R v Mattsson - [2011] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MATTSSON
[2011] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Stanley)
21 October 2011
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - EVIDENCE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction - appellant convicted by jury of unlawful sexual intercourse and aggravated indecent assault against girl, six years of age.
Whether the trial Judge should have warned the jury in terms of s 12A in respect of the child's uncorroborated evidence - whether cogent reasons existed to doubt the reliability of the evidence - whether there has been a miscarriage of justice - whether the verdict cannot be supported having regard to the evidence.
Held: Appeal dismissed - s 12A direction was not requested - trial Judge precluded from giving a warning - no cogent reasons to doubt evidence - no miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56(1), s 353; Evidence Act 1929 (SA) s 12A, referred to.
M v The Queen (1994) 181 CLR 487, applied.
R v Warsap (2010) 106 SASR 264; K v Kyriacou [2000] SASC 312; Nudd v The Queen (2006) 80 ALJR 614; R v Heeremans [2007] SASC 187; Libke v The Queen (2007) 230 CLR 559, considered.

R v MATTSSON
[2011] SASCFC 114
Court of Criminal Appeal: Sulan, David and Stanley JJ

SULAN J: This is an appeal against conviction. The appellant was convicted by a jury in the District Court of unlawful sexual intercourse and aggravated indecent assault contrary to s 49(1) and s 56(1) respectively of the Criminal Law Consolidation Act 1935 (SA). AG, the complainant in both charges, was known to the appellant through family connections and the church. The period of the alleged offending was between 15 December 2006 and 12 February 2007 when AG was aged around six years old and the appellant was aged 40.
Background
AG gave evidence that the appellant picked her up from her home. The appellant drove her to a place in the scrub on a dirt road where he stopped the car, saying he needed to go to the toilet. He carried her to the boot of the car. The appellant pulled down her underpants, licked his finger and inserted it into her vagina. This act was the subject of the count of unlawful sexual intercourse. The appellant then put her back into the car. He told her that he would buy her an ice cream. He then placed her hands around his penis. That act is the subject of the count of aggravated indecent assault. The appellant gave sworn evidence at trial denying the allegations. The appellant stated that there was an occasion when he picked AG up at her home to take her to his place for a sleepover. He said that he drove directly from one place to the other and that nothing as described by AG occurred.
The appellant appeals against his conviction. The first ground of appeal is that the trial Judge should have warned the jury in terms of s 12A of the Evidence Act 1929 (SA). The second ground is that the verdict of the jury cannot be supported, having regard to the evidence and a miscarriage of justice has occurred.
Before dealing with the grounds of appeal, it is helpful to repeat the relevant direction of the trial Judge.
The direction of the trial Judge
The Judge specifically addressed each of the inconsistencies in AG’s evidence. The Judge said:
In cross-examination [A] was asked about some inconsistencies. In other words, different accounts that had been given by her or arguably given by her when she spoke about these events, particularly in 2007 and 2008. This is where I suggest you turn to those agreed facts which are now P5.
So you see that on 27 June 2007 [A] spoke to a psychologist and during the course of that interview she gave the following questions and answers - and I am not going to read it all, ladies and gentlemen but you will see the first questions and answers were about the location of the area where this happened and [A] said she did not know but then went on to say: ‘It was next to his house across the road’.
She also was asked about when she was in the bushes when she said she was sitting and that he was sitting and there was a suggestion that they were both sitting in the bushes. I think it was also said that there was no response to that question when the agreed facts were read.
She was also asked about whether he touched her anywhere else and she said ‘No’. She was asked: ‘When the man pulled his pants down did he ask you to do anything to him’ and she said ‘No’. She was asked: ‘Did he just do stuff to you.’ And she said ‘Yes’ then it was clarified: ‘When he pulled his pants down and was touching your privates did he at any time ask you to touch his privates.’ She answered ‘No’. You might think that is quite directly inconsistent and importantly inconsistent with [A]’s evidence at the trial.
Then the second agreed fact is that in June 2008 [A] spoke to Mary Octoman and that was the first time [A] mentioned that she touched the accused’s doodle, the expression she used, and the first time that she said she had sucked the accused’s doodle. So that is over a year after this alleged incident where [A] has already spoken about this incident that she volunteered this happened.
If you turn to para.3, in December 2007 [A] spoke to a person called Helen Ware. This is again about the location of this incident; where [A] described in December 2007 that there were houses around the area where this incident happened, and [A] also said that when the accused took her back to his home there was no-one there. Now that is inconsistent with [A]’s evidence that she gave before you because she told you that Leonie and Bear were at the house when she got back. I will come to that agreed fact No.4 a little later.
And later:
[A] also gave evidence that Warren did not give her an ice-cream from his freezer when they got back to his home. Now you will remember that that is quite inconsistent, or inconsistent with the evidence that Bear gave, his proper name of course is Mr Lia - L-I-A - but he is referred to always as ‘Bear’ by the others in their evidence. He said that he remembers the accused giving her an ice-cream when they returned.
[A] was also asked in cross-examination about whether her dad had touched her like this or whether another man called Blue touched her. She agreed that she had alleged to her mum and to the police that Blue had, when he was staying at her house, snuck into her bedroom and pulled her pants down. She denied that her dad had ever touched her like that. It is not clear from her exactly what had happened when Blue was there nor precisely the timing of that but something indecent happened, it seems, on her account, with Blue, and there is confirmation in her mother’s evidence that he was asked to leave the house after some incident; that is, with this person called Blue.
[A] of course described these events as happening on the Tunarama weekend. You might think there is a good body of evidence to suggest that it did not actually happen, even the sleepover, on that weekend.
The judge also referred to AG’s evidence under cross-examination:
I will just also read you one short passage of her evidence at p.55. I am going to read it in full. Most of it was referred to by Mr Coates yesterday. This is p.55 line 30, question in cross-examination: ‘Was it true that you didn’t have to do anything to Warren.
A.     Yes.
Q.     You didn’t have to touch his doodle.
A. He told me to.’ Then I asked: ‘Then what happened?’ She said ‘I don’t remember.’ Then Mr Coats said: ‘So did you ever touch Warren’s doodle.
A.     I don’t remember.
Q.     Is that something that you’ve made up [A], something that didn’t happen.
A.     No.
Q.     So did that happen at all, that you touched Warren’s doodle.
A.     Yes.
So in the space of a few questions, ladies and gentlemen, you have got quite different answers given by [A] about whether or not she touched the accused’s penis and whether she was asked to do so. You may think that they are quite different answers. So you will bear in mind those sorts of answers. There are others but that is a very striking example from [A]’s evidence that you will no doubt carefully consider.
(Emphasis added)
The judge summarised the submission of defence counsel as to the unreliability of the complainant’s evidence, and then said:
Now it is entirely a matter for you, ladies and gentlemen, as to whether or not you think all or some of those inconsistencies are important but you might think that at least some of them are very central to the allegations in this case. Indeed there seems to be a specific denial by [A] that she ever touched the accused’s ‘private parts’, is the term that was used. You will bear in mind when you are assessing the truthfulness and reliability of [A]’s evidence those inconsistencies because, as I have said to you, her evidence must be accepted by you as both truthful and reliable beyond reasonable doubt. What you make of those inconsistencies is a matter for you. Most of these matters, [A] could not remember; if you remember they were put to her, she could not remember. That is perhaps not surprising but the fact is that it is agreed that she has said these things that are set out in the agreed facts at an earlier time. You might think that that causes you, it is a matter for you, some concern about whether or not you could rely on her evidence beyond reasonable doubt.
(Emphasis added)
The judge gave a particular warning with regards to what she describes as the “most important witness in this case”, the complainant, saying:
One of the things you will look at when coming to assess the evidence of the most important witness in this case, [A], I suggest to you, is whether or not she was consistent about the really important things in her evidence and whether in those circumstances you can act on her evidence as reliable.
Ground 1 – s 12A warning
The appellant contends that the Judge should have given the jury a warning that it was dangerous to convict the appellant on the uncorroborated evidence of AG. There is no dispute that the evidence of AG was uncorroborated.
Section 12A of the Evidence Act provides:
12A – Warning relating to uncorroborated evidence of child in criminal proceedings
(1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child’s uncorroborated evidence unless –
(a)the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child’s evidence; and
(b)a party asks that the warning be given.
(2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.
(Underline emphasis is mine)
Section 12A prohibits a trial judge from warning the jury that it is unsafe to convict on a child’s uncorroborated evidence unless one or both parties request that a warning be given. If a request is made, then the judge must consider whether there are cogent reasons to doubt the reliability of the child’s evidence, and only if the judge considers such reasons exist is the warning to be given. If a party does not ask, the warning must not be given in those terms. It does not follow that the Judge, in directing a jury as to the reliability of the complainant’s evidence, cannot direct the jury to have regard to the age of the complainant, or that it might be dangerous to convict a defendant, having regard to the evidence as a whole.[1]
[1] R v Warsap (2010) 106 SASR 264.
At no stage during the trial did counsel seek a direction pursuant to s 12A. Counsel for the appellant referred to an affidavit of the solicitor for the appellant which exhibited a letter from counsel in the trial in which he stated that he was aware of the terms of s 12A. The letter states:
I have conducted a number of trials involving child complainants both in South Australia and the Northern Territory. I was aware of the amendments made to the Evidence Act in 2008 and the requirements of section 12A.
In this matter, there had been brief discussion between the Judge and counsel about the directions that were to be given. I cannot recall the specifics of this discussion, but I do have some recollection of a discussion about what we said were the matters of inconsistency.
I did not request a direction pursuant to section 12A. This was an omission on my part. I recall I was pleased at the time at what Her Honour Judge Davey was indicating she would give by way of directions and that the focus of the discussion was on other issues. It was appropriate to have asked for such a direction at that stage of proceedings.
I was obviously worried about how the jury would approach the evidence of a child as young as the complainant. During the summing up I recall reflecting at some stage on whether I had agitated sufficiently for directions about how the jury should approach the evidence of the complainant.
…
At the conclusion of the summing up I considered that to request any further directions might backfire. I considered that the jury had been given strong favourable directions in the assessment of the inconsistencies in the evidence and the issue of reliability, and that a focus on those issues gave us better prospects of acquittal than a focus on the truthfulness of the complainant. I did not want to muddy the waters at that stage.
Counsel for the appellant accepts that the direction was not requested due to a forensic decision made by counsel at trial. The Judge was precluded from giving a warning. It was not for the Judge to invite such a request.[2]
[2] R v Warsap (2010) 106 SASR 264 at 277.
Counsel for the appellant now suggests that despite no request being made of the trial Judge to give a warning under s 12A, the failure of counsel to request such a warning has resulted in a miscarriage of justice. The appellant submits the warning should have been given by the trial Judge, as there were “cogent reasons” to do so. The appellant contends that the conduct of counsel constituted a miscarriage of justice which calls for the intervention of this Court.[3]
[3] R v Kyriacou [2000] SASC 312 at [29].
In considering whether there has been a miscarriage of justice, it would be unusual for the appellate court to embark on an inquiry of the conduct of counsel. In Nudd v The Queen,[4] Gleeson CJ said that when there is a claim that the conduct of counsel contributed to the conviction, the issue is whether there was a miscarriage of justice. A miscarriage of justice can occur if the appellant has not had a fair trial. In Nudd, Gleeson CJ said:[5]
… It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, seeks the context in which these issues arise.
[4] (2006) 80 ALJR 614.
[5] Ibid at 618.
In R v Heeremans,[6] it was held that the critical question is not whether counsel has erred in some way, but whether a miscarriage of justice has occurred. In Heeremans, Gray J said:[7]
The critical question is not whether counsel has erred in some way, but whether a miscarriage of justice has occurred. Conduct of counsel at trial may be relevant to that issue but not determinative given the wide discretion that counsel has in the conduct of a case.
…
The fact that new counsel, upon review of the trial transcript may have conducted the case differently does not warrant the intervention of an appellate court. Nor does the fact that different counsel may have made different forensic decisions amount to a reason for intervention by this Court.
[6] [2007] SASC 187.
[7] Ibid at [77].
In considering whether a failure to request a direction pursuant to s 12A has led to a miscarriage of justice, it is necessary to also consider whether, in the circumstances, the warning was warranted because there were cogent reasons to doubt the reliability of the child’s evidence.
The appellant points to a number of inconsistencies in the complainant’s evidence which, counsel submits, is of particular importance. The complainant had been examined by a psychologist. She gave an account to the psychologist which varied in some of the detail from her evidence. The inconsistencies upon which the appellant relies include:
·     AG described the offences occurring in some scrub on a dirt road a long way from her place, with only sheds nearby. She told a psychologist that it occurred next to the appellant’s house across the road.
·     The complainant gave an inconsistent account about the first incident occurring when she was lying on the back of the car. Later, in evidence, she said it was when she was sitting on the car. She told a psychologist she was sitting in the bushes.
·     There was some confusion as to whether the incident took place when she was in the back seat of the car or the front seat of the car.
·     She told the psychologist that she did not have to do anything to the appellant, whereas the second count related to her touching his penis.
·     Her complaint about touching and sucking the appellant’s penis was made some 18 months after the alleged offences.
·     She gave differing accounts as to who was present at the appellant’s home when they returned after the incidents occurred.
·     Her evidence was that the appellant purchased an ice cream for her at a petrol station, whereas there was other evidence that the appellant gave her an ice cream after they arrived home.
·     There was some confusion and conflict in the evidence about exactly upon which weekend the incident had occurred.
The question of what amounts to “cogent reasons” will depend on the circumstances in each case. The fact that a young child, giving evidence some years after the event, may have given inconsistent accounts about matters peripheral to the actual events do not, of themselves, amount to cogent reasons. The fact that there are some issues for the jury to consider, and even for the jury to be concerned about, does not mean that there are cogent reasons to justify a warning in terms of s 12A. For cogent reasons to exist, they should be compelling, convincing and powerful. What amounts to such reasons will depend upon the circumstances of each case. An error in the date or time when events occurred may, in some cases, be crucial, whereas, in others, it may be of less significance. In some instances, the exact description of where an offence is alleged to have taken place may be of great importance to the assessment of a child’s reliability, whereas, in other cases, it may throw little light on that issue.

In my opinion, the complaints about the complainant’s evidence do not amount to cogent reasons to doubt the reliability of her evidence. The fact that inconsistencies existed is not sufficient to constitute cogent reasons requiring a warning to be given. As I will come to discuss, the inconsistencies were not so pervasive as to constitute powerful or compelling reasons to doubt the complainant’s evidence.
The trial Judge’s directions were comprehensive. The Judge’s directions to bear the inconsistencies in mind when assessing the truthfulness and reliability of the complainant’s evidence were unequivocal.
Having regard to the comprehensive directions of the trial Judge, the omission of the defence counsel to specifically request a warning, pursuant to s 12A, did not result in a miscarriage of justice.
A miscarriage of justice
I turn to the second ground of appeal, that the verdict of the jury cannot be supported having regard to the evidence and, therefore, a miscarriage of justice has occurred.
Section 353 of the Criminal Law Consolidation Act 1935 (SA) requires that the Court must allow the appeal “if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.
In M v The Queen,[8] Mason CJ, Deane, Dawson and Toohey JJ expressed the relevant legal principle:[9]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But 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.
…
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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Footnotes omitted)
[8] (1994) 181 CLR 487.
[9] Ibid at 493-495.
Heydon J expressed the principle as follows:[10]
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. (Original emphasis)
[10] Libke v The Queen (2007) 230 CLR 559 at 596-597.
Counsel for the appellant submits that the inconsistencies and discrepancies were such that the jury could not rely on the evidence of AG beyond reasonable doubt. The various factors put forward by the appellant giving rise to the submission that AG’s evidence was unreliable and could not be believed were matters for the jury to determine with the full benefit of having seen the witness giving evidence.
This was a case in which a young child gave explicit evidence about events which occurred over three years before. At the time of the incidents, she was six years of age. It is to be expected that her memory recall would not be perfect. The complaints about her evidence were, in many instances, about detail which it could be anticipated her memory may not be entirely accurate.
On the other hand, some of her evidence had a ring of truth about it. It is hard to imagine that the evidence of the appellant licking his finger before he inserted it into her vagina was something she made up or imagined. She does not appear to have exaggerated. The jury saw her give her evidence and could make their assessment of her.
In my view, having reviewed all the evidence, it is not possible to say that the jury must have entertained a doubt about the appellant’s guilt. It was open, on the evidence, to the jury to be satisfied beyond reasonable doubt. I reject this ground of appeal.
Conclusion
I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Sulan J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Sulan J.