R v M, Mt - [2004] SASC 435

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, MT
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
23 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Appeal against conviction - trial by judge alone - conviction for persistent sexual abuse of a child - whether trial judge had sufficient regard to inconsistencies in victim's accounts - whether trial judge engaged in speculation as to reasons for failure to make timely complaint - whether unsafe and unsatisfactory - appeal dismissed.
Crampton v The Queen (2000) 206 CLR 161; Longman v The Queen (1989) 168 CLR 79; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; Jones v The Queen (1997) 191 CLR 439, discussed.
Doggett v The Queen (2001) 208 CLR 343; B v The Queen (1992) 175 CLR 599; R v Liddy (No 2) (2002) 84 SASR 231; Crofts v The Queen (1996) 186 CLR 427; M v The Queen (1994) 181 CLR 487; R v Ion (1996) 89 A Crim R 81; R v O'Donoghue (1988) 34 A Crim R 397; R v Moussa (2001) 125 A Crim R 505; R v Ng (2002) 5 VR 257; Fleming v The Queen (1998) 197 CLR 250; R v ADW (2002) 84 SASR 178, considered.

R v M, MT
[2004] SASC 435
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J.
GRAY J:
Introduction
This is an appeal against conviction.
The appellant was charged with the offence of persistent sexual abuse contrary to section 74 of the Criminal Law Consolidation Act 1935 (SA).[1] It was alleged that between 28 July 1994 and 31 December 1999 the appellant engaged in persistent sexual abuse of F, a person between 10 and 15 years of age, at Christies Beach and Morphett Vale. It was alleged the accused performed cunnilingus upon F, inserted his finger into her vagina, inserted his penis into her vagina, performed acts of gross indecency by masturbating in her presence and caused her to perform acts of fellatio. It was alleged there were at least three separate incidents, falling on separate days, in which the accused committed a sexual offence against F.
[1] Section 74 relevantly provides:
(1) A person may be charged with and convicted of the offence of persistent sexual abuse of a child.
(2) Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3) A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4) A charge of persistent sexual abuse of a child—
(a) must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and
(b) must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5) Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child—
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and
(b) the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred).
(6) The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of subsection (5).
. . .
(11) In this section—
"child" means a person under the age of sixteen years;
"sexual offence" means an offence against section 48, 49, 56, 58, 58A, 68 or 72, or an attempt to commit, or an assault with intent to commit, any of those offences.
The appellant elected to be tried by judge alone. On 8 April 2004 the learned trial judge convicted the appellant and provided written reasons for his verdict in which he concluded:
…I find it proved beyond reasonable doubt that at Ardross Crescent, Morphett Vale the accused committed a sexual offence, namely unlawful sexual intercourse, against F when she was between the ages of 13 and 15 years, on at least 3 separate occasions, each of which fell on a separate day, and that therefore the accused is guilty of persistent sexual abuse of a child.
The Trial
Prosecution Case
It was the prosecution case that F was born on 27 November 1983. When F was aged five she was sexually abused by the appellant. In December 1989 the appellant was convicted in the District Court for the offence of unlawful sexual intercourse with F.
The trial judge recounted the circumstances of that offence:
The [appellant was convicted] in this Court in December 1989 for unlawful sexual intercourse with F on 21 April 1989 when she was 5 years and 4 months. On that occasion he was at home alone with F. It appears that F had sustained some burns in her genital area a couple of nights earlier when she had dropped a sparkler. F’s mother had been treating this with some form of salve, but while the accused was looking after her he told her to take her pants off and rubbed some oil on the affected area while she was lying on a bed. In the course of doing this he took down his tracksuit pants, began to rub his penis back and forth across her vagina penetrating the outer lips. He continued to do this until he ejaculated.
F had no independent recollection of the 1989 incident. All that she could recall was being taken from school or kindergarten to the Flinders Medical Centre.
It was the prosecution case that between 1990 and 1993, whilst the accused was living with F and her mother at Taunton Parade, Christies Beach, further indecency occurred on a few occasions. F was aged between seven and ten years. The appellant showed F pornographic magazines depicting naked men and women engaging in sexual activity. On some of those “few” occasions the appellant exposed his penis to F.
The family moved to Radcliffe Grove, Christies Beach, in or around July 1994. It was alleged that acts of cunnilingus, fellatio and vaginal sexual intercourse took place frequently at this address. It was also F’s evidence that the appellant would routinely drive her to school, and whilst driving would put his fingers into her vagina. F estimated that this conduct occurred on about 20 occasions.
The appellant separated from F’s mother and moved to Ardross Crescent, Morphett Vale in or about November 1996. F would visit the appellant and stay overnight. It was alleged that at this address the appellant had vaginal sexual intercourse with F and engaged with F in acts of cunnilingus and fellatio. F said that the acts of vaginal sexual intercourse took place on about 20 occasions, perhaps more. The acts were said to have occurred in one of the bedrooms and also in a computer room. In the computer room F would sit on the appellant’s lap and he would put his fingers into her vagina.
The last occasion on which sexual conduct occurred was shortly before F’s sister’s birthday in October 1999. On this occasion F complained that while she was sitting on the accused’s lap he put his finger into her vagina. They then went to the bedroom, F undressed and the appellant performed cunnilingus on the complainant.
The Defence Case
The defence case was that the alleged sexual misconduct did not take place. The appellant did not give evidence and called no other evidence. When cross-examined the complainant was directly challenged about all the allegations of sexual misconduct with the exception of the conduct the subject of the 1989 conviction.
The Trial Judge’s Conclusions
Before discussing the issues on the appeal it is necessary to record a number of the trial judge’s conclusions.
The trial judge considered that F was an honest witness. However the judge was not prepared to accept the totality of F’s evidence as reliable and accurate evidence.
The judge reasoned:
F was an impressive witness. She was forthright and did her best to give frank and careful answers. As I will outline in a moment, there are inconsistencies and there are parts of her evidence on which I cannot rely, but that is no reflection on her candour. There were occasions when she would pause for some time before answering a question, and one such pause was so long that I directed it to be noted. But I do not accept [counsel’s] submission that these delays were because she was planning an answer to fit with the version she was giving at the time. Having observed her in the witness box, I formed the opinion that this was because she was doing her best to try to remember what had occurred, sometimes many years before, and be as accurate as possible in giving an answer. She was frank in acknowledging suggested inconsistencies between what she had told the police and what she was saying in evidence. Sometimes she was too ready to agree that there was an inconsistency. However she cannot be criticized for that. She is only aged 20; she is polite and relatively unsophisticated. It is unsurprising that she would not argue with counsel, someone speaking with authority, about whether what had been said was in fact an inconsistency. I have also considered whether the delay in her complaining about the accused’s conduct is adverse to her credibility and for reasons I will mention at the appropriate time, I have concluded that it does not.
With respect to the conduct at Taunton Parade, Christies Beach the trial judge concluded:
…I am satisfied beyond reasonable doubt that conduct as described by F, involving pornographic magazines and the accused exposing his penis, occurred while the family was at Taunton Parade. In her evidence-in-chief F said that she thought there were about 5 occasions, on 3 of which he showed her his penis. In cross-examination she was reminded that she had said to the police on 27 January 2002: “I think he might have showed me these magazines once or twice” and that she could “remember dad showing me his penis. I don’t remember a lot about that when he did this to me [sic] but it was probably after he showed me the magazines. I don’t remember how many times he showed me his penis and I don’t remember anything more about these incidents”. When asked why her evidence-in-chief was different she said that she had had time to think about it and believed it was closer to 5 times and in the way described. While I accept that there is an element of reconstruction, that goes to show [sic] many times it occurred rather than what occurred. Rather than showing an inconsistency in the principal allegation, the thrust of the evidence on both occasions is that there were two types of conduct, one where he just showed her a magazine and the other where he also exposed his penis. A fair reading of what she says is that there were a few occasions involved but she cannot be specific about the number.
The trial judge reached the following conclusions about the alleged sexual misconduct whilst the family resided at Radcliffe Grove, Christies Beach:
I have no doubt that F was making honest attempts and thought she could recall what occurred at Radcliffe Grove. But despite her apparent confidence she was confused, and that became apparent during the course of her evidence. Her confusion must be understood in light of her giving evidence now at age 20 of events some 8-10 years ago that occurred prior to a lengthy period of abuse at Ardross Crescent. It was my clear impression, and this is borne out by looking at her evidence as a whole, that she tried to recall what happened in the house at Radcliffe Grove but failed. It is true, as [counsel] submitted, that there are a number of inconsistencies in what she says occurred in the house at Radcliffe Grove when one compares what she said in January 2002, January 2003 and at trial, and even comparing evidence-in-chief with cross-examination. But a fair reading of it and proper regard to her demeanour does not support his contention that at times she tailored her evidence to suit a purpose. However, while it is therefore not possible to treat that evidence as reliable for the purposes of the charge, this has not affected my assessment of her credibility.
Concerning the allegations of sexual misconduct in the motor vehicle the judge reached the following conclusions:
Her evidence of what happened in the car on the way to school from Radcliffe Grove was more cohesive, even if there were some deficiencies. However, the difficulty for the Crown is that the time in question is exactly the same as that to which the unreliable evidence about conduct inside the house is directed. Bearing in mind the Longman warning, I have formed the opinion that it would be dangerous to rely on this evidence, which is so closely connected in time and circumstance, including the risk of impermissible reconstruction, to make findings of guilt in relation to the allegations of conduct in the car. For example, notwithstanding F’s assertion that this conduct occurred while the accused was living at Radcliffe Grove, if there has been reconstruction about when it happened there is a risk that she has associated this conduct in the car with the wrong address, as she did with some of the conduct inside the house. That leaves open the possibility that an earlier time is involved. The accused did not move to Radcliffe Grove until July 1994 and the Crown must prove that the offending took place after 28 July 1994. Thus the possibility that this conduct occurred before the operation of s74 is open; it has not been excluded. Again, this is not to say that F is being untruthful. I mention briefly that I am not persuaded by the submission that the difficulties attendant on the accused doing what F said because of the dynamics involved and the risk of being seen by the occupant of another vehicle, indicate that F’s evidence is suspect. They merit consideration as part of the evidence but they do not necessarily make the alleged conduct inherently improbable.
It is to be observed that the judge did not make any finding beyond reasonable doubt that any of the alleged sexual misconduct occurred whilst the family resided at Radcliffe Grove.
With respect to the alleged sexual misconduct in the computer room at Ardross Crescent the trial judge concluded:
After closely scrutinizing [F’s] evidence about the computer room I am not satisfied that she has a clear memory of incidents in there. There was no mention of it during her first interview with the police in January 2002 and her mention of it in January 2003 is tentative: “I think he fingered me in there as well. ……… I can’t remember any specific incident”. She was more certain of it when giving evidence but the concern is whether her confidence is well placed. Does she have a clear memory of digital penetration while she was sitting on his lap in the computer room as distinct from while she was sitting on his lap in the lounge room? That must be considered in light of this not being mentioned at all when she first spoke to the police (by itself not necessarily remarkable) combined with her diffidence about it when it was first mentioned to them a year later. I am therefore not prepared to make an adverse finding about activity in the computer room.
The trial judge reached the following conclusion about the alleged sexual misconduct elsewhere at Ardross Crescent:
…I am satisfied that her evidence of what occurred in the lounge/bedroom 1 and in bedroom 2 at Ardross Crescent is reliable and that it is safe to make findings based upon it. F made it clear that, when she spoke of the accused licking her vagina, she meant that his tongue went inside the lips of her vagina. Therefore this constituted an act of sexual intercourse. It is self evident from her descriptions of his putting his penis inside her vagina, putting his finger or fingers into her vagina and causing her to suck his penis, that each of these acts constituted sexual intercourse for the purposes of s49 of the Criminal Law Consolidation Act. At that time she was above the age of 12 years and under the age of 16 years. I am satisfied beyond reasonable doubt that while F was visiting or staying with the accused at Ardross Crescent there were multiple acts of unlawful sexual intercourse and that there were at least 3 separate incidents, falling on separate days, that such an offence occurred. All such offences occurred after the commencement of s74, namely 28 July 1994. In making this finding I am satisfied of the following, and in reaching these conclusions I have not needed to have regard to the prior conviction or the uncharged acts, except in the way I will mention shortly:
· On numerous occasions, in the order of about 20, each on a separate day, there was penile penetration in bedroom 2;
· On numerous occasions, each on a separate day, there was digital penetration in the lounge room which would be followed by cunnilingus, penile penetration and/or enforced fellatio in bedroom 1. Contrary to [counsel’s] submission, I am not troubled by the fact that F temporarily forgot about fellatio in bedroom 1 at one stage of her evidence. It is impossible to be more precise than to say that there were many acts of unlawful sexual intercourse in bedroom 1. F said that she could not say how often it happened but that it was probably more than 10 times. And when asked to estimate how often she was made to suck his penis she said that it was about 5 times. Whether that is 5 times in addition to the 10 already mentioned is not clear. Nonetheless, even if she is just referring to acts of sexual intercourse in bedroom 1, there were clearly many more than 3 separate occasions, some of which might have involved more than one type of sexual intercourse. I include the last occasion as one of the incidents proved.
Issues on Appeal
Two grounds for appeal were advanced. It was said that the trial judge was wrong to conclude that there was an explanation for the delay in the making of the complaint and that as a result the delay that occurred did not adversely affect the complainant’s credibility. It was said that the judge misstated the facts and speculated as to the reasons for the complainant’s delay in making a complaint.
It was submitted that the verdicts were unsafe and unsatisfactory. It was said that the trial judge failed to consider the cumulative effect of the inconsistencies in F’s evidence, the improbabilities of her account being accurate, and the weaknesses in the prosecution case. It was said that the judge erred in his overall assessment of the evidence.
Delay – Credibility
Relevant Legal Principles
In Crampton v R[2] the High Court reconsidered the problems associated with lengthy delay in the making of a complaint. The decision in Longman v The Queen[3] was approved and differences in the statements of principle between the members of that court were treated as being of no material consequence.
[2] (2000) 206 CLR 161
[3] (1989) 168 CLR 79

In Crampton, Gaudron, Gummow and Callinan JJ observed:[4]
There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant’s evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant’s evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours’ unanimous decision in the result.
Their Honours approved the following remarks of McHugh J in Longman:[5]
Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant’s testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.
[4] (2000) 206 CLR 161 at 180
[5] (1989) 168 CLR 79 at 108-109
In the present case the trial judge considered the issue of delay as an important issue and carefully scrutinised the complainant’s evidence. It was appropriate to do so. The delay in respect of the Taunton Parade conduct was more than 10 years and the delay in regard to the Radcliffe Grove conduct and the Ardross Crescent conduct was of the order of seven to 10 years. These delays were material and in the circumstances the judge was correct to have regard to the Longman considerations. He observed:
While I am conscious that there could be good reason why F might delay the making of a complaint (s34I(6a) of the Evidence Act) the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of it, there is the potential of his having been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations as he would have been closer to the time they are said to have happened. In those circumstances and as the case against the accused is principally F’s unsupported evidence, I must scrutinize her evidence with great care and be aware that unless I am completely satisfied of its truth and its reliability, it would be dangerous to convict the accused (Longman v The Queen (1989) 168 CLR 79). For the same reason I must also exercise a similar caution when considering the evidence of uncharged acts at Taunton Parade, and be aware that it would be dangerous to find those acts proved unless after the same close scrutiny of her evidence, I am satisfied of its truth and accuracy - R v RWB [2003] SASC 420 per Besanko J at par 60 and Bleby J at par 2.
The Trial Judge’s Conclusions
The trial judge considered that the 1989 conviction and uncharged acts at Taunton Parade were relevant to the issue of explaining F’s delay in making complaint. The judge reasoned:
I have made use of the evidence of those uncharged acts and the prior conviction in the following way. Although F does not recognize a memory of the conduct for which the accused was convicted in 1989 she was, as I have said, since the age of at least 9 years old, aware that there had been sexual abuse by her father when she was little and that she did not feel comfortable talking to her mother about it. From F’s point of view, her mother’s knowing about the 1989 incident had given her no protection because she was still living in the same family unit as her father and was abused again at Taunton Parade. There had been an interruption of a couple of months in 1989 when the accused was kept away from the family home but it is not clear how much of this F remembers or whether she felt in any way responsible for that period of break-up. In the circumstances it is not surprising that she did not complain to her mother about what happened at Taunton Parade. From her point of view, what would she gain by telling her mother? The fact that it was not mentioned for some years does not, in my opinion, affect her credibility in relation to that conduct.
Counsel for the appellant attacked these findings. It was said that these findings were critical to the judge’s conclusion about the adequacy of the explanation for delay. They allowed the judge to conclude that F’s credibility was not adversely affected by the delay in making complaint.
The trial judge considered discretely F’s delay in the making of complaint about the alleged sexual abuse at Ardross Crescent:
Returning then to the question of delay. Although the position with regard to Radcliffe Grove is unclear, by the time the accused was sexually abusing F at Ardross Crescent there was a history of abuse going back to when she was 5 years old. The accused would have been able to approach her bedroom at Ardross Crescent confident that she would be compliant and that there was little or no risk of her making a noise that would attract the attention of either J or W. With regard to activity in the lounge/bedroom 1 he could be just as confident of her compliance. Equally, by that stage F was confused and ambivalent about her relationship with her father. She was conditioned by her experience to accept that sex was part of that relationship. She did not know what her mother’s reaction would be if she told her and, indeed, her mother confirmed in her own evidence that this was not the sort of thing she would have felt comfortable talking to her daughter about. In my opinion the delay in complaining does not tell against her. Even though she was no longer living with her father, I accept that it was due to a mixture of being afraid of her mother’s possible reaction and uncertainty about her own relationship with the accused, combined with an acceptance of the inevitability of the position in which she found herself.
Counsel for the appellant complained about the finding that there was a history of abuse going back to when she was five years old that would allow the accused to assume that F would be compliant and that F was conditioned to accept sex as part of the father-daughter relationship.
It was said that the incidents at Ardross Crescent commenced when F was aged about 13 years. The only history of abuse that had been established prior to that time was limited to the 1989 conviction and the showing of pornographic material on several occasions and the exposure of the appellant’s penis on some of those “few” occasions when F was between the ages of seven and ten. It was said that these established facts could not reasonably support the conclusions under challenge. This was particularly so as F had no memory of the 1989 incident.
It was further submitted that the Taunton Parade conduct did not justify the conclusion that F was conditioned by her experience to accept that sex was part of the normal father-daughter relationship.
Counsel for the appellant submitted that the trial judge erred with respect to his consideration of the reasons for delay. The foregoing explanations identified by the judge were not supported by the evidence. It followed, it was said, that the judge, when considering the question of credit, failed to properly consider and weigh the evidence. He had regard to possible explanations unsupported by the evidence. He engaged in speculation and surmise. In these circumstances it was said that the discretionary conclusions concerning F’s credit could not stand.
It was submitted that F’s credit was the critical issue in the case. As F’s evidence had not been accepted in many respects, and as material inconsistencies had been demonstrated, the principal reason for the judge’s acceptance of F’s evidence in respect of the conduct at Ardross Crescent rested on F’s demeanour.
Counsel for the appellant accepted that demeanour was a relevant consideration. However it was contended that recent High Court authority suggested that the process of drawing conclusions from demeanour had to be handled with great care. It was also contended that there was a need for particular care in the present case because of the long delay that had occurred and the attendant forensic disadvantages suffered by the appellant.
Demeanour
The issue of demeanour was discussed by Kirby J in SRA (NSW) v Earthline Constructions[6]. Although addressing civil proceedings, the remarks are relevant to a criminal trial by judge alone. Kirby J commented on the fallibility of judicial evaluation of credibility from the appearance and demeanour of a witness:
There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new.
…
The studies of experimental psychologists since that time [50 years ago] have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations.
In Fox v Percy[7] Gleeson CJ, Gummow and Kirby JJ similarly observed:
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[6] (1999) 73 ALJR 306 at 328-329
[7] (2003) 214 CLR 118 at 129
F’s recollection of the 1989 incident was of being taken from “kindy to the Flinders Medical Centre” but otherwise she had no independent recollection of any incident. F said that when she was about 9 years of age she heard about “it” from her mother. In the course of her evidence she did not say what had been discussed. F said she did not feel comfortable talking about “it” with her mother.
When asked to explain why she hadn’t talked to anybody about the sexual misconduct she said that she was afraid to and that she wasn’t too sure about:
…how mum’s reaction would be to it all…
She thought her Mother:
…might go and have a scream at my Dad and I didn’t really want like an argument in the family type thing…
When asked whether she felt comfortable when her Mother spoke to her about that earlier incident F replied:
I can’t remember much about it.
The complainant’s mother gave the following evidence:
Q.After the sentencing process was finished and the matter was resolved in the courts, did you ever raise the topic of what had occurred between the accused and [F] with [F].
A.    No.
Q.    Was that something you spoke freely about with her.
A.    No.
Q.In the years that followed you continued to live with the accused, [F] and your two other daughters, as a family unit.
A.Yes.
Q.I think you have told us that you lived at Mitchell Park and an address at Christies Beach and also Hurley Grove, Hackam –
A.Yes.
Q.- before you separated with the accused. During those years did you ever discuss with [F] about what happened between herself and the accused.
A.Not that I can recall.
Q.Did you feel comfortable talking with her about the matter.
A.No.
Q.Why not.
A.Because it would be bringing back memories, and because she was so young I thought she might have forgotten.
Q.You thought that was the best way to deal with it.
A.Yes.
The trial judge resolved the conflict between the evidence of F and her mother as follows:
F said that she had no independent recollection of the 1989 incident. All she could remember was being taken from school or kindergarten to Flinders Medical Centre. She said that when she was about 9 years old her mother told her about it; she remembers that conversation but not the incident itself. As I have said, her mother does not remember such a conversation. On this I prefer F. She has good reason to remember it and is unlikely to forget it. However, whether F remembers more of the incident than she realizes, or whether her memory comes from a conversation with her mother is not material. The fact is that her father did this to her and she has had some awareness of it at least since she was 9 years old.
Flawed Approach
The trial judge could not on the evidence fairly conclude that F, since the age of at least nine years, was aware she had been sexually abused by her father when she was little. F’s evidence did not disclose what she had been told or of her state of awareness about the 1989 incident. There was no evidence from F to support a finding that:
…from [her] point of view her Mother [knew] about the 1989 incident and had given her no protection because she was still living in the same family unit as her Father and was abused again at Taunton Parade.
It was not open to the judge to reach any conclusions from the evidence as to F’s point of view of what protection she may or may not gain by telling her mother. The findings of the trial judge were no more than “mere speculation”, and did not provide any proper basis for making findings of fact or reaching any conclusions about delay.
When the trial judge returned to discuss the question of delay again he concluded that by the time the accused was sexually abusing F at Ardross Crescent there had been a history of abuse since she was 5 years old. Although the judge did not identify the history of abuse he did conclude that it was such that F was conditioned by her experience to accept that sex was part of that relationship.
The findings of sexual misconduct prior to the allegation of sexual abuse at Ardross Crescent were limited to the 1989 incident of which F had no memory, and the occasions over a 3-4 year period when she was shown pornographic material and the appellant exposed himself to F on some of those “few” occasions. These findings do not allow the conclusion that F was conditioned by her experience to accept that sex was part of the father-daughter relationship.
The trial judge’s conclusion in these respects concerning the explanation for F’s delay in making complaint was speculative. It was not supported by the evidence.
The Consequences of the Flawed Approach
Delay in the making of complaint is a relevant matter to be considered by the trier of fact. It may disadvantage an accused. Delay may result in an accused only being able to deny alleged offending generally. Delay may frustrate any proper inquiry. Delay may limit the scope of cross-examination. The disadvantages that arise to an accused from delay, and the consequent need for directions to be given to a jury, have been the subject of considerable judicial comment in cases such as Longman, Crampton and Doggett[8]. It has also been pointed out that the delay in making complaint can cause prejudice to the prosecution.
[8] (2001) 208 CLR 343
Delay may also operate to affect the credibility of a complainant. What is the explanation for the delay? Does it suggest a lack of reliability and credibility?
The approach to be taken by a court will depend on the circumstances of the particular case. In some circumstances, a clearly worded warning will be necessary to guard against prejudice to an accused. In other cases a limited warning or no warning at all will be necessary.
In the present trial, the judge sitting alone correctly identified the need to address the Longman considerations. He observed:
The trial judge examined the complainant’s evidence with great care. He was impressed by her evidence. He found her to be an honest witness. In some respects he was satisfied that her evidence was accurate and reliable, and was prepared to act on that evidence and reach conclusions of guilt beyond a reasonable doubt. However, as earlier observed, in certain respects he found her evidence unreliable and was not prepared to act on it. He was not satisfied about its accuracy.
As earlier observed, when assessing the significance of delay, the judge misunderstood an aspect of the evidence or alternatively engaged in a degree of speculation. However for reasons that follow, that misunderstanding or speculation did not give rise to the risk of an injustice in this case.
Explanation for Delay
On the evidence given by F and accepted by the judge, there was a cogent explanation for the delay in the making of complaint by F, such that her credit would not adversely be affected by the delay. There was also supporting and corroborative evidence that the judge found unnecessary to have regard to given his other conclusions.
As earlier observed, the prosecution alleged indecent dealings by the appellant with his daughter, at four separate time periods. The first was in 1988 when F was aged 5. At that time the appellant committed the offence of unlawful sexual intercourse with F, and on his guilty plea was convicted. The second relates to the time when the family lived at Taunton Parade. The indecent conduct consisted of the appellant showing pornographic magazines to F and exposing his penis to her. The third relates to conduct at Radcliffe Grove both at the home and whilst travelling to school. The fourth relates to conduct at Ardross Crescent in several rooms of the house. The conduct at Taunton Parade took place when the appellant was aged between seven and ten, at Radcliffe Grove when she was aged between ten and 13, and at Ardross Crescent when she was aged between 13 and 16.
When a victim is very young there may be a lack of appreciation of the wrongness of indecent conduct. This may be perpetuated by the fact that sometimes offenders attempt to persuade their victims that what is occurring is normal or natural. In the present case some of the conduct took place when F was very young. F also gave evidence that the appellant had suggested to her that the conduct was normal between father and daughter.

It has been recognised that when children do not have sufficient knowledge and understanding to realise the wrongness of sexual abuse they are often reluctant to complain because the offender is probably a person they otherwise love or respect. In the present case F gave evidence that she loved her father and was confused by his conduct towards her. She gave the following evidence:
Q     How did you feel about your father at this stage when this was occurring.
A     I loved him because he was my dad but it was still like a strange relationship.
Q     Did you want to see him get in trouble for what he was doing, at that time.
A     I probably didn’t – I didn’t understand it fully then like when it was happening.
It has also been recognised that a victim may not act promptly to report abuse because of a fear of consequences for the family unit and perhaps even for the offender. It has been suggested that these mixed emotions may make it far easier to do nothing rather than to take the step of disclosing abuse. In the present case, as earlier observed, F gave evidence of her concerns about the consequences for the family unit and in particular her concern about her mother’s anger toward her father.
It is also accepted that children often feel as if they have done something wrong themselves and blame themselves for what has occurred. They may feel uncomfortable, making discussion of the topic difficult. Another strong disincentive to reporting abuse in the eyes of many children is the perception that they will not be believed. In the present case F gave the following evidence:
QDid you feel close enough to your mother during the time that this was happening with your father to talk to her about it.
ANo.
QWhy was that.
AI’m not really sure. I’m just – just didn’t feel comfortable talking about what had happened.
The explanations offered by F for her delay in complaining were plausible and cogent. They provide a satisfactory explanation.
Supporting Evidence
When considering the issue of delay corroborative or supporting evidence of the complainant is considered to be of particular relevance. The warning that is generally given where there has been significant delay addresses the danger of convicting on the basis of unsupported or uncorroborated evidence.
In the present case there was evidence of prior indecent dealings of F by the appellant. This evidence was relevant to establish that the appellant had indulged an abnormal passion for his daughter.[9] The prior conviction for the offence of unlawful sexual intercourse with F when she was aged 5 was admitted. This evidence established an indulgence in an abnormal passion.
[9] B v The Queen (1992) 175 CLR 599
There was further evidence. The judge accepted that indecent conduct at Taunton Parade had occurred. That conduct involved the appellant showing F pornographic magazines displaying naked adults engaging in sexual intercourse. On some occasions of showing the magazines the appellant exposed his penis to F. This conduct occurred when F was aged between 7 and 10 years and followed the admitted offence of unlawful sexual intercourse. This further body of evidence confirmed the continuance of the abnormal passion that the appellant had for F. This evidence provided an explanation for the course of conduct that followed as recounted by F.
Conclusion re Delay
Although the learned trial judge in discrete respects speculated about F’s reasons for delaying complaint, the evidence and matters referred to above satisfactorily explained the delay. This explanation together with the supporting evidence of the prior indecent dealings lead to the conclusion that there is no risk a miscarriage of justice has arisen from the trial judge’s treatment of the issue of delay.
Unsafe and Unsatisfactory
In Jones v The Queen[10] Gaudron, McHugh and Gummow JJ revisited the test for an unsafe and unsatisfactory verdict and observed:
[10] (1997) 191 CLR 439 at 450-452
In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
"in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The majority judges explained the application of the test as follows:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, 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."
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although his Honour said that the question as to whether it was "open to the jury" to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was "upon the whole of the evidence ... bound to have a reasonable doubt" or whether "the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused".
McHugh J said that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was "whether a reasonable jury must have had a reasonable doubt about the accused's guilt". McHugh J did not adopt the "open to the jury" test because his Honour thought that such a test came "perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused" and would constitute "an unwarranted intrusion into the jury's right to determine the facts in a criminal trial". However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.
Counsel for the appellant complained that the inconsistencies and confusion in F’s testimony precluded the judge from making findings beyond reasonable doubt with respect to all of the allegations of sexual misconduct. It was stressed that there was no independent support for F’s testimony. Given the need for F’s evidence to be closely scrutinised, it was submitted that it should be concluded, the verdict was unsafe and unsatisfactory.
This submission should be rejected. The trial judge was entitled to accept part of F’s testimony and reject other parts. The judge’s detailed reasons disclose why he was satisfied by discrete aspects of F’s evidence. The judge also carefully explained why he was not satisfied beyond reasonable doubt about other aspects of F’s evidence, notwithstanding his acceptance of F as honest.
It was further submitted that a reading of the trial judge’s reasons at times suggests that he did not consider the cumulative effect of the weaknesses in the prosecution evidence. However a close reading of the judge’s reasons demonstrate that this criticism is misconceived. On occasions the judge considered discrete aspects of the evidence concerning particular incidents. This was entirely understandable. This process allowed the judge’s reasons to be more readily followed and understood.[11] Elsewhere the judge’s reasons demonstrate that he had considered the overall or cumulative effect of the evidence. The further matters of complaint said to support the submission that the verdict was unsafe and unsatisfactory are addressed by Vanstone J and I respectfully agree with her reasons on those issues.
[11] R v Liddy (2002) 84 SASR 231
Conclusions
For the foregoing reasons I would dismiss this appeal.
VANSTONE J: This is an appeal, with leave, against a conviction in the District Court for persistent sexual abuse, contrary to s 74 of the Criminal Law Consolidation Act 1935. The appellant was tried by a judge sitting alone. The complainant was his youngest daughter, whom I shall call “V”. She was between 10 and 15 years of age during the time spanned by the conduct alleged in the information, but the instances found proved by the learned trial judge occurred when V was aged 13 to 15 years. However it is important to understand that V alleged a long history of misconduct by the appellant commencing well before 28 July 1994, the date from which s 74 of the Criminal Law Consolidation Act operated. The appellant did not give evidence or call evidence upon his trial.
The grounds of appeal are essentially two in number. There is a complaint that the judge misused evidence of a proved 1989 offence of unlawful sexual intercourse by the appellant upon V and it is said that for a number of specific reasons the verdict is unsafe and unsatisfactory.
It is convenient to first deal with the evidence of previous misconduct. It was proved, by way of admissions pursuant to s 34 of the Evidence Act 1929 that in December 1989 the appellant pleaded guilty to an offence of unlawful sexual intercourse with a person under 12 years upon V, the penetration being of her vagina by his penis. The offence itself occurred in April 1989 when V was 5 years and 4 months of age. A suspended sentence of imprisonment was imposed. Within two or three months of the incident he had been accepted back into the family home by V’s mother. The evidence was led by the prosecution as evidence of the appellant’s sexual interest in V, in reliance on B v The Queen (1992) 175 CLR 599. Ultimately, however, the judge chose not to use it in that way. He did use it, though, as possibly tending to explain why V had not complained in a timely manner of certain of the earlier uncharged conduct. In order to fully understand the complaint it is necessary to say more of the nature of the evidence led.
The complainant was born on 27 November 1983. Between June 1991 and March 1994 she and her family lived at a home referred to as “Taunton Parade”. During that period she was aged 7 to 10 years. The family then moved to Hurley Grove, where she remained until July 1997, by which time she was 13 years of age. However, the appellant left the home, separating from V’s mother, in July 1994. He and the eldest daughter of the marriage then moved to premises at Radcliffe Grove. In November 1996 the appellant moved from there to Ardross Crescent. V visited him regularly at each of those places.
The complainant’s evidence was that she recalled the appellant showing her sexually explicit magazines and exposing himself to her at Taunton Parade. She said that when staying with him on Tuesday nights, as she did at Radcliffe Grove, the appellant had sexual intercourse with her more than three times. During that period he also had digital intercourse with her whilst driving her to school on “quite a few” occasions. V further gave evidence that whilst the appellant was living at Ardross Crescent – when she was 13 to 15 years of age – the appellant came into the bedroom she used, at night, and had vaginal intercourse with her around 20 or more times. As well, V said there would be other acts, including cunnilingus and fellatio, in other parts of the house. The last occasion of sexual abuse was said to have been in about October 1999 when she was 15 years old. On that occasion V said that after the appellant committed an act of cunnilingus on her he asked her if she would like to have sex with his (second) wife Jane.
Whilst the facts of the 1989 offence were established by the admissions, the evidence relating to V’s knowledge of the incident was rather oblique. She recalled that whilst living at the home she occupied prior to Taunton Parade, she was taken from school and to Flinders Medical Centre. She understood that the event related to behaviour by the appellant. She said that when she was about 9 years of age her mother told her something of the incident. It is not clear to what extent she learned the details of it. In any event, she said that the incident was not otherwise discussed in the house and it was not something she felt comfortable talking about to her mother.
V was questioned by both counsel as to why she made no complaint about the uncharged acts which she said had occurred at Taunton Parade. V said, in effect, that she feared that if she complained her mother might be angry with her father and an argument within the family would follow. She said she “just didn’t feel comfortable talking about what had happened”. V agreed in cross examination that the conversation with her mother about the 1989 incident presented an opportunity to complain about the later uncharged acts, but she did not take it.
In this context the judge referred to the previous conviction and its sequelae as rendering it unsurprising that V did not complain to her mother about the appellant’s conduct at Taunton Parade. He said: “From her point of view, what would she gain by telling her mother? The fact that it was not mentioned for some years does not, in my opinion, affect her credibility in relation to that conduct.” As I understand it, the complaint is that since there was no clear evidence establishing how much V knew about the 1989 incident, and bearing in mind that V herself had not specifically attributed her failure to complain about the appellant’s Taunton Parade conduct to her knowledge of it and to the acceptance of the appellant back into the household soon afterwards, the judge was not entitled to point to it as possibly fortifying her explanation for silence.
I do not consider that the complaint of error is made out. Throughout the course of events the appellant’s conduct must have evoked in V feelings of confusion, guilt, alienation from other family members and, as the trial judge commented, ambivalence. A failure to complain in a timely manner is often a feature of offences of this nature. Section 34I(6a) Evidence Act is statutory recognition of the fact that failure to make a timely complaint does not necessarily imply falsity. Although there can be no certainty as to when in relation to the Taunton Parade conduct the conversation between V and her mother occurred, the judge was entitled to take the view that learning of the earlier events would have reinforced the disinclination to complain which V claimed.
In this context Mr Schapel, for the appellant, referred to Jones v The Queen (1997) 191 CLR 439. He submitted that it was authority for the proposition that a judge is not entitled to speculate about the reasons for failure to make a timely complaint.
In Jones the complainant was not asked to explain the reasons for delaying her complaint until four years after the accused’s conduct ceased. The majority observed that the existence of factors which might objectively have explained the delay did not obviate the need to scrutinise V’s evidence on account of it. I do not think that anything said in that case prevents a trial judge from examining in its full context a complainant’s explanation for not making a timely complaint. Indeed, as Mr Schapel acknowledged, the terms of s 34I(6a)(b), which requires the trial judge to “inform the jury that the victim … could have valid reasons for failing to make a complaint or for delaying in making a complaint,” seemingly contemplate that a victim may have reasons for delaying a complaint which are not revealed to the court. The rules of evidence might dictate in many cases that such reasons are not given in evidence. But irrespective of whether reasons are advanced by a victim, there is nothing to constrain the tribunal of fact in its assessment of the significance, if any, of the lack of complaint or its lateness. In this regard it should not be assumed that provisions such as s 34I(6a) effect a change to the common law: Crofts v The Queen (1996) 186 CLR 427, 442-451.
In dealing with the question of lack of complaint generally, that is, over the whole course of events, the judge referred to specific evidence of the complainant as to her reasons for not complaining, including her lack of understanding of the nature of the relationship, its strangeness, the fact that she was conditioned to expect a sexual relationship with her father, her professed love for her father and her fear of her mother’s reaction. In light of all those circumstances he found that the delay in complaining did not tell against V’s credibility.
I consider that the 1989 conviction and V’s knowledge of it was a relevant factor in this context, even though V herself did not nominate it as such. It was given no undue prominence by the judge and his reasoning in relation to the whole question of delay in my view is persuasive.
In support of his complaint that the verdicts were unsafe and unsatisfactory, Mr Schapel pointed to several discrete matters. These matters were, he put, to be weighed in the balance along with the fact that V’s evidence as to the charges was uncorroborated and that her complaint was delayed.
The first matter arose from a document which was tendered by the prosecutor and went into evidence. It was a medical report dated 13 February 2004 signed by a doctor from the Child Protection Service, Flinders Medical Centre, and it described a consultation with V on that date. That was only a couple of weeks before the trial. Discussions of the document at the point of its tender appear in the transcript. It is clear that counsel were ad idem about its evidentiary use, which was this. The report asserted that because V was unable to tolerate a genital examination, none took place. The reasons for the intolerance were not explained. Plainly the prosecutor wished to explain why no medical evidence relating to V was being presented. Defence counsel was prepared to co-operate in allowing the report to go into evidence, rather than requiring the author to be called.
However, the report contained a brief history, which would appear to have been provided by V, summarising the allegations against the appellant. It further included the statement: “She is not sexually active.” Counsel for the prosecution advised the judge that the assertion had “no forensic purpose”. Counsel rightly observed that if she had wished to adduce such evidence in admissible form from V, permission would have been required pursuant to s 34I(1) Evidence Act. It was not sought. Defence counsel supported the prosecutor’s position and specifically confirmed that no weight should be given to the history. It is perhaps unfortunate that the matter was not simplified by formulation of an admission in accordance with s 34 Evidence Act and the report left to fall away. But it does not seem as if there was any misunderstanding about the status of the report at trial; indeed the judge used it in accordance with the agreed purpose.
However upon appeal Mr Schapel attempted to make use of the statement that V was not sexually active in an assertive or testimonial way which fell outside the basis of its tender. Mr Schapel sought to use the statement about sexual activity to found an inference that the prosecution case was deficient in failing to prove that V was no longer a virgin. He submitted that because such evidence was not presented the case was weakened and that the appellant had possibly lost a chance to disprove the case.

I think there are several difficulties with this argument. First, as I said, the statements within the report – apart from an assertion about being unable to examine V - did not become evidence. Nor could they have. They were inadmissible. They were hearsay if used assertively, as Mr Schapel sought to use the statement as to sexual activity. Even if the history was sought to be used non-assertively – to prove only that V said certain things – the statements would remain inadmissible (as out of court statements having no relevance), unless the groundwork required by s 28 Evidence Act had been laid. The same rules would apply irrespective of whether the doctor gave oral evidence.
Secondly, evidence admitted for a certain purpose does not become evidence for all purposes. Particularly where documentary material comes into evidence by way of agreement, or by use of an evidentiary aid, it is essential that its purpose and the limits of its use are identified. That is no less important where a judge sits without a jury. In all criminal trials it is important that the rules of evidence are strictly applied. If they are not, it often gives rise to the sort of confusion which occurred upon this appeal (though not, I repeat, at the trial).
Finally, the arguments arising from these matters were not put to the trial judge. They could hardly have been because of the considerations I have referred to. It would be an unusual case (leaving aside perhaps cases where the competence of counsel came into issue) where matters not accredited at trial with sufficient validity to warrant raising in cross-examination or submissions, would loom large on appeal.
That last observation can also be made in response to the appellant’s separate argument that significance was to be attached to the absence of explanation for V not falling pregnant to the appellant. This matter was not raised in cross-examination of the victim. We are not to know if there was a medical reason relating either to V or to the appellant to account for it or whether there was any conversation between them about it. In these circumstances there can be nothing in the point. What is known is that when V was asked in examination in chief whether, on occasions of full intercourse at Ardross Crescent, he would ejaculate, she responded: “I can remember one time when he put semen on my chest.” She was not aware of occasions when the appellant ejaculated inside her.
Next in support of this ground it was suggested that the appellant suffered an “actual forensic disadvantage” because of the time lapse since the incidents. The first charged incidents occurred in or after July 1994. The last related to October 1999. The appellant was spoken to by police in May 2002. The allegations were put to him and he declined to answer questions.
Whilst it can be readily acknowledged that the considerations underlying the need for a warning in terms of Longman v The Queen (1989) 168 CLR 79 applied in this case, and that any chance of attempting to make out an alibi for a particular occasion was lost with the effluxion of time, I cannot agree with Mr Schapel’s argument that the time lapse rendered evidence from the appellant, or indeed from members of his family, largely pointless. In any event the judge directed himself in terms of Longman and no complaint is made arising out of that.
Reliance was placed on a number of demonstrated inconsistencies as between V’s evidence and earlier statements. These can be fairly shortly summarised, but that is not to minimise the attention that needed to be given them. They included inconsistencies as to the nature of sexual contact that occurred at Radcliffe Grove. In her January 2002 statement V alleged cunnilingus, fellatio and vaginal sexual intercourse. In a statement made a year later she described only cunnilingus. The prosecutor opened the case consistently with the later statement. But in examination in chief V described vaginal intercourse alone. When the inconsistencies were put to her V said that some parts of the events were clear, but not others. She was not able to say which account was correct, although she maintained sexual abuse had occurred. Further, in relation to Radcliffe Grove, V did not give evidence in support of her earlier statement that sexual assault had occurred in the appellant’s bedroom.
The appellant also relied on the introduction, for the first time in her evidence, of a detail relating to sexual abuse V claimed had occurred in the appellant’s motor car on the way to school. She said that while he penetrated her vagina with his fingers, she would change the gears of the car. It was suggested that this detail was a late invention, designed to overcome the element of physical difficulty (if not impossibility) associated with the original version.
These matters were discussed in detail by the judge in his reasons for verdict. He expressed the view that V was frank in acknowledging the inconsistencies. He said because of them, there were parts of her evidence on which he could not rely. However, he said that was no reflection on her candour. Indeed he found that she tried to give frank and careful answers. He said that confusion in her evidence about Radcliffe Grove had to be understood in light of the time since the events and the fact that they were followed in ensuing years by abuse at Ardross Crescent. He said that whilst the Radcliffe Grove evidence was not “reliable for the purpose of the charge”, that did not affect his assessment of V’s credibility. For similar reasons he was not prepared to act on the evidence of what occurred in the car. He said it could have pre-dated the charge. However, the judge did not find it inherently improbable and did not find that V was untruthful about it.
Mr Schapel submitted that the failure to be satisfied about the Radcliffe Grove events should have brought down the charge. He suggested that the judge’s final position could only be reached by addressing the inconsistencies or deficiencies in V’s evidence in a piecemeal manner, rather than cumulatively, and by relying too heavily on his assessment of V’s demeanour.
In considering a complaint that a jury verdict is unsafe and unsatisfactory the approach is to determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt: M v R (1994) 181 CLR 487. But in answering that question the court is not to discount the jury’s role, nor the advantage it had in seeing and hearing the witnesses: M at 493.
It has been suggested that where the conviction has been entered after a verdict of a judge sitting without a jury the scope for intervening is somewhat narrower and that intervention can only occur where there is no evidence to support a particular finding or where evidence is all one way or where the judge has misdirected himself: R v Ion (1996) 89 A Crim R 81, 85-6; R v O’Donoghue (1988) 34 A Crim R 397, 401; R v Moussa (2001) 125 A Crim R 505, 509-510. The same approach has been taken in respect of findings made by a judge upon a voir dire hearing: R v Ng (2002) 5 VR 257, 301-302.
In Fleming v R (1998) 197 CLR 250, 262 the High Court found it unnecessary to determine the issue. (See also R v ADW (2002) 84 SASR 178.) The distinction does not have any impact upon my decision in this case. Having undertaken the independent assessment of the evidence required I am left with no misgivings about V’s evidence or the safety of the verdict. As I mentioned, some of the demonstrated inconsistencies in V’s account of what occurred, particularly at Radcliffe Grove, were significant. However they are readily explained, I think, by the years which had passed before she gave evidence, the fact that on her account the sexual abuse was constant and continuing, that it took many different forms and that her feelings about the whole course of events were so intense and mixed. There was in this case good reason for the trial judge to discriminate in his findings as between the reliability of her account of events at Radcliffe Grove as opposed to Ardross Crescent. This was not a case where inability to be satisfied on one allegation necessarily undermined other allegations. (Compare Jones at 453.) I do not consider that a fair reading of the judge’s reasons justifies any criticism to the effect that he approached the shortcomings in V’s evidence in a piecemeal manner. On the contrary they are logical and cohesive.
Taking the evidence as a whole and allowing for the advantage the trial judge enjoyed in seeing and hearing the witnesses, I consider it was open to him to be satisfied beyond reasonable doubt of the appellant’s guilt.
I would dismiss the appeal