R v Tancock - [2014] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TANCOCK
[2014] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)
27 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE
Appeal against convictions for three offences of assault causing harm and three offences of indecent assault after a trial by judge alone - victim four year old son of the appellant's partner - whether verdicts unreasonable or not supported by the evidence - whether conclusions drawn by trial judge were available in face of conflicting medical opinion as to possible causes of injuries the subject of counts 2, 4 and 5 - whether count 6 could be proved in absence of an allegation by victim that appellant was responsible - whether propensity reasoning available.
Held per Vanstone J (Blue and Nicholson JJ agreeing): verdicts on counts 1 to 5 were open on the evidence - no error of approach demonstrated - appeal in relation to counts 1 to 5 dismissed.
Held per Blue J (Nicholson J agreeing, Vanstone J dissenting): evidence in support of count 6 was not sufficient to prove guilt - appeal in relation to count 6 upheld - conviction quashed and verdict of acquittal substituted.
Evidence Act 1929 (SA) s 34CA, s 9(2), s 34L(5), s 34P(2); Criminal Law Consolidation Act 1935 (SA), s 20(4), s 56, referred to.
M v The Queen (1994) 181 CLR 487; R v M, BJ (2011) 110 SASR 1; Thompson v The Queen (1989) 169 CLR 1; Pfennig v The Queen (1995) 182 CLR 461; R v Liddy (2002) 81 SASR 22, applied.

R v TANCOCK
[2014] SASCFC 110
Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ

VANSTONE J: After a trial by judge alone in the District Court the appellant was found guilty of three counts of assault causing harm and three counts of indecent assault.
He now appeals against those convictions upon the sole ground that the verdicts are “unsafe and unsatisfactory”. The ground encompasses complaints about the way in which the trial judge assessed the evidence of the witnesses. Counsel argued that due to infirmities in the evidence it was not open to the judge to reach a state of satisfaction of the appellant’s guilt beyond reasonable doubt.
Background
The victim, whom I shall call “V”, is the son of the appellant’s partner. V’s mother and father separated before V was born in May 2008 and V lived with his father from the age of about five months. The appellant and V’s mother began a relationship in late 2011. At the time of the charged incidents in late 2012, V was four years old.
V’s father was primarily responsible for his care. Pursuant to Family Court orders V would stay with his mother at her home on two days (although often at a childcare centre) and on those nights each week. The appellant was present for these visits. The prosecution case was that V suffered injuries during five separate access visits to his mother and the appellant.
The prosecution case relied on a recorded interview with V conducted by a Child Protection Services psychologist as well as V’s unsworn evidence at trial. It also relied on medical evidence from a paediatric resident medical officer, Dr Nolan, and a specialist paediatrician, Dr Edwards, who saw V on 25 February and the morning of 26 February 2012 respectively, and evidence of V’s father about complaints made by V to him and photographs he had taken of marks he saw on V’s body at various times.
The defence called evidence of the appellant, V’s mother, and of a specialist forensic pathologist, Associate Professor Winskog. In essence the defence case was that the allegations had been made up by V’s father and that V had been coached to make allegations against the appellant. The appellant claimed that the injuries must have been caused by V’s father or by V himself. The boy’s mother said she had not seen anything untoward in the appellant’s treatment of V, and nor had V complained to her about the appellant’s conduct.
The counts alleged against the appellant and the evidence called to support them may be summarised as follows.
Count 1 – aggravated assault causing harm said to have been committed between 16 November and 20 November 2012.
Both in his recorded interview and in evidence before the judge, V claimed that the appellant had hit him on the buttocks with a spoon. There was evidence of bruising to the buttocks. The bruising was discovered by V’s father after V had spent a weekend with his mother and the appellant. V told his father that the appellant had hit him and this statement was admitted pursuant to s 34CA Evidence Act 1929.
Count 2 – aggravated indecent assault said to have been committed between 6 and 10 January 2013.
After V returned from an access visit, V’s father said he discovered a number of bruises on V’s penis. He photographed them. V told the psychologist that the appellant caused the “spots” on his “willy”. In evidence V said that the appellant “flicked” his “willy”. A similar statement earlier made to V’s father was admitted pursuant to s 34CA of the Evidence Act.
Count 3 – aggravated assault causing harm said to have occurred between 25 and 29 January 2013.
After an access visit, V’s father saw and photographed bruising to V’s right ear. V told his father that the appellant had pulled on his ears. That statement was admitted pursuant to s 34CA of the Evidence Act. V’s statement to Dr Nolan that the appellant pulled his ear was also admitted under s 34CA. In evidence V made a similar complaint.
Count 4 – aggravated indecent assault said to have been committed between 17 and 21 February 2013.
After an access visit, V’s father observed and photographed red bruises on V’s penis. V told his father that the appellant had caused them. This statement was admitted pursuant to s 34CA of the Evidence Act. V gave evidence that the appellant would “flick” his “willy”.
Count 5 – aggravated indecent assault said to have been committed between 22 and 26 February 2013.
V’s father said that upon collecting V from day-care following two nights at his mother’s house, he asked V whether he had any more bruises. V replied that he did. V’s father said he observed new bruises to V’s penis and took photographs of them. He took V to a Dr Bonovic and then to Dr Nolan who saw him that evening. She observed “multiple small bruises on the penis”. On the following morning the boy saw Dr Edwards at the Women’s and Children’s Hospital. She described multiple small bruises to four different tissue planes of the penis, suggesting multiple episodes of impact to that area. Dr Edwards considered that bruising would result and then disappear within three to five days of the impact.
V later said to the psychologist that the appellant had “flicked” his penis and repeated that assertion when giving evidence.
Count 6 – aggravated assault causing harm said to have been committed between 1 January and 26 February 2013.
Dr Nolan saw injury to the skin around V’s anus during the same examination on 25 February. Dr Edwards saw these injuries about 16 hours later. She described them as bilateral abrasions and a laceration to the gluteal cleft. There was also some discharge and “early infection”. The likely cause was “frictional forces”. Dr Edwards postulated that all those injuries had been caused by a single mechanism. She opined that the appearances suggested a causative event at least 24 hours prior to the examination and up to a couple of days prior.
It was not disputed that V had stayed with his mother and the appellant on the various dates which were particularised in counts 1 to 5. At trial the prosecution evidence narrowed the dates on which count 6 was alleged to have happened to the same access visit giving rise to count 5. Nor was it in dispute that the appellant had been present during the access visits. In each instance it was alleged that the relevant assault had resulted in injury. There was no dispute that the bruise to the buttock the subject of count 1 was more likely to have been caused by a blow than a fall. In relation to counts 2, 4 and 5, which each alleged an injury to V’s penis, there was some variance in the opinions of the prosecution and defence specialists as to the possible cause of the injury. Dr Winskog did not challenge Dr Edwards’ opinion that the injuries to the penis were likely to have been deliberately inflicted. That question is essentially one for the trier of fact, although it was permissible for the experts to be asked whether a particular sequence of events might account for the relevant appearance. The defence did not dispute that the injuries to the boy’s anus (count 6) were consistent with having been caused in the period of the access visit, from about 5.30pm on 23 February to about 4.30pm on 25 February 2013.
Arguments on appeal
Mr Stratton-Smith, who appeared for the appellant both at trial and upon the appeal, referred the Court to what he called an important finding made by the judge at [182] to the effect that V’s evidence alone was not sufficiently reliable to justify a conviction. (I might say that this was said in a particular context, namely that the allegations came to light in the face of a bitter relationship between V’s parents. For present purposes there is no need to elaborate.) Counsel then turned his attention to evidence which the judge found supported V’s evidence and subjected it to close analysis. For example, he pointed out to the Court that, initially when interviewed by the psychologist, V was not forthcoming. It took some period of time – represented in the transcript by about 14 pages of double spaced questions and answers – before he made any allegation against the appellant. Then, counsel referred to a perceived conflict between the two medical experts as to the possible cause of the injuries to V’s penis, represented by counts 2, 4 and 5. He put that the paediatrician called by the prosecution, Dr Edwards, preferred “flicking” as an explanation, whereas the defence expert, Dr Winskog, who relied on photographs of the marks, preferred “pinching”. He submitted that, if it were in fact the latter, then it might be that V had injured himself by pinching and pulling his penis because of an acknowledged irritation there. Counsel also referred to evidence of V’s mother to the effect that when questioned about the source of injury to V’s right ear (count 3) V nominated his father. This evidence conflicted with the father’s evidence, which was that V told him that it was the appellant who had pulled his ear. This inconsistency was said to call into question the reliability of V’s evidence.
Counsel referred to count 6. He observed that there was no evidence in any form from V as to how he had sustained the injuries to the area of his anus. Counsel referred to the circumstances in which these had been revealed, namely that the boy himself had separated his buttocks during the consultation with Dr Nolan, the paediatric resident medical officer at Modbury Hospital. Dr Nolan described undertaking a full external examination of V on 25 February 2013 in the presence of V’s father. She said that having examined V’s buttocks, she commented that she could not see any bruising or injury there. At that point V reached behind himself (being face down) and spread his buttocks quite wide, saying “But look here”. Dr Nolan then observed what she called “an unusual finding”, being an area of red and very raw skin just above the anus. She said it was about 3 cm by 2 cm and that the skin looked very raw and quite damaged. She said it looked like a painful injury. When V resumed a position on his back, she also noticed multiple small bruises on the penis and that the left testicle was tender. Dr Nolan arranged for photographs of the abnormalities and referred the boy to a paediatrician at the Women’s and Children’s Hospital. He was seen there by Dr Edwards the next morning. Dr Edwards described the count 6 injuries as abrasions and a laceration to the perineum and gluteal cleft. Dr Edwards was asked whether a “wedgie” – a forceful upwards pulling of the boy’s underpants – would account for injuries having the characteristics seen. She said that a “wedgie would probably be the best fit”.
In cross-examination Dr Nolan was asked about things said during this consultation by V’s father. She related that when the boy parted his buttocks, V’s father initially told him not to do that and that it was rude. Then, when she stated that she could see an injury there, the father said something like “Oh, I knew [the appellant] must have been giving him wedgies”. Mr Stratton-Smith submitted that this was the only mention to this point by anyone of a “wedgie” as being causative of an injury to the boy’s anus. Counsel remarked on the oddity of the statement made by V’s father.
There were a number of other complaints made by Mr Stratton-Smith going to individual items of evidence and the way in which the judge evaluated them. I do not think it is necessary to set them out.
Analysis
In my view the tenor of the arguments made by the appellant’s counsel was that, where there was a variance in, or a conflict between, two items of evidence, the judge was obliged to accept the version which favoured the appellant. That is simply not the position. It was for the judge to assess all the evidence before him and he was entitled to accept or reject it as he saw fit.
The judge gave comprehensive and detailed reasons for the conclusions he drew. In particular he found that V’s answers to the psychologist were credible. In the face of criticisms made by Mr Stratton-Smith about V’s evidence, the judge said:
¹⁸⁶On the contrary, I agree with the submissions of [prosecuting counsel] that [V’s] evidence was about a fairly complex series of events, and he gave it clearly and spontaneously. His evidence and statements to his father are consistent with what he said to Dr Nolan on 25 February 2013 and Dr Edwards on 26 February 2013, and to [the psychologist] on 4 March 2013.
The judge approached the evidence of V’s father with care but found that it was well supported by other evidence. Regarding the competing expert evidence, the judge preferred the prosecution witness, Dr Edwards, essentially because she had seen the injuries, whereas Associate Professor Winskog had only seen photographs. But in any event, nothing particularly turned on that last preference. He was unimpressed by the evidence both of the appellant and V’s mother. He gave detailed reasons for the views he reached. He rejected their evidence totally: [172].
The appellant’s arguments upon the appeal in truth amount to a rehearsal of arguments which were put to the trial judge. On no occasion did counsel point to any inherent improbability, critical deficiency, or any fundamental inconsistency which was not capable of being readily resolved.
This is a case where the trial judge was in a position superior to that of this Court. He saw and heard the witnesses and was in a better position than members of this Court to determine whether the prosecution had proved its case. It was the judge who was “entrusted with the primary responsibility of determining guilt or innocence” (M v The Queen (1994) 181 CLR 487 at 493) and this Court is obliged to pay full regard to those considerations.
In relation to the counts alleging injury to the boy’s penis and the conflict between the two expert witnesses, I would say this. Whether the injury to the boy’s penis was caused by pinching or “flicking” was not really the critical question. The first question was whether the injuries were sustained as a result of the deliberate application of force. Dr Edwards expressed that opinion, having considered alternative possibilities. Dr Winskog did not offer a contrary opinion. The next question was who was responsible for that application of force. The judge found that the appellant was responsible. The precise mechanism used by the appellant to cause the injury was not to the point.
The judge found that the prosecution evidence was particularly strong in relation to count 5. He identified compelling evidence that injury to the penis had occurred during the time when the complainant was in the care of his mother and the appellant. The father, on this occasion, was excluded by circumstances. That was instrumental in the judge finding beyond reasonable doubt that the appellant was responsible for this crime. The judge had earlier raised with counsel the question of whether counts 2, 4 and 5 were so strikingly similar as might allow for their use as propensity evidence in relation to one another. There was no contest at trial that this mode of reasoning was potentially available. The judge chose to use reasoning of that type. Accordingly, he found counts 2 and 4 proved as well.
These findings led the judge to conclude at [190] that the appellant “had a propensity to behave in a very specific, unusual and sadistic way towards [V]”. The judge then used the finding of this propensity in proof of counts 1, 3 and 6. In relation to count 6 he found that the injuries to the anal area were deliberately inflicted by the appellant. I focus on count 6 because here, there was no express allegation by V that the appellant had caused the injuries. What his Honour had found was a propensity in the appellant to behave towards this young boy in an unusual, nasty and sadistic way which had sexual overtones, and which was necessarily behaviour which occurred in clandestine circumstances, against the background of the appellant claiming a quasi parental relationship with the boy. In terms of this reasoning it was not to the point that the injury the subject of count 6 was different from the others. There is no requirement in this context that the precise conduct or the injuries themselves be strikingly similar, or similar at all. The household setting, or the connection with a family, or group of persons, may itself be an important similarity, or go to demonstrate underlying unity, or otherwise assist in raising the improbability of the claims being false, or the events having had other than a common cause. The important question here was whether the propensity evidence had the necessary degree of probative value. (See, for example, R v M, BJ (2011) 110 SASR 1; Thompson v The Queen (1989) 169 CLR 1; Pfennig v The Queen (1995) 182 CLR 461; R v Liddy (2002) 81 SASR 22.) In this context it is to be recalled that the injuries to the area of the anus occurred during the very same access visit when the injuries the subject of count 5 were inflicted. This temporal connection was a significant factor. It would stretch credulity to theorise that during the same period of about 25 hours V sustained injuries to his penis – these being deliberately inflicted by a man found to have behaved sadistically towards him on several occasions – and also that he sustained injuries of an unusual and painful nature to another intimate and well protected area of his body, but caused by a different and unexplained agent.
Furthermore, I do not consider that V’s failure to directly attribute the anal injuries to the appellant is fatal. At least by implication he did so. As noted, it was in the context of seeing Dr Nolan about other injuries inflicted by the appellant that the boy drew attention to the injuries by parting his buttocks and saying “What about this?”. The judge admitted the evidence of Dr Nolan about what V did and said in her presence during the consultation as evidence of the truth pursuant to s 34CA of the Evidence Act: [30]. In my view the implications of V’s statement were available for use by the judge along with the other evidence bearing on those injuries. Despite the fact that V did not explain how the anal injuries were caused, it was open to the judge to reason as he did and to find the appellant guilty of having inflicted them.

In my opinion, the mode of reasoning employed by the judge throughout is unexceptional.
Conclusion
I have dealt with the principal arguments made for the appellant by his counsel. No error is made out and none of the arguments causes me any misgivings about the conclusions reached by the trial judge. Indeed, I consider that the reasons given for the verdicts are careful and comprehensive.
Although the child victim in this matter was of very tender years and could not be examined and cross-examined to the extent that an older witness might be, the combination of timely complaints, contemporaneous medical evidence and the apparently skilful interview of the child closer to the time of the events, coupled with the child’s evidence before the judge, in the end amounted to quite a strong case.
Having considered the whole of the evidence before the judge, I am left with no misgivings about the verdict.
I would dismiss the appeal.
BLUE J:
The defendant was charged on information with three counts of aggravated indecent assault[1] and three counts of aggravated assault causing harm.[2] After a trial by judge alone in the District Court, the defendant was convicted on all six counts.[3] The sole ground of appeal is that the verdicts are unreasonable and cannot be supported having regard to the evidence.
[1]    Criminal Law Consolidation Act 1935 (SA) s 56.
[2]    Criminal Law Consolidation Act 1935 (SA) s 20(4).
[3]    R v Tancock [2014] SADC 54.
The background, issues and arguments on appeal are set out in the reasons for judgment of Vanstone J.
Count 5
It was common ground on the evidence of V’s father, V’s mother and the defendant that during a scheduled access visit V was in the care of his mother and the defendant from approximately 5.30 pm on Saturday 23 February 2013 until approximately 8.00 am on Monday 25 February 2013 when he was dropped off by V’s mother at childcare. V was picked up by his father from childcare at approximately 4.30 pm on that day and taken to the Northern Medical Clinic. V’s father had no access to V between 5.30 pm on 23 February and 8.00 am on 25 February 2013.
On the afternoon of Saturday 23 February 2013, V’s father took photos of V’s penis at 4.57 pm shortly before he dropped V off to V’s mother. In turn, V’s mother took a photo of V’s penis at 5.36 pm just after V arrived. Those photos do not show any fresh or recent injury to V’s penis.
On the morning of Monday 25 February 2013, V’s mother took two photos of V’s penis at 7.12 am before V left her house to go to childcare. V’s father took two photos of V’s penis on the afternoon of that day at the Northern Medical Clinic. Both sets of photos showed fresh injuries to V’s penis that were not present on 23 February when the first set of photos was taken by V’s father and mother.
A comparison of the two sets of photos unequivocally demonstrates that V suffered injuries to his penis over that access visit while V was in the care of V’s mother and the defendant. The two sets of photos taken by V’s mother prove that it was not possible for V’s father to have caused those injuries. V’s mother gave evidence that she did not cause the injuries and there was no challenge to that evidence.[4]
[4] V’s mother was called as a witness by the defendant.
Dr Nolan was called as a witness by the prosecution. She gave evidence that she was working as a paediatric resident medical officer at the Modbury Hospital. On the evening of 25 February 2013, she examined V. She examined his penis and observed multiple small bruises. She examined his anus and observed an area of red raw skin about 3 centimetres above the anus. Dr Nolan did not express any opinion about the causation of the injuries or when it was likely they had been suffered.
Dr Edwards, a paediatrician, was called as a witness by the prosecution. She gave evidence that she examined V on the morning of 26 February 2013. She observed recent multiple distinct patches of bruising to V’s penis. She expressed the opinion that the bruising was not consistent with an accidental cause or scratching or rubbing by V, which would cause abrasions rather than bruises. She expressed the opinion that the bruising was inflicted by several deliberate actions. She said that the appearance of the bruising was consistent with it having been caused by a flicking action, having seen bruises on other children that had been so inflicted. She was shown the photos taken by V’s mother and father on the afternoon of 23 February 2013 and expressed the opinion that the injuries to V’s penis she observed on 26 February had not been inflicted when those photos were taken.
Dr Winskog, a specialist in forensic medicine, was called as a witness by the defendant. He agreed with Dr Edwards that the bruising was inflicted by several deliberate actions. His opinion differed from that of Dr Edwards only in that, while the bruising was consistent with having been caused by a deliberate flicking action, he considered that it was at least equally, and indeed more, consistent with having been caused by a deliberate pinching action.
V gave unsworn evidence in court under section 9(2) of the Evidence Act 1929 (SA) (the Act), and made a statement to a psychologist, Ms Madgen, on 4 March 2013 that was admitted under section 34CA of the Act, that the defendant had flicked his penis. V made similar statements to his father, which were also admitted as evidence of the truth of their contents under section 34CA of the Act. There was no suggestion put by the defendant in cross-examination that V had inflicted the injuries upon himself.
The defendant contends that the verdict of guilty on count 5 was unreasonable and cannot be supported having regard to the evidence. The defendant contends that the evidence was incapable of proving beyond reasonable doubt that the defendant inflicted the injuries to V’s penis. That contention must be rejected. The combination of the evidence summarised above, if accepted by the trial Judge, proved that the injuries to V’s penis were inflicted between 5.36 pm on 23 February and 7.12 am on 25 February 2013 during which time V was exclusively in the care of V’s mother and the defendant, were not inflicted by V’s mother, were inflicted deliberately and were inflicted by the defendant. That evidence was capable of satisfying the trial Judge of the defendant’s guilt beyond reasonable doubt.
The defendant points to observations by the trial Judge of the need for caution before accepting the evidence of V’s father due to his obvious antagonism toward the defendant. The defendant points to observations by the trial Judge of the need for a like caution before accepting the evidence of V due to his tender age and potential influence by his father, such that the trial Judge said that V’s evidence alone “would not be sufficiently reliable to justify a conviction”. The defendant contends that, leaving aside the evidence of V and his father, the remaining evidence did not amount to sufficient corroboration of V’s evidence to prove the defendant’s guilt beyond reasonable doubt.
Before addressing the merits of this contention, it is to be observed that the sole ground of appeal is that the verdict was unreasonable and cannot be supported having regard to the evidence. It is not suggested that, in his reasons for judgment, the trial Judge made an error of law or an erroneous intermediate factual finding. On an appeal on the ground that the verdict was unreasonable or cannot be supported having regard to the evidence, the question for the appellate court is whether it thinks that upon the whole of the evidence it was open to the jury (or judge sitting alone) to be satisfied beyond reasonable doubt that the accused was guilty.[5] When an appeal is made against a verdict of a judge sitting alone, there is a natural tendency for an appellant to adopt observations of the trial Judge in his or her reasons for judgment that tend to assist the appellant’s case and to criticise or ignore other observations detrimental to it. There is a natural tendency for a respondent to do likewise. While an appellate court’s consideration of the evidence is to proceed against and maintain respect for the framework of specific findings of facts by the trial judge, the ultimate criterion to be considered by an appellate court on such an appeal is the sufficiency of the evidence as opposed to the minutiae of the trial Judge’s reasons for judgment.
[5] M v The Queen (1994) 194 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
Turning to the merits of the defendant’s contention, the use of the term “corroboration” in relation to the evidence other than that of V and V’s father is apt to mislead. There was no requirement as a matter of law that other evidence in the case beyond that of V and V’s father implicating the defendant amount to “corroboration” within the meaning given by the common law to certain types of evidence that required corroboration.[6] The trial Judge did not use the term “corroboration” in his reasons for judgment. In the circumstances, it may be accepted that V’s evidence alone would not have been sufficiently reliable to justify a conviction. However, the evidence that the injuries to V’s penis were inflicted while V was exclusively in the care of the defendant and V’s mother, combined with the medical evidence that the injuries were deliberately inflicted and the unchallenged evidence of V’s mother that the injuries were not caused by her, strongly supported V’s evidence that the injuries were inflicted by the defendant.
The defendant also makes various criticisms of the trial Judge’s rejection of the defendant and V’s mother as credible witnesses and ultimate acceptance of V and V’s father as credible witnesses. These assessments were open to the trial Judge and there is nothing in his reasons for judgment that demonstrates that his assessment was vitiated by error.
[6] For example, on charges of sexual assaults – now abolished by section 34L(5) of the Evidence Act 1929 (SA) – or in relation to the evidence of accomplices.
The conviction on count 5 was not unreasonable and was supported by the evidence.
Counts 2 and 4
Counts 2 and 4 related to bruises to V’s penis observed and photographed by V’s father after access visits to V’s mother and the defendant between 7 to 9 January 2013 and 18 to 20 February 2013. In each case, evidence was admitted under section 34CA of the Act of contemporaneous statements by V to his father that the injuries were caused by the defendant flicking his penis.
Dr Edwards gave evidence that there was a similarity between the injuries shown in the two sets of photos taken by V’s father and the injuries she observed on 26 February 2013 and in her opinion all three sets of injuries were caused in the same way.
Once the trial Judge had found count 5 proved beyond reasonable doubt, he was entitled to take that finding into account in his overall assessment of the credit of V and V’s father. It was open to the trial Judge to be satisfied beyond reasonable doubt that it was the defendant who inflicted the injuries on these two earlier occasions.
Counts 1 and 3
Counts 1 and 3 related to bruises to V’s buttocks and ear respectively that were observed and photographed by V’s father after access visits to V’s mother and the defendant over the weekends of 17 to 19 November 2012 and 26 to 28 January 2013. In each case, evidence was admitted under section 34CA of the Act of contemporaneous statements by V to his father that the injuries were caused by the defendant hitting him with a wooden spoon on the buttocks and pulling his ear respectively. V gave similar unsworn evidence in court and statements to similar effect by V to Ms Madgen relating to the appellant hitting him with a wooden spoon and to Dr Nolan relating to the appellant pulling his ears were also admitted under section 34CA of the Act.
Once the trial Judge had found count 5, and indeed counts 2 and 4 as well, proved beyond reasonable doubt, he was entitled to take that finding into account in his overall assessment of the credit of V and V’s father. It was open to the trial Judge to be satisfied beyond reasonable doubt that it was the defendant who inflicted the injuries on these two other occasions.
Count 6
The prosecution case and the evidence at trial in respect of count 6 differed fundamentally from the position in respect of the other five counts. No evidence was adduced by the prosecution from V that the injuries in the vicinity of his anus were deliberately inflicted or that they were caused by the defendant. The prosecution relied principally upon evidence that the defendant had a propensity to inflict harm upon V as demonstrated by his conduct the subject of counts 1 to 5 and to a lesser degree upon the expert evidence of Dr Edwards.
The trial Judge addressed counts 1, 3 and 6 together. Based on his conclusion in relation to counts 2, 4 and 5, the trial Judge reached the following conclusion concerning the defendant’s propensity:
Having found those counts proved, it is appropriate to conclude that Mr Tancock had a propensity to behave in a very specific, unusual and sadistic way towards [V]. The reasons for this are unclear, but the propensity is clearly demonstrated. I regard this propensity as specific and particularly relevant to the charged behaviour, and not simply ‘bad person’ propensity, of the type referred to by Kourakis CJ in R v C, CA.
In addition, the finding of those three charges proved removes any doubt which might have arisen as to the credibility or reliability of the evidence of [V’s father] or [V].
In those circumstances, the nature of the injury to [V]’s buttock, the nature of the injury to his right ear, and the nature of the injury to his anal area, all of which, on Dr Edwards’ evidence, were deliberately inflicted, when seen in combination with SA’s various statements to [V’s father], Dr Nolan, Dr Edwards and Ms Madgen, satisfy me beyond reasonable doubt of Mr Tancock’s guilt on counts 1, 3 and 6 as well.
(Footnotes omitted)
As observed above, Dr Nolan did not express any opinion about the cause of the injury or when it was likely to have been suffered. Dr Edwards said that she did not know how the injury was caused. She said that, during the examination, V’s father suggested that it may have been caused by a “wedgie” and it was consistent with such a mechanism but she did not say that this was likely to have been the mechanism that caused the injury. Dr Edwards in examination in chief said:
Q. …Can I ask you to describe, first of all, the nature of the injuries that you saw to that location and to comment, if you can, on the cause or potential causes of those injuries.
A. …So, given the symmetrical nature of the two lesions in the - the two abrasions in the perineum plus the gluteal cleft, I postulated they had all been caused by a single mechanism. The father, based on - I didn't necessarily look at them and say I know what it was caused by but a mechanism whereby the father described to me that he was aware that a wedgie may have happened at least at some time in the past. I considered that and, based on where the abrasions were and also the deeper lesion being over the coccyx both between the gluteal clefts I thought it may well explain the appearance of the injury.
Q. The wedgie, being the forceful upwards pulling of some garment being worn: being underpants, pants, shorts or any item of clothing of that time.
A. Yeah, I think the location in the perineum suggests the edge of underpants or bathers. Not shorts as much as clothing that will go up between the leg unless shorts were brought right up between the leg but I thought the pulling up of underpants would probably be the best fit for the injuries.
…
Q. Can I understand your evidence in this way: if it was a wedgie that was performed, those twin injuries in the vicinity of the perineum may have been caused by the seam of the leg of the understand pants, for example.
A. Yes.
Q. The higher up injury above the anus was by the dragging over the skin of the fabric of the underpants, also just by way of example.
A. Yes.
Dr Edwards said that she could not comment on the recency of the injury at the time of her examination, but thought it had specifically occurred in the vicinity of one to two days earlier. The trial Judge’s statement that, on Dr Edwards’ evidence, the injury to V’s anal area was deliberately inflicted overstates Dr Edwards’ evidence.
In cross-examination, Dr Edwards said that she had not seen that type of injury before. She agreed that the injury could have been caused by underwear, particularly if wet, rubbing against the perineum. She had made reference to this in her report. Both the defendant and V’s mother gave evidence that on Sunday 24 February 2013 V went swimming at a pool at a relatives’ house. The defendant gave evidence that V was wearing wet bathers after swimming.
There was a significant difference between the conduct the subject of counts 1 to 5, which involved the defendant striking V’s penis, buttocks and ears causing bruising, and the conduct the subject of count 6 on the prosecution case, which involved delivering a wedgie causing abrasions and lacerations. Notwithstanding the relatively general nature of the trial Judge’s propensity finding with reference to counts 1 to 5, the alleged conduct of delivering a wedgie is of a character different from that involved in counts 1 to 5.
Under section 34P(2) of the Act, evidence of a specific propensity or disposition of the defendant may be admitted as circumstantial evidence of a fact in issue, provided that, inter alia, it has strong probative value having regard to the particular issue or issues arising at trial. If the matter were to be considered from first principles, an issue may well have arisen whether the criteria for admissibility under section 34P of the Act on count 6 of evidence of the conduct the subject of counts 1 to 5 had been satisfied. However, as the defendant does not contend on appeal that the evidence of the conduct the subject of counts 1 to 5 was not admissible in respect of count 6, I proceed on the assumption that the evidence was so admissible. Nevertheless, the differences between the alleged conduct the subject of count 6 and the conduct the subject of the other counts substantially affects the weight that could be given to any evidence of propensity.
I observe for completeness that Dr Nolan gave evidence that, when she was examining V’s buttocks, she commented that she could not see any bruising or any injury to the buttocks, at which point V spread his buttock cheeks wide and said “but look here.” She then observed the abrasions and lacerations. It is not clear whether Dr Nolan’s comment that she could not see any injury to the buttocks was prompted by V’s father having drawn her attention to V’s buttocks as a result of the wooden spoon allegation, but it is clear that this was the first time that this particular injury to V’s anus was observed.
Section 34CA of the Act renders evidence of an out of court statement by a protected witness from the person to whom the statement is made admissible if certain criteria are met but such a statement can only be admitted if the trial Judge is satisfied that the criteria are met. The prosecution foreshadowed at the outset of the trial an intention to adduce evidence under section 34CA of the Act of V’s out of court statements to the psychologist Ms Magden; to V’s father concerning the defendant’s flicking V’s penis, hitting his buttocks with a wooden spoon and pulling his ears; and to Dr Nolan that “[The defendant] pulls my ears like this” while demonstrating pulling of his ears. The defendant objected to the admission of this evidence under section 34CA (except for parts of the interview by Ms Magden). The trial Judge ruled at the outset of the trial that he was satisfied that the criteria in section 34CA(1) were met.[7] By contrast, the prosecution made no application to adduce evidence under section 34CA of V’s out of court statement to Dr Nolan “but look here” in relation to his anus and the trial Judge did not rule that it was admissible under section 34CA as an implicit statement that the defendant had caused the injury to his anus or form any satisfaction that the criteria for such admission had been met. The prosecution did not rely in opening or closing address upon the statement as evidence that the injury had been deliberately inflicted or that it had been inflicted by the defendant.
[7] In his reasons for judgment at [30], the trial Judge summarised his earlier ruling in the following terms: “The pre-conditions in s 34CA(1)(b) having been met, I admitted into evidence the contents of the interview between SA and Ms Madgen at the Women’s and Children’s Hospital on 4 March 2013, the evidence of Dr Nolan about what SA said and did in her presence on 25 February 2013, and the evidence of DA about what SA said to him on the various occasions referred to in his evidence (T 221).” It is clear that the reference to “the evidence of Dr Nolan about what SA said and did in her presence” was to V’s statement and demonstration to Dr Nolan in relation to his ears and not in relation to his anus.

In any event, the statement and conduct of V in Dr Nolan’s presence to his anus was, at best for the prosecution, equivocal and did not amount to an implicit statement by V that the defendant had inflicted the injury upon him. If the prosecution had sought to adduce evidence of the statement under section 34CA of the Act, the proper exercise of the discretion in all of the circumstances would have been to refuse to admit it and to insist upon direct evidence from V.
Given the absence of evidence from V that the defendant did anything to inflict the injury in the vicinity of his anus, the inability of Dr Edwards to identify with confidence the mechanism that caused the injury or to exclude innocent causations including V walking around wearing wet bathers and the limited probative value of the propensity evidence, the evidence in respect of count 6 was incapable of proving beyond reasonable doubt that the defendant committed the offence charged.
Conclusion
I would allow the appeal in respect of count 6, set aside the conviction and substitute a verdict of acquittal. I would dismiss the appeal in respect of counts 1 to 5.
NICHOLSON J. For the reasons given by Vanstone J and the additional reasons given by Blue J, I would dismiss the appeal with respect to counts one to five inclusive. For the reasons given by Blue J, I would allow the appeal with respect to count six. I agree with Blue J that the conviction for count six should be set aside and a verdict of acquittal substituted.