R v P, PD - [2007] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v P, PD
[2007] SASC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
12 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - PROOF AND EVIDENCE
Appeal against conviction - appellant convicted by jury of two counts of indecent assault and two counts of rape - appeal on grounds that jury verdicts were unsafe and unsatisfactory in relation to all counts, or alternatively, in relation to the two rape counts - complainant is the daughter of the appellant's former partner - complainant aged 20 at the time of the offences, but suffered from developmental delay and had the mental capacity of a 12 to 14 year old child - alleged inconsistencies in complainant's evidence, and inconsistencies between complainant's evidence and the evidence of other witnesses - alleged "unrealistic" evidence - consideration of lack of specific corroboration and no scientific evidence - consideration of alibi evidence - Held: Taking evidence as a whole verdicts not unsafe or unsatisfactory - alleged challenges were explicable - open to jury to find appellant guilty beyond reasonable doubt - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48, s 56, s 353(1), referred to.
M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Jones v The Queen (1997) 191 CLR 439, applied.

R v P, PD
[2007] SASC 127
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ. I would dismiss the appeal against conviction for the reasons given by Layton J.
DEBELLE J. I agree with the substance of the reasons of Layton J and would dismiss the appeal.
LAYTON J.
Introduction
This is an appeal against conviction. On 5 October 2006, the appellant was convicted by a jury in the District Court of two counts of indecent assault and two counts of rape contrary to s 56 and s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
Two grounds of appeal were argued:
1.The verdicts of the jury in relation to all counts were unsafe and unsatisfactory in that they were unreasonable and/or could not be supported having regard to the evidence as a whole.
2.In the alternative, that the guilty verdicts for the two counts of rape were unsafe and unsatisfactory as being unreasonable and/or could not be supported having regard to the evidence as a whole.
Summary of Crown Case
The Crown case was that on 24 June 2004 between about 4 pm and 4.20 pm, the appellant indecently assaulted and raped the complainant at Windsor Gardens. The complainant was the daughter of the former partner of the appellant. She was 20 years of age at the time of the offending but because she suffered from developmental delay, she had the mental capacity of a 12 to 14 year old child. The prosecution alleged that the appellant called in at the house, where the complainant was living with her mother (KM), the appellant’s son, and two other children. The complainant had returned home from school after being dropped off by the school bus and was home alone.
It was alleged that the appellant indecently assaulted the complainant in her bedroom by sucking her breasts (Count 1) and squeezing her bottom (Count 2). It was further alleged that the appellant raped the complainant in her bedroom by performing an act of cunnilingus (Count 3) and engaging in penile/vaginal sexual intercourse (Count 4) without her consent and in the knowledge that she did not consent.
On appeal, counsel for the appellant conceded that consent was not an issue.
The appellant at trial gave evidence that he attended the house on the day in question, but said he did not go inside the house, or into the complainant’s room, and denied all conduct which constituted the charges. Further, the appellant said that he was elsewhere at the specific time of the offences alleged by the prosecution, which was his alibi.
Overview of evidence at trial
The complainant was aged 22 at the time of the trial and gave evidence by way of video. She suffers from an intellectual disability, which was known to the appellant. This intellectual disability resulted in her going to a special school. The appellant and KM lived together for about 18 months and between them they had one child and KM had three other children. After their estrangement, the appellant visited KM’s home to collect his son every second weekend and would also sometimes call in during the week to take access, usually but not always by a prior arrangement.
The usual family routine during weekdays was that KM would collect her other three children from school and return home before the complainant was dropped off by the school bus. Occasionally the complainant would arrive home first so KM left the front door unlocked as the complainant had trouble handling keys to get into the house.
Evidence of the complainant’s intellectual disability was given by her teacher. The complainant had difficulties in expressing herself and remembering things. Her reading ability was poor as were her verbal skills. In addition, she would often say ‘yes’ to a question which she may not have understood. A reading of the transcript of the trial reveals many examples of these difficulties and also suggests difficulty in her comprehension of some questions.
The complainant gave evidence that she got home from school before her mother and her other siblings. She opened the door and went inside the house and into her bedroom and then went to the kitchen to get something to eat and drink. She returned to her bedroom to change out of her school clothes and into her sleepwear. The complainant said that the appellant came to her bedroom door and that she had not heard him before he opened the door. After some conversation she said that the appellant hugged and kissed her on the mouth. He gave her a neck massage, kissed her around the neck and grabbed her hair. She said that the appellant sucked her breasts, touched her legs and squeezed her bottom, and then took her knickers down and sucked her vagina. The complainant said that the appellant put his penis in her vagina, and that she tried to push him off, and get off the bed. She said she gave a little scream.
The complainant testified that following this conduct, the appellant said to her, “[d]on’t tell mum or the family, don’t tell mum in case she goes nuts.” He also told her not to tell her sister or the family, and then left her bedroom. At that time she said she had not heard her mother or the other children come home. She said that she was crying badly and was shaking. The complainant said that after the appellant left, her mother had seen her crying and that the complainant had said “Mum, help me, please”.
Her mother KM gave evidence that she collected the children from school as usual but on this particular day she talked to a teacher for a while which meant that she was delayed in arriving home. She said that she returned home between about 4.15 pm and 4.20 pm. When she arrived home she noticed that the appellant’s vehicle was parked out the front. She parked her car in the driveway near the roll-a-door. The children yelled out “dad’s here”. They all got out of the car and went into the house. They went down the hallway past the complainant’s bedroom to the dining area. She noticed the appellant’s mobile phone, car keys and cigarette pouch on the dining room table. The boys went back up the hallway and she followed them. They were calling out “dad”. She was roughly opposite the bathroom and the toilet when she saw the appellant coming out of the doorway of the complainant’s bedroom. She then saw the complainant in her nightie in the room near the doorway. She said the appellant spoke briefly to the boys, collected his belongings and after a brief conversation about bringing his son back, left the house with his son.
KM gave evidence that apart from seeing the complainant briefly at the time when the appellant came out of her room, she did not speak to her until 10 or 20 minutes later. She said that the complainant requested Hungry Jack’s food. KM did not remark on the complainant behaving unusually either on that afternoon or evening, nor the following morning when the complainant went to school.
The complainant gave evidence that, on the following day, the first person she told about what had happened the previous day was a school assistant CF. She then told her teacher KF and later spoke to the Principal FB.
The school assistant CF gave evidence that on 25 June 2004, the appellant was very quiet in the morning and was not herself at all. At lunchtime CF asked the complainant what was wrong, and the complainant told her that the appellant and she had done “something naughty”, but that she could not tell what had happened or she would get CF into trouble. She later gave CF information. CF then spoke with the complainant’s teacher KF and the complainant repeated what had taken place. Both CF and KF gave evidence of that conversation.
KF also gave evidence about his observations of the complainant’s behaviour on that morning. He described her as being “quite grumpy”. KF took the complainant to speak with the Principal FB who also gave evidence of what the complainant had told her. Thereafter the complainant’s mother was contacted as well as the police. KM told the police that the complainant had already bathed and that her bedroom and bedding had been cleaned the previous night. No arrangements were made for collecting any of the clothing. The complainant was then taken to Yarrow Place where she underwent an external examination and tests for sexually transmitted diseases. No internal examination was undertaken and no tissue samples such as saliva were taken.
On 5 July 2004 the appellant was interviewed on video tape which was recorded and shown to the jury. The appellant answered questions and told the police that he had come to KM’s house to see if his son wanted to come over for the night. He said he had been working at Leabrook. He said that when he arrived he saw KM’s car outside. He said he then knocked on the door, but there was no answer, so he left without leaving a note. He said that he did not go inside the house, but conceded that he “may have opened the door and called out to see if anyone was home”. He denied the allegations which are the subject of these proceedings.
The appellant also gave sworn testimony that he was working on a site in Leabrook. His usual hours of work were 7.00 am to 4.00 pm. He said that he filled in a weekly timesheet for his hours of work. A copy of the timesheet was tendered in evidence. It was the appellant’s evidence that he left work on that day at about 4.10 pm to 4.15pm. He estimated that due to traffic conditions it took about 40 minutes to get to the house, and therefore he would not have arrived at the house until about 4.40 pm. He said he saw KM’s car in the driveway, knocked on the door but did not open it. He said that he would have yelled out “is anybody home?” but as he got no answer he got back into his car and left. He said that he did not wait or telephone, as he had no credit or money on him to use a public telephone. He denied going into to the complainant’s room and denied all of the conduct alleged against him.
The appellant put forward an alibi. He said he was not at the house and therefore could not have been present at the time when the alleged offences took place. The appellant did not give notice of the alibi as required by the Rules of Court and the prosecution did not have an opportunity before trial to investigate the hours worked by the accused by reference to any witnesses who may have been able to give evidence as to the weekly timesheet.
Appeal principles – unsafe and unsatisfactory verdicts
The appellant challenges the verdicts as unreasonable on the basis that they are unsafe and unsatisfactory, or cannot be supported having regard to the evidence as a whole. Section 353(1) of the Act relevantly provides:
The Full Court on any such appeal against conviction shall 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 … or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal …
The test for whether a verdict is unreasonable or cannot be supported by the evidence has been authoratively examined in a number of High Court decisions. In summary, these decisions articulate the following general principles:
·The test for an unsafe or unsatisfactory verdict is 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.[1]
·It is not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. [2]
·The court must pay full regard to the consideration that the jury is the tribunal of fact entrusted with the primary responsibility of determining the verdict and has had the benefit of having seen and heard the witnesses. As a consequence, the court must take care not to usurp the function of the jury by simply substituting its own view.[3]
·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 an appellate court that the court may conclude that a miscarriage of justice has not occurred.[4]
·It is insufficient to merely demonstrate that the evidence led at trial might be open to criticism. However, 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 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.[5]
[1] M v The Queen (1994) 181 CLR 487, 492-3, per Mason CJ, Deane, Dawson and Toohey JJ, 508 per Gaudron; Jones v The Queen (1997) 191 CLR 439, 450-1 per Gaudron, McHugh and Gummow JJ; MFA v The Queen (2002) 213 CLR 606, 614-15 per Gleeson CJ, Hayne and Callinan J, 622-25 per McHugh, Gummow and Kirby JJ.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
The jury heard evidence from a number of witnesses called by the prosecution. In addition, the appellant gave evidence and tendered documentary evidence.
Appellant’s contentions
In support of the contention that the verdicts were unsafe and unsatisfactory, the appellant relied on a number of alleged inconsistencies in the complainant’s evidence as well as inconsistencies between the complainant’s evidence and other witnesses. The appellant also relied upon evidence said to be unrealistic evidence, and a lack of corroborration or scientific evidence. This argument was further reinforced by reference to the discrepancies in the timing of the alleged offences and the alibi evidence proferred by the appellant, which it was submitted indicated that the appellant could not have been at the house at the time of the alleged offences. As a consequence it was submitted that the jury verdicts were unreasonable and/or could not be supported having regard to all of the evidence.
The appellant argued that these factors should be considered collectively. However, in order to discuss the grounds of appeal it is necessary, at least initially, to reflect on the individual arguments and then later view them as a whole having regard to all of the evidence.
Sequence of alleged sexual acts
Counsel for the appellant, Mr Ibbotson, submitted that the complainant’s evidence, being the only evidence of the alleged sexual acts, was equivocal and/or inconsistent as to the sequence of events, in particular with regard to Count 3 (cunnilingus) and Count 4 (penile/vaginal intercourse). The appellant’s submissions on this point were in some ways contradictory. Mr Ibbotson criticised the complainant’s evidence as having been given in a way which was a “very repetitive way of saying what occurred on each occasion” and that it “appeared to be a learnt response”. On that basis he submitted her evidence was unreliable. He also submitted that the complainant’s evidence was unreliable in that it changed as to the sequence of events. It was submitted that her initial evidence was that there had been sucking of the breasts followed by touching of her bottom, then being forced on the bed in the act of cunnilingus and finally the act of penile/vaginal intercourse. It was submitted that in the course of evidence, the complainant had described the events in a different order such that the sucking of the breasts was alleged to have occurred after the penile/vaginal intercourse.
When perusing the transcript of both the examination-in-chief and cross-examination, it would appear that both prosecution and defence counsel questioned the complainant about what the appellant did, but there was no specific questioning as to the precise sequence of the events that she described. In cross-examination counsel for the appellant commenced with a question, “What was the first thing he did to you when he came into the room after he talked to you?” but thereafter did not seek to ascertain whether the events described by the complainant were described in the precise order in which they occurred.
The net result of reading the complainant’s evidence is that there is ambiguity as to whether the sucking of the breasts occurred prior to the penile/vaginal intercourse or after the penile/vaginal intercourse. The complainant appears to have given evidence of the events on that occasion which commenced with her being hugged and kissed on the mouth, but the sequence of later events varied. She was not asked to clarify this and in those circumstances there is no reasonable basis for criticising her evidence as being unreliable on the basis of an alleged inconsistency as to the sequence of events. There is no reasonable basis to suggest that the jury was unreasonable on all of the verdicts, or indeed on Counts 3 and 4, on that ground.
Clothing worn
The appellant contended that the complainant’s evidence was inconsistent as to the clothing she wore at the time of the alleged offences. It was submitted that her evidence was inconsistent when comparing her out of court statements with her evidence given at trial. These matters were set out in a document of “Agreed Evidence” which referred to the transcript as well as the out of court statement.
In the statement taken by a police officer on 1 July 2004, the complainant said that she was wearing a nightie with pyjama pants underneath, and socks. In examination-in-chief she gave evidence that she was wearing a pink nightie and knickers. In cross-examination she indicated that she was wearing a nightie and knickers with no pyjamas and denied that she had told the police officer that she was wearing pyjamas and socks.

The appellant contended that this was contradictory evidence as to whether or not pyjamas were worn underneath the nightie, and that this clothing was particularly relevant to Counts 3 and 4. It was contended that Counts 3 and 4 could not have been established and that the verdicts could not be supported.
In response, the Crown submitted that whether or not the complainant was wearing pyjamas or knickers underneath her nightie was not a matter of significance. It was submitted that the key fact was that she was in fact wearing an item of clothing underneath her nightie, being either pyjamas or knickers. The complainant’s evidence in court was that it was knickers and that the appellant took them down. The evidence relied on by the appellant includes a portion of transcript in which the complainant gave the following evidence during cross-examination:
Q.Do you now recollect telling Karen that you had your nightie on and pyjama pants and socks when [the appellant] came.
A.No.
Q.You don’t.
A.No.
Q.That was the case, wasn’t it, you were wearing those things when [the appellant] came in weren’t you.
A.Yes.
I note the following: The cross-examination was concerned with her “recollection” of what she told the police officer two and a half years earlier. The complainant, who has a mental disability, was cross-examined with a question which commenced “That was the case wasn’t it”… followed by the assertion that “you were wearing those things” (unspecified) when the complainant came in. The answer given by the complainant of ‘yes’ is not in my view sufficient to demonstrate inconsistency or ambiguity. The question itself was confusing and uncertain.
In my view, any uncertainty about her under-clothing could be explained by her mental condition and her weakness in memory of events more than two years earlier. Whether or not she had pyjamas or knickers on underneath her nightie that day, the jury was entitled to be satisfied that regardless of which item of clothing it was, the appellant took off that item.
This argument of itself provides no basis for suggesting the verdicts, in particular on Counts 3 and 4, are unreasonable and/or unsatisfactory.
Unrealistic that the complainant did not hear the appellant
It was contended that the complainant’s evidence that she did not hear the appellant enter the house or realise he was present in the house before he entered her bedroom, was unrealistic and inconsistent with the appellant’s evidence about his behaviour. The evidence relied on consisted of the following answers given in cross-examination:
Q.You had been home for quite a while before [the appellant] came in, is that right.
A.Yes, I always have a snack or something to drink like water, I get very thirsty.
Q.You didn’t hear [the appellant] come in the front door or anything did you.
A.The door was quiet, he walked himself quietly and then he opened the door, with the handle and he closed the door.
There is nothing inherently unrealistic about the complainant’s evidence on this point. The complainant gave a valid reason as to why she did not hear the appellant. Simply because the appellant gave evidence that he had knocked on the door and would have yelled out, “anybody home?” which was not apparently heard by the complainant in her room, does not of itself suggest an inconsistency. The jury may not have accepted the appellant’s version of events. Again, this argument alone does not persuade me that the verdicts were unsafe or unsatisfactory.
No complaint or sign of distress to mother and inconsistencies
Counsel for the appellant submitted that there was an inconsistency between what the complainant said in her evidence, namely that she showed distress and asked her mother for help, and her mother’s evidence that she had made no complaint and displayed no signs of distress. KM gave evidence that she saw the complainant in the doorway at the time when the appellant was coming out of the complainant’s room, and again saw her 15 - 20 minutes later when the complainant came out of her room. She saw nothing out of the ordinary about the complainant’s conduct.
The complainant’s evidence does not go so far as to assert that she made a complaint to her mother. Her evidence in cross-examination was as follows:
Q.Were you crying when [the appellant] left the room.
A.I was crying badly, I was in tears I was shaking when he did that after.
Q.This is when you were in your bedroom after he left, is that right.
A.Yes, I was crying in my heart, I was shaking and mum seen me and she seen my face crying and I said “Mum, help me please”.
Q.Did mum help you.
A.Yes, just talk, that’s it.
Later she gave the following evidence:
Q.Did you know what you told your mum when you saw her later on after [the appellant] had left.
A.I said nothing to mum. I was quiet. My mouth was open but I said nothing to mum.
Q.But you were crying.
A.Yes, I had a little cry; not a big cry a little one. I was shaking still, my stomach was pounding my heart was pounding fast.
Q.That’s how you were feeling when you saw your mum.
A.Yes and I was shaking. I was hot because my room gets stinky and my armpits get hot, I get a bit sweaty and a bit stinky, wet, too.
The complainant’s evidence was not that she complained to her mother, it is that she was crying and that this was seen by her mother, and that she asked her mother for help.
KM gave evidence that she first saw the complainant in the doorway as the appellant emerged from her room and the complainant was in her nightie. This view was limited in time and may have been focussed on the appellant. KM did not see the complainant again until 15 - 20 minutes later when she spoke to the complainant and discussed dinner. KM did not volunteer any evidence of seeing the complainant in any way distressed or tell of her asking for help.
The fact that the complainant did not complain to her mother is explicable on the basis of the threats made by the appellant. Further, the suggested inconsistency between the evidence of KM and the complainant is explicable on the basis of the effects of her disability on her memory. The fact that the complainant stayed alone in her room and remained there for some 15 to 20 minutes, may also in part explain why her mother did not view her distress. Further, as the Crown submitted, it is not without significance that the complainant made a complaint the following day to staff at her school, and that she was distressed at that time. The complainant may have transposed that distress to the previous day. These are, however, matters of conjecture. More importantly, the learned trial Judge in her summing up brought this matter to the attention of the jury when her Honour stated:
You may find that [the complainant] showed no sign of distress to her mother and she made no complaint to her mother about what the accused had done as soon as he left, or in the course of the evening, or the following morning.
The fact that she made no complaint to her mother on 24 June, or on the morning of 25 June 2004, if that is what you find, does not necessarily mean that [the complainant’s] allegations are false or that her evidence is unreliable. A person may have valid reasons for not making a complaint of sexual offending straight away. You will bear in mind that [the complainant] said that she had been told by the accused not to tell her mother or family, or they would get into trouble. The accused had told her not to tell the teachers or they would get into trouble. He had said “don’t tell mum or the family. Don’t tell mum in case she goes nuts”. [The complainant] said she was concerned if her mother knew she would be angry and have a fight with the accused, which the complainant said she could not handle.
The jury may well have taken that approach and there is nothing inconsistent or unreasonable about their verdict in relation to that topic.
Complaints to teaching staff inconsistent
Mr Ibbotson contended that the complainant’s evidence as to the complaints she made to school staff, namely the assistant CF, her teacher KF and the Principal FB, was inconsistent with their evidence. He submitted that the complainant’s complaints were limited to the acts of indecent assault and that the complainant had specifically denied the penile/vaginal intercourse to the Principal FB. It was therefore argued that the verdicts of the jury were unreasonable and in particular the verdicts on Counts 3 and 4 could not be supported on the evidence.
The complainant gave evidence that the first person she told about what had happened was the school assistant CF. The complainant said that she told CF that the appellant had kissed her, they had sex on the bed, he took his penis out and licked her vagina, sucked her breasts and put his penis in her vagina and touched her bottom. However, CF’s evidence was that the complainant had told her “we hugged, we kissed. He sucked my breasts, he touched my bottom and my private parts. He told me my bottom was sexy”. In addition, CF said that she asked the complainant to tell her and also tell her teacher KF what had happened. CF said that the complainant told both of them that [the appellant] “sucked my breasts, touched my bottom, undid his pants and told me to look at his penis. Told me I was sexy”.
Similar evidence was given by KF. In particular, the evidence of CF and KF indicates that the complainant made no complaint of cunnilingus or penile/vaginal rape. Both teachers gave evidence of the complainant being distressed when giving this information and said that she had not appeared to be her usual self that morning.
The evidence of the two teachers is that they brought the complainant to the Principal’s office whereupon a discussion occurred between the complainant and the Principal FB. FB gave evidence that the complainant told her that the appellant had touched her on the breast and her private parts. FB specifically asked the complainant, “did he put his penis inside you?” and the complainant replied with a definite “no”.
The trial Judge referred to this evidence in considerable detail in her summing up. Her Honour drew the jury’s attention to the fact that the complainant’s complaint to CF and KF and her distress when talking to them could only be used:
… to assist [them] in making an assessment of the reliability and credibility of [the complainant] as a witness and of her evidence generally … [and] in making an assessment of consistency of her conduct and consistency with the evidence given by her in court.
The trial Judge also referred to the evidence of CF who explained to the complainant that she would need to talk to the Principal, who in turn may need to call the police, who would also want to talk to her. The trial Judge referred to the evidence of CF that the complainant became worried about how her mother would react and whether she would be angry, and was worried that she might get into trouble. The trial Judge also referred to the evidence of FB who indicated that the complainant was very upset and looked like she had been crying. It was in this context that the complainant denied that the appellant had put his penis inside her. These matters were all left to the jury to decide after the trial Judge had given appropriate directions which were not the subject of criticism by the appellant.
The Crown, in response to the appellant’s submission, contended that the inconsistencies of the complainant were explicable on the basis of the effects of her disability, the passing of time, her distress, the threats made by the appellant, her worry about the possible anger of her mother, and the police involvement.
In my view the Crown’s submissions are well founded and are a credible explanation for the complainant’s progressive disclosure and her reticence in initially complaining of the relevant offences. These matters were fully brought to the jury’s attention for their consideration. It was therefore open to them to be satisfied beyond reasonable doubt that the appellant was guilty of all of the offences.
No corroborration and no scientific evidence
Counsel for the appellant submitted that the alleged sexual acts were not corroborrated by any other evidence. Specifically, that there was no scientific evidence to support her allegations. No items of clothing or bedding were seized and no internal examination of the appellant was undertaken.
Although the charged acts were not the subject of specific corroborration, the mother KM testified as to the appellant’s presence in the house when she and the boys arrived home. Further KM testified that the complainant had been at home alone, and that the appellant had come out of the complainant’s room. This evidence was potentially damning given the appellant’s denials of emerging from the complainant’s bedroom. KM’s evidence was circumstantial evidence supporting the opportunity the appellant had to indecently assault and rape the complainant in her bedroom. If KM’s evidence was accepted by the jury, as it appears to have been, then this evidence supported the complainant and contradicted the appellant’s evidence in relation to this highly material particular.
Furthermore, it is understandable that there was no specific corroborration given that it was the Crown’s case that the appellant used an opportunity when the complainant, who is intellectually impaired, was home alone, in her bedroom and in her nightie. The appellant took advantage of her situation and also made threats to try and silence any complaints.
As to the lack of any scientific evidence to support the convictions, the failure to take bedding and other samples including an internal vaginal swab is explicable having regard to KM’s evidence that she had washed the clothing and bed linen, and that the complainant had showered. Fingerprinting also would not have assisted because the appellant was a regular visitor. In any event, there was no evidence of any likelihood that a scientific examination would have disclosed any exculpatory evidence. The trial Judge also reminded the jury of this point.
In these circumstances the appellant’s contention about the lack of scientific examination is speculative and the absence of scientific corroborration is neutral. This does not render the verdict unsafe or unreasonable.
Unrealistic reaction of mother
Counsel for the appellant submitted that KM’s failure to ask the appellant why he was in the complainant’s bedroom, when she saw him coming out of her bedroom and saw that the complainant was dressed in her nightie, was unlikely and not credible. KM was specifically asked in cross-examination:
Q.See, you didn’t ask [the appellant] what he was doing coming out of [the complainant’s] bedroom, did you.
A.No.
Q.And you’d seen, after he’d come out, there was [the complainant] in a nightie; correct.
A.Yes.
Q.And you didn’t think it advisable to say “Well, what were you doing coming out of there?”.
A.No.
Q.Did you ask [the complainant] what he was doing in the bedroom.
A.No.
Following this line of cross-examination, counsel then suggested to KM that, contrary to her evidence, the appellant had not been present. This was strongly denied by KM.
It is understandable that KM did not ask the appellant what he was doing coming out of the complainant’s room. He had been her partner; he was a regular visitor; he was the father of their son; and it was not unusual for him to attend unannounced at the house in order to have access to his child. Further, the children were excited to see him on the day. There was therefore no reason for her to have taken an accusatory attitude towards him in all of the circumstances, nor any reason why an adverse conclusion should be drawn about KM’s credibility based on not questioning the appellant.
Time of offences and alibi evidence
Counsel for the appellant urged the Court to find that the verdicts were unsafe and unsatisfactory having regard to the time at which the offences took place on the prosecution case. This was a major argument addressed on appeal. Counsel stressed that the appellant’s evidence, accompanied by documentary material in timesheets, confirmed that he could not have been present at the time during which the offences were alleged to have taken place. It was submitted that the appellant had an alibi which was not refuted on the evidence.
The Crown case was that the offences occurred somewhere between about 4.00 pm and 4.20 pm. The appellant’s evidence was that he could not have been present in the house at that time because he did not finish work until 4.00 pm, and he did not leave work for another 10 – 15 minutes. He said it would have taken him approximately 40 minutes to travel to the house, and therefore on his estimation he did not arrive until about 4.40 pm. It was submitted that there was no opportunity for him to have committed the alleged offences.
Apart from the appellant, three persons gave evidence as to time. The first was the complainant who said that after being dropped off by bus she was there for an hour before the appellant arrived. On any person’s version this is clearly wrong, and is understandable given her mental disability.
The bus driver’s evidence was that the complainant had been dropped off at about 4.00 pm. The evidence of the mother KM, is that she was home at about 4.15 pm - 4.20 pm.
It is to be noted that the evidence of the bus driver and KM as to time was only an estimate based on what was usually done. In the case of KM there was an additional factor which occurred on that day which delayed her beyond the usual time, namely she talked to teachers after picking up her younger children. Clearly the margins with regard to time are very narrow in this case and need to be approached with some caution. The real issue is whether the appellant arrived before or after KM arrived home with the children, rather than the specific time within such a narrow estimated time band. Importantly, the appellant on his own evidence placed himself at the home at a time when the complainant was already home.
The appellant alleged that his evidence was supported by independent evidence in the timesheet. The timesheet was filled in by the appellant. He said that the hours of work recorded were exact hours and not approximations and that they were checked on a weekly basis. The time in the timesheet for that day was the time at which he normally finished work. The time for travel from his place of work to the house is an estimate only and would be dependent on traffic flow. There are a number of variables on the appellant’s evidence as to time, which may have resulted in him being at the house earlier than he estimated.
It was open for the jury to accept KM’s evidence. Regardless of the time that she arrived home, the appellant was already present in the house and alone with the complainant with the opportunity to commit the offences. It was therefore not necessary for them to have been satisfied beyond reasonable doubt as to the precise timing of the offence in order to find the appellant guilty.
Conclusion
Whilst I have separately considered each of the challenges made as to alleged inconsistencies, improbabilities, as well as the evidence of the appellant and the alibi, it is necessary to consider them together.
None of the arguments in my view raised concerns about the convictions such that collectively they persuade me that it was not open to the jury, properly directed as they were by the trial Judge, to be satisfied of the appellant’s guilt beyond reasonable doubt. The matters relied upon by the appellant were capable of affecting the jury’s verdicts, but each of them can be explained on the bases I have identified. They were matters for the jury to consider, but it cannot be said that they were matters that should have caused the jury to have reasonable doubt. The jury appeared to accept that the complainant on essential matters was consistent and truthful about the sexual conduct of which she complained. The jury also appeared to accept that KM’s evidence supported the appellant’s presence at her house when the complainant was alone, and that he had an opportunity to commit the offences, contrary to his denials.

I therefore consider that the appeal should be dismissed.