R v Smith No. Sccrm-98-277 Judgment No. S109

R v SMITH
[1999] SASC 109

COURT OF CRIMINAL APPEAL: Millhouse, Prior and Duggan JJ

MILLHOUSE J. I agree that the appeal should be dismissed for the reasons of Duggan J.
PRIOR J. I agree with what Duggan J has written. None of the grounds of appeal have been made out. The verdict of the jury was not unreasonable. It was supported by the evidence. There was no miscarriage of justice.
DUGGAN J. The appellant was convicted of the offence of unlawful sexual intercourse with a person under the age of 12 years. The complainant was eight years of age at the time of the alleged offence. She was holidaying with her family at Cactus Beach on the West Coast of South Australia and it was alleged that the offence took place while the appellant, who was 20 years of age at the time, was playing in the sandhills with a group of children including the complainant. The appellant denied meeting the complainant or being in her company at any time. There was no identification of the appellant by the complainant and the case against the appellant was predominantly circumstantial in nature.
The grounds of appeal allege that the trial judge misdirected the jury in relation to the aspects of complaint and circumstantial evidence. It was argued that the defence was not canvassed adequately in the summing-up and that the jury were misdirected in relation to evidence said to be supportive of the complainant’s version. It was also claimed that the verdict was unsafe and unsatisfactory.
According to the evidence, a number of people, including the complainant’s family, were camped along a section of the beach during the school holidays. The complainant said that on the day of the alleged offence she and her younger brother met up with a man on the beach and went crabbing with him. She said his name started with “J”. (The appellant’s first name is Jason). She said he had “creamish” hair which was done up in a ponytail. According to her evidence it was still daylight when she went back to the family tent after the crabbing activity.
The complainant said that after tea the same man came over to her family tent and asked if she and her brother would like to play a game of hide and seek. She said her mother agreed to them playing the game. She and her brother went off with the man. Other children joined in the game. By now it was dark and they used torches. They split up into groups and at one stage the man was alone with the complainant. She said he asked her to pull her pants down and claimed that he touched her with his fingers “inside my front bottom”. He then undid his fly. She said he was wearing black jeans and he asked her touch his penis. She did so and he asked if she would like to put her mouth on it. She said “No”. It was at this stage that she heard her mother calling out her name and so she pulled up her pants and went to her mother. She went back to their tent. She did not know what became of the man. It was not disputed that the appellant was wearing black jeans when spoken to by the police on the following day. It is also common ground that the appellant has fair hair which he ties up in a ponytail.
The complainant’s mother said she saw her children playing on the beach during the afternoon with a man who had blonde hair drawn back into a ponytail. She said he was about five feet 10 inches. The appellant said in evidence he was 6 feet 2 inches tall. She later saw him at their tent when she said he was wearing black jeans and a black windcheater. She said he spoke with “a stutter or a bit of a cough or laugh”. Constable Boileau, who questioned the appellant, said that the appellant was not clear in his speech and there was a clicking sound in his voice. The complainant did not mention this aspect in her evidence. The complainant’s mother said the man was crabbing with the children on the beach and there was a young boy by the name of Cayne in the group.
According to the complainant’s mother the same man came to her tent in the evening and asked if the children could go and play hide and seek. She said she thought the complainant had referred to him as “Jason”. Her younger child referred to him as “Justin”. The children were given torches. After the children had been playing for some time the complainant’s mother went to look for them. She said the man emerged from the sandhills and the complainant was behind him. She took the complainant home and put her to bed. Later she heard the complainant crying and it was then that the complainant told her mother about the incident which is the subject of the charge. I shall return to the complaint later in these reasons.
The complainant’s mother was not asked to identify the appellant in a line-up or by photographs. However she made a dock identification as the man she had seen on the day and evening and who had been referred to as “Jason”. The trial judge warned the jury that such an identification had very slight probative value.
Another camper, Craig Picking, was called to give evidence. He said he was the father of Cayne, the boy previously referred to, and another son, Jye. They were 10 and eight years respectively at the time. Mr Picking said that he was driving his two boys from New South Wales to Western Australia and they picked up a person named Jason Smith who was hitchhiking. It was not disputed that this was the appellant. The appellant drove with them to Cactus Beach. During the afternoon Mr Picking saw the appellant crabbing with Mr Picking’s sons and there were other children in the vicinity.
Mr Picking said that during the early evening his children were talking about going into the sandhills and “spotlighting”. He said the appellant commented that it was a good idea and the appellant also said that he was going into the dunes with them. The children took torches and there were other children playing in the sandhills. Mr Picking said that after the children and the appellant had gone into the sandhills he went to a camp fire where some other campers had gathered. He spent some time there and eventually some of the parents went off to find their children. He heard them calling for the children. He then saw the appellant and his own children come over to the camp fire. That night Mr Picking slept in the back of his utility with Jye. The appellant and Cayne slept on the ground nearby. On the following day the four set off again and pulled up at a roadhouse about an hour’s drive from the beach. Police officers then approached the appellant and spoke to him.
The accused gave evidence. He denied having any contact with the complainant. He agreed that Mr Picking gave him a lift and said that the two of them went swimming during the afternoon when they arrived at Cactus Beach. He denied searching for crabs and said that he did not see the complainant on the beach during the afternoon.. He said that he was with the Pickings at tea time, although he did not have anything to eat. He did have something to drink. He helped Mr Picking take things out of the back of the utility so that it could be used as a bed. He slept near the utility.
The appellant said he went to bed at about 8.30 or 8.45 pm. He said that neither he nor Mr Picking’s children went off to the sandhills to play a game. According to the appellant, he did not have any conversation with the complainant’s mother. He did not go to any camp site and did not leave the place where he was sleeping until morning.
It is convenient to deal first with the ground of appeal which alleges that the verdict is unsafe and unsatisfactory. The argument of Mr McFarlane, for the appellant, focused attention on the absence of various types of evidence. He pointed out that no line-up took place and that there was no attempt at a photographic identification. He also said there was no forensic evidence to implicate the appellant and he commented on the absence of confessional evidence.
The well known duty cast upon appellate courts where it is claimed that a verdict is unsafe or unsatisfactory requires the court to consider whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. (M v The Queen (1994) 181 CLR 487 at 493). There is little relevance in drawing attention to the lack of admissions. The same might be said for the appellant’s criticism of the fact that the complainant was not examined from a forensic viewpoint. The focus of attention when considering this ground of appeal is on the evidence which has been led so as to assess its cogency or otherwise.
The criticisms concerning the absence of identification procedures must also be considered in the context of the facts of the case. It is unhelpful to speculate on whether the complainant could have identified the person she claimed committed the offence on her. The prosecution purported to prove identity by reference to circumstantial evidence and it is that evidence which requires careful examination when this ground of appeal is being considered.
The complainant’s mother purported to identify the appellant as the man she said she saw with her children during the afternoon and later when he came to ask her if the children could play in the sandhills. The learned trial judge properly pointed out that a dock identification in these circumstances was of limited probative value. But again, this evidence must be put in context. There was no dispute that the appellant was at the beach during the afternoon and evening. The important question is whether he had any association with the complainant and the extent of that association. Leaving aside the evidence of dock identification, there was other evidence given by the complainant’s mother which was relevant to the issue of association to which I have referred and Mr Picking’s evidence is also of particular relevance in this regard.
In order to appreciate the significance of the circumstantial evidence, it is convenient to commence with the evidence of the complainant who said that the man who assaulted her was the man she had gone crabbing with earlier in the day. She said her brother Amos had been present when they were crabbing. She provided a description of the man’s hair which fitted that of the appellant and she said he was wearing a ponytail. She also stated that he was wearing black jeans. She said in evidence that his name began with “J”. She said this was the man who asked her mother if she could play hide and seek.
Mr Picking said he saw the appellant crabbing with Mr Picking’s two boys and some other children. The appellant denied that he went crabbing. Then there is the evidence of the complainant’s mother who said she saw the man with blonde hair and a ponytail and wearing black jeans playing with her children on the beach during the afternoon.
In my view the combined effect of the evidence up to this point provided a sufficient basis for the jury to conclude that, despite his denials, the appellant was in the company of the complainant and other children on the beach during the afternoon.
Both the complainant and her mother stated in evidence that the same man came to see them that evening. The complainant’s mother said that he asked if the children could play hide and seek. The children were given torches and they went off with the man. Despite his denials that he joined in the game and his positive assertion that he stayed at Mr Picking’s camp, the evidence of Mr Picking is to the contrary. He said the appellant spoke about the sort of game to be played and went off with Mr Picking’s children.
Finally, according to the version of the complainant’s mother, she saw the same man coming out of the sandhills with the complainant following behind him. According to the complainant the man was in the course of committing the offence when she heard her mother call out for her. She said she pulled her pants up and went to her mother.
In my view the evidence which I have summarised provided an ample basis upon which the jury could find beyond reasonable doubt that the offence charged had been committed and that it was the appellant who committed it. There were some discrepancies in the evidence. The complainant’s mother estimated the height of the appellant at about five feet 10 inches. She also said the accused was wearing a black windcheater, but he denied owning a windcheater of that colour and he was wearing a white top when spoken to by the police the next day. However discrepancies of this nature do no detract from the strength of the incriminating evidence to which I have referred.
For these reasons I am of the view that the verdict was not unsafe or unsatisfactory.
The next ground of appeal complains of directions given by the trial judge to the jury to the effect that evidence indicating the appellant had the opportunity to be with the complainant at the time of the alleged offence would be supportive of her evidence as to what occurred.
The direction was given in the following circumstances. At the commencement of the trial, and after asking the complainant a number of questions in the absence of the jury, the trial judge decided that the complainant was not to be sworn (Evidence Act s12(1)), but he directed that her unsworn evidence was to be treated in the same way as evidence given on oath. (s12(2)) Section 34i(5) of the Evidence Act provides that where a person is charged with committing a sexual offence, the judge is not required by any law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence. In R v Pahuja (1988) 49 SASR 191 a majority of this court held that the subsection did not abolish the common law rule that the jury should be warned against acting on the uncorroborated evidence of a child. Subsequently, however, the rule relating to children was abolished by s12A of the Evidence Act in the case of sworn evidence by children or where the child’s unsworn evidence is assimilated to evidence given on oath under s12(2).
The effect of the abolition of the rule formerly applicable to sexual offences generally was summarised by King CJ in Question of Law Reserved on Acquittal Pursuant to s351(1)A, Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 141 at 216-217:
“It has been established by the judgments in Longman v The Queen (1989) 168 CLR 79 in the High Court and R v Pahuja (1987) 49 SASR 191 that the abolition of the rule of practice requiring a corroboration warning in sexual cases, involves the abrogation of the reasons for the former rule of practice. It is now an error for a trial judge to caution a jury in terms which relate the warning to the generality of complainants in sexual cases as distinct from the complainant in the particular case. Moreover it is an error to indicate as reasons for such warning as is given, considerations said to be applicable to sexual complainants in general or sexual cases in general as distinct from considerations applicable to the particular complainant or the facts of the particular case. It is also an error to state that the warning is given as a matter of law or arises from the experience of the law or the courts.”
Similar considerations apply in the case of a child giving evidence or whose evidence is assimilated as sworn evidence. It is no longer appropriate to give a warning based on any supposed unreliability of children in general. Furthermore, it is wrong to state that such a warning arises as a matter of law or as a consequence of the experience of the courts.
However, the particular circumstances of a case may render appropriate a warning tailored to those circumstances. As Doyle CJ said in R v Corrigan (Unreported judgment, Court of Criminal Appeal, Judgment No. S6684 delivered 15 May 1998) at p14:
“The abolition of the general rule requiring a warning in relation to the evidence of a victim of a sexual offence or of a child, leaves untouched the requirement that the judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case: Longman v The Queen (1989) 168 CLR 79 at 86 Brennan J, Dawson J and Toohey J. On that point I refer also to what King CJ said in Question of Law Reserved (No.1 of 1993) (supra) at 217 and in R v Pahuja (1987) 49 SASR 191 at 198-199, and to the helpful remarks of the Court of Appeal in R v Miletic [1997] 1 VR 593 at 605-606.
The effect of the decision of the High Court in Longman (supra) is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman (supra) at 90-91 Brennan J, Dawson J and Toohey J; at 100-101 Deane J; at 107-109 McHugh J; see also Bromley v The Queen (1986) 161 CLR 315 in particular at 323-325 Brennan J.
In the present case the learned trial judge fell into error by giving a full corroboration warning which he based on the dangers inherent in the evidence of children.   He said:
“In assessing the evidence of [the complainant], notwithstanding that you are to treat her evidence as if on oath, it is necessary to have regard to her age.   There is a rule of practice which requires me to give you a warning that it is dangerous to convict a person who has been accused of a crime where the only evidence against him is the uncorroborated evidence of a young child. Experience shows that young children sometimes tell false stories, become confused, or make things up for a variety of reasons, and sometimes for no reason at all.   In this regard you will bear in mind that the evidence is that [the complainant] is eight years old.
To say that it is dangerous to convict without corroboration in such circumstances is to say a great deal.   It does not mean that you cannot convict without corroboration.   The evidence given by the prosecution always has to be considered with great care. In a case where there is no corroboration, the evidence of the alleged victim must be scrutinised with special care.   In order that you might fully comprehend the nature of this direction, I must explain to you what is meant by corroboration or corroborative evidence.
Corroborative evidence is evidence coming from an independent source; that is to say, evidence which does not come from the alleged victim and which implicates the accused and which confirms her evidence, [the complainant’s] evidence, in some material particular not only that the crime has, in fact, been committed, but also that the accused has committed it, if those matters are in issue, as they are here.   Let me interpolate here that I will come in a minute to the evidence given by [the complainant’s] mother.   It is not necessary that corroborative evidence standing alone should establish the accused’s guilt beyond reasonable doubt. It is not necessary that there should be independent evidence of everything which such a witness would relate.   If that were so, then, of course, the evidence of the victim would be unnecessary. The corroborative evidence need not necessarily relate to the particular incident or incidents spoken of by the child.
It is my task to direct you as to what evidence might as a matter of law be capable of being corroborative of [the complainant’s] evidence, and then it would be for you to say whether or not you regard it as such evidence as, in fact, doing so.   In this matter I direct you as a matter of law that there is no evidence which is capable of corroborating [the complainant’s] evidence of the events alleged to have occurred that night.   In that circumstance, you must remember the warning that I gave you and you must subject her evidence to careful scrutiny. You may only convict the accused on such uncorroborated evidence if, after giving it that careful scrutiny, you are fully convinced it is safe to act upon.   Before you can assess that, you must have regard to what I will say as to the issue of identity.”

After some hours of deliberation the jury returned with a question. The judge said to counsel:
“There has been a question and the question is this: ‘The jury is seeking further clarification or reiteration on the first point made on your last address to us, ie did you state or infer that, if you find the accused did have the opportunity to be with her, then this is supportive evidence’?
I think that is the end of the paraphrase of what I was suggesting I said.
Then it goes on: ‘Due to the large amount of circumstantial evidence presented to us, we need to seek clarification of what the word ‘opportunity’ means in the above statement, if it is accurate, and how this could impact on us when considering the total evidence’.”
The trial judge then gave the following direction to the jury:
“You will remember that, at the outset, I talked to you about the evidence of [the complainant] and how you had to assess it, having regard to the warning that I have you about the evidence of young children. And that I said that it had to be assessed and that there was nothing that was corroborative of that evidence. That is the position, but I want just to leave that here for a minute and go to the end, where I said to you, after I had talked to you about the circumstantial evidence, ‘the two strands’. That is to say, the evidence of Mr Picking and the evidence of [the complainant’s mother] And I said to you that, if you considered, on the question of identity, that, in relation to that, you find that the accused was away from Mr Picking’s sight, his vehicle, on that night, then that was evidence that meant that he had the opportunity to be with [the complainant] and would be supportive of her evidence. Those are the phrases that I used last time.
Now, what flows from your conclusion of the circumstantial evidence only goes to assist [the complainant’s] evidence, if you are satisfied that [the complainant’s] evidence is credible. That is, is capable of belief.
Now, you will remember that I said to you how you could use [the complainant’s mother’s] evidence of the complaint in relation to that. And I gave you the warning about the difficulties that are attached and the dangers that are attached to the evidence of young children. There is no corroboration in the case in relation to your assessment of whether or not [the complainant’s] evidence is credible. You have to determine that by a consideration of that evidence and the evidence of the complaint, if you are satisfied that the complaint was made. And, if you get to the position where you decide that [the complainant’s] evidence is capable of belief, is credible, then, if you have decided in relation to the circumstantial evidence that your determination of that evidence means that the accused had the opportunity to be with [the complainant], then that tends to confirm her evidence that he was with her. It does not absolutely confirm her evidence. It is still a matter for you to decide, but it is something further, if you take that step in relation to circumstantial evidence, that you can put on the scales when you are considering whether or not the Crown has discharged the onus of proof that it has, in relation to the complaint of [the complainant], the allegations of [the complainant].”
Inappropriate though these directions were for the reasons stated above, I agree with the submission of Mr Millsteed QC, for the respondent, that they erred on the side of being favourable to the appellant. They applied the full rigour of the previous common law rules and carried a warning against conviction which was unnecessary in the circumstances. I am further of the view that a warning of the nature referred to in Longman (supra) was not required in this case. There was nothing on the face of the child’s evidence or the other evidence in the case which gave rise to a perceptible risk of a miscarriage of justice in the event of a conviction. The issue most debated at trial was whether the circumstantial evidence established that the appellant was the man the complainant said assaulted her.
The trial judge told the jury on more than one occasion that there was no evidence which amounted to corroboration. He did say that the evidence of opportunity was “supportive” of the girl’s version, but, in the context of the directions, he could not have been suggesting that this evidence corroborated her version. If the jury rejected the appellant’s evidence and found that he did go into the sandhills with the complainant and reappear with the complainant when her mother called her, then this evidence was supportive of the girl’s version in the sense in which the trial judge used the word. In my view these directions did not result in a miscarriage of justice.
There was a further complaint that the appellant was taken by surprise at the suggestion made after the main part of the summing-up had been given that evidence of opportunity was relevant. But whatever label this evidence was given towards the conclusion of the case, the importance of the appellant’s movements and his association with the girl was apparent from the commencement of the trial and it cannot be said that the appellant’s counsel was taken by surprise in this respect.
According to the next ground of appeal, the learned trial judge erred in admitting the evidence of the complaint. It is claimed that it was neither recent nor spontaneous. Immediately after the complainant walked out of the sandhills her mother asker her if she was alright. She said “Yes”. They then went back to their tent. According to the mother the child went to bed approximately 10 minutes after her mother found her. The complainant’s mother then heard her crying about five minutes after the girl had gone to bed. It was in the course of the conversation which followed that the complaint was made.
There is a faint suggestion in the appellant’s written outline of argument that the complaint was not recent. The question is whether the complaint was made as soon as might reasonably be expected after the alleged incident. (R v Peake (1974) 9 SASR 458 at 461). The answer must depend upon the circumstances of the particular case. The complainant was a young child who gave the appearance of being embarrassed when she was telling her mother what she said happened. She said she was frightened she would get into trouble. The complaint was made only 15 minutes or so after the alleged incident. The suggestion that it was not made as soon as might reasonably be expected must be rejected.
The next question is whether the complaint was made in a spontaneous manner so as to invest it with the potential to indicate consistency of account.   (R v Gallagher (1986) 41 SASR 73 at 78). The mother’s evidence of the conversation which took place after she heard the complainant crying was as follows:
“A.... I said ‘Is everything okay’?   She said that she had a secret and that she wasn’t allowed to tell me.   I asked her why she couldn’t tell me. She said that the man would be angry with her if she told me and I would be angry and cross with her too.   I explained to her that I wouldn’t be, that she could tell me and there would be no secrets. She was quite upset by that stage. She then told me it was rude and that she was embarrassed and that she couldn’t tell me. I asked her again an went through the bit of ‘It is okay, you can tell me’.   She asked me to promise not to tell anyone because it was embarrassing and it was rude. I promised not to tell anyone.
Q      Did you have a further conversation?
A...... She then told me that he had touched her and I asked her - I think, were her pants up or down. She is quite adamant that she has told me that they were down but I am unclear on that. I know that when I spoke to the police I said that they were down.
QJust going back to the conversation that you had with [the complainant], did she say anything where she had been touched?
A...... She pointed to her vagina.”
It was elicited in cross-examination that when the complainant pointed to her vagina her mother said “your front bottom” and the child said “Yes he touched my front bottom”.
In my view the mother’s question did not detract from the spontaneity of the complaint. She was simply clarifying what the child meant by her action of pointing. I have no doubt that the complaint was properly admitted into evidence.
Another ground of appeal complains that the learned trial judge failed to put the defence case in adequate detail to the jury. The defence did not require an extensive summary. Indeed the evidence-in-chief of the appellant occupied a little over one page of the transcript of evidence. The trial judge adequately summarised the effect of that evidence. He told the jury that the appellant denied leaving his own camp after he had gone to bed. He said that the appellant denied having any contact with the complainant at any time during the day or evening. The trial judge then reminded the jury of various criticisms of the prosecution case made by the defence. It was not necessary for all the defence arguments to be repeated in the summing-up. (R v Phan (1990) 54 SASR 561 at 577). I am satisfied that the trial judge equipped the jury adequately to consider the essential features of the defence case.
The final ground of appeal complains that the trial judge did not provide the jury with adequate directions on the topic of circumstantial evidence. The precise basis of this criticism is not readily apparent from the submissions made to this court, but the effect of it seems to be that the trial judge did not underline the lack of circumstantial evidence. The nature of circumstantial evidence was explained adequately to the jury. There is no complaint that the trial judge erred in law when giving those directions. Furthermore, the specific matters relied upon as circumstantial evidence were identified for the jury. The evidence was not complex. In my view, the directions were adequate in law and the jury were given sufficient assistance to enable them to approach the evidence and assess it in a proper manner.
I would dismiss the appeal.

[1999] SASC 109

25 March 1999