R v W No. 4282 Judgment No. SCCRM 93/296 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 4282

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences - Unlawful sexual intercourse and indecent assault allegedly committed by father against 11 year old daughter - whether verdicts unsafe or unsatisfactory - corroboration of one incident - inconsistencies and other deficiencies in evidence of child as to timing of incidents - importance of jury's advantage over appeal court in seeing and hearing witness - verdicts not unsafe or unsatisfactory.

HRNG ADELAIDE, 22 October 1993 #DATE 25:11:1993
Counsel for appellant W:     Mr P A Cutherbertson
Solicitors for appellant:     Mangan Ey and Associates
Counsel for respondent R:     Mr B J Jennings QC
   with Ms R C Gray
Solicitors for respondent:     Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was tried by judge and jury in the Supreme Court on an information alleging six counts of sexual offending against his daughter. He was found not guilty by direction of the judge on the second count in the information which alleged indecent assault and on the fifth count which alleged unlawful sexual intercourse. He was found guilty on the first count which alleged unlawful sexual intercourse by performing an act of cunnilingus, on the third count which alleged unlawful sexual intercourse by performing an act of cunnilingus, on the fourth count which alleged unlawful sexual intercourse by penile penetration of the vagina and on the sixth count which alleged unlawful sexual intercourse by penile penetration of the vagina. He has appealed against the convictions. 2. The principal witness for the prosecution was the alleged victim. She was born on the 3rd December 1980 and was twelve years of age at the time of trial. Her parents were living apart at the time of trial, having separated in January 1989. According to the girl whose name is Joelene, the incident which is the subject of the first count occurred prior to the separation. It occurred in the lounge of the family home when the appellant undid Joelene's sleeping bag in which she was sleeping in the lounge, pulled down her knickers and licked her vagina. Joelene gave evidence that thereafter various sexual incidents occurred, but she did not give evidence of any incident which could be identified as the event which was the subject of the second count. The learned trial judge therefore directed an acquittal on that count. 3. Joelene gave evidence that the incident which is the subject of the third count occurred on an occasion when she and her sister were staying with the appellant on an occasion of access after the separation. He had been playing "chasey" with her sister and with two children from nearby houses, namely Sharon and April. The appellant suggested that Joelene have a bath. She undressed and ran the bath. While she was running the bath the appellant came into the bathroom naked. He ran the shower and told her to get into the shower. While they were both under the shower the appellant picked Joelene up under the armpits and licked her vagina. He then placed her vagina on his penis and the penis penetrated the vagina. The cunnilingus was the subject of the third count and the penile penetration the subject of the fourth count. 4. None of the incidents deposed to by Joelene could be identified with the allegation in the fifth count and there was therefore a verdict of not guilty by direction in relation to that count. 5. The incident alleged in the sixth count was said by Joelene to have occurred during the July school holidays of 1991. She and her sister were staying with the appellant on an occasion of access. Her brother Shannon was also there. Joelene and Shannon were in the same bed as the appellant. The appellant inserted his penis into Joelene's vagina. Joelene contacted her mother who picked her up and took her home. She did not visit her father again. The appellant gave evidence denying all acts of indecency. 6. The prosecution called as a witness the child Sharon who was playing with Joelene on the day of the alleged incident in the shower. Sharon was fourteen years of age at the date of trial. She gave evidence of an occasion when she was at the appellant's house with Joelene. She intended to stay overnight and was preparing for bed. Joelene was in the bathroom. The witness said that she opened the bathroom door in order to speak to Joelene. She saw Joelene and the appellant in the shower naked. The appellant had his arms around Joelene and was hugging her. The witness walked out. She said that the incident occurred just after Christmas 1990. 7. The first ground of appeal is that the learned trial judge erred in directing the jury that the evidence of Sharon was capable of constituting corroboration of the evidence of Joelene. Section 12a of the Evidence Act came into force on 15th July 1993, which was prior to the commencement of the trial. At the relevant time there was therefore no rule of law or practice obliging a judge to warn the jury that it was unsafe to convict on the uncorroborated evidence of the child witness. It may be that the learned trial judge was unaware of this and he gave a child witness corroboration direction in the traditional terms. He directed the jury that there was no evidence capable of amounting to corroboration with respect to counts one and six. As to counts three and four he directed the jury as follows:
    "On the shower incident, counts three and four, if you
    accept Sharon's evidence beyond reasonable doubt, and only if
    you do that, then her evidence of what she saw in the shower is
    capable of corroborating Joelene's evidence. Corroboration does
    not have to deal with every single point of the evidence given
    of the witness whose evidence needs to be corroborated. Sharon
    did not claim to see very much really of what the two bodies
    were doing in the shower. You will remember she came in and
    opened the door and claims to have seen both Joelene and her
    father naked, the bodies close together. She does not claim to
    have seen any licking or any insertion of a penis. She shut the
    door and went away. If, and only if, you believe that her
    evidence is true beyond reasonable doubt, then you are entitled
    to regard that as evidence, if you see fit - not bound to -
    entitled to regard that evidence as corroborative of Joelene's
    allegations about the shower incidents." 8. The argument for the appellant on the appeal was that the evidence of Sharon could not corroborate Joelene with respect to the shower incidence because, if her evidence were true, she must have been speaking of a different incident than that alleged by Joelene. It was argued that an incident said to have occurred just after Christmas 1990 could not be the same incident as that which Joelene alleged to have occurred in July 1991. Moreover it was said that Sharon's description of the incident was inconsistent with the description given by Joelene. 9. The incident described by Sharon could only be regarded as a sexual incident. There is no other explanation of a father hugging his ten year old daughter when both were naked in the shower. The incident, if it occurred, therefore tended to support the evidence of Joelene that there was a course of sexual conduct between the appellant and Joelene. That point would be valid even if the observed incident were different from that deposed to by Joelene and despite Joelene's evidence that there was only one incident in the shower. I think, however, that it was open to the jury to conclude that the incident observed by Sharon, if they accepted her evidence, was identical to that deposed to by Joelene. Joelene stated that there was only one occasion of a sexual nature in the shower. These were young children and there was a good deal of haziness about dates and occasions. It is true that the accounts given by the two witnesses do not tally. It is to be remembered, however, that Joelene was only eleven years of age at the time and it is possible that she did not give a completely accurate account of the details of the incident. Moreover Sharon retired immediately she made her observation and therefore would have had only a fleeting opportunity to observe the incident. Only the jury who saw and heard the witnesses could make a satisfactory judgment on the point. I think it was open to the jury to treat the evidence of Sharon as corroborative of that of Joelene. 10. The other ground of appeal was that the verdict was unsafe and unsatisfactory. There are undoubtedly features of the Crown case which require scrutiny. Joelene's parents were separated and there was a dispute in progress as to custody and access and also with respect to an injunction precluding the mother from taking the children out of the State. The appellant had objected to the mother's new partner chastising the children physically and had made allegations, supported by a photograph, that such chastisement had caused bruising. There was undoubtedly a good deal of bitterness involved in the relations of the parents. There is always a risk of children being involved in disputes of that kind and they can be productive of false accusations. It is true, moreover, as Mr Cuthbertson for the appellant stressed, that there are unsatisfactory features of Joelene's evidence. She clearly did not come up to proof with respect to the incidents in counts two and five. There are the discrepancies between the evidence of Joelene and Sharon as to the shower incidents. Joelene did not mention the shower incident when she made her first statement to the police. Sharon did not tell the police of the shower incident until late in 1992, notwithstanding that she was aware of the allegation that the appellant had sexually abused Joelene. There was also evidence that when Joelene made her statement to the police she stated in relation to the shower incident that "this would have happened the weekend before the very last time that Dad ever did anything to me." It appears that on that weekend Joelene was in Melbourne with her grandparents. She explained however that she could have got mixed up as to the date. There was an inconsistency in Joelene's evidence as to the sixth count in that her evidence in chief was that it occurred on the last occasion when she stayed with her father, whereas in cross-examination she appears to be saying that the incident of penile penetration which she described did not occur on the last occasion but that on the night before she left there was digital penetration. 11. I think that despite some confusion in Joelene's evidence as to the precise timing of the incident in count six, she gave evidence of incidents which support each of the four counts on which the appellant was convicted. The question is whether the evidence upon which he was convicted is a safe basis for the verdicts. This Court is required to make an independent assessment of the evidence in order to determine that it was reasonably open to the jury to find a verdict of guilty beyond a reasonable doubt. In carrying out that process, however, it is necessary for the Court to keep in mind the advantage which the jury had in seeing and hearing the witnesses. That is particularly important in a case such as the present. The force to be attached to the various criticisms made by Mr Cuthbertson depends very much upon the jury's assessment of the witnesses. Child witnesses are quite likely to be inaccurate as to details and to become confused as to the timing and sequence of events. It is difficult to assess the force of the kind of criticisms made by Mr Cuthbertson without seeing and hearing and assessing the witnesses. Moreover the force to be attached to the denials on oath of an accused person depend to a considerable extent upon the jury's assessment of the accused as a witness. 12. As with so many child abuse cases, there were inconsistencies in and unsatisfactory aspects of the alleged victim's evidence. Nevertheless as to the essential allegations it reads convincingly. Despite the belated appearance of her story, the evidence of Sharon was unshaken. It was open to the jury to accept her evidence and if they did so, it was convincing corroboration of the occurrence of improper sexual conduct by the appellant towards Joelene. The appellant admitted in his evidence, perhaps feeling that he was forced to do so by the evidence of Sharon, that he had been in the shower with Joelene on occasions when both of them were naked. He gave the innocent explanation that that was for the purpose of washing her hair. The jury may have found that part of the appellant's evidence unconvincing. 13. The points which Mr Cuthbertson made to this Court were points for the consideration of the jury. The jury, having seen and heard the witnesses, were nevertheless convinced of the truth of the alleged victim's evidence and of the falsity of the appellant's denials. I think that it was quite open to a reasonable jury to take that view. I do not regard the verdicts as unsafe or unsatisfactory. 14. In my opinion both grounds of appeal fail and the appeal should be dismissed.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice and the order he proposes.