R v Livingstone - [2011] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LIVINGSTONE
[2011] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
15 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
After trial by judge alone appellant convicted of persistent sexual exploitation of a child - offences alleged to have occurred in late 1970s - objective evidence called into question complainant's reliability as to timing of events - whether judge failed to scrutinise the complainant's evidence - whether judge failed to give adequate reasons for findings - whether verdict unsafe or unsatisfactory.
Held: appeal allowed - conviction set aside - judgment and verdict of acquittal entered.
Criminal Law Consolidation Act 1935 (SA) s 50, s 56, referred to.
M v The Queen (1994) 181 CLR 487, applied.

R v LIVINGSTONE
[2011] SASCFC 28
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: After a trial by a judge of the District Court, sitting without a jury, the appellant was found guilty of persistent sexual exploitation of a child. The charge was based on events said to have occurred in the late 1970s. Objective evidence elicited by the defence called into question the complainant’s reliability in relation to four aspects of his evidence. The judge found that the complainant was reliable on the essential features of the charge, notwithstanding those four matters.
The appellant now appeals against his conviction, with permission, arguing that the judge failed to direct himself adequately in respect of evaluation of the complainant’s evidence, that he failed to scrutinise that evidence having regard to four demonstrated flaws, that he failed to give adequate reasons for finding the complainant reliable in the face of those infirmities, and that the conviction is unsafe and unsatisfactory.
Background
The first date of the period spanned by the charge, 15 February 1976, was the day the complainant (V) was first placed in a boys’ home at North Adelaide named Kumanka House (Kumanka). He was then aged 14 years and two months. He was a ward of the state. He had already lived at a number of other state institutions and foster homes. On the basis of admissions made by the parties it appears that his residency at Kumanka was interrupted by his absconding on a number of occasions and being returned there. The admissions record that on 24 August 1976 V absconded again and, although it is not absolutely clear from the admissions, it appears that he never returned. He could not recall when it was that he was there.
V said that on an occasion within the first few months of living at Kumanka he went with a few other boys to the Torrens weir at North Adelaide. It was a hot day and they were swimming. There he met a man he identified as the appellant, who rode up on a motorcycle and started speaking to him. V said that the motorcycle was a white BMW, “from memory [an] R65”. Subsequently, he rode on that motorcycle many times. On that day the appellant introduced himself as “Jamie”. He took him for a ride and took him to his house in the foothills. Once there, they did not go inside the house, because the appellant said he had a couple of international students there and he did not want them to see V. They went into the shed, where V said the man ultimately had sex with him, on a gymnasium bench, by placing his penis between V’s buttocks and thrusting until ejaculation. A little later the appellant returned V to Kumanka. Before leaving him, the appellant provided his telephone number to him, a six digit number, which the witness gave in evidence. He said he memorised it and often telephoned the appellant by use of it.
V said that the next occasion of contact between himself and the appellant was perhaps about a week or two later. After suffering a violent incident at Kumanka, he absconded, going to the city. From there, he telephoned the appellant. The appellant came into the city, met V and again took him to his home in the foothills. This time they went into the house, the appellant telling V that the students had left. The appellant gave V a meal. Later they went to the appellant’s bedroom. They undressed, got into bed and similar conduct as before occurred. V said that he stayed for two or three nights at the appellant’s home. On the first morning, the appellant went to work, leaving V in the house. He particularly remembered that on that morning he saw on the appellant’s television for the first time the program “Good Morning Australia”.
V said that in the ensuing two or two and a half years he went to the appellant’s home on numerous occasions, often staying overnight, usually having run away from Kumanka. He said: “That was my out.” He thought he was still living at Kumanka when he last saw the appellant on one such occasion. On every occasion sexual relations took place.
It was said by V in examination-in-chief that when he was roughly 14 years of age, he met a man referred to as “Boy Blue” at the appellant’s house. At that man’s invitation, he accompanied him on a road trip to Sydney. He said they stayed overnight at Gundagai and arrived in Sydney in the afternoon of the next day. They stayed at the “Rex Hotel” at Kings Cross. Boy Blue introduced him to another man and, at the instance of Boy Blue, he went to a flat with that man and submitted to sexual intercourse with him. He was then taken back to the Rex Hotel, but there, both Boy Blue and the other man left him. He said he was eventually picked up by police a day or two later and taken to an institution. The following day he went to the Children’s Court and from there was flown back to Adelaide and taken back to Kumanka.
There were reasons to approach V’s evidence with care. As was noted by the judge and is already apparent, he had a dysfunctional and traumatic upbringing. He started abusing drugs when he was 14 years of age and admitted to having used cannabis, amphetamines and heroin. V himself acknowledged that his drug taking could have affected his memory of the relevant events. He had suffered from more than one serious psychiatric condition. He had an extensive criminal record. Notwithstanding these matters, the judge was impressed with V’s evidence. He described him as a “very compelling witness”. Reading the transcript of his evidence supports that assessment.
The appellant did not give evidence in his defence. He had submitted to a long interview with police. He said he was 71 years old. His memory on many topics appeared to be vague. He did not deny knowing V – though he said he could not recall how he met him, or when – or entertaining him at his home, but he denied any sexual relationship. He said he did not know of anyone called Boy Blue. He admitted he had gym equipment in his garage years before and that he had taken in international students as boarders “over the years … like the very late sixties and then the seventies”. He provided his current telephone number, which as far as the last six digits went, was the same as given in evidence by V. The prosecution did not lead evidence of when there was a change to seven digit numbers.
The arguments on appeal
As mentioned, the arguments on appeal focussed on the way in which the judge dealt with the four demonstrated flaws in V’s evidence. I now turn to those topics.
On V’s evidence, his relationship with the appellant coincided with his period of residency at Kumanka. According to V, that was over “roughly a two year period, two and a half year period”. Insofar as the admitted facts dealt with the dates of V’s residency there – and it appears that at the trial it was accepted that those dates covered the entire period – V’s recollection of the period of his association with the appellant was markedly inaccurate, because he was at Kumanka for six months only. Indeed, on V’s estimate of the length of his relationship with the appellant, it would have extended to a time very close to his seventeenth birthday. This becomes relevant when the next three matters are considered.
I mentioned that according to V, on their first meeting, the appellant was in possession of a white BMW motorcycle which he thought to be an R65. In cross-examination he was pressed about its appearance. He said: “… all I know is that in the time I knew [the appellant] he had two motorbikes … both BMWs”. During the course of the trial proof was given that the BMW model R65 was not released in Australia until 1980. From 7 March 1975 the appellant owned a Kawasaki 400cc motorcycle. From 26 September 1977 (after V had left Kumanka) he owned a red and white BMW 750cc motorcycle and from 12 December 1986 he owned a white BMW 1000cc motorcycle.
The judge was inclined to rationalise this inconsistency by attributing it to a mistake on V’s part as to the type of motorcycle the appellant was riding when they first met. He said:
⁸⁷… On the face of it, the complainant’s evidence about the motorcycle the accused was riding and the helmet he was wearing when they first met is plainly wrong.
⁸⁸However, the central feature of the complainant’s account is the repeated indecencies to which he says he was subjected by the accused and not the descriptions of motorcycles the accused might have been riding or helmets he might have been wearing at various times. The complainant said that the accused had had two motorcycles during the time that he knew him and he said that he knew him for a period of two to two and a half years. In all the circumstances, given that the accused acquired the red and white BMW about 18 months after the time that the complainant said that they met, it is easy to see how he could now be mistaken about the precise description of the motorcycle the accused was riding when they first met.
The third matter arises from V’s description of the second encounter with the appellant and his evidence that on the morning following that encounter he stayed at the appellant’s house while the appellant went to work. He said he watched “Good Morning Australia” for the first time. Proof was given that this program was not broadcast in Australia until 1981. As to that the judge said this:
⁸⁹Counsel also submitted that the complainant could not have watched Good Morning Australia after spending a night at the accused’s home in 1976 because that program did not go to air until 1980. Again this is not a central feature of the complainant’s account and it is easy to see how he could now be mistaken about this.
The final matter related to V’s description of his trip to Sydney with Boy Blue. It was this trip which culminated in his return to Adelaide by the authorities after an appearance in court in Sydney. In his evidence-in-chief V clearly stated that he had come to know Boy Blue through the appellant.
He agreed in cross-examination that in his police statement he had said that on this occasion he had remained in Sydney for about six weeks, taking barbiturates and living in “squats”, before being returned to Adelaide. When pressed about this trip V said he had run away to Sydney on two occasions, although he agreed that in his police statement he presented the trip with Boy Blue as being the first of those. He said he could not now be sure on this point. When he was shown a copy of a New South Wales Children’s Court order in the nature of a suspended recognisance referring to him, he agreed that it appeared to relate to the occasion when he had travelled with Boy Blue to Sydney. The critical feature of the Children’s Court order, or mandate, as it was called, was that it was dated 2 April 1976. It was put to him that on the occasion of his first trip to Sydney he had not even met the appellant. He said he was unsure.
If he were in Sydney for about six weeks on this occasion then it would appear that he hardly had time to have already met the appellant at the Torrens weir and to have followed that up with a visit to his house and with a still further visit to his house during which he claimed to have met Boy Blue. As to that argument, the judge said this:
⁸⁴Counsel for the accused submitted that the Children’s Court Mandate proved that the complainant had been to Sydney before he could have met the accused and therefore the complainant could not have become acquainted with Blue Boy through the accused.
⁸⁵The mandate was undoubtedly issued before the complainant could have met the accused. However, and despite the fact that the complainant said that the mandate was issued on the first occasion he travelled to Sydney and that he thought that he had accompanied Boy Blue the first time he went to Sydney, given the time which has passed and his age at the time, he could well have been mistaken about this and he might well have accompanied Blue Boy when he went to Sydney for the second time and that this occurred after he had met the accused.
Analysis
It can be seen that, in relation to the last three matters mentioned, the judge was prepared to dismiss the proven flaws as going to matters of detail and to believe V, not only in respect of his allegations of sexual relations, but, more importantly, as to the timing of them. As Mr Algie SC, for the appellant, pointed out, the judge did not disclose the reasoning processes leading to that conclusion. For example, the judge did not explain why he should find that V was wrong about the brand of motorcycle driven by the appellant on the first occasion of meeting him, but right about the timing of that meeting. He could equally have concluded that V was right about the motorcycle, but incorrect as to the timing of the meeting. In my view the need for such an explanation was underlined by the fact that subsequent to V’s period at Kumanka the appellant did indeed own two BMW motorcycles. If V was wrong about the brand of motorcycle driven on that first meeting by the appellant, then it was a coincidence that later the appellant certainly owned motorcycles of the nominated brand.
Similarly, in relation to the viewing of Good Morning Australia, the judge was inclined to dismiss the inconsistency as relating only to a peripheral matter. However, when the appellant went off to work after that first overnight stay, leaving V alone with the house to himself and facilities which included a television, it must have seemed to V like a rare day of luxury. Bearing in mind that in his evidence-in-chief he made it plain that the appellant offered something of a refuge for him – albeit a refuge with a price to be paid – I do not think his recollection of watching a particular program on that morning should have been readily set aside. Again, if he was correct in recalling the program he saw, then he was markedly incorrect about the period of his relationship with the appellant.
The same can be said for the trip to Sydney. The “Boy Blue” trip was clearly presented by V in his statement as his first trip to Sydney. If it was, it could not have occurred subsequent to V’s meeting with the appellant. Either V was wrong about the appellant introducing him to Boy Blue, or he was wrong about the timing of the trip. In this trial, timing was important.
Whereas the judge dealt with these matters sequentially, it was important that their cumulative force be considered. Because, if V was correct when he said that the accused was driving a BMW motorcycle, and if he was correct in his recollection of watching Good Morning Australia, and if he was correct in associating his first trip to Sydney with Boy Blue and the court ordered return to Adelaide, then his evidence of the timing of his interaction with the appellant was significantly flawed. The combined force of the matters suggested that the interaction with the appellant occurred a considerable period after V had left Kumanka and much closer to (if not after) his seventeenth birthday. If his interaction occurred after his seventeenth birthday then no offences were committed by the appellant.
I consider that the coincidence of these factual matters, all tending to prove that the interaction with the appellant occurred much later than described, is a matter of great significance. It is striking that in four areas where, despite the lapse of some three decades, the defence was able to test matters of detail provided by V, V’s account was found to be unreliable. While I can well understand that the power of V’s evidence would have persuaded the trial judge that these matters should be put aside, it is, in my view, plausible that V, although convinced of his own recollection of events, was mistaken as to their timing. In these circumstances it can be seen that he would have made a compelling witness.
It is not every contradiction or proved inconsistency or flaw in a witness’s evidence which will lead a tribunal to doubt the witness’s essential reliability. It is very much a question of degree and I acknowledge it is primarily a question for the tribunal who hears the evidence. It is important to note that these were matters of detail volunteered by V. They were not details he proffered under pressure. They were significant errors, coalescing to point to unreliability about timing, not event. They have to be considered in the light of the long time lapse since the events, the difficult life led by V, both before and after his interaction with the appellant, his drug taking and psychiatric illnesses. One cannot but be moved by the sadness of V’s early years. However, having carefully considered the matter, I cannot but feel an unease about this conviction and the doubt I have is one which I think should have been entertained by the trial judge. The following words of the High Court in M v The Queen (1994) 181 CLR 487 at 494 are apposite:
… where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
It is unnecessary in view of my conclusion to consider in greater detail the specific complaints made about the judge’s reasons. I am persuaded there has been a miscarriage of justice.
For these reasons I would allow the appeal. Since the matters I have referred to are not capable of being remedied by the prosecution I would direct a judgment and verdict of acquittal to be entered.
The information
Charges pursuant to s 50 are becoming more common. There are two aspects of the charge as framed and the judge’s analysis of it which call for comment. The relevant parts of the section are as follows:
50—Persistent sexual exploitation of a child
(1)     An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)     For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)     If—
(a)at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)     Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
I now reproduce the way the charge was framed:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
James Moffat Livingstone, an adult, between the 15^th day of February 1976 and the 19^th day of December 1978 over a period of not less than three days at Magill, committed more than one act of sexual exploitation of [V], a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were (sic):
(a)indecently assaulting [V] by placing his penis between [V]’s buttocks inside a shed at the home of the accused, [address];
(b)indecently assaulting [V] by placing his penis between [V]’s buttocks inside a bedroom at the home of the accused, [address].

In discussing the nature of the charge the judge correctly noted that the section creating the offence does not require each act of sexual exploitation to be particularised to the extent that would be necessary were that act charged as a specific offence under a different section.
In relation to this count the learned trial judge seems to have taken the view that because the first two occasions of sexual assault claimed by V could have been particularised to the extent required by s 56 of the Criminal Law Consolidation Act 1935 (both then and now) those two acts stood outside the terms of the charge. He determined that it was appropriate to take into account evidence about those acts only as uncharged acts for the purposes referred to in R v Nieterink (1999) 76 SASR 56 at [75]-[78]. When he came to sentence the appellant he again observed that the first two sexual assaults described were not within the ambit of the charge and formed part of the background only. During the appeal hearing the Court was told that this analysis was not part of any submission of the prosecution and neither was it a position taken by the defence.
It has occurred to me that the genesis of this approach might be in the rather curious drafting of the particulars of the offence; there I refer to the averment that “the conduct comprising the ongoing acts of sexual exploitation” was the indecent assault in the shed and the indecent assault in the bedroom of the appellant’s home. I say curious because, while the relevant conduct is alleged to be “the ongoing acts of sexual exploitation”, the acts described thereunder are the first two indecent acts alleged. In other words, those acts are presented as “ongoing”, whereas V’s evidence of those two acts was quite specific and, as the trial judge observed, could have been the subject of charges of indecent assault. Perhaps it would have been clearer had the draftsman particularised the charge in terms of the first two incidents together with subsequent incidents of similar conduct, taking place in the appellant’s bedroom.
In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot.
Conclusion
For the reasons earlier given I would make the following orders:
1. allow the appeal;
2.set aside the conviction and, in its place, enter a judgment and verdict of acquittal.
WHITE J. I agree with the orders proposed by Vanstone J and with her reasons.
KELLY J: I agree with the orders proposed by Vanstone J and with her reasons.