading of the transcript EB described the appellant sexually assaulting her on the couch.
In the interview conducted on the very day of the alleged offending, EB described the following:
EAnd that’s why he’s in, nah, nah, he just grabbing me, pushed me in the lounge room.
S      He grabbed you and pushed you?
E     In the lounge room.
S      In the lounge room?
E     Mmm hmm.
S      This is last night, or another time?
E     This night.
S      Last night, he grabbed you and pushed you in the lounge room.
E     yes.
S      Mmm hmm. And what happened after that?
E     He was like touching me, all my body.
S      Mmm hmm.
E     He said, um, you know, like that.
SSo he touched you all over your body and then, and where, where on your body, can you tell me which parts of your body he touched?
EThe top one and the bottom.
…
SSo I need to know, to help me understand what Chris did to you, I need you to explain to me everywhere that he touched you?
EOnly the front one, the front, not the back.
SOkay.
ENot the back.
SNot the back, he touched you on the front one, and what did he touch you with?
EUm, um, ah the thing, I’m not allowed to say the rude part.
...
EHe was putting his finger on me.
SPutting his finger on you, mmm hmm.
EInside.
SInside? Mmm hmm. Yep, what did he do with his finger?
EPushing it, not good, not allowed to do it.
STouching that wasn’t good, that he wasn’t allowed to do.
EMmm.
SYou said it was inside you? Where inside you? I don’t understand, sorry.
EDown the bottom.
SDown the bottom, in the, the part that the doctor looked at before?
EYep.
SOk. Do you have a name for that part on your body, that the doctor looked at?
EUm, not the first word, I do know the first word, I don’t know the second word.
SOk, alright.
EI name it, ah I don’t know the ………
SOk, well maybe I’ll just get you to, I’ve got some drawings here of a girl without any clothes on and maybe you can point to the part that he touched, which parts did he touch you on?
EThere (draws an arrow pointing to the vagina on the girl diagram) and there (draws an arrow pointing to the breasts on the girl diagram) and that’s it.
SOk, so you’ve drawn an arrow pointing to the part between the legs.
EMmm hmm.
SAnd the part up, um, on the chest, around here.
EYes.
SOk, alright, thank you, I’ll keep that one.
EWe’ll show the cops or something like that.
...
SOk, so you said that he tried to have “s-a-x” with you?
EMmm hmm.
SYep, so how do you know he tried to have “s-a-x” with you?
EUm, he, um, um, in the night, mum caught Chris.
SMum what sorry?
EMum caught Chris.
SCaught Chris? Yep.
…
On the face of that transcript there is no reason to think that EB would have given any testimony that might have cast a doubt of the appellant’s guilt on the evidence as a whole.
It is important to observe in this context that there is a stark contrast between the appellant’s evidence and the evidence of MB on this question. The appellant insisted that he did not go into the room at all but that he was by the doorway. MB’s evidence was that the appellant was lifting himself up from the couch. The appellant’s contention therefore is that on the assumption that his claim to be by the doorway was false, EB’s evidence might nonetheless have revealed an innocent explanation for his presence so close to the couch. Such possibilities are merely fanciful. Even if the appellant was checking on EB’s wellbeing there would have been no reason for him to assume the position described by MB. The other evidence and in particular the existence of biological material from EB under the appellant’s left fingernails removes any such possibility.
As to the second matter the suggestion that there may have been another recent cause of EB’s genital injuries was also largely speculative. The appellant, in cross-examination of MB, did not suggest an alternative cause or enquire about any such possibility.
I turn to the third matter. It was suggested that MB may have planted the suggestion of a sexual assault in EB’s mind. In the transcript of EB’s interview she refers to questioning by MB on the topic of the appellant abusing her. However the appellant’s counsel did not cross examine MB about conversations with EB concerning the alleged assault. Moreover EB was not called to give evidence. It is irrational to argue that there was a miscarriage of justice because testimony which was not given might have been tainted if it were given. EB not being a witness, the relevance of the third matter must be confined to a challenge to the evidence of MB on the basis that she had orchestrated the complaint to police. However, that allegation was not put to MB.
The fourth matter concerns allegations which EB made against others, over the course of four interviews of EB, with officers of the Child Protection Service. EB described various acts of abuse committed against her by two other men.
In the first interview of EB conducted at Flinders Medical Centre EB raised four different occasions of abuse by the appellant.
In the third interview EB also complained of abuse by her grandfather from the age of four years old. Her grandfather’s conduct included touching EB’s chest area underneath her clothes, and slapping and grabbing EB’s bottom over clothes.
In her third and fourth interviews EB described incidents of abuse committed by MB’s former partner, L. The abuse included touching EB with his penis and his hands. These instances occurred in various locations in their former home in Christies Beach: in the kitchen, in the lounge room, in MB’s bedroom, the bathroom, and the backyard.
The appellant’s submission is a conglomeration of suggestions that all the allegations are false, or that allegations have been transposed from one offender to another. Sadly it is not uncommon for the vulnerable to suffer at the hands of many. Whether or not that is the case with EB is not relevant on this appeal because she did not give evidence. Criticisms of evidence which might have been, but was not, given cannot establish a miscarriage of justice.
Finally, the appellant relies on the following inconsistencies in EB’s interviews.
The appellant submits that if EB was pushed into the lounge room in the way she described in her interviews, then others in the house should have heard the appellant doing so. Many responses may be made to that submission. Suffice it is to say that EB’s statement does not refer at all to any noise generated by that activity and that once again the submission is directed at the ‘straw man’ of testimony which was not given.
The appellant next relies on an isolated passage from EB’s interviews in which she alleged that the appellant touched her only with his finger and no other part of his body. If the appellant had been convicted on count 2, that answer may have been important. However, it is quite irrelevant to the question of his guilt on count 1.
The appellant contends that EB’s use of words like silly, weird, gross, and slimy to describe how she felt at the time of the sexual assault was inconsistent with penetration. That submission has no merit whatsoever having regard to the appellant’s acceptance that EB suffered Global Development Delay. Moreover the submission is again an attack on testimony which was not given.
The appellant’s speculation about evidence which EB may have given is to be contrasted with the significant probative weight of the prosecution case. The decision not to call EB did not compromise the Judge’s capacity to evaluate that evidence. It did not give any reason not to draw an inference of guilt from the circumstantial case based on a combination of unchallenged objective facts and the testimony of MB. The decision not to call EB has not resulted in a miscarriage of justice.
Ground 4: Reversal of onus of proof
The appellant contends that the Judge reversed the onus of proof when considering the significance of the absence of any biological material with the appellant’s DNA in the complainant’s underwear which was taken by the police. The Judge referred to and accepted the evidence of Dr Jeyaseelan, Dr Taylor and MB before turning to the defence submissions on the failure to find any material with the appellant’s DNA on the underwear. The Judge said:[11]
No DNA of the Accused was located on the underpants or sanitary pad that was taken from the Complainant by the police in the early hours of 21 October. It was suggested in the Defence address that if these offences had been committed then one would expect there to be DNA from the Accused on the underpants. However, that argument is only good if in fact the Complainant had been wearing the underpants at the time that she was discovered by her mother in the lounge room. The only evidence of the clothing that she was wearing at that time came from the Accused who thought she was wearing a “PJ set”. MB was unable to see what clothing EB was wearing because it was so dark, but gave evidence that EB was wearing shorts and a top later, and these were the items seized by the police. In relation to her daughter’s knickers, she identified them as being in photo number 2 of P3 but couldn’t remember her wearing them on the night. These underpants also contained blood like staining on the inner crotch and the only DNA profile identified came from the Complainant herself.
There was no evidence before me that EB had been wearing the underpants at the time when these alleged offences occurred. I remind myself that these issues must be determined on the basis of the evidence that was adduced, not what may have been adduced had a particular witness been called. The absence of any evidence cannot be used by me to fill the gaps in relation to the matter. In particular, I must not speculate about what a particular witness may have said if they were called to give evidence. The question for me here is, does the absence of DNA from the Accused, but the presence of mixed profiles from the inner waist band, the outer waist band, and the inner crotch, all of which the Accused has been excluded from, give rise to a reasonable hypothesis consistent with the innocence of the Accused in the circumstances of this case. That is a matter to be considered along with the balance of the evidence. Of course it is possible that one circumstance alone could be sufficient to provide a reasonable doubt. Equally, if there is one hypothesis consistent with innocence and the other consistent with guilt, then I must give the benefit of the doubt to the Accused.
[footnotes omitted]
[11] R v Jessop [2015] SADC 168 at [115]-[116].

Ground 4 must be dismissed. In the impugned passage the Judge expressly referred to the prosecution onus of proof. Her Honour correctly eschewed speculation in considering the significance of the evidence. The Judge was, however, entitled to observe that the complainant may not have been wearing the seized underwear when she was in the lounge room and to take that into account when considering whether or not the prosecution had not discharged its onus because of the failure to find any material with the appellant’s DNA profile on the underwear.
Ground 5: Treating the appellant’s evidence differently
The appellant contends that the following paragraph of the Judge’s reasons impermissibly undermines the appellant’s right to silence:[12]
I did not find the Accused to be a very convincing witness. His evidence lacked detail and cogency. I do not find him to be a credible witness. I found this very surprising as he had been on notice from the time of alleged incident of the allegation and the police involvement. At various stages in his evidence he attempted to demonstrate his good relationship with the children of MB by claiming to have purchased food items or toys. It was quite superficial. While the Accused has no onus on him to provide explanations for the evidence of the Prosecution, it is relevant that when he gave evidence there were no innocent explanations that could undermine the prosecution case, in other words, give rise to a rational hypothesis consistent with innocence. Naturally, I have and will consider his denials and his evidence.
[12] Ibid at [118].
The appellant contends that the passage implies that the appellant was under an obligation to prove or lead evidence about a hypothesis consistent with innocence. I reject the submission. It can be accepted that strength of recollection of witnesses may vary even of events which assume great importance. However the Judge was entitled to assess the vagueness of the appellant’s testimony against expectations arising from her life experience. In doing so her Honour treated the appellant as she would any other witness. Ground 5 must be dismissed.
Conclusion
Having regard to the strength of the other evidence in the case on the one hand and the matters about which the complainant may have given evidence if she had been called on the other, it has not been shown that there has been a miscarriage of justice. Moreover, the strength of the prosecution evidence does not leave me in any doubt as to the appellant’s guilt. The grounds that the Judge reversed the onus of proof and treated the appellant’s evidence differently, rest on a fallacious reading of the Judge’s reasons.
I would dismiss the appeal.
VANSTONE J: I agree.
KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

[2016] SASCFC 93

26 August 2016

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Evidence

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