R v Thompson
[2018] SASCFC 104
•11 October 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMPSON
[2018] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Hinton)
11 October 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against convictions of Indecent Assault.
The appellant was found guilty by a District Court Judge sitting alone of two counts of aggravated indecent assault of the complainant, J, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of two further counts on the basis that the Judge was not satisfied that the relevant acts were assaults or had a sexual connotation.
At the time of the offending, J was 12 years old and the appellant was 45 years old. Count 2 occurred in mid-December 2015 when J’s family was staying at the appellant’s home in Mount Barker; J gave evidence that during the course of a piggyback ride, the appellant touched her vagina. Count 5 occurred in January 2016 when the appellant’s family was staying with J’s family at their home in Morgan; J gave evidence that during the course of ostensible “horseplay” the appellant exposed her vagina. The appellant gave evidence and denied any touching or exposure of the vagina.
Held per Peek J (Vanstone J agreeing) dismissing the appeal:
1. A review of all of the evidence demonstrates that neither verdict was unreasonable. M v The Queen (1994) 181 CLR 487 applied.
2. The Judge’s reasons adequately exposed the reasoning process linking his factual findings to his conclusions on counts 2 and 5. The Judge properly considered and resolved the various conflicts in the evidence. DL v The Queen (2018) 356 ALR 197 followed.
3. J and her father gave evidence that on the night of count 2 the appellant said to J that he was sorry; the appellant denied that he had said this. Having found that the appellant had made that statement, it was open to the Judge to find, as he did, that it constituted an admission that the appellant had touched J’s vagina earlier that day. The Judge was not obliged to give a post-offence conduct direction in the circumstances.
4. The Judge did not fail to consider and determine the issue of J’s reliability. His Honour specifically directed that he was required to consider reliability as well as credibility; his finding that the complainant told “the truth” was a finding that he accepted that J was both credible and reliable.
5. The Judge was not required to give a Peacock direction concerning a possibility of an accidental touching or exposing of J’s vagina in all of the circumstances, including that the actus reus was here sought to be proven by direct rather than circumstantial evidence. The decisions in Grant v The Queen (1975) 11 ALR 503; La Fontaine v The Queen (1976) 136 CLR 62; Britten v The Queen (1988) 49 SASR 47; Shepherd v The Queen (1990) 170 CLR 573; R v Tillott (1991) 53 A Crim R 46; R v Rogerson (1992) 65 A Crim R 530; Dean v The Queen (1995) 65 SASR 234; R v Gillard and Preston [2000] SASC 454; R v Mueller (2005) 62 NSWLR 476; R v Keenan (2009) 236 CLR 397; Mulvihill v The Queen [2016] NSWCCA 259 considered.
Held per Hinton J (dissenting in part):
6. The assault subject of count 2 was, considered in isolation, equivocal as to the existence of a sexual connotation. The trial Judge’s reasons are inadequate for want of addressing that question which was critical to a finding of guilt.
Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Law Consolidation Act 1935 (SA) ss 56, 353(1); Criminal Procedure Act 1986 (NSW) s 133(1); Juries Act 1927 (SA) s 7(4), referred to.
M v The Queen (1994) 181 CLR 487; Peacock v The King (1911) 13 CLR 619, applied.
BCM v The Queen (2013) 88 ALJR 101; DL v The Queen (2018) 92 ALJR 636; Filippou v The Queen (2015) 256 CLR 47; Knight v The Queen (1992) 175 CLR 495; La Fontaine v The Queen (1976) 136 CLR 62; Mulvihill v The Queen [2016] NSWCCA 259; Police v Rosales [2017] SASC 118; R v Ciantar (2006) 16 VR 26; R v Court [1989] 1 AC 28; R v Gillard and Preston [2000] SASC 454; R v Harkin (1989) 38 A Crim R 296; R v Keenan (2009) 236 CLR 397; R v Thompson [2018] SADC 5; R v Wildy (2011) 111 SASR 189; Shepherd v The Queen (1990) 170 CLR 573; SKA v The Queen (2011) 243 CLR 400; The Queen v C, M (2014) 246 A Crim R 21, discussed.
R v THOMPSON
[2018] SASCFC 104Court of Criminal Appeal: Vanstone, Peek and Hinton JJ
VANSTONE J. I would dismiss the appeal. I agree with the reasons written by Peek J.
PEEK J. Appeal against conviction.
Introduction
The appellant, Mr Shane Peter Thompson, was charged with five counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (‘CLCA’). A nolle prosequi was entered in relation to count 1 at the commencement of the trial. Counts 2 to 5 related to incidents over about a three week period involving the complainant, Ms J (J), who was 12 years old at the time. They were charged in the Information as follows:
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Shane Peter Thompson on the 17th day of December 2015 at Mount Barker, indecently assaulted [J] by touching her vagina.
It is further alleged that [J] was under the age of 14 years at the time of the offence.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Shane Peter Thompson on the 3rd day of January 2016 at Morgan, indecently assaulted [J] by touching her bottom.
It is further alleged that [J] was under the age of 14 years at the time of the offence.
Fourth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Shane Peter Thompson on the 3rd day of January 2016 at Morgan, indecently assaulted [J] by exposing her bottom.
It is further alleged that [J] was under the age of 14 years at the time of the offence.
Fifth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Shane Peter Thompson on the 3rd day of January 2016 at Morgan, indecently assaulted [J] by exposing her vagina.
It is further alleged that [J] was under the age of 14 years at the time of the offence.
At the outset of the trial by Judge alone,[1] the appellant in court offered to plead guilty to an alternative charge of “assault” in satisfaction of count 5, the basis being stated by his counsel, Mr Griffin QC, to be:[2]
an acceptance that by doing what he did, the wedgie, and applying force upwards to the front of her pants, that it would have made contact with her vagina, though there is a denial of any exposure or any sexual intention and it’s accepted that just the circumstances of doing that to the complainant, a person of her age, would not meet acceptable community standards for horseplay and the like.
[1] [2018] SADC 5.
[2] T3.
This plea was rejected by the prosecution and pleas of not guilty to all counts were entered. After reserving judgment at the conclusion of the trial, Judge Boylan found the appellant not guilty of counts 3 and 4 and guilty of counts 2 and 5, the latter respectively referred to at trial and on appeal as “the piggyback incident” and “the front wedgie” incident.[3]
[3] The prosecution contend that the word “wedgie”, in relation to count 5, is misleading: “… whilst the appellant told the complainant he was going to give her a “front wedgie” and the appellant gave evidence that is what he did, the act described by the complainant was not in fact “a wedgie”.” There is force in that submission, but the term was used at trial and will be retained for the sake of uniformity.
Background
J and her older brother (TS) lived at the Morgan Caravan Park with their parents (Mr BS and Mrs JS) who were its managers; Mr BS was also a councillor on the Mid-Murray District Council. The appellant was also employed by that Council as its Director of Community Services; he was and is married to Mrs WT and they have a daughter (JT). In late 2014 and early 2015, while the appellant and his family were living in Murray Bridge, Mr BS and the appellant became friends and their families began spending considerable time together. During this period, the complainant’s brother TS (then aged 17) and the appellant’s daughter, JT (then aged 15), commenced a relationship. In December 2015, the appellant’s family moved to Mount Barker but the families stayed in touch and the relationship between TS and JT continued.
Count 2: The “piggyback incident” at the appellant’s home
For several days in mid-December 2015, J and her family stayed at the appellant’s house at Mount Barker so that Mr BS, who was skilled in carpentry, could build a deck there as a favour to the appellant. J gave evidence-in-chief that one night during that stay, while both families were in the kitchen in the lead up to dinner, she was playing with the family dog in the hallway. She was wearing a “tight skirt that just went around”. The appellant approached her, picked her up in his arms “like a baby” and carried her into the “front room” (the home theatre room). While she was there alone with him, there were three piggy backs events. The first event was aborted after she fell off of his back onto the couch very soon after getting on; there were then two “piggy back rides”. It is to be noted that there is a chance of confusion here in that the three piggy back events have sometimes been referred to in discussion and submissions as “three piggy back rides” whereas J sometimes referred to “two piggy back rides” following the initial aborted piggy back event.
As to the second piggy back event/first piggy back ride, J gave the following evidence-in-chief:
Q After you fell on to the couch what happened next?
A He asked me to jump on his back again and his hands touched my vagina.
Q When he asked you to jump on his back what did you do?
A I jumped on it.
QCan you describe for us how you were when were you on his back, where your body was positioned?
AIt was just on his back and my - I think my legs were just hanging down and my arms were wrapped around his neck.
Q Did you say anything to Shane when you got on to his back?
A No.
Q Do you remember whether he said anything to you when you got on to his back?
A No, I can’t remember.
Q You told us, [J], about your body. Where was Shane’s hands and legs?
AShane’s - he was just standing up and his hands were wrapped underneath my bum and touching my vagina.
Q Can you explain for us where his hands went?
A They went on top of my knickers but not on the skin.
Q Do you remember whether it was one hand or both hands?
A Both hands.
Q How long were his hands on top of your knickers for?
A About five to 10 seconds.
Q Did he say anything to you whilst his hands were on your knickers?
A No.
Q Did you say anything about his hands?
A No.
QAfter that happened, [J], that is his hand touched you on the knickers, what happened?
A I jumped off.
Q Was anything said by either you or Shane at that time?
A Shane said ‘Sorry [J] we can try that again’.
Q Did you say anything to him when he said that to you?
A No.
In cross-examination, J stated that the second piggy back event/first piggy back ride was for “five seconds maybe”, but she could feel something touching her vagina area for “about three” of those seconds.
As to the third piggy back event/the second piggy back ride, J gave evidence-in-chief as follows:
Q After he said that to you ‘Sorry [J]’, what happened?
A I jumped on his back again.
Q This occasion, what was your body position like when you got on to his back?
A The same as it was the first time.
Q What about Shane’s body position?
A The same as it was the last time.
Q How long did that piggyback last for?
A About the same amount as the first one.
Q How long did the second piggyback last for?[4]
[4] T12. This question clearly referred to the third piggy back event/the second piggy back ride.
A About five to 10 seconds.
Q What happened to end the piggyback?
A I jumped off and went back into the kitchen.
Q How long was it that you and Shane were in the front room together?
A Maybe about five minutes.
QYou told us you then went back into the kitchen; did Shane say anything to you at that time, that is just when you got off his back a second time?
A No.
Q Did you say anything to him?
A No. (Emphasis added)
J gave further evidence that she told her mother “exactly what happened and how many piggybacks he did” but that she could not remember how many piggybacks she told her mother or if she gave any other details. Her mother later gave evidence that J told her about three separate touchings during the incident.
Cross-examination of J concerning count 2
The cross-examination of J concerning count 2 included the following:
QAfter that first attempt, I suggest that Shane said something like ‘I’m sorry [J], let’s try that again’?
A Yes.
…
QWhat I’m suggesting to you [J] is that at no point in that second piggyback attempt did Shane’s fingers or hands touch your vagina?
A No.
Q Do you agree with me that your vagina was not touched?
A No.
HIS HONOUR
Q What do you say happened?
A That his hands touched my vagina.
XXN
Q You say that you didn’t say anything, did you?
A No.
Q Did you fling yourself off?
A Yes.
Q Back onto the couch or onto the floor?
A Onto the couch.
Q Do you say that you then got up on his back for an extra time?
A Yes.
Q And on that occasion there was no touching of your vagina, was there?
A There was touching.
Q So there was a second time, was there?
A Yes.
QYesterday you didn’t tell us that there was any touching on the third occasion, the third piggyback, you only said it was the second one?
A No, there were two touchings and three piggybacks.
QYesterday when you were asked about the second piggyback, you said you were touched on the vagina and when you were asked about happened next, you said you had got up on his back, you said nothing about being touched on your vagina for the third piggyback, but that you got off and walked back to the kitchen. That’s what you said yesterday?
A I can’t remember what I said.
QWhat I suggest happened is that on the second piggyback you got on Shane’s back, he took a few steps outside the front room into the hallway heading towards the kitchen, and that you kind of slid off his back and your feet gently touched the floor and the piggyback only lasted a few steps and then both you and Shane walked down to the kitchen area?
A No.
QSo you disagree that the piggyback actually walked you out into the hallway and quite a few steps into the kitchen before you slid off his back and walked; you don’t agree with that?
A No, I don’t agree with that.
…
QYesterday when you were describing the second piggyback, and saying that Shane’s hands or fingers touched your vagina area through your knickers, you said that what happened for about five to 10 seconds?
A Yes.
Q That was just a guess, was it?
A That’s what I think it was, five seconds maybe, on his back.
…
QFor how much of the time that you’re on his back do you say that you could feel something touching against your vagina area?
A About three seconds.
…
Q… I think it was a week ago, last Tuesday of last week that you had a meeting, does that sound right?
A Yes.
Q You were asked about the piggybacks by Ms Barnes, weren’t you?
A Yes.
QAnd on that occasion when you were asked about the piggyback ride, you said in that meeting that you were only touched on the vagina once, didn’t you?
A Yes.
QYou’ve told us that you went down to the kitchen area and there were other people including your mum and dad down in that area, correct?
A Yes.
Q And then later on you spoke to your mum, correct?
A Yes.
Q You told us that you told her what had happened?
A Yes.
Q Is it the case that you don’t remember now exactly what you told her?
A Yes.
QSo you’re agreeing with me, that you can’t remember exactly now what words you said to your mum?
A Yes.
QDid you just tell her that in the course of a piggyback, Shane had touched you on the vagina?
A I can’t remember.
QJust so that I’m very clear, I want to give you this very clear picture; what I’m suggesting really happened is that there was one attempt at a piggyback where you didn’t successfully get on and you fell back onto the couch. You agree with that much?
A Yes.
QThen I suggest there was one more piggyback where you were up on Shane’s back, he was holding your legs, and that you walked out on his back quite a few steps into the hallway and into the kitchen before you got off and then both walked the rest of the way?
A No.
QAnd I suggest to you that during the piggyback, that second piggyback, that you weren’t touched on the vagina area. I take it you disagree?
A Yes.
Q And I’m suggesting to you that there wasn’t of a third piggyback?
A There was a third piggyback.
The appellant’s evidence concerning count 2
The appellant gave the following evidence. As he was coming out of the downstairs toilet, he saw J playing with the dog in the home theatre room and he asked her if she wanted a piggy back ride to the kitchen where people were having some chips and snacks; that she said ‘Yeah’ and got onto his back; that he pretended to lose balance or to drop her; and, that she moved too far and actually fell off onto the couch. He said that they were both laughing. He stated that he “was holding her underneath her hamstrings, probably about halfway between the back of her knee and her bottom”. He said that there followed only one actual piggy back ride (and not two as stated by J) which he described thus:
AThat time she got on from the lounge because she’d already fallen onto it, so that time she got on and jumped on, I held her in the same way, normal piggyback way, walked out through the door towards the family living-type area, I could feel that she was slipping and by the time we got to the stairs, like about the staircase area, she was slipping down so much that I just lowered her down so she landed on her feet.
Q What happened after she landed on her feet, what did you do and what did she do?
AWe both just started walking towards the family room to go in there like we’d arranged. I then remembered - at that point we used to try to keep the home theatre room door shut so that the dog didn’t inhabit it and so I turned around and shut the family room door - the home theatre room door and walked back into the living room area.
…
QWhat was the tone that you recall happening between the two of you during the piggyback ride?
A It was all just in a fun, clowning around time.
The appellant emphatically denied in evidence-in-chief that he touched the complainant’s vagina or that he may have had his hands anywhere near that area. During cross-examination, he re-affirmed that his hands “didn’t move [to the complainant’s genital area] at all”:
QAnd on both occasions do you say your hands were at the back of her legs, is that right?
A Yes.
Q I think you described them as being in that position, of her hamstrings?
A Yes.
Q Now, your hands moved from that position down around to the front of her body?
A No, they didn’t, no.
QThey didn’t move around to the area that is sort of the front of her body in the genital area at all?
A No, no.
Q Didn’t move around there at all?
A No.
Evidence of recent complaint concerning count 2
J complained about the above conduct to her mother (Mrs JS) that same evening, in two conversations, being the initial complaint and its elaboration shortly afterwards. Both J and Mrs JS gave evidence of both conversations. In respect of the first conversation, J gave evidence that:
Q When you spoke to your mum was there anybody else there?
A No, because we went into the garage to speak about it.
Q What did you tell your mum when you went into the garage?
AI just told her briefly, like, what happened, like, how we did the piggyback and then he touched my vagina, and she didn’t know what to do.
In respect of the first conversation, Mrs JS gave evidence that:
A… she came and sat on my lap before tea, before the visitors came. She was sitting on my lap for quite some time. I thought it was a little bit strange and she sat on my lap for a while and she whispered in my ear ‘Mummy I need to talk to you’. I said ‘Okay, come and talk with me’. I took her through the kitchen into the Butler’s Pantry. She said that Shane piggy back and touched her on the vagina.
Q Was that all that she told you at that stage?
A Yes.
In respect of the second conversation, J gave evidence that:
QAfter that conversation with your mother in the garage, did you speak to your mum about it again at all that day?
AYeah, we spoke about it in the bedroom, in the bedroom that mum and dad were staying in.
Q Was that before or after the conversation in the garage?
A After.
HIS HONOUR
Q But on the same night?
A Yes.
XN
QWhen you were talking to your mother in the bedroom, what did you tell her on that occasion?
A I told her exactly what happened and how many piggybacks he did.
QDo you remember now what it was that you told your mum about how many piggybacks he did?
A I can’t remember.
QDo you remember whether you gave your mum any other details, that’s in the bedroom when you were talking to her?
A I can’t remember.
Q What time was it do you think that you were talking to your mum in the bedroom?
A About 7 maybe.
Q In the evening?
A Yeah.
In respect of the second conversation, Mrs JS gave evidence that at around 10:30 to 11:00pm she went with J into the guest bedroom and that the conversation proceeded thus:
Q What did she tell you, as best you can remember, about the piggyback?
ASo what happened was [J] was playing in the hallway with the dog. Shane came into the hallway and picked her up like a baby and took her into their theatre room and told her ‘I’ll give you a piggyback’. So she jumped on Shane’s back and she felt his hands on her vagina so she sort of fell back and tried to walk off and he said ‘Sorry [J], let’s try that again’. So she jumped back on. Same thing happened, hands went onto her vagina so she jumped back off. And then the third time he said ‘Let’s try that again’ and the same thing happened but she flung her herself off and ran back into the kitchen.
Q Is that what [J] told you?
A Exactly what [J] told me.
Q Is that what she told you in the bedroom?
A Yes.
Mrs JS further gave evidence that in the bedroom:
AShe was really upset. She was crying, she was sobbing, she was worried because she was worried about how it was going to affect her dad because he was friends with Shane and she didn’t want me to tell [BS]. I told her I was eventually going to have to tell him but she was really upset, yeah.
Evidence of a statement made by the appellant to J later that night
J gave evidence that at “maybe 9:30 to 10 o’clock”, after making her second complaint to her mother, she went upstairs to JT’s bedroom, where she was to sleep. She said that the appellant was at the top of the stairs and he gave her a hug and said to her, “Sorry [J], are we cool?” She said that she did not reply but went into her bedroom. She said that her father then “came up to say goodnight”.
Mr BS gave evidence that he went with J up the stairs to her room and that, as he was walking back downstairs, the accused was standing at the top of the stairs, and he heard him say to J words to the effect of “Sorry [J], I hope we’re still friends”.[5] He did not hear whether J replied to this statement.
[5] The prosecution case was that DS made clear that the words “I hope we’re still friends” were not suggested to be the verbatim words used but rather the effect or meaning of them as he understood it to be.
The appellant in his evidence denied ever saying to J, “I am sorry, are we still friends?” He stated that he said “goodnight” to J at one stage while he was upstairs and that he recalled seeing J’s father in the stairwell at that time. He advanced no reason why he might have said such words; his position was that there was nothing for him to apologise for.
The prosecution case here was quite straight forward. First, it was open, after a full consideration of all of the evidence in the case, to accept the evidence of J and her father, reject that of the appellant, and find that the appellant did speak the words recounted by J as confirmed by her father. Second, given J’s evidence that the vaginal touching was the only thing that the appellant had to apologise for and that his evidence was that he had nothing to apologise for, and had made no apology, it was open to find that the apology did indeed refer to the vaginal touching described by J and hence constituted an admission that he then knew that he had done so.
The following day, J and her family left to go back to Morgan. In the car, J’s mother told her father for the first time about J’s allegations.
Count 3: The “water balloon fight” at the appellant’s home
The trial Judge acquitted the appellant of count 3. The following is a brief summary of the surrounding circumstances for chronological context.
J gave evidence that at the beginning of January 2016, a few weeks after her family’s stay at Mount Barker, the appellant’s family visited her home at Morgan. Upon arrival, they gave J a water balloon set and that afternoon there was a water balloon “fight”, mainly involving the accused and J. Mr BS was also outside at the time, using the pizza oven. J gave evidence that, during this period, the appellant “put a water balloon down the back of [her] pants” with one hand “and was trying to squeeze it to make it pop” for about ten seconds. She stated that the balloon was in her shorts but not her underwear. She said that the appellant touched the top of her bottom, but “more [her] back than her bum”; she could not remember if any part of his hand touched her bare skin. She gave evidence that her father then approached, and gave the balloon a light kick to pop it.
Mr BS gave evidence that he observed the water balloon fight, and that at one stage he went into the yard and saw the appellant putting a water balloon down the back of J’s pants, attempting to burst it. He stated that the appellant’s hands were in her pants for some three to five seconds before he kicked the water balloon and burst it. Mr BS was cross-examined about the fact that, by this stage, he was already aware of J’s allegations against the appellant. He agreed that he did not tell the appellant about J’s complaints; he stated that they had “decided to cut all ties and just finish the deck”. In relation to this visit, he said that “I discouraged [the appellant] from coming, he still came”.
The social club incident
Later on the day of “the water balloon fight”, the two families attended the “social club” of the local hotel. J gave evidence that she and her brother were playing on the ‘Snapchat app” of her mobile phone, “messing around, zooming up on Shane’s face”; that, without saying anything, the appellant took her phone and went outside; and that he returned after about five minutes and, without saying anything, returned her telephone. Later that night when looking at her telephone, she discovered that a copy of a short video of her playing under a sprinkler she had previously recorded on the telephone had been sent to an unfamiliar number:
AWell, I just found that it was sent to a number that I had no idea and I knew that I didn’t send it.
Q Do you now remember what number it was that that message was sent to?
A Yeah, it was Shane’s council phone number.
Q How did you come to know that it was Shane’s council number?
A I asked dad, because he had it on his phone.
The appellant’s evidence concerning the ‘social club incident’
The appellant gave evidence that he took J’s telephone because he did not want the images that had been taken of him “being plastered on social media” and that he wanted to delete them. He looked for the images of him from that day but could not find any. He began looking at older images and found the sprinkler video, which he sent to his work phone because he “needed some currency in this prank”. By this he meant that if J threatened to post one of the images of him on social media he would threaten to post the video. He did not consider the video of J to be “indecent”, but rather “potentially embarrassing”; he described it as “a selfie of [J] holding it out, dancing around in the backyard”. He denied that he “liked” the video and that he sent it to his work phone number so that his wife would not see it. He was further cross-examined thus:
Q Did you tell her that ‘I’ve got this video of you, look out’?
A No.
QWhat was the point of having it if you didn’t even go back and tell her that you had this currency in the prank?
A Just if she did it again.
QSo you didn’t go back and say to her ‘If you’ve got a photo of me, I’ve got something of you’?
AShe’d done it earlier in the day, I think, on the deck so this was the second time and I thought ‘Well, if she does it again, I’m saying “I’ve got one of you”’, so.
QBut Mr Thompson, what’s the value of having something like that to hold over someone if you don’t tell them that you’ve got it?
A All just done in fun, I thought it would come up again.
Q So it was insurance for the future, is that what you’re saying?
A Yeah, correct.
QNotwithstanding that you say that at this time, that is when you gave the phone back, that’s when you had concerns about her having taken a photograph of you?
A Yeah.
QAnd you didn’t say anything to her at that time about you having a photograph of her in case she did post it or do something with the photograph of you, is that what you’re saying?
A Possibly.
Q I want to just be clear about this, you didn’t say anything to [J] about having -
A No, I didn’t.
Q - the video, did you?
A No.
Count 4 (“the back wedgie”) and count 5 (“the front wedgie”)
J gave evidence that at about 7:30 to 8:00pm one evening during the same visit to Morgan, she together with her brother, TS and JT were watching a movie on a laptop computer in TS’s bedroom but he made her leave because the movie was too “scary” for someone her age. She left and went into her bedroom (being the adjacent room). She was sitting alone on a couch painting her toenails when the appellant entered the room. She attempted to talk “really fast” to distract him, and got off the couch to point out an old school photograph. He followed her, looked at the photo, and then told her that he was going to give her a “back wedgie”. She said that he then gave her a “back wedgie” for ten seconds and that he “got [her] knickers and pulled them up”, so they were “in [her] bum”. She was wearing a pair of small shorts, which her mother described in evidence as “the type that girls wear under their netball uniforms”.[6] She could not remember whether the appellant used one or two hands, or whether any part of her bottom was exposed. J then gave further evidence as to what then followed:
[6] A photograph of the shorts was tendered as exhibit P1, photo 22.
Q After you got onto the bed what happened?
A He told me he was going to give me a front wedgie.
Q Where were you when he said he was going to give you a front wedgie?
A I was laying on my bed and he was on my left.
Q When you say you were laying on the bed, what position were you in?
A I was just like laying straight back, like straight with my legs straight and everything.
Q Were you on your front or on your back?
A My back.
Q You said that Shane was next to you, whereabouts was Shane?
A On my left near my legs.
Q Was he on the bed or on the floor?
A On the bed.
Q How was his body on the bed?
A He was kneeling on his knees, leaning over me.
Q What part of your body was his body leaning over?
A My legs.
Q When he was in that mosque (? pose) leaning over you did he say anything to you?
A That’s when he just said ‘I’m going to give you a front wedgie’.
Q After he said that what happened?
A He pulled the side of pants up and to the side and my vagina exposed.
Q When you say he pulled your pants up, which pants are you talking about?
A My bike shorts and my knickers.
Q When he pulled them up what parts of your body were exposed?
A My whole vagina.
QI just want to be clear about this, [J]; when you say your ‘whole vagina’, can you tell us what you mean by your whole vagina?
ALike my pants weren’t even over me they were just like - I don’t know how to explain it.
Q I think you said before that your pants were pulled up, is that right?
A Yeah.
Q Then did you also say that they were pulled -
A To the side, yeah.
Q Were your pants in that position when you say that your vagina was exposed?
A Yes.
HIS HONOUR
QWhat part of your pants do you say that Shane Thompson was holding onto when your vagina was exposed?
A My - like the bottom of my shorts, my bike shorts.
Q So what, at the hemline, at the bottom of your bike shorts?
A Yeah.
Q Which side, your right or your left side?
A My left side.
XN
Q How long did Shane hold your bike shorts up and to the side?
A Maybe for five to 10 seconds.
…
Q When Shane pulled your pants up, was he doing that with one hand or two hands?
AHe was pulling my pants with one and he was trying to keep my legs spread open with the other.
Q What position was he in when that was happening?
A He was kneeling over me.
The evidence of Mr BS concerning count 5
Mr BS gave evidence concerning his observations this evening:
QDid you go up to [J]’s room on three different occasions when Shane was also going up to her room?
A Yes.
Q And on each occasion did you say to [J] ‘Come back downstairs’?
A Yes.
Q And did she on each occasion come back downstairs?
A She did.
Q Did you see Shane the whole time that he was in [J]’s room on those -
A On those three, yes.
Q Did you see Shane ever give [J] a wedgie during any of those three occasions?
A No, I did not.
During cross-examination, he said:
QWere you aware of occasions when, for example, [WT] might say to Shane ‘Would you go and check on [JT] and [TS]’?
A Yes.
QYou didn’t always go upstairs or happen to be upstairs every time that Shane went up, would you?
A That weekend, no, I made a conscious effort to be, yes.
Q But that was only if you were aware that Shane was going up?
AI was in the kitchen and where we prepare, and as you can see in photo No.6, most of the cooking stuff is out there. Yeah, I can’t say I definitely was aware every time, but every time I saw him going to go upstairs, I did follow him, yes.
QThere are two doorways right alongside each other, aren’t there, to the two bedrooms?
A Yes.
QSo I suggest to you that on the occasions that Shane went upstairs, he did check on [JT] and [TS], even if it was just to look in the room and say ‘G’day’ to them?
AHe never opened the door once while I followed him on three occasions. He went straight into [J]’s room. (Emphasis added)
Evidence of recent complaint concerning count 5
J gave evidence that she told her mother about this incident that night, “not long after it happened”. She stated:
AI just told her that he was - that my vagina was exposed and that he was pulling my pants to the side.
QIs that all that you told mum, or do you remember if there was anything else that you told her?
A I told her that like he gave me a back wedgie also.
Mrs JS gave evidence that at approximately 9:00pm, she went upstairs to make sure J was getting ready for bed. She observed that J was clearly upset and had been crying. She described the conversation as follows:
ASo [J] was laying on the bed and she was clearly upset, her eyes were all red and I could see that she had been crying and I said to [J] ‘What’s wrong?’ and she just nodded her head, and I said ‘[J], what’s wrong? Is it [TS]? Is it [JT]?’ She said ‘No’ and then I said ‘It’s not Shane again, is it?’ and she nodded her head and she burst out crying, and I said ‘What’s happened?’ and she said that Shane’s come into her room and she felt uncomfortable so she was walking over towards her photos and trying to distract him and he’s said to her ‘I’m going to give you a back wedgie’, so he’s pulled her pants up and given her a back wedgie, and she’s still trying to distract him ‘Look at my horses’, photos on the wall, and he was still giving her a wedgie when she was asking him to stop. And then she has flung herself away off him and onto her bed and then she said he came over onto her bed, kneeled on her bed and said ‘[J], I’m going to give you a front wedgie’ and gave her a front wedgie and pulled her little bike shorts that she had on to one side and up (INDICATES) and she was trying to close her legs but then he pushed on one of her legs to keep her legs open. She said that she was saying ‘No, no, no’ and he was saying ‘Front wedgie, front wedgie’ and she managed eventually to roll off the bed and back into a side wall which is in her bedroom and then she said Shane left out of the room after that.
Q Did she tell you when it was that that had happened?
AShe didn’t say when but yeah, I’m guessing it was not - it couldn’t have been very long before I’d gone into the room because I was watching her the whole time to make sure she was staying with us and it was only a short time she had gone upstairs, but she didn’t say exactly when, no.
Q So she didn’t tell you what time?
A No.
Q Did she tell you what day it had happened?
A It happened just before I went up to the room, yes.
Q Did she tell you that?
A Yes.
QYou told us that she told you about Shane giving her a front wedgie. Can you remember what, if anything, she said about where her pants were when he gave her the front wedgie?
AShe said that he pulled her pants up and to the side, to the side and up and she said she looked down and all her vagina was exposed and she was trying to jam her legs shut but that’s when he was holding one leg open with his hand and his other hand was still on her bike shorts.
QDid she tell you anything about what position she was on the bed when the front wedgie happened?
A She was on her back.
Q Did she tell you anything about what position Shane was in when that happened?
A She told me he was kneeling on her bed over her, yes.
The appellant’s evidence concerning counts 4 and 5
The appellant stated that he went upstairs on multiple occasions throughout the night to check on the children; mainly to ensure that his daughter was not alone with TS in his bedroom with the door closed contrary to the family rule. During cross-examination, he agreed that at that time TS and JT were allowed to sleep at night in the same bedroom; however, he maintained that his wife still continually asked him to check on them and that he was not going upstairs to spend time with J. He stated that on the last occasion of such checking, he spoke to J and she started showing him photographs from school and of her horses and that she joked to the effect that he would not be able to ride a horse because of his weight. He gave the following evidence:
AI said ‘That’s a bit cheeky, I’ll give you a wedgie’ and I grabbed the back of her shorts and gave them a pull.
QWhen you said ‘That’s a bit cheeky’ did you wait until you’d finished or was it all in one action?
A All in one action.
Q What was she wearing that you could see at the time; what did she have on her top?
A On her top?
Q Yes.
A Just had a T-shirt sort of thing I think.
Q And what was she wearing on the bottom?
A Bike-type shorts.
QWhen you say you said ‘That’s a bit cheeky’ and you were going to give her a wedgie did you say the words ‘I’m going to give you a wedgie’ or did you just do it?
A I don’t really recall.
QHow did you go about grabbing or taking a hold of any part of her clothing to give her the wedgie, was it with one hand or two hands?
A Yeah, just reached out my left hand because she was on my left side.
The appellant said that he had a hold of her shorts for about five seconds, after which time J pulled away and flung herself on the bed. He continued:
QNow, once she had flung herself onto the bed and was on her back, you’ve said, did she say anything?
A Yeah, she said ‘Ha ha, you can’t get me now’.
Q Did you consider that the joke was still continuing?
A Yeah, that’s what I thought, joking around.
Q And what was she physically doing when she said ‘Ha ha, you can’t get me now’?
A She was then just laying on her back and laughing (INDICATES).
Q And where were her hands, if anywhere?
A I don’t recall.
QOkay, and was her head touching the pillows at all or was it more flat on the bed surface?
A Yeah, it was more flat on the bed surface.
Q What did you do after she said something like ‘Ha ha, you can’t get me now’?
A I said words to the effect ‘Yes, I can, I’ll give you a front wedgie’.
Q And did you?
A Yes, I did.
Q How did you do that?
A Just grabbed at the waist of her shorts an gave them a pull up (INDICATES).
QNow, from where you had been standing did you have to move any distance in order to grab hold of her shorts?
A Only sort of a step or two along the end of the bed, the foot of the bed.
Q Did you at any point kneel on or get onto the bed?
ANot get onto, my legs were being pressed against it but I didn’t get on or kneel on it, no.
Q You’ve said that you grabbed her shorts, what part of the shorts did you grab?
A The waistband.
Q And with one hand or two?
A One.
Q Which hand?
A Left.
Q And are you a left-hander?
A Yes, I am.
Q So you grabbed the waistband area and which direction did you pull?
A Upwards.
Q Did you pull to the side at all?
A No.
Q Did you at any stage grab the leg or the bottom hem of the shorts?
A No.
QAnd at any stage when you pulled the pants upwards are you able to say how far up her torso you were able to pull the waistband?
A They were a bit stretchy but not far, 10 cm maybe, probably not even that though.
QAt any point during the time that you pulled up on her pants, did you at any point see any exposure of her vagina or her private parts near her vagina?
A No, not at all.
Q For about how long did you pull up on the waistband?
A Five, five seconds-ish.
Q Did she react you to pulling upwards?
A. She was laughing.
Q And was she using her hand to fight against it?
A Yes.
Q And were you laughing?
A Yeah.
Q And at any point did you touch any part of her leg?
A No.
Q Did you at any time use one hand to try to keep her legs apart?
A No.
Q And after this laughter and a pull on the waistband, did you let go?
A Yes.
Q And how did the wedgie incident come to an end then?
AThat was it, she sort of rolled off the bed (INDICATES) near the window, I think, in the other one of the other photos that showed a window, she stood up near that on that the right-hand of the bed as we see it.
Q And so she rolled off the bed, the opposite side to where you were?
A Yes.
Q And what was the mood between you both when she rolled off the bed?
A She seemed happy and fine.
QAnd on reflection later, did you give any further thought as to whether or not you should have given her that front wedgie?
A Yes, I did.
Q And what were your later thoughts about that?
AThat it was pretty reckless and stupid and perhaps went a bit, a bit too far in the context of joking around.
The appellant estimated that in total he would have been in J’s room for four to five minutes. He was quite specific concerning the methodology by which he executed the “front wedgie”; thus he further stated:
QWhen you gave the front wedgie, by what part of the waistband or what part of the waistband do you say you touched to pull the shorts up?
AJust sort of in the middle, a little bit to my right. Her shirt was a shortish sort of one so the waistband was exposed when she was laying on the bed.
XN
QSo if we take the middle line as being, say, where someone’s belly button is, are we talking about you grabbing the waistband slightly off centre?
A Yes.
QAnd from her body point of view, to the left side of her body a bit more or to the right side?
A I’m a bit dyslexic with that stuff.
Q Okay, well, if you grabbed it with your left hand?
AYeah, but I was reaching slightly across (INDICATES) so - what would that be? Her left side?
Q More to the left of the middle of her body?
A Yeah, just slightly.
During cross-examination he stated affirmatively more than once that J’s vagina “was never exposed”.
The evidence of the appellant’s wife and daughter concerning counts 4 and 5
Mrs WT gave evidence that she asked the appellant to check on their daughter several times and that she was still “concerned to check on them” from time to time, even when they were allowed to share a bedroom, as there was a rule in place that they were not allowed to have sex.
JT gave evidence that she was in the adjacent bedroom (with TS) and that she did not hear J say “stop”. However, she also stated that she did not recall her dad “speaking to anyone else” when he came upstairs, whereas his evidence was that he did speak to J (as referred to above). Further, while J’s evidence was that she did say “stop”, she never claimed that it was in a loud voice or that it was designed to be heard by someone outside her room.
The appellant’s inquiries regarding J not responding to his phone messages
Mr BS gave evidence that the day after the appellant’s family left his Morgan property, he and TS returned to the appellant’s property to finish the deck. BS said that during that visit:
AShane mentioned that [J] wasn’t responding to his texts or Messenger or Facebook and asked his eldest daughter M why, if she was responding to her, ‘Because [J] won’t talk to me’.
Q Were you able to hear Shane say that?
A Yes.
In evidence, the appellant agreed that he may have said in the presence of BS and TS that J was “ignoring” him or “hasn’t responded” to some of his messages and that he “may have been” aware of a lack of responding by J in January 2016, but that he “wouldn’t have thought much of it, mobile phones”.
The trial Judge’s verdicts and reasons
After summarising in detail the evidence in some 12 pages, and after directing himself in respect of various legal matters as to which no complaint has (or could have) been made, the Judge stated:
There is no suggestion in this case that the accused could have touched [J]’s vagina, touched her bottom, exposed her bottom or exposed her vagina accidentally. The defence case is that she has given false evidence. In those circumstances, I have considered the question of her having a motive to lie. Until the night of the piggyback incident, there seems no doubt that [J] got on very well with the accused. Indeed, she appeared to continue to get on well with him. The accused’s daughter was [J]’s brother’s girlfriend and her father and the accused were good friends. I cannot discern any motive that she may have for making false allegations against the accused. But I have directed myself that the absence of evidence of motive does not strengthen the prosecution case. It is neutral. I have not concluded that, because there is no apparent reason for [J] to lie, that she must be telling the truth. I have borne in mind that lies can be told for no apparent reason. It is not for Mr Thompson to prove a motive for [J] to lie. At all times, I have borne in the forefront of my mind that it is for the prosecution to prove its case against Mr Thompson beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that [J] told me the truth.
The Judge acquitted on counts 3 and 4.
As to count 3, his Honour stated:
Next, Mr Griffin submitted that the evidence falls short of proving an indecent assault on the occasion of the water balloon fight. I accept that submission. [J]’s evidence was that the accused’s hand was not in her underwear but in her shorts. But she then went onto say
it was more like – it was like just to the back, like my back, but then, like it was more my back than my bum.
In those circumstances, while I accept that there was a touching, I am not satisfied beyond reasonable doubt that it was a touching that had a sexual connotation.
As to count 4 (the “back wedgie”), his Honour stated:
Mr Griffin’s next submission was that the evidence fails to establish an offence of indecent assault by the accused’s exposing [J]’s bottom during the first wedgie incident as particularised in the Information. I accept that submission. [J]’s evidence was that she could not remember if any part of her bottom was exposed. In those circumstances, I am not satisfied beyond reasonable doubt that the touching during the first wedgie had a sexual connotation.
The Judge convicted on counts 2 and 5. His Honour stated:[7]
[7] [2018] SADC 5 [126]-[127].
[126] I am satisfied beyond reasonable doubt that [J] has told me the truth about those incidents. I find:
· that the accused deliberately touched [J]’s vagina on the outside of her clothing during the piggy back;
· that [J] complained promptly to her mother that he had touched her in that way;
· that the accused apologised to [J] later that night;
· that he was apologising for having touched her vagina and that, by apologising, he admitted that he had touched her vagina;
· that the accused deliberately exposed [J]’s vagina during the front wedgie incident;
· that [J] complained to her mother about the accused’s behaviour during the wedgie incident almost immediately after it;
· that the accused’s concern, in the days following the wedgie incident, about [J]’s not replying to his messages arose out of his consciousness of his guilt in relation to the front wedgie incident.
I am also satisfied beyond reasonable doubt, although I have not used this evidence in making the findings I have just set out, that the accused sent himself a copy of the ‘sprinkler’ film because he had a sexual interest in [J]; and that he sent the film to his work phone to prevent his wife or anyone else from seeing it.
The grounds of appeal
The grounds of appeal (without their particulars set out below) are as follows:
1.The Learned Judge (LJ) erred in failing to give adequate reasons for his decision in relation to counts 2 and 5. [Particulars]
1.AThe Learned Judge erred in finding that the appellant made an admission that he had touched her vagina on the night of the incident relating to count 2 and erred by misdirecting himself as to the question whether such conduct as he found was capable of being treated as an admission (LJ [113], [126]).
2.The Learned Judge erred by failing to consider and determine whether the complainant was reliable in relation to her evidence constituting counts 2 and 5 (para [126]).
3The Learned Judge erred in failing to consider and exclude accidental touching. [Particulars]
4.The Learned Judge erred in finding that the accused’s concern about the failure of the complainant to respond to his text messages arose out of his consciousness of guilt in relation to count 5 (para [126]), and/or erred in failing to give any or adequate reasons for so finding.
5. The verdicts are unsafe, unreasonable and against the weight of the evidence. [Particulars]
GROUND 5 OF APPEAL: THE VERDICT IS UNREASONABLE
Ground 5 requires an independent review of the evidence, applying the M v The Queen precepts.[8] The appellant relied on written submissions as follows:
[8] (1994) 181 CLR 487.
61. For reasons already canvassed, a conclusion of guilt in respect of counts 2 and 5 required the trial judge to reject as a reasonable possibility in view of the appellant’s sworn evidence, his good character, and the unlikelihood of his acting indecently in the circumstances:
- that the complainant was mistaken in her construction of where and how she was touched in the course of horseplay with the appellant;
- that if she was not mistaken the conduct was deliberate and/or bore the indecent quality essential for proof of the offence.
62. Having regard to the various issues with the complainant’s evidence, and the fact that the offending was uncorroborated, there was an ineradicable doubt as to guilt.
63. On an independent review, and even allowing for the natural limitations attending appellate review, the Court should feel a reasonable doubt about the question of guilt, and should conclude that the jury must have (in the sense of ought to have) experienced a reasonable doubt.
64. It is not every contradiction or proved inconsistency or flaw in a witness’s evidence which will lead a tribunal to doubt the witness’s essential reliability – a question of degree is involved: R v Livingstone [2011] SASCFC 28 at [23]. Further, it is obviously correct to say, as was recently observed in R v Rendell [2018] SASCFC 71 at [90], that many of the matters relied upon to demonstrate that the verdict is not safe were matters that “a trial judge is best placed to resolve” (and see also Livingstone at [23]).
65. The issue here, however, is that the trial judge did not in terms resolve many of those matters because (so the appellant submits) the significance of the issue of inadvertence or misinterpretation of non-indecent conduct was not squarely confronted by the learned judge in reaching the verdict. Matters such as whether and to what extent there had been prior horseplay without any indecent touching, and the nature and extent of any actual indecent touching in the course of the charged conduct, together with the internal inconsistency of the complainant with respect to that matter, required specific consideration because the appellant’s case did in fact raise for consideration a hypothesis of accidental conduct and/or misinterpretation.
66. That is to say, with emphasis upon those critical issues (whether conduct was deliberate and indecent), it should be concluded that it was not open to the judge to be satisfied beyond reasonable doubt that the appellant was guilty. Particularly in view of the internal inconsistencies in the complainant’s evidence, the risk of reconstruction to which it was subject, and the risk of contamination which was present in relation to the evidence of her parents in so far as it was relied upon for corroborative value, the evidence lacked the capacity to meet the designedly exacting standard required. The Court should, it is respectfully submitted, feel an unease about the conviction (Livingstone at [23]).
I first make some observations concerning matters raised in submissions and then turn to the matters referred to in the particulars.
Potential corroboration?
The assertion at paragraph [62] of the submissions that “the offending was uncorroborated” is incorrect. As to count 2, if one harks back to the days of practically mandatory corroboration warnings in South Australia, a Judge at that time would have left to the jury the evidence of J’s father concerning the alleged apology by the appellant to J as being potentially corroborative of her evidence as to count 2;[9] and if the jury found count 2 proven, that finding was potentially corroborative of her evidence as to count 5.[10] It is also probably the case that the matter of the appellant sending the video of J under the sprinkler to his business phone (which event the appellant admitted) would have been left as being potentially corroborative of her evidence as to both counts. One might discuss these matters at some length, but there is no point in doing so. Suffice it to say that the appellant has nothing to gain by opening up a debate as to corroboration.
[9] “Potentially corroborative” in the sense that it was for the Judge to rule as to whether a particular item of evidence was potentially corroborative and for the jury to find whether it was corroborative in fact.
[10] See, for example, B v The Queen (1992) 175 CLR 599; Gipp v The Queen (1998) 194 CLR 106.
Young witness with a risk of reconstruction? – the complaint evidence
As to the assertion of “a risk of reconstruction” at paragraph [66] of the appellant’s submissions, this was not a case involving a complaint (and hence a trial) long after the alleged date of the subject charge; nor was complaint first made after a series of offences had already allegedly occurred with a consequent risk of a blurring between the various charges. Here, J’s complaint to her mother as to the count 2 event was made shortly after on the same day; and, as to the later count 5 event, the complaint was again made to her mother shortly after on the same day, with the formal police complaint being made later that same month. I would add that although complaint evidence has only limited uses, and clearly does not constitute corroboration in the legal sense, both J and her mother gave clear evidence of very recent complaint and, in my view, the complaint evidence as presented here does fall at the stronger end of the spectrum of such evidence as is generally encountered. The Judge’s finding that any inconsistencies between J’s and her mother’s in this regard were no more than might be expected in the circumstances was well open to him.
Evidence of a background of previous horseplay (innocuous interactions)
The appellant relies on a body of evidence of previous apparently innocuous interactions between himself and children, including J herself. He stated that he often gave his own children piggybacks, and had also given J a piggyback when the two families were looking at display homes.[11] He gave evidence that he had “probably” given a “front wedgie” to his children before, but that they would be “very rare”. His wife gave similar evidence. The appellant did not think that he had given J a wedgie previously. He agreed that whether a wedgie is inappropriate depends “on the context … and situation”, and that “some parents might” complain if their child was given a wedgie by another adult.
[11] The appellant’s daughter, JT, also gave evidence of that fact: T363.
The appellant gave evidence that he got along very well with J and was able to communicate on her level. He stated:
… I think through spending time and it can be difficult in that position, that there were the two adult couples, the two sets of parents and then [JT] and [TS]. So I guess [J] was often a third wheel, sort of floating between the two and not sure where she fitted.
Q Is that the way you saw it?
AYeah that’s how I saw it and I tend to be conscious of things like that in social settings and trying to make sure people are included.
Mr BS gave evidence that the appellant got along well with J, as though they were “good little mates”, “like two 12-year-olds might be”.
J agreed in cross-examination that she had liked the appellant and his family; she agreed that the appellant was always “quite happy” and “happy to have a joke”. She said that throughout 2015, her family had a block of land at Littlehampton and that the family would sometimes visit the block to see the building work progress. Occasionally, the appellant and his family would also visit the block of land. She recalled a time when the two families went to look at a group of display homes at Blackwood. She agreed that there was an occasion where her brother gave the appellant’s daughter a piggyback from one home to another, but she could not remember also getting a piggyback from the appellant himself. She agreed that she “might” have been given a piggyback ride by the appellant on an occasion prior to “the piggyback incident”.
The appellant and J both gave evidence that there was an occasion in November 2015 when the appellant and his family also visited J’s family at Morgan and there was a water balloon fight participated in by both J and the appellant. There was also evidence that, during this visit to Morgan, while both families went for a walk together, the appellant “swept” J “up in his arms”, “like a baby”, and “threatened to throw her in the pool” that they were walking past, as a sort of “friendly banter”. The appellant gave evidence that he had also previously picked J up from school at the request of Mr BS. J also gave evidence of that occurrence and did not suggest that anything untoward occurred.
I agree with Peek J that the evidence of the conversation overheard by the complainant’s father was a piece of circumstantial evidence to which the trial Judge could have regard. Non-responsiveness could signal hostility on the part of the complainant toward the appellant which the appellant had reason to be concerned about because of his actions. Accepting this, if the Judge was satisfied that the appellant was concerned, that was a fact which rendered it more likely that the complainant was truthful in her evidence as to what she said the appellant did. I do not understand the seventh finding as importing any different use.
The evidence of the complainant’s father, if accepted, established the concern on the part of the appellant at the complainant’s non-response to his messages.
In my view in the seventh finding the Judge implicitly rejects the appellant’s explanation for his conduct as set out earlier in his reasons in the paragraph quoted above. That left the Judge with the fact of the conversation with M and the inferences to be drawn from the content of that conversation. Neither the fact of that conversation nor its content were challenged. There was no other evidence indicative of any other explanation consistent with innocence beyond that given by the appellant. Accordingly, the concern that the Judge has not considered other explanations for the conduct consistent with innocence because he has not stated in his reasons that he has done so, and, by not directing himself in accordance with the authorities dealing with post-offence conduct has not ensured that he did so, evaporates.
In my view this ground of appeal is not made out.
Ground 5 – The verdicts are unreasonable and cannot be supported by the evidence
In BCM v The Queen Hayne, Crennan, Kiefel, Bell and Keane JJ said:[78]
The principles to be applied in determining a ground which challenges the sufficiency of the evidence to support a conviction are well-established. They are collected in SKA v The Queen. Prominent in the majority’s discussion in SKA of the application of those principles is the requirement that the appellate court’s reasons disclose its assessment of the capacity of the evidence to support the verdict.
[footnotes omitted]
[78] (2013) 88 ALJR 101 at [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ).
Their Honours’ reference to SKA v The Queen is to the joint judgment of French CJ, Gummow and Kiefel JJ who said:[79]
[79] (2011) 243 CLR 400 at [11]-[14] (French CJ, Gummow and Kiefel JJ).
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 Queen by 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 Queen McHugh, 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.”
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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 Filippou v The Queen (Filippou) the High Court considered the application of s 6(1) of the Criminal Appeal Act 1912 (NSW) in the context of a trial conducted by a judge sitting without a jury.[80] French CJ, Bell, Keane and Nettle JJ said:[81]
[80] (2015) 256 CLR 47.
[81] (2015) 256 CLR 47 at [6], [9]-[12] (French CJ, Bell, Keane and Nettle JJ).
Section 133 of the Criminal Procedure Act 1986(NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, “finding” means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt. The section also provides that the judge must include in his or her reasons for judgment the principles of law applied and the findings of fact on which the judge relies; and that, if any Act or law requires a warning to be given to a jury in such a case, the judge is to take the warning into account in dealing with the matter. As was held in Fleming v The Queen, the requirement to take a warning into account necessitates that the judge expressly refer to the warning in his or her reasons for judgment.
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As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.
In Fleming, the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. For the purposes of this appeal, it is necessary to answer that question.
Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.
Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
“It is only where a [judge’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 ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
[footnotes omitted]
Section 6(1) of the Criminal Appeal Act 1912 (NSW) mirrors s 353(1) of the Criminal Law Consolidation Act 1935 (SA), whilst s 133(1) of the Criminal Procedure Act 1986(NSW) is not materially different to s 7(4) of the Juries Act 1927 (SA). The consequence is that the approach articulated in Filippou applies in this State to an appeal against a conviction returned by a judge sitting without a jury on the grounds that the verdict is unreasonable or cannot be supported by the evidence.
I have had regard to each of the eight particulars articulated in support of this ground of appeal as contained in the appellant’s Notice of Appeal. Those particulars (5.1-5.8) are each dealt with by Peek J. In general I agree with Peek J’s treatment of each. On my assessment of the evidence, none of the particulars necessarily presents an immoveable obstacle to reasoning to guilt on counts 2 and 5 for the reasons Peek J gives. Nor do they in combination. This is a case where the trier of fact’s advantage in seeing and hearing the witnesses is critical.
It is also important to recall that as part of the independent assessment this Court is not constrained to adopt the same process of reasoning as the trial Judge. That is important in this case because it was open to the Judge to conclude that the appellant had a sexual interest in the complainant which rendered it more likely that when she told the Court about the indecent assaults subject of counts 2 and 5 she was telling the truth. It was also open to reason from this, and the touching of the vagina in the course of the third piggyback, that the touching that occurred during the course of the second piggyback was indecent in the sense explained above. Further, in the light of this, it was open to conclude that the apology was one made because the appellant had indecently assaulted the complainant in the course of the second and third piggyback. Care must be taken here not to engage in circular reasoning, but the fact of the apology is a circumstantial fact that may be taken into account in determining whether the complainant is truthful in her evidence regarding the indecent assaults and whether those assaults were indecent such that the offences are proven beyond reasonable doubt. The fact that the apology was overheard by the complainant’s father is also supportive of her credibility. Lastly, I do not overlook the probative value of the conclusion that the appellant was concerned by the complainant’s lack of contact shortly after the wedgie incidents.
In my view the verdicts were not unreasonable or incapable of being supported by the evidence. The fifth ground of appeal is not made out.
The proviso
This is not an appropriate case for the application of the proviso. This Court cannot be satisfied of the appellant’s guilt on count 2 beyond reasonable doubt without seeing and hearing the witnesses.
Conclusion
For these reasons I would allow the appeal in relation to count 2. I would quash the conviction on that count and direct that it be retried
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