R v M, Mt

Case [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

  1. DOYLE CJ:          I would dismiss the appeal against conviction.  I agree with the reasons given by Vanstone J.

    GRAY J:

    Introduction

  2. This is an appeal against conviction.

  3. 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…

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AGLC
R v M, Mt [2004] SASC 435
Case
[2004] SASC 435
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction for persistent sexual abuse of a child, arguing that the trial judge failed to adequately consider inconsistencies in the victim's accounts and speculated as to the reasons for her delay in making a complaint. The case was heard by the court of appeal, which had to determine whether the trial judge's approach was flawed and whether the conviction was therefore unsafe and unsatisfactory.

The court of appeal examined whether the trial judge sufficiently considered the inconsistencies in the victim's accounts and whether the judge's speculation about the reasons for the delay in complaint was appropriate. The appeal hinged on the trial judge's assessment of the victim's credibility and reliability of her testimony, as well as the judge's handling of the inconsistencies and the delay in reporting.

The court found that the trial judge had carefully considered the victim's evidence and identified inconsistencies, but still found her to be an honest witness. The court held that the trial judge's conclusions about the victim's credibility were well-reasoned and based on the evidence presented. The court also found that the judge's comments on the delay in complaint did not amount to speculation but were based on the evidence and did not undermine the overall reliability of the victim's testimony.

The appeal was dismissed, and the conviction was upheld. The court of appeal confirmed that the trial judge's approach was correct and that the conviction was safe and satisfactory. The court found no merit in the appellant's argument that the trial judge failed to properly consider the inconsistencies or speculate about the reasons for the delay in complaint.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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