R v Rorison

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RORISON
[2018] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hinton)
8 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
Appeal against conviction. The appellant was found guilty by a jury of two counts of aggravated indecent assault.
At trial the prosecution case was that the offending occurred on a Wednesday night between 1 February 2015 and 31 March 2015 when the 12 year old complainant, LO, and her eight year old sister, AO, stayed overnight with PL, their grandmother, after their fortnightly Wednesday night cooking class. That night, it was alleged, the appellant was also staying at PL’s house. It was contended that sometime after everyone in the house had gone to bed, the appellant entered the room in which LO and AO were sleeping. He lay down next to LO and engaged in the sexual acts subject of the offences of which he was found guilty.
On appeal, the appellant argued that his convictions were unreasonable and could not be supported by the evidence adduced at trial. His primary argument was that the evidence excluded each Wednesday subject of the charges except 25 February 2015. Three witnesses gave evidence raising the possibility that on 25 February 2015 the appellant left PL’s house at around 7-7.30pm to go to the Emu Hotel and did not return to PL’s house until 3-3:30 am. At no time between when he returned to PL’s house and when LO and AO were picked up by their parents the same morning was he alone or in a position where he could have committed the offences with which he was charged.
The appellant's secondary argument was that LO and AO’s evidence was beset by inconsistencies of a number and nature that precluded the jury from being satisfied of the appellant’s guilt beyond reasonable doubt.
Held (per Hinton J, Kourakis CJ and Peek J agreeing), dismissing the appeal:
1. It was open to the jury to convict the appellant on the evidence.
2. Nothing in the differences or inconsistencies in the evidence as to whether the appellant stayed the night and did not go to the Emu Hotel on a cooking class night in February 2015 operated as an immoveable obstacle to the jury reasoning to guilt. Standing back and considering the combined force of the appellant’s complaints about the evidence of LO and AO, it remained open to the jury to convict the appellant on the evidence.
Criminal Law Consolidation Act 1935 (SA), ss 56, 353(1), referred to.
SKA v The Queen (2011) 243 CLR 400; Libke v The Queen 230 CLR 559, applied.
BCM v The Queen (2013) 88 ALJR 101; The Queen v Pfitzner (1976) 15 SASR 171, considered.

R v RORISON
[2018] SASCFC 49
Court of Criminal Appeal: Kourakis CJ, Peek and Hinton JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Hinton J.
PEEK J: I would dismiss the appeal. I agree with the reasons of Hinton J.
HINTON J.
The appellant was found guilty by a jury of two counts of aggravated indecent assault. He now appeals against his convictions. He contends that the convictions are unreasonable and cannot be supported by the evidence adduced at his trial.
The Information laid in the District Court charged the appellant with having committed both offences sometime between 1 February 2015 and 31 March 2015 (the charge period). The prosecution case was that the offending occurred on a Wednesday night when the 12 year old complainant, LO, and her eight year old sister, AO, stayed overnight with PL, their grandmother. That night the appellant was also staying at PL’s house. It was contended that sometime after everyone in the house had gone to bed, the appellant entered the room in which LO and AO were both sleeping. He lay down next to LO who was sleeping on a blow-up mattress on the floor and proceeded to engage in the sexual acts subject of the offences and of which he was found guilty.
For some time up to and including the charge period it was the practice of the LO, AO and their two cousins, MD and LD, to spend every second Wednesday night with their grandmother. These Wednesday nights became known as “cooking class nights” or “cooking nights” because the children would assist their grandmother in making dinner. It was common for all four children to stay overnight on cooking class nights. It was also not uncommon for MD and LD to be picked up by one of their parents sometime later in the evening.
LO’s evidence, and the prosecution case, was that the appellant committed the offences on a cooking class night. During the charge period there were eight Wednesdays – 4, 11, 18 and 25 February, and 4, 11, 18 and 25 March. On the hearing of the appeal the appellant contended that the evidence excluded each Wednesday with the exception of 25 February 2015. Three witnesses gave evidence raising the possibility that on 25 February 2015 the appellant left PL’s home early in the evening and did not return until around 3-3:30 am. He was hurt and required assistance. At no time between when he returned to PL’s house at around 3-3:30 am that morning and when LO and AO were later picked up by their parents was he alone or in a position where he could have committed the offences with which he was charged. Accordingly, the appellant contends, his convictions cannot be supported by the evidence and should be quashed.
For the reasons that follow I would dismiss the appeal.
Unreasonable and cannot be supported by the evidence - the principles
In BCM v The Queen (BCM) a unanimous High Court held that the principles applicable in determining whether a verdict is unreasonable or cannot be supported by the evidence “are well established” and “collected in SKA v The Queen” (SKA).[1] The reference to SKA was to the joint judgment of French CJ, Gummow and Kiefel JJ where their Honours said:[2]
[1] (2013) 88 ALJR 101 at [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ).
[2] (2011) 243 CLR 400 at [11]-[14].
It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:
“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.”
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The QueenMcHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
“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.”
…
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”
[footnotes omitted]
In SKA the High Court was dealing with s 6(1) of the Criminal Appeal Act 1912 (NSW). Section 6(1), like s 353(1) of the Criminal Law Consolidation Act 1935 (SA), was derived from the Criminal Appeal Act 1907 (UK). The relevant limb of s 6(1) engaged in SKA – that the verdict was “unreasonable, or cannot be supported, having regard to the evidence” – is no different to the first limb of s 353(1). Thus the task of this Court under s 353(1) where an appellant asserts that his or her conviction was unreasonable, or cannot be supported, having regard to the evidence is as set out in the joint reasons in SKA. In particular the question for this Court is whether, having undertaken an independent assessment of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In this regard in Libke v The Queen Hayne J, with whom Gleeson CJ and Heydon J agreed, said:[3]
It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. 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. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.
[footnotes omitted]
[3] (2007) 230 CLR 559 at [113].
That is to say, a guilty verdict is reasonably open if upon an independent assessment of the evidence, bearing in mind that a doubt experienced by this Court will be a doubt which a jury ought also to have experienced, this Court concludes that there was nothing about the evidence which it considers obliged the jury to come to a different conclusion.
I turn to undertake the required independent assessment of the evidence adduced at trial. I bear in mind that in BCM the High Court made plain that a Court of Criminal Appeal must disclose in its reasons its assessment of the capacity of the evidence to support the verdict.[4]
[4] (2013) 88 ALJR 101 at [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ).
The prosecution case
In his opening the prosecutor did not commit the prosecution case to the indecent assaults subject of the two counts charged occurring on any particular date within the charge period. He did, however, commit the prosecution case to the indecent assaults having occurred at PL’s on a Wednesday night when LO and her sister AO stayed overnight with their grandmother after earlier in the evening participating in a cooking class with PL and their cousins, MD and LD, and after MD and LD had been picked up by their mother and each of LO, AO and PL had gone to bed. Further, the prosecution case was that cooking classes at PL’s involving the grandchildren, LO, AO, MD and LD, took place every second Wednesday.
The prosecution called LO. She was 14 years old when she gave her evidence and 12 years old at the time of the offending. She had only one sibling, her younger sister AO. She told the jury that her parents were separated and that she and her sister would spend time living with each parent. She also told the jury that she had two cousins, MD and LD. MD was older than LO and AO, but LD was younger. PL, she said, was her father’s mother.
LO told the jury that the appellant lived with PL, but she could not say when that arrangement began. They lived together at the address at which LO, AO and their cousins, MD and LD, would attend during 2014 and into 2015 for cooking classes. LO also advised that PL had a boyfriend, PD. She said that occasionally PD or the appellant were present when the grandchildren went to PL’s house on cooking class nights. She could not remember but thought that PD and the appellant had only been present at the same time at PL’s on one occasion.
LO said that cooking class nights first started when she was around 10 years old. Cooking class nights always took place on a school night. PL would pick LO and AO up from school and take them back to her house. PL would also pick up MD and LD or their mother, RD, would drop them off. Typically cooking class nights were held every second Wednesday, unless one of LO or AO were sick or they could not get to PL’s.
Exhibit P1 was a floorplan of PL’s home. LO said that “the majority of the time” she and AO would sleep in the middle bedroom when they stayed overnight at their grandmother’s house. If they were not in the middle bedroom they would sleep in the rear bedroom. PL always slept in the front bedroom. LO said that she and AO would sleep overnight at PL’s on about fifty-percent of the occasions that they attended cooking class nights. On the majority of occasions MD and LD would also stay over. Typically LD would sleep in a room on his own and MD would join AO and LO. There were occasions when LO and AO would stay with PL but MD and LD would not. Sometimes MD and LD would stay overnight but LO and AO would go home. LO preferred to stay. She looked forward to the breakfasts her grandmother made.
LO said she first met the appellant at PL’s home on an occasion when she and AO had gone to their grandmother’s on a cooking class night. She was probably ten years old at the time. Occasionally the appellant would participate in cooking classes. If he wasn’t participating he was nearby. LO said that towards the end the appellant was at PL’s every Wednesday.
LO was asked whether the appellant would stay the night. She told the jury that it varied but when “he was living with Nanna he would obviously stay”. She said the appellant started living at PL’s about six months before they stopped going to PL’s for cooking nights. When he stayed the night she said he would sleep in the lounge room and sometimes in the rear bedroom.
LO also said that when PL and PD were together PD would stay overnight every weekend or every Wednesday. She could not say whether PD and PL were together at the same time as when the appellant lived with PL. If PD stayed the night he shared the front bedroom with PL.
The prosecutor then took LO to the night of the offending by asking, “can I ask you now about an occasion when you stayed over at your Nanna’s house around March or February 2015. Did something happen during one of those visits, when you were staying over”. LO replied in the affirmative. The response to the introductory question carried with it acceptance that whatever happened took place on a Wednesday night, a night when LO and AO attended PL’s for a cooking class.
LO told the jury that what occurred “would be classed as sexual abuse”. It occurred after dark in the middle bedroom. There had been a cooking class earlier in the evening. LO, AO and their cousins MD and LD were all at PL’s for the cooking class as was the appellant and PL. PD was not present. The cooking class finished at six. The children then watched television before going to bed. LD, who had an earlier bedtime than the others, was in the rear bedroom and MD joined LO and AO in the middle bedroom where they sat and talked about school. Eventually MD and LD went home at about 10 o’clock. They were picked up by their mother, RD.
LO told the jury that the light was off in the bedroom in which she and AO were sleeping. She was half asleep when the appellant came into the room. She and AO had stopped talking some 30 minutes beforehand. The light was off in the bedroom, but as far as she could tell the hallway light was on. LO said she could tell from the silhouette that it was the appellant. He had never come into the bedroom before. He was wearing a “Dragons footy top, a rugby team”. He laid down next to her on the blow-up mattress. She was not sure of the time but thought it was around 11 pm. PL was in her bedroom. LO had heard PL tell the appellant that she was going to bed and had heard PL walk down the hall.
LO then described how the appellant took her hand and placed it on his penis then subsequently put his hand under her shirt and fondled her breasts. She was too scared to say anything. The appellant then tried to place his hand into her pants but she moved causing him to remove his hands, get up and leave. He had not said anything. LO then asked her sister if she was awake and was met with the reply, “Is he gone?” LO then told AO not to tell anyone about what had happened. She explained that she said this because she thought that what had happened was her fault. LO said she was crying at the time.
About twenty minutes later the appellant returned. LO said she was half asleep. Again she could tell it was the appellant from his silhouette. The appellant laid down on the blow-up mattress and asked LO, “Do you want to go in my bed with me?” She responded saying that she wanted five more minutes of sleep. He then left the room. Five minutes later he returned. He and LO then engaged in a conversation about school for about 10 minutes before the appellant then left. He did not return. After about an hour LO slept. When she woke at 6 am the next morning the appellant had already left for work.
LO did not complain about what had occurred immediately. Instead she continued to go to her grandmother’s on Wednesday nights for cooking classes. The appellant was present. LO would make excuses for not staying the night. On one occasion she was “forced” to sleep over. On this occasion she and AO slept in the rear bedroom as the appellant had moved into the middle bedroom. She did not give evidence that anything untoward occurred on this occasion. Sometime later she told her mother what occurred. She said:
Q:Did you have a conversation with your mother at some stage about not wanting to stay at your Nanna’s house anymore.
A:Yes.
Q:Can you tell the jury how that conversation came about.
A:My mum asked me and asked ‘Why don’t you want to stay at Nanna’s, and I said ‘I just don’t want to stay there’ and she just left it for a bit, then came back after and said ‘Are you sure there’s not something wrong?’, and I told her.
Q:Where did you have this conversation.
A:In my bedroom.
Q:Are you able to recall exactly what you told her.
A:Exactly what’s in my statement.
Q:Can you tell the jury, as best you can recall, what you said to her.
A:I told her that [AO] and I had been talking, [MD] left, he came in my room, used my hand to masturbate and started fondling me and I pulled up my pants and he didn’t, and he got up and left.
Q:Did you use the word masturbate.
A:No, not with her.

After that she never went back to her grandmother’s for cooking classes.
In bringing her evidence-in-chief to a close LO told the jury that her cousin MD’s birthday was on Saint Patrick’s Day. She said that the night on which the appellant sexually assaulted her was before MD’s birthday. She remembered MD’s birthday because the family celebrated by going to TGI Friday’s, a restaurant at Marion Shopping Centre. As far as she could remember that also took place on a Wednesday.
Cross-examination of LO commenced with her agreeing that she was being bullied at school in February 2015 by two girls, A and M. She was in year seven at the time. She told the jury that her parents met with the parents of A and M.
LO was then cross-examined about whether she had made an out-of-court statement to the effect that her mother had assaulted her. She denied telling A and M as much. She agreed that in a statement given to police in 2016 she had said that she had told three friends that her mother had given her bruises that in truth she sustained from playing sport. She was then asked again whether she had ever told anyone in 2015 that her mother assaulted her. She said she had not. She then said that she had never told anyone in 2015 that her mother had given her bruises. LO then explained the content of her police statement on this issue as reflecting what her friends, who she described as manipulative, had her believing.
Cross-examination then turned to the meeting involving A’s and M’s parents. Where initially LO could not say whether this meeting occurred before or after the night when the appellant indecently assaulted her, she now said it took place a couple of weeks beforehand. When asked she said she could not recall saying in front of those present at the meeting that her mother had hit her. She agreed that before the meeting she had told her mother, TO, that she had never said to A and M that her mother had abused her. She was then asked:
Q:And after the meeting in the car with your mum on the way home did you tell your mum that you didn’t really tell the girls that your mum had caused the bruises to you but that you felt under pressure to say what you said in the room with the parents and the children.
A:Yes.
She admitted that in February 2015 she felt “quite upset and stressed” as a consequence of being bullied. Defence counsel returned to the content of LO’s 2016 statement. LO agreed that in it she stated that she had told her friends that her mother had given her bruises. In a more recent statement she had attempted to explain that that was incorrect, although it was what she thought at the time.
Counsel then asked:
Q:And after that initial conversation with your mother did you tell her that you were worried that you might have been pregnant because my client might have come back into your room and had sex with you.
A:Yes.
Q:So you thought that was a possibility, did you.
A:Yes.
Q:And was that something that you say happened or something that you thought might have happened.
A:I was ridiculously late for a period so I was obviously worried as I thought I had become pregnant.
Q:You definitely told your mother that you were concerned because Mr Rorison might have come back into the room and had intercourse with you; yes.
A:Yes.
QBut you are now not saying that that actually occurred, are you.
AYes.
Q:You are not saying that.
A:It didn’t happen.
Q:You are not saying that.
A:No.
Q:But after you spoke to your mother about what you say occurred you thought it might have happened, did you.
A:Yes.
Next LO agreed that her description of what the appellant was wearing when he entered the middle bedroom was the product of her assuming that he continued to wear the clothes she had seen him in earlier that night. She identified him, however, by his silhouette; there was no-one else in the house that it could have been. It was put to LO that PD was present in the house on the night of the offending. LO denied this. She agreed with the proposition that PD “certainly definitely wasn’t there”.
Counsel then turned to the question of when the offending occurred. LO said it occurred in February. She was asked if it occurred in the week after the meeting involving A’s and M’s parents. She said she could not remember. When questioned about her earlier statement that the meeting occurred before the offending she said, in effect, that she had been misunderstood and that the offending occurred first in time. LO said she was indecently assaulted “before the meeting, during the bullying”. As far as she could remember the meeting was in February 2015.
LO agreed that PD would regularly attend cooking class nights but did not attend any in February and March 2015 “because Nanna wasn’t with him”. She then conceded that it was possible PD was present at a cooking class in February, but said it would have been early in the month and not later as PD was not around when the appellant was. She then recalled one night in early February when they had a cooking class and both the appellant and PD were present for dinner. She admitted, however, that she could not be sure of the timing.
Counsel brought his cross-examination to a conclusion by taking LO back to her out-of-court statements. She confirmed her evidence was that at the meeting with A’s and M’s parents she did not say that her mother had hit her and when she told police that she had told three friends that her mother had given her bruises that was incorrect but she believed it to be true when she said it.
In re-examination she explained that she had been bullied her entire school life and the bullying continued after the meeting.
AO was the second witness called by the prosecution. She was 10 years old when she gave her evidence and eight at the time of the offending.
AO confirmed that every second Wednesday she, LO, and their cousins MD and LD, would go to their grandmother’s house. She said that they had been going to PL’s on Wednesday nights ever since she was in kindy. They would cook dinner with PL then play games. She said:
… we would, we’d make – if Papa [J] and Nanna [PL] were together, we would make tea for them too, and then when they split up, [PD] came along, we would make dinner for them and then us, and when [the appellant] came along, we would also make dinner for [the appellant], Nanna and the both of us.
AO said that it was not always the case that MD and LD were also present and sometimes she and LO did not go to cooking class nights.
AO said that sometimes she and LO would sleep over as would MD and LD. If MD and LD left early she would sleep in the room next to PL’s with LO. If she shared the room with her sister, LO would sleep on a blow-up mattress and she on a futon. In time the middle bedroom became the appellant’s and AO and LO slept in the room next to the toilet; the rear bedroom in exhibit P1.
AO said that PD only stayed over at PL’s once when the appellant was also present.
AO confirmed that there was a time when she slept over at her grandmother’s when the appellant came into the bedroom. She said that together the appellant and PL had picked AO and her sister up from school earlier in the day. Ordinarily PL would pick them up but on this occasion she had sore shoulders and so was accompanied by the appellant. She could not recall if on this night PD was also present at PL’s house. She said MD and LD were present. They had a cooking class and ate. MD and LD were then picked up by her aunt. AO could not recall the time. She and LO were sharing the middle bedroom. LO was on the blow-up mattress on the floor. AO had the futon. AO said she woke up and saw “a glimpse” of the appellant touching her sister’s stomach. He was next to LO. She thought he was wearing his skull tank top. She said:
Half of me said he wouldn’t do that, I didn’t believe it, then the rest of me said quickly, yell out to tell Nanna, do something, but I just went back to bed, I was really tired.
She did not speak to LO before going back to sleep.
AO told the jury that she woke a second time. She was thirsty and went to get a glass of water. As she did she noticed the appellant and LO were talking about school. At this time LO was sitting up in her bed and the appellant was standing out in the hallway.
The following interchange with the prosecutor then occurred:
Q:At some stage during one of your visits to your Nanna’s house did you see that … [the appellant] … had gotten an injury of some sort.
A:It was that morning after it happened.
Q:What was the injury, as far as you can remember.
A:He was drinking, he didn’t go to bed and he fell down the stairs, because Nanna has like a balcony sort of, out the front.
Q:Did you see that happen, or not.
A:No, we were in bed, but he showed us in the morning, he got scratches on his hip.
Cross-examination commenced with AO conceding that in her first statement to police she did not mention that she had seen a glimpse of the appellant touching LO but had told the prosecutor of that fact after her memory was refreshed when speaking to her “talk doctor”. AO said it was something that came to mind when her talk doctor asked her if there was anything else she remembered. AO agreed that at the time she thought that what she had seen was a dream.
Cross-examination turned to the injuries that the following morning AO saw the appellant had sustained. The appellant told them he had fallen down some stairs.
Next defence counsel dealt with whether PD was present the night before AO saw the appellant’s injuries. He asked:
Q:Was there a night when [the appellant] came over and had dinner with Nanna and [PD] and you and your sister were there.
A:Yes, but I think [MD] she was there when [PD] came over.
Q:You think [MD] was there or not there.
A:[MD] and [LD] was there when [PD] and [the appellant] had dinner together with us.
Q:Might it have been the case that – if you can’t remember say so but might it have been the case that the night before [the appellant] told you he fell down some stairs and had some injuries, that the night before was when [PD] and [the appellant] and Nanna were there having dinner together.
A:I actually can’t remember as I said before.
…
Q:Just to be clear: the next morning when [the appellant] told you how he got the injuries from falling down the stairs, he was wearing a tank top; yes.
A:I think so, I can’t remember.
Q:What sort of pants was he wearing.
A:I can’t remember. I think he was wearing some Adidas shorts, I think that he was also wearing boxers underneath.
She then said it was a skull tank top that he was wearing.
Next the prosecution called LO’s and AO’s mother, TO. TO confirmed that PL was her mother-in-law. TO and PL’s son, NO, were married in 2009. They separated in July 2014. It was not long after they separated that PL organised for the children to come to her fortnightly on a Wednesday along with their cousins. PL would usually pick LO and AO up from school. PL would keep the children overnight if TO and NO were working.
LO and AO loved going to their grandmother’s, including staying the night. However there came a point “after the incident that we are here for today” when LO told her mother that she no longer wished to stay the night. She said she had homework to do and had left it at home. Her father then attended and took her home. This occurred about one or two Wednesdays before cooking class nights ended. As to the last cooking class night TO said:
A:On the night – on the Wednesday night that I last picked her up of the last cooking night, a couple of nights before, there was going to be a football match that Saturday and we had said ‘Do you want to sleep over after the football match?’, and [LO] said ‘No, I don’t want to and I only live around the corner’ and I said ‘That’s cool. When you get home ring me, I’ll come and grab you’. On the night that I went to pick her up on the Wednesday we were discussing what was going to happen for the football on the Wednesday and [LO] said ‘I would rather not sleep here’ and we said ‘Why?’ and she said ‘My bed is just comfier’ and we left it at that. So from that she wasn’t going to be sleeping on that Saturday night. We left saying ‘Cool, I’ll pick you up from the train station with Nanna after the game’.
Q:Was that reason that she gave or that explanation for not staying something that was usual in her behaviour at that time.
A:No. She would always want to stay there. Other than the one prior to where she had forgotten homework and that was the next sleep, then she said ‘No, I don’t want to sleep. My bed is comfier’ and that’s the excuse she used.
Q:Did you ever probe into that excuse for not going.
A:Yes, when I got home I – [AO] went to bed and [LO] hopped into the shower and I asked her if there was a reason she didn’t want to stay at Nan’s and she just said ‘My bed is comfier’. I came back to her and I asked her again, I said ‘Are you sure?’ and she said ‘Well there was this one time – there was this one time that [the appellant] made me do something’. She came out the shower, we sat on the bed and I said ‘You can tell me anything’ and she proceeded to tell me that [the appellant] had made her do something and I stopped her and I said ‘We need to get dad here’ because [NO] wasn’t at the house. I rang dad and he immediately came over.
…
A:… she said [the appellant] had made her put his hand around his penis and move it up and down.
Q:Sorry.
A:Her hand around his penis and move it up and down. He put his hand under her pyjama top. He tried to then put his hand on her hip and she rolled over so he couldn’t go any further.
After this the girls never went back to PL’s for cooking classes.
The prosecutor then asked TO, by reference to her diary, whether she was working on 11 and 25 February and 25 March 2015. TO said that she was not working on 11 February but was working on 25 February and had worked the night before 25 March.
TO recalled that there was one Wednesday when MD and LD did not attend because they were on a cruise with their parents. She also confirmed that MD’s birthday was on 17 March. Lastly, she completed her evidence-in-chief by telling of a telephone conversation she had with the appellant on 25 February 2015 “a bit after 8’oclock”. It was an inappropriate conversation she said. Significantly she could hear the children in the background. It was a cooking class night.
Cross-examination of TO commenced with her indicating that on 20 February 2015 she attended at a police station to report receiving an abusive telephone call from the parent of another student who was accusing her of having assaulted LO. TO said she had spoken to LO about the allegation. LO said to TO that she had told A and M that she had argued with her mother and yet the next day A and M told their teacher that LO had said to them that her mother had bashed her. TO confirmed that she and NO attended a meeting with A’s and M’s parents. During the meeting LO did say that she had said that TO had hit her, but after the meeting she said to her mother that all she had said was that they had argued. On the advice of LO’s school, TO took her daughter to see their general practitioner to put in place a care plan “because bullying her was so full on”.
RD was called to give evidence for the prosecution. She was AO and LO’s aunt, the mother of MD and LD, and the daughter of PL.
RD confirmed that cooking classes for LO, AO, MD and LD were held every second Wednesday night at her mother’s home. On occasions MD and LD would stay the night, but normally RD would pick them up around 8.30 pm, 10 pm if she was working. Cooking classes came to an end before the long weekend in June 2015. RD said that PD attended cooking class nights for “a little while”, but did not like being around the children because they were too noisy. When her mother became friends with the appellant he started to attend cooking class nights. The appellant attended cooking class nights during the six months up until they came to an end.
RD said that she and her family went on a 10 day cruise in 2015 returning on 16 March, the day before MD’s birthday. RD said the last cooking class night that MD and LD attended before going on the cruise was on 25 February. She recalled that her children were excited to go to the last cooking class before they went on the cruise. RD told the jury that she picked her children up at 10 pm that night because she was working. LD, her son, was asleep in the rear bedroom when she arrived, and MD was in the middle bedroom talking with her cousins LO and AO. She said that when she picked up MD and LD the appellant was present in the house.
She confirmed that after returning from the cruise they celebrated MD’s birthday by going to TGI Fridays at Marion Shopping Centre. PL accompanied them. RD said:
… she told me that night that [the appellant] was officially moving into her house and staying at her house. I sort of said that ‘Well, he’s there all the time, he already lives there anyway’, was my answer. She said, ‘No, he’s officially moving in tomorrow’.
RD was cross-examined very briefly. She was asked if it was possible she was mistaken about seeing the appellant at her mother’s when she picked MD and LD up on the last cooking night before she and her family went on a cruise. No she said, “because he did ask ‘Are you going on a cruise?’. He was telling me he’d been on a cruise, there was a small conversation about that.” RD was then asked if it was possible she spoke to PD that night. She said it was possible, but she did not remember doing so.
PL was the next witness for the prosecution. She had had an on and off again relationship with PD for five years. She also told the jury that she and the appellant had “had a fling”. She said the appellant became her boarder in March 2015. Before then he would stay over on occasion, sleeping either in her room or in the end room (the rear bedroom in exhibit P1) in which there was a small bed. Whilst there was a futon in the middle room there was no bed. When the appellant commenced to board with PL they moved the furniture around so that he could use the middle bedroom but if they were busy they would stay until the morning.
PL confirmed that her grandchildren would come to her every second Wednesday for cooking classes. Cooking classes first began when LO was about five or six years old. The classes were PL’s idea. She liked to cook. The classes were a means of allowing her to maintain contact with her grandchildren. The grandchildren would stay overnight a couple of times a year. Usually their parents would pick them up.
PL told the jury that usually she would pick LO and AO up from school on cooking class nights, unless it was school holidays in which case they would be dropped over. MD and LD were dropped off by their parents. PL would cook dinner with the children and they would play games. Occasionally one or more of the children missed a cooking night because of other activities.
PL said that if PD was around on a cooking class night and LO and AO were staying over, the girls would sleep in the middle room and PD would use the end room. When her relationship ended with PD he no longer visited. As for the appellant, he would stay over on nights when there were cooking classes. He would sleep in the end bedroom. On cooking class nights LO and AO would continue to sleep in the middle bedroom. In the middle bedroom there was a futon and blow-up mattress for LO and AO to use.
PL said that there was only one occasion when the appellant and PD were both at home on the same night as a cooking class. She recalled:
We would all have dinner. The girls and I cooked. [The appellant] helped cook, as he did, and we all had dinner. Before the clean-up, [the appellant] said he was going to go now and catch up with some mates at the Emu Hotel, so he then left and the girls and I cleaned up, and played some games probably, I’m not sure about that bit, then the girls went to bed, [PD] and I sat up and had a couple of more drinks, watched some TV, went to bed, between 12 and 1 and then in the middle of the night I heard something, like somebody trying to break into the house and the door was banging, the security door, so I put my dressing gown on and got up to the door and I could hear [the appellant] saying ‘It’s only me, it’s only me’, and so I opened the door, and he was upset and panicky and quite loud, so I’m asking him to be quiet because people were asleep and [PD] came to the bedroom door, his bedroom door and I said ‘okay, [the appellant] has had an accident’. I dont know what sort of accident at the time, and when I got him into the house I realised he had got cuts and abrasions and quite nasty scarring to the left and side of the waistline (sic), down his knee and on his arm and hand, so I took him out to the back garden. It was a warm night, he had a T-shirt, singlet top and pair of shorts on, so I spent a couple of hours calming him down and cleaned up all his accident bits and pieces that were wrong with him, and tried to get him to settle down and he was too agitated and I tried to go to bed and he kept coming into my room and disturbing me and I didn’t want him to disturb the kids and [PD], so I ended up sitting up with him for most of the night after that and then morning came, [PD] woke up, he had his shower and I took him to the train station and I came back and looked after the girls.

At the time she left home to take PD to the train station the appellant was sitting out the back having a cigarette and a coffee. LO was awake when she left.
On the night of the appellant’s “accident” he left for the Emu Hotel around 7-7:30 pm, MD and LD were picked up by RD around 10-10:15 pm, and LO and AO stayed over, sleeping in the middle bedroom. PL went to bed that night some time after midnight or 1 am and had been asleep for a couple of hours when she heard the appellant at the front door. After tending to the appellant PL did not go back to sleep that night.
PL said that cooking class nights fell on Wednesday 11 and 25 February 2015. There was one cooking class night in March 2015 – the 11^th. MD and LD were on holiday at that time and did not attend. PL also confirmed that MD’s birthday was on 17 March and that in 2015 they celebrated MD’s birthday at TGI Fridays at Marion.
PL was asked if she could recall the date of the cooking class night when both the appellant and PD were at her home. She said she thought it was 25 February 2015 “but I’m not 100% sure”. Her reason for nominating the 25^th was because the appellant moved in as her boarder the following month and it occurred before he moved in.
In cross-examination PL said that whenever LO and AO stayed overnight they would share a room. AO would have the futon and LO the mattress on the floor. She conceded that in her statement to police she said differently.
She said that prior to the appellant moving in the only night that she could recall that both LO and AO shared the middle bedroom was the night when PD stayed. As best she could remember that was the night of 25 February 2015. PL said that at that time she was still in a relationship with PD. It was also the night that the appellant, who had been at the house for dinner, left at 7-7:30 pm to go to the Emu Hotel and returned about 3 am. He was intoxicated and had injuries as a consequence of falling.
PD was the last witness called in the prosecution case. He confirmed that he was in a relationship with PL and had been for 5-6 years with “a couple of breaks in between”. One break in the relationship occurred around Christmas 2014 but the couple reconciled sometime in early 2015. As a consequence of their relationship, PD had been present at many cooking classes. He gave evidence of who attended cooking classes, how they got to PL’s, whether they stayed the night, and who picked them up generally consistent with the other witnesses for the prosecution. He said that if the children stayed over they would use the middle bedroom unless “both lots” stayed over in which case they would use both the middle and end bedrooms.
PD was aware that in early 2015 the appellant “was around”. He saw him as a threat. The appellant was first “on the scene” about 12 months before PL and PD broke up. PD said he did not attend cooking class nights for a few months between Christmas 2014 and early 2015 during which time he and PL were not in a relationship.
PD said that the appellant attended cooking class nights a few times when PD was also present whilst PD was still in a relationship with PL. PD was not present at cooking class nights during the breaks in his relationship with PL.
When the appellant stayed the night PD gave the following evidence:
Q:Do you remember whether [the appellant] ever suffered any injury at any point during the times you were attending the cooking classes.
A:Yes, there was one time in particular where he sort of fell down an embankment and scraped all his arms, his sides, legs, backside, everywhere. It was pretty horrible. I sort of saw the results of that in the morning, because he got thrown out of the pub and had to get a taxi back to get to his tent.
Q:So where were you staying in the house that night.
A:I would’ve been in the third bedroom.
Q:So I understand you to say that you slept through the night and weren’t aware of that happening.
A:I got woken up during the night because there was a bit of noise where he sort of came back and [PL] was attending to his injuries, but I sort of just switched off and said ‘You look after him’.
PD was not asked and did not say when he thought this night occurred. He was not cross-examined.
A number of facts were agreed before the closure of the prosecution case including that 4, 11, 18 and 25 February 2015 were Wednesdays as were 4, 11, 18 and 25 March 2015. Further St Patrick’s Day fell on a Tuesday in 2015. Lastly:
At no stage during the meeting between LO and her parents and her school mates M and A and their parents in February 2015 did LO say that her mother had hit her; she said that she had on an earlier occasion told M and A that her mother had hit her.
From the above it is clear that at the close of the prosecution case:
a.LO’s evidence was that the offending occurred on a Wednesday in February 2015, that MD and LD were at the cooking class held that night but did not stay over, that she and AO slept in the middle bedroom, that the appellant was in the house all night, and that PD was not present. LO did not nominate which of the Wednesdays falling within February 2015 were cooking class nights;
b.AO’s evidence was that she woke to see the appellant lying on the blow -up mattress next to her sister LO with his hand on LO’s stomach. It was a Wednesday night. Earlier in the evening AO, LO and their cousins, MD and LD, had taken part in a cooking class with their grandmother. MD and LD did not stay the night. AO and LO slept in the middle bedroom. She could not remember if PD was present. The next morning when she woke she spoke to the appellant. He showed her some scratches on his hip which he said he got from falling down some steps. Like LO, AO did not nominate which of the Wednesdays falling within February 2015 were cooking class nights. In fact AO did not say in what month the night she caught a glimpse of the appellant fell.
c.TO confirmed that there was a Wednesday when MD and LD did not attend cooking class night because they were on a cruise. Further on 25 February 2015 she spoke on the telephone to the appellant after 8 pm. Because she could hear her children in the background, TO was able to say that it was a cooking class night. Thus it is TO who first nominates 25 February 2015 as a cooking night. Doing so was in conformance with her 2015 diary which indicated that she was working that night. If TO’s evidence was accepted, and it was also accepted that cooking class nights were fortnightly (which was not in dispute) then the other cooking class night in February 2015 fell on the 11^th. From this it would also follow that 11 and 25 March 2015 were cooking class nights. TO was never asked whether on 25 February 2015 PD was present at PL’s.
d.RD confirmed TO’s evidence that there was a cooking class night held on 25 February 2015. RD attended at her mother’s house that night at around 10 pm to pick up MD and LD. The appellant was present she said. She could not recall PD being present, but it was possible. The cooking class of 25 February 2015 was the last before RD and her family went on a cruise returning 16 March 2015.
e.PL said there were two cooking class nights in February 2015, the 11^th and 25^th. PL thought, but could not be 100% sure, that there was one cooking class night when both PD and the appellant were present which was 25 February 2015. She thought it was the cooking class night when both PD and the appellant were present that the appellant subsequently left to go to the hotel at around 7-7:30 pm. He returned at around 3 am and, save for a brief period during which PL tried to get back to sleep, was not alone. PL added that the only night that AO and LO slept in the middle bedroom together was the night the appellant returned to the house hurt after having been to the Emu Hotel.
f.PD confirmed that there was a night when he was sleeping at PL’s and he appellant returned to PL’s injured. He was not asked when that night was.
The Defence Case
The appellant gave evidence. He denied committing the acts subject of the charges. He said he had never touched LO sexually.
The appellant was asked:
Q:… we’ve heard some evidence during the prosecution case with respect to an occasion where you received some injuries.
A:That’s correct.
Q:Are you able to approximate as best you can when, in what year you received those injuries.
A:It would have been 2015, on the 25^th, I think, of February, I think it was February, yes.
Q:How do you remember that date.
A:Basically I’m pretty good with my dates, work-wise and things like that.
Q:Prior to receiving those injuries where were you that night.
A:I was at [PL’s] place and helped with dinner and that. I left there about 7.30.
Q:Who was at [PL’s] house when you helped cook dinner
A:There was [PD] and the four children were there.
The appellant then went on to say that he left PL’s house at approximately 7:30 pm and went to the Emu Hotel in Morphett Vale. There he caught up with some friends and played eight-ball. He told the jury how when he left the hotel he fell nine or ten feet down “these blue stones” and into a creek. A bouncer from the hotel came to his assistance and helped him into a cab which took him back to PL’s where he arrived at around 3-3:30 am. He went inside. PD and PL were there. PD went back to bed.
The appellant said he did not go to sleep that night. PL stayed with him for all but 15-20 minutes.
The next morning PL took PD to the train station around 6:45 am. The appellant said he could recall seeing AO that morning but not LO. He said he told AO that he had fallen down the steps in front of the house.
In cross-examination the appellant said that he was intoxicated the night he fell. He had a dozen scotch and cokes at the hotel. In terms of his level of intoxication, on a scale of one to ten, he was a seven-and-a-half he said.
PL had told him that he arrived home around 3-3:30 am. He recalled saying good-bye to “all the kids” earlier in the evening; around 7:30 pm. He recalled leaving at around 7:30 pm because eight-ball started at 8 pm. He denied speaking to TO on the telephone that night, but admitted having had a telephone conversation as she described on a different night.
The following exchange occurred between the appellant and the prosecutor:
A: I do have a very, very good memory of this day because of everything that’s been put against me.
Q:When did you first become aware of the things that have been put against you.
A:The day I was arrested.
Q:In June 2015.
A:That’s correct.
Q:By that stage, this day was more than three months earlier.
A:I was told by police it was between this day and that day.
Q:So you didn’t even know when the date was.
A:No, I didn’t know exactly what date it was.
Q:How did you have a memory of this particular night given what had been alleged against you.
A:Because of my injuries and that’s the same night they are saying that it actually happened.
Q:How did you know that they were saying it was happening on the night of your injuries.
A:Because I heard it in court.
Q:Well, did police tell you that at the time they arrested you.
A:No, they didn’t.
Q:So, how did you know then that they were referring to the night that you’d sustained your injuries.
A:They weren’t referring to that night.
Q:Well then why does the night you sustained your injuries stand out in your mind as you say it did.
A:Because that’s the only time I was there when I had the injuries and I never stayed over when those children were there, on those certain times.
The appellant then said that after speaking to PL he worked out the date of the last time he was at PL’s helping cook dinner and it coincided with the evening he was hurt. He added that his memory was jogged when he heard AO’s evidence. The prosecutor then put to the appellant:
Q:So it’s not actually because you were only aware of it at the time, it’s because you just heard about it yesterday.
A:That’s possibly correct.
The appellant then told the jury that he moved in with PL around 12 March 2015. He had stayed at PL’s once or twice before moving in but not on cooking nights. He admitted being present for “maybe six” cooking class nights, the first being in late 2014. On two, possibly three of those nights PD was also present. He repeated that he only stayed at PL’s the one time when the children were there. On cooking nights he would normally leave about ten “when the girls were picked up” because he had to make arrangements for work the next day. He denied ever going into the bedroom in which the girls were sleeping.
He agreed that he did have a conversation with RD when she came to PL’s to pick up MD and LD, but he did not think that the conversation occurred on 25 February 2015. That conversation he said took place after he had moved in. He remembered he was feeding his pet snake at the time and RD “freaked out about him and took off” running through the kitchen. That conversation was about the cruise he said. When it was pointed out to him that RD’s family went on the cruise before he moved into PL’s, he then said that the conversation with RD must have happened “around February, early February or something”. He then conceded that the conversation could have been on 25 February or could have been on 25 March. Then again, he said, he did not recall when the conversation took place.
The appellant repeated that he never stayed the night at PL’s when the children were there. He denied indecently assaulting LO.
Thus the appellant contended that he had in effect an alibi for 25 February; he was not at PL’s house between 7-7:30 pm and 3-3:30 am and after 3-3:30 am had no opportunity on anyone’s case to commit the offences with which he was charged.
Submissions
The appellant’s primary argument starts with the contention that as at the close of the prosecution case all dates falling within the charge period on which the offending could have occurred had been excluded save 25 February 2015. The next step in the argument is the contention that the evidence was incapable of excluding as a reasonable possibility that on 25 February 2015 the appellant had left PL’s house at around 7-7:30 pm to go to the Emu Hotel returning by taxi at around 3-3:30 am after falling and hurting himself. Thereafter it is reasonably possible, it is submitted, that he did not have the opportunity to commit the offences as at no time was he alone for any sufficient length of time and, in any event, he was not in the house an hour after MD and LD were picked up when the offending occurred as LO said.
Critical to the appellant’s argument is the exclusion of 11 February and 11 and 25 March as possible cooking class nights on which the offending occurred, and, accepting the evidence of himself, AO and PL as giving rise to the reasonable possibility that he was not present in the house on 25 February at the time when the offending occurred or when present after 3-3:30 am, he did not have the opportunity to commit the offences.
The respondent submitted that the evidence did not rise so high as to establish that the only date on which the offending could have occurred was 25 February 2015. Further, even if it did, it was open to the jury to reject the suggestion that the appellant hurt himself after drinking and playing eight-ball at the Emu Hotel on 25 February 2015 as opposed to another cooking class night.
The appellant’s secondary argument is to the effect that LO’s evidence was beset by inconsistencies of a number and nature that precluded a jury from being satisfied of the appellant’s guilt beyond reasonable doubt. Here the appellant pointed to the inconsistency between LO and AO as to what the appellant was purportedly wearing when he came into the middle bedroom and AO’s denial contrary to the evidence of LO that they spoke upon the appellant getting up off the blow-up mattress and leaving the middle bedroom. He also points to LO’s evidence about what she told A and M about her mother, the meeting, and LO’s evidence about her initially thinking the appellant might have had intercourse with her as indicative of a troubled 12 year old, engaged in attention seeking behaviours, who was prepared to say differing things at differing times for personal gain derived from whomsoever she was talking to. To the extent that AO’s evidence might be said to corroborate LO’s evidence of the indecent assaults, the appellant pointed to disparity in the evidence AO gave in court after speaking to her talk doctor and the content of the statement she provided to police in June 2015.
Consideration
In The Queen v Pfitzner this Court dealt with the question of the materiality of dates identified in charges.[5] Bray CJ who was in dissent in the outcome but not on the point of principle said:[6]
... Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v. Butcher. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v. Nicholson.
[footnotes omitted]
[5] (1976) 15 SASR 171.
[6] The Queen v Pfitzner (1976) 15 SASR 171 at 185.
To similar effect Wells J said:[7]
Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer. Even where, at the end of a trial, they are indisputably correct as they stand, they could not, on their own, have performed the broad task of ensuring that the forensic contest is directed to the same issues, and that the accused is treated fairly.
One or two examples will make the point clear. The defendant is charged with making an affray on a particular date. The Crown opening discloses that the witness to be called would depose to two quite separate incidents, each of which would, ex facie, answer the description given in the particulars in the information. Assuming that it is not possible in the circumstances to regard each incident as part of what was essentially one affray extending over a period covering both incidents, the defence would plainly be entitled to call upon the Crown to elect which incident was alleged to form the subject of the charge, even though the particulars as they stood correctly described both. It would be quite unfair to the defendant to instruct the jury that they could convict if either incident was found proved. Compare The Queen v. Warren, at page 318.
Take a slightly different case. The accused is charged, on two counts, with indecent assault; each offence is alleged to have occurred near a particular country town on the same day. The two indecent assaults are alleged to have been committed during a journey in a motor car which the accused drove, and in which the girl was a passenger. According to the Crown opening, the car stopped on four occasions during the journey and the two offences allegedly were committed at two of the stopping places; each of the four stopping places could be identified by the girl. It seems to me that if the whole conduct of the Crown case rested upon allegations that the two offences occurred at stopping places 1 and 3, it would be wrong to direct the jury that they could convict of the offences alleged even if they believed that they occurred at stopping places 2 and 4 notwithstanding that those convictions would be wholly consistent with the particulars. It could well be otherwise, however, if the girl was so frightened and confused that she was unable to say where the offences were committed save that the car was not travelling at the time and the case was presented and fought on that basis. The exact structure of the forensic contest would determine what was, and what was not, in the circumstances, fair to the accused.
Those cases are the converse, more or less, of the case before us, but they demonstrate at least that the course of the trial is crucial for the determination of what is fair to the accused; the Crown could not justifiably rely simply on the words of the particulars in the information.
[footnotes omitted]
[7] The Queen v Pfitzner (1976) 15 SASR 171 at 192-193.

This statement of principle underpins the appellant’s primary argument in this case. The present case is not unlike the second of Well J’s examples. SKA was also a case of this type.
Despite the charge period being between 1 February and 31 March 2015, the prosecution case was that the offending occurred in February 2015. LO said as much. Cooking class nights were identified as falling on 11 and 25 February and 11 and 25 March 2015. LO said the offending occurred before MD’s birthday (17 March), thereby excluding the 25 March cooking class night, and on a cooking class night when both MD and LD also attended, thereby excluding the 11 March cooking class night as at that time MD and LD were on a cruise with their parents. Thus on LO’s evidence two possibilities remained – 11 and 25 February 2015.
In cross-examining LO counsel attempted to tie the date on which the offending was said to have occurred to the timing of the meeting that took place between LO’s parents and the parents of A and M. As mentioned above the topic was touched upon three times in cross-examination. Initially LO said the meeting took place around February 2015 but could not remember if it took place before or after she was indecently assaulted. She then said the meeting took place in February 2015 a couple of weeks before she was indecently assaulted. When the topic was broached the third time the following exchange occurred:
Q:Are you unable to say whether it was February or March [when the appellant came into LO’s room and indecently assaulted her], you just don’t know.
A:February.
Q:And was this the week after the meeting with the parents and [A] and [M].
A:I’m not aware, I don’t remember.
Q:But I think it was your evidence, correct me if I am wrong, that the night that [the appellant] came into your room and sexually assaulted you was after the meeting with [A’s] and [M’s] parents or your parents.
A:No, that’s when I made the second statement.
QSorry.
AThat’s when I made the second statement.
Q:Your second statement was in July 2016; correct.
A:Yes.
Q:You remember the meeting with [A’s] and [M’s] mum and dad.
A:Yes.
Q:And with your mother.
A:Yes.
Q:And I’m simply asking you was the night that you say my client sexually assaulted you before or after the meeting with [A’s] and [M’s] parents.
A:Before.
Q:You say [the appellant] assaulted you before.
A:Before the meeting, during the bullying.
Q:And the meeting was in February 2015.
A:As I remember.
As mentioned LO’s mother, TO, gave evidence. She confirmed that the meeting with A and M’s parents did occur. She was not asked when the meeting took place although she said it was after she attended at the Christies Beach Police Station on 20 February 2015 to make a report of an abusive telephone call she had received from a school parent. Thus TO’s evidence of the timing of the meeting was not inconsistent with LO’s final position on the topic. This evidence also strengthened the possibility that the offending occurred on 11 February and rendered less likely the possibility that it only occurred on 25 February. Importantly, there was nothing in the evidence regarding the timing of the meeting and the timing of the offending that excluded either of the cooking class nights in February 2015 as the possible dates on which the offending occurred.
Staying with TO’s evidence, she told the jury that if she and NO were working LO and AO would stay overnight with PL, but would be picked up if they were not working. That answer was given in the course of telling the jury the “usual” position. TO was never asked if LO and AO ever stayed at PL’s on a night that she was not working. And none of LO, AO or PL were asked if LO and AO did not stay overnight at PL’s on 11 February or if TO and NO were working that night.
TO had also said that after she and NO separated LO and AO would stay overnight at PL’s “maybe once every two months … maybe once every month. On some occasions when myself and [NO] were working [PL] would have them overnight to help out with baby-sitting.” That answer has two aspects; first, the obvious – the general frequency of overnight stays. Second, overnight stays were not confined exclusively to nights when TO and NO were working. Thus, it remained possible on TO’s evidence that despite her not working on 11 February, LO and AO stayed overnight at their grandmother’s. She was never asked if they did not do so.
Turning to TO’s evidence of the telephone conversation she had with the appellant. She said it occurred on 25 February, that it was a cooking class night, and that the call took place at 8 pm. If TO’s evidence as to this call was accepted, the appellant had not left PL’s between 7 and 7:30 pm.
I return to LO’s evidence. LO was certain that PD was not present on the cooking class night on which she was sexually assaulted. She was never asked if the appellant left the house that night to go out at around 7-7:30 pm. She was never asked if she saw the appellant the following morning with injuries and was never asked whether the particular cooking class night on which she says she was indecently assaulted occurred before her cousins went on a cruise and, if so, how long before. Lastly, LO was never asked whether as at the night on which she was assaulted the appellant was living at PL’s or whether the night she says she was indecently assaulted was the only night that the appellant had ever stayed over at PL’s when she and AO did likewise.
It was AO who first linked the night of the offending to the night on which the appellant was injured. AO was never asked if the appellant left the house that night at around 7-7:30 pm. She was never asked if the appellant was in the house when RD picked up MD and LD. She was never asked if the particular cooking class night took place before or after MD’s birthday, if indeed she knew the date, or before or after MD and LD went on a cruise with their parents, if indeed she was aware that they had done so. AO did not say that it was the night of 25 February 2015 that the appellant sustained his injury. AO was never asked whether the night she caught a glimpse of the appellant with his hand on LO’s stomach and saw his injuries the following morning was the only night that the appellant stayed over when she and LO did likewise.
AO’s evidence left unexplained when the appellant was said to have left the house and sustained his injury. Whenever that occurred, on AO’s evidence, it did not mean that the appellant did not enter the middle bedroom and lie down on the blow-up mattress next to LO where AO “caught a glimpse” of him with his hand on LO’s stomach. And it did not mean that the appellant did not return to the middle bedroom at a later point and engage in a conversation with LO about school. To the extent that AO saw these things her evidence is corroborative of LO.
In cross-examination it was revealed that AO’s memory of seeing the appellant touching LO’s stomach had been jogged after conversations she had had with her “talk doctor” that took place after she had first given a statement to police. Her talk doctor asked her if there was anything else she remembered. There was nothing to indicate that the talk doctor had been suggestive in any way. Further, AO said she had spoken to LO about what occurred, but the detail of those conversations was not explored.
Clearly AO’s credibility and reliability were in issue. Defence counsel suggested that her evidence be put to one side, emphasising that her recollection was in part refreshed after speaking to her talk doctor. I do not find defence counsel’s criticism of AO compelling. As is discussed below AO’s refreshed memory does not appear a material departure, if any, from what she said to police in her June 2015 statement.[8] In address the prosecutor suggested that AO may have conflated the events of two different nights at PL’s. That was a possibility.
[8] At [129].
At this point it may be observed that it was not suggested that LO and AO were mistaken or in error in any way in the evidence they gave about the context in which the offending was alleged to have occurred. A cooking class night attended by all four grandchildren, where only two stay the night, where they sleep in the middle bedroom, one on a blow-up mattress and the other on a futon. That context embraced the friendships of their grandmother. In this regard LO was certain PD was not present. PD gave evidence that he did not attend cooking nights during those periods when he was no longer in a relationship with PL. He said that they were not in a relationship during the period between Christmas 2014 and early 2015. That evidence would embrace 11 February, tending to suggest that LO was right and might extend into March when the appellant was a boarder. On the evidence it appears that during the period that the appellant was a boarder PD was not in a relationship with PL. LO, AO, PL and PD all said there was only one occasion when the appellant and PD were both present on a cooking night. As indicated it was LO’s evidence that that night was not the night on which she was indecently assaulted. That would suggest that AO has conflated the events of two different nights. But for present purposes the point is that the evidence AO and LO gave as to the context in which the offending occurred was not disputed by any witness. Perhaps more to the point it is a relatively sophisticated context for a fourteen year old and a ten year old to manufacture.
It is PL who nominated the night of 25 February 2015 as the night on which the appellant sustained his injuries. However, she said, “I think it was the 25^th but I’m not 100% sure”. That is, on PL’s evidence the night that the appellant and PD both stayed and the appellant was injured could have been 25 February, but it could have been another cooking class night. True it is that she also said that she could not think why LO and AO were sharing the same room, unless someone else was staying over, but her evidence in this respect was at odds with the evidence of LO, AO, RD and PD. Further, RD said, without qualification, that LO and AO were in the middle bedroom when she picked MD and LD up on 25 February 2015 at around 10 o’clock.
Whilst on RD’s evidence, it is to be remembered that she said that when she attended to pick her children up at 10 o’clock the appellant was at her mother’s home. If that is right, he did not leave to go to the Emu Hotel at 7-7:30 pm or possibly at all that night. In cross-examination she remained firm that the appellant was present. This was the night her children were excited to see their cousins on the last cooking class night before they went on a cruise. The appellant, she recalled, asked her about the cruise. If RD’s evidence was accepted, 25 February 2015 was not the cooking class night on which the appellant was injured. If RD’s evidence was accepted both 11 and 25 February remained possible dates upon which the offending could have occurred, noting that the cruise was for ten days in March 2015. If RD’s evidence was accepted, and she was firmer in her memory of 25 February than PL, then it was likely that PL was mistaken in nominating 25 February 2015 as a possible cooking class night on which the appellant had injured himself, and, it was likely AO had conflated the events of two nights.
So far I have only looked at the evidence called in the prosecution case. An independent assessment conducted by this Court must take into consideration the entirety of the evidence.
The appellant first nominated 25 February 2015 as the night he was hurt because “I’m pretty good with dates”. In cross-examination it was pointed out to him that no-one had nominated a date as opposed to a range of dates on which the offending was alleged to have occurred. He then indicated that he had nominated 25 February 2015 as the night he hurt himself because “that’s the same night they are saying that it actually happened”. No longer was it a matter of his having a good independent memory. He then admitted he nominated the date because “I heard it in court”. Subsequently, with reference to 25 February 2015 he said that it was the only time he stayed overnight when the children were present. He had worked out the date from speaking to PL and his memory was jogged when he heard AO give her evidence. He then conceded that it was “possibly correct” that he nominated the date upon which he had hurt himself and returned to PL’s because of the evidence he had heard.
The appellant’s evidence does not directly assist in determining the date upon which he was hurt after going to the Emu Hotel. It is dependent upon AO’s and PL’s evidence. On paper it is unsatisfactory and has a flavour of the opportunistic about it.
More significant was the appellant’s evidence that there was only the one occasion when he stayed the night at PL’s on a cooking class night and that that particular night was the same night that he was hurt. That evidence could be considered at odds with RD’s retort when advised by her mother in mid-March that the appellant was moving in as a boarder. The jury sent a question to the trial Judge asking for confirmation that PL had said that the appellant stayed over more than once on a cooking night when LO and AO stayed overnight. The relevant parts of the transcript were identified and read to the jury. In examination-in-chief PL was asked in which room in the house LO and AO slept when they stayed over. She answered that it “depended if there was anybody else, if somebody else was there. If my partner was there, he would sleep in the small room and the girls would sleep in the middle room”. A little later she was asked:
Q:And when [the appellant] was staying, did the girls continue to come to cooking classes.
A:Yes, they did.
Q:If they would sleep over at the time you knew [the appellant], when he was visiting, where would they sleep.
A:In the middle room.
In cross-examination she was asked:
Q:So prior to my client [the appellant] moving in, is it the case that the only night that you can recall that both LO and AO shared the middle bedroom was when somebody else stayed in the house.
A:Yes.
Q:And is it the case that the only night that that occurred prior to my client moving in was when [PD] stayed the night.
A:Yes.
Little reliance can be placed on PL’s answer to the final question. What if all four grandchildren stayed over? In such circumstances PD’s evidence was that both the rear bedroom and the middle bedroom would be used by the children. Further the answer in the second passage is inconsistent with that in the first. Why would LO and AO be in the middle bedroom if, PL’s relationship with PD being over and PD not being around, no-one was in the rear bedroom? And it must be remembered that RD saw LO and AO in the middle bedroom when she picked up MD and LD on 25 February 2015. She did not think PD was there. It is likely PD and PL were not in a relationship at the time suggesting RD was right in her belief that he was not there and LO was right in positively asserting that he was not. Perhaps PL understood “visiting” to mean that the appellant was staying over. If that is so there is a further internal inconsistency. And, again, RD’s evidence as to her reaction when told that the appellant was moving in suggests that PL’s memory of the frequency of the appellant staying over prior to him moving in as a boarder was deficient.
In view of PL’s earlier evidence I do not think that in the second passage quoted above she was saying that LO and AO had only ever stayed the night once in the middle bedroom.
More importantly this obviously was a case where the jury had a distinct advantage over this Court. Nothing in the differences or inconsistencies between LO, TO, RD and PD on the one hand, and AO, PL and the appellant on the other as to whether the appellant stayed the night and did not go to the Emu Hotel on a cooking class night in February 2015 operated as an immoveable obstacle to the jury reasoning to guilt. In my view it was not the case that the jury must have had a reasonable doubt that the offending occurred on either and both of 11 and 25 February 2015. I consider that it was open to the jury to conclude that AO and PL were mistaken, that the appellant’s evidence as to the date upon which he hurt himself was opportunistic and unreliable, and that the appellant and, arguably, PL were to be rejected in contending that the appellant only ever stayed the night once on a cooking night prior to moving in as a boarder and that was the night when PD also stayed.
Here I also bear in mind the appellant’s evidence of the conversation with RD when she came to pick her children up about her upcoming cruise. His shifting position could not but have had an adverse impact upon the jury’s assessment of his credibility and reliability.
Turning to the appellant’s secondary arguments. The appellant suggests that LO’s evidence of her movement whilst lying on the blow-up mattress supposedly next to the appellant provides reason to consider her untruthful and unreliable. LO said that when the appellant entered the room she was lying on the blow-up mattress on her right side, with her right arm underneath her “closer to the futon” and facing the futon. When the appellant tried to put his hand into her pants she said she moved away from the appellant “more off to the left, towards the futon”. The argument is that in moving to the left she was moving toward the appellant, not away from him.
In examination-in-chief LO had said, by reference to P1 photograph 4, that the futon was behind the door to the middle bedroom and that the blow-up mattress on which she slept was in a position approximating that of the end of the bed that can be seen in the photograph (which was not in the middle bedroom in February 2015). She said the appellant came in and laid down next to her on the blow-up mattress. He took her “left hand and guided it down his pants and underneath his boxers”. She repeated that she was lying on her right hand side with her “left arm just hanging there”. She did not say and was never asked whether the appellant was behind her or in front of her. Regardless the appellant’s submission assumes that the appellant was facing LO.
AO was only twelve years old. The appellant was obviously a more mature man weighing between 95 and 100 kilograms. Likely difference in body size and in particular the comparative width of the appellant and LO if each were lying on their sides does not render it impossible by any means for the appellant to have taken the left hand of the appellant as she was lying on her right hand side and placed it on his penis as he lay on his right hand side behind her.
Next the appellant points to LO’s evidence that the appellant was wearing a “dragons footy top” and some black tracksuit pants “with silver bullets down the sides” which was different to AO’s evidence that he was wearing his pyjamas and possibly his skull tank top. There is no necessary inconsistency here. LO conceded that she could not see what the appellant was wearing, but assumed it was the same as he had worn at dinner time. The appellant did not give evidence of what he was wearing.
Clearly the evidence of AO and LO is not inconsistent. The complainant said that she did not see the details of what the appellant was wearing when the offences were committed. Her assumption of what the appellant was wearing was based on her observation of what he was wearing at dinner. It is not impossible that the appellant changed.
LO gave evidence that after the appellant left the room the first time, her sister asked, “Is he gone?” LO said that she then told her sister not to tell anyone about what had occurred. Further she said that she was crying at that time. AO did not mention any such conversation. In fact she denied speaking to LO immediately after the incident. Further AO did not give evidence of seeing her sister crying. In the dark and half asleep it is possible that AO did not see or notice that LO was crying. The difference between AO and LO as to whether they spoke cannot be so easily discounted. However, viewed on its own it does not present as an obstacle to accepting LO as a truthful and reliable, nor indeed AO as truthful and reliable although in parts mistaken.

The appellant then points to the fact that AO only remembered about seeing a glimpse of the appellant touching the complainant on the stomach after she spoke with her “talk doctor” in July 2016. It is suggested that this is inconsistent with what she told the police in June 2015. AO agreed that in June 2015 she told the police that the appellant came into the bedroom “and felt [LO] a bit”. AO was never asked what she meant when she said to the police that the appellant felt LO a bit. Was she attempting to explain that she saw him touch her on the stomach? The period of time during which she was looking aside, it is not apparent to me that what she told the police and what she said in evidence about the appellant touching or feeling LO were necessarily inconsistent.
I have already dealt with AO’s evidence as to seeing the appellant’s injuries the morning after the appellant was, on AO’s evidence, said to have come into the middle bedroom. It was clearly open to the jury to consider that AO had confused the events of two distinct nights.
The appellant also points to the evidence that around the time of the offending LO was dealing with bullying at school, had engaged in self-harming behaviour, and, it was submitted, lied about her mother having given her bruises.
LO gave evidence that around February 2015 an issue arose involving A and M and some bruising she had sustained. In that regard LO:
a.Denied telling A and M that her mother had assaulted her;
b.Denied telling A and M that her mother had given her the bruises;
c.Agreed that in a 9 July 2016 statement to police she said that she had “told three friends of mine that mum had given me the bruises. I didn’t say how”.
d.Denied that she told anyone in 2015 that her mother had assaulted her.
e.Denied that in 2015 she had told anyone that her mother had given her bruises.
f.Explained:
Q:   The words that you use in your statement of 9 July 2016 were I suggest ‘I told three friends of mine that mum had given me the bruises. I didn’t say how,’
A:   Yes.
Q:   And where were you when you told your friends that your mum had given you bruises.
A:   I was at a party, I’d never said she had given me the bruises though.
Q:   What did you tell them.
A:    I had an argument with mum.
Q:   But when you gave a statement to the police on 9 July 2016 you signed as being true and accurate the statement that ‘I told three friends of mine that mum had given me the bruises: yes.
A:   Yes.
Q:   So you believed as of July 2016 at the time you gave the statement that you had told your three friends that your mother had given you the bruises.
A:    Like I said they had me believing that.
g.Denied that she said at the meeting with A’s and M’s parents that her   mother had hit her.
h.Agreed that before the meeting with A’s and Ms’ parents she had told her mother that she had never told A and M that her mother had abused her.
i.Agreed that she told her mother after the meeting with A’s and M’s parents that she didn’t really tell A and M that her mother had caused her bruises but had felt under pressure to say what she said at the meeting.
It was an agreed fact that at no stage during the meeting in February 2015 involving LO, her parents, and A and M and their parents did LO say that her mother had hit her, rather at the meeting she said that on an earlier occasion she had told A and M that her mother had hit her.
LO’s evidence on this issue is difficult to evaluate because of the changing terminology used. The trial Judge alerted counsel to this. LO was never asked whether she had ever told anyone in 2015 that her mother had hit her. The agreed facts indicate that she had, but they do not necessarily establish an inconsistency.
No prior statements made by LO were proved to establish that the denials she made as set out at (a), (b) and (d) were necessarily incorrect. It is not obvious that LO appreciated that when counsel spoke of her mother giving her the bruises or of her mother assaulting her that those concepts included any statement that her mother had hit her.
The jury may well have thought that the denial subject of (e) was given exclusive of the statement made to the police.
The agreed facts establish that the denial subject of (g) was not inconsistent with prior statements made by LO.
TO gave evidence that she attended the police station because some students had said that LO told them her mother had bashed her. That evidence was incapable of proving the fact of any statement made by LO to those students, presumably A and M. TO said she had spoken to LO about the allegation. LO said to TO that she had told “the girls that she had had an argument with mum and then the next day, or the next school day is when this all came about, the girls went and told the teacher that LO told them that I bashed her.” That evidence, brought out in cross-examination, was consistent with LO’s explanation at (f) above.
No-one suggested that LO was not bullied at school and was not being bullied in February 2015. TO said the bullying was “full on”. This being so, it is difficult to see how LO’s behaviour can be characterised as baseless attention seeking. Clearly LO was experiencing difficulty at school giving rise to pressure that resulted in her saying that her mother had hit her in a context that resulted in the intervention of the school, the receipt by her mother of an abusive phone call and the perceived need on her mother’s part to make a report to the police, and the meeting with A’s and M’s parents. The jury were in the best position to assess LO and whether her responses to questioning and her explanation were to be accepted as the efforts of a fourteen year old to deal with being bullied. LO’s evidence about being bullied by A and M and the meeting that took place was not an obstacle to reasoning to guilt.
I add that LO’s explanation for the statement she made to the police does not cause me concern. What the other girls had her believing was that she had said that her mother had caused her bruises, not that her mother had caused the bruises. The difference is material. Here the former depended upon memory of what was said at a party. It is by no means inconceivable that two or three people asserting that a fourth made a particular statement may persuade that person to believe that they did in fact make the statement when they did not. Nor is it inconceivable that the fourth person may, in time, come to realise that they did not make the statement. Again the jury were in the best position to evaluate the explanation given by LO for the content of her statement to police of July 2016. I do not consider that it presents as an obstacle to finding the appellant guilty.
Standing back and considering the combined force of the appellant’s complaints about the credibility and reliability of LO and AO, I remain of the view that it was open to the jury to convict the appellant on the evidence. I have borne in mind that LO was 12 years old at the time of the offending and AO was eight years old. Some two years passed between the date of the alleged offending and the trial. In the circumstances some inconsistency between the accounts given by LO and AO was to be expected. None of those complaints made cause me to think that the jury must have had a reasonable doubt. They do not cause me to think that it was not open to accept LO’s evidence regarding the indecent assaults she said the appellant committed against her. AO’s evidence of the glimpse she saw of the appellant with his hand on LO’s stomach supported LO’s evidence of the assaults. LO’s evidence of the initial complaint she made to her mother was consistent in content with TO’s evidence of the complaint made to her by LO.
Accordingly, I would dismiss the appeal.

[2018] SASCFC 49

8 June 2018

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