R v W No. Sccrm-97-261 Judgment No. 6511 Number of Pages 35 Criminal Law
[1997] SASC 6511
•24 December 1997
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
DOYLE CJ, DUGGAN AND LANDER JJ
CATCHWORDS:
Criminal law - jurisdiction, practice and procedure - information, indictment or presentment - appeal against convictions for sexual offences alleged to have been committed by the appellant upon his daughter - trial by judge alone - discussion as to whether the date specified in two of the counts was an essential part of the offences alleged - held that the date was not essential in either case but that it was necessary for the trial judge to find that the offences took place on identifiable occasions and that he had not directed his attention to this consideration. Verdicts of guilty on those counts set aside. McDermott v The Queen (1987) 45 SASR 335; R v Pfitzner
(1976) 15 SASR 171; R v Swan (1987) 27 A Crim R 289; R v McDonald (1995) 65 SASR 322; R v Westerman (1991) 55 A Crim R 353, discussed.
Held further that the convictions on the remaining charges were not unsafe or unsatisfactory. M v The Queen (1994) 181 CLR 487; Jones v The Queen (Unreported. FC97/046 - reasons delivered 2nd December 1997; Longman v The Queen (1989) 168 CLR 79, discussed.
HEARING:
ADELAIDE, 13 October 1997 (hearing) 24 December 1997 (decision)
#DATE 24:12:1997
#ADD 19:1:1998
Appearances:
Appellant W:
Counsel: Ms L Powell QC with her Mr D Wardle
Solicitors: Douglas Wardle
Respondent:
R:
Counsel: Mr S Millsteed QC
Solicitors:DPP (SA)
ORDER: appeal dismissed.
DOYLE CJ
I agree, for the reasons given by Duggan J, that the appeal should be allowed to the extent of setting aside the verdict of guilty on counts 4 and 5. I would direct that there be a judgment and verdict of acquittal on those counts. In all other respects I would dismiss the appeal.
DUGGAN J
The appellant was convicted after a trial by judge alone of a number of sexual offences alleged to have been committed on his daughter. The complainant gave evidence that her father began sexually assaulting her when she was 15 years of age. She said she did not report these incidents until May 1994. She was 36 years of age at the time of giving evidence. She said that she was motivated to report the incidents by the birth of her daughter which gave rise to anger at the thought of a parent treating a child in this manner.
The offences charged relate to the period from May 1983 to October 1988. The particulars of the offences are of importance to the arguments raised on appeal and it is convenient to set out the counts in the information:
"First Count Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about May, 1983 at Owen, indecently assaulted [the complainant], by placing his finger in her vagina.
Second Count Statement of Offence
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about May, 1983 at Owen, being related as parent to [the complainant], had vaginal sexual intercourse with her.
Third Count Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about June, 1983 at Owen, indecently assaulted [the complainant], by placing his finger in her vagina.
Fourth Count Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about February, 1984 at Hamley Bridge, indecently assaulted [the complainant], by placing his finger in her vagina.
Fifth Count Statement of Offence
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about February, 1984 at Hamley Bridge, being related as parent to [the complainant], had vaginal sexual intercourse with her.
Sixth Count Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W between the 28th February, 1984 and the 30th April, 1984 at Hamley Bridge, indecently assaulted [the complainant], by placing his finger in her vagina.
Seventh Count Statement of Offence
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W between about the 22nd November, 1984 and the 30th June, 1985 at Auburn, being related as parent to [the complainant], had vaginal sexual intercourse with her.
Eighth Count Statement of Offence
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W between the 14th November, 1986 and the 4th March, 1987 at Riverton, being related as parent to [the complainant], had vaginal sexual intercourse with her.
Ninth Count Statement of Offence
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W in about October, 1988 at Riverton, being related as parent to [the complainant], had sexual intercourse with her by inserting his finger in her vagina."
The appellant was found guilty on all counts except count 6. A finding of no case to answer on this count was made at the conclusion of the prosecution case. It was argued on appeal that the convictions were unsafe and unsatisfactory.
It is convenient to provide a short summary of the complainant's evidence in relation to each count.
Count 1
The complainant said that this incident occurred on Mother's Day in May, 1983. She said that the family was living at Owen. The appellant approached her when she was in her brother's bedroom. He inserted his finger into her vagina and pushed her onto the bed. She said "He tried to penetrate me". She resisted him but he told her she had signed a piece of paper giving him permission for such actions. This was a reference to a blank piece of paper she said she had signed earlier at the appellant's request.
Count 2
The complainant said this incident occurred when she returned home from work one afternoon. When she walked into the house she was grabbed from behind. Her assailant had a stocking over his head. In the course of a struggle which followed she realised that it was her father. He placed his penis inside her vagina before she realised who it was. Afterwards he said to her "I was just seeing whether you could stick up for yourself".
Count 3
According to the complainant this incident took place in a vehicle on a country road. The appellant and the complainant had gone for a drive together. The appellant stopped the vehicle on a deserted track, pushed the complainant, pulled her pants down and inserted one of his fingers into her vagina.
Counts 4 and 5
It was alleged that these two offences arose out of the same incident. The complainant lived for a time by herself in a caravan near to her place of work. She said that shortly after she commenced living there the appellant visited her one night after he had been to a trotting meeting. She was in bed and he pulled the blankets aside and placed his fingers inside her vagina. He then placed his penis inside her vagina.
Count 6
The complainant gave evidence that the appellant visited the caravan on another occasion approximately one month after the incident relied upon in counts 4 and 5. He told her he had been to a trotting meeting. He removed the blankets from the bed in which she was lying and started to pull her pants down. He succeeded in inserting his finger into her vagina.
Count 7
The appellant kept horses on a property near Auburn. According to the complainant she was in the habit of going to the property to assist her father to work the horses. On one occasion he approached her from behind, pulled her trousers down and placed his fingers in her vagina. He then placed his penis inside her vagina.
Count 8
The complainant said that in about 1986 she went to live in a house at Riverton. The appellant visited her at the house. He told her that he had a medical complaint which would result in his death if he did not have intercourse. He had intercourse with her on this occasion.
Count 9
It was alleged that this incident also took place at Riverton. The appellant visited the complainant there and placed one of his fingers inside her vagina.
The complainant stated in evidence that on most of the occasions when the appellant assaulted her she struggled with him. She underwent a lengthy cross-examination. The learned trial judge made the following assessment of her and her evidence:
"With reference to my task of assessing the witnesses in this trial, I find that [the complainant] was essentially a truthful witness and was essentially consistent in recounting the important matters in issue. There were some inconsistencies. She was mistaken in some respects, her memory was defective in others and she exaggerated a little at times such as, for instance, as to how often she wore tracksuit pants. But, at the end of the day, her credibility was intact. I accepted her version of what occurred in substance. I have borne in mind the fact that she does not appear to be a very sophisticated young woman. She gave me the impression of having grown up as a somewhat naive country girl. She recognised her own naivety on several occasions whilst she was in the witness box. She was, I conclude, gullible, to say the least, especially in her dealings with her father.
She was, understandably I thought, a somewhat emotionally stressed individual, an understandable outcome if the Crown's allegations are true. Capable and strong as she was of standing up for herself within the family generally (I accept the defence witnesses on this topic), standing up for herself in an emotional sense, in the context of sexual abuse at the hands of her father, was understandably, and to use a modern colloquial Americanism `something else'.
In my judgment, the complainant's accounts of the several incidents had `the ring of truth' about them. I found myself to be, in the end, convinced that she did not have the capacity to make up (and maintain) stories as complex and as superficially bizarre as hers were if they were not true. The number, the variety and the detailed particularisation of the allegations were such that I could not bring myself to accept the reasonable possibility that any of them was a fabrication or concoction on her part. On the contrary, the allegations were so picturesque and, in a sense, so unique that [the complainant's] basic earthiness and honesty were manifest. Bizarre though some of her allegations seemed to be at first, I am satisfied that their origins are to be found in the truth of what occurred within the perceived privacy of one branch of this family. Her allegations did not have either their origins in the realm of fantasy, imagination or fabrication."
The trial judge was unimpressed with the evidence of the appellant. The appellant called his wife and some of his children, but the trial judge did not think they advanced the appellant's case very far. He said he took into account the absence of recent complaint and he administered a warning to himself about evidence of events alleged to have occurred a long time ago. However he reached the conclusion that all charges except that alleged in the sixth count had been proved beyond reasonable doubt.
Ms Powell QC, for the appellant, placed reliance on the finding of no case to answer on the sixth count. She claimed that the ruling had significant implications for other counts in the information. The ruling was made in the following circumstances. The complainant gave evidence that in 1981 she commenced working for Inghams, a poultry business at Hamley Bridge. Eventually it was necessary for her to live closer to the company premises in order to look after the poultry and so she began living in a caravan which was located a short distance from those premises. She said she lived in the caravan in 1984. The examination-in-chief continued:
"Q. About what time in 1984 was it when you started to live in the caravan?
A It was early '84.
Q What do you mean by `early'; January, February, March?
A I would say February.
Q From there for about how long did you live in the caravan at Inghams at Hamley Bridge?
A About 5 months."
When cross-examined, the complainant agreed that she told the police in her statement that she stayed in the caravan for nine months, but she said in evidence that she was probably confused by the fact that her role as a supervisor lasted nine months. She adhered to the estimate of five months throughout her evidence.
This evidence was contradicted by a prosecution witness, Mrs Edwards, who is employed by Inghams as a payroll administrator. She produced records which indicated that the complainant was employed by Inghams from 31st January 1981 to the week ending 6th February 1984. The prosecution did not dispute this evidence and it followed that the offence alleged in the sixth count could not have taken place between the dates alleged in the information, namely, 28th February 1984 to 30th April 1984.
At the conclusion of the prosecution case counsel for the appellant at the trial invited the trial judge to find that there was no case to answer in relation to counts 4, 5 and 6. It was argued that on the uncontested evidence of Mrs Edwards the offence alleged in count 6 could not have taken place between the dates alleged as the complainant was not living in the caravan during this period. This evidence, so it was argued, was also fatal to the success of the prosecution's case on counts 4 and 5 because the complainant had said in evidence that the last occasion the appellant visited the caravan was when the offence alleged in count 6 took place and she said she lived in the caravan for another three months after this incident. If she left the caravan in early February, the offences alleged in counts 4 and 5 could not have taken place "in about February 1984" as alleged in the information. The learned trial judge accepted the submission of no case to answer on the sixth count, but rejected it in relation to counts 4 and 5.
The reason why the learned trial judge found no case to answer on the sixth count is not altogether clear from the transcript. There was only a brief submission on the application by defence counsel and the prosecutor appears to have conceded the defence argument on this count. The trial judge gave no reasons for his ruling. However the ruling seems to have been based on an acceptance of the defence proposition that the prosecution was required to prove that the incident occurred within the precise dates alleged in the information.
In McDermott v The Queen (1987) 45 SASR 335 at 337 it was accepted by this court that "the date specified in an information is not a material matter unless it is an essential part of the alleged offence R v Dossi (1918) 13 Cr App R 158". Normally it is not essential to prove that the incident occurred at a particular time in order to establish the commission of an offence. However proof of the date of occurrence may be essential in some cases, for example when the age of the alleged victim is of relevance in a sexual case. Furthermore, the manner in which the case is conducted can make the date critical to issues such as alibi. Considerations of fairness in a particular case may dictate that the prosecution should be bound by the particulars as to time which are stated in the charge. Bray CJ made this clear in R v Pfitzner
(1976) 15 SASR 171 at 185 when he said:
"Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v Butcher [1957] SASR
165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1970) 54 Cr App R 38."
(See also R v Swan (1987) 27 A Crim R 289 at 290; R v MacDonald (1995) 65 SASR 322 and R v Westerman (1991) 55 A Crim R 353).
In the present case it could not be said that the dates alleged in counts 4, 5 and 6 had to be proved as elements of the offence. Nor has it been established that the appellant was disadvantaged in the presentation of his case by reason of the fact that the complainant was wrong in her recollection that she lived in the caravan from February 1984 onwards.
However, even if it was not essential to prove with any precision when the incidents took place, it was nevertheless necessary for the prosecution to prove that offences took place on identifiable occasions. It would seem that the only way in which convictions on counts 4 and 5 could be recorded would be for the trial judge to find that the incidents took place at some time in 1983. I have pointed out that the complainant told the police she lived in the caravan for nine months, but in evidence she stated that she had lived there for about five months. If her evidence is correct and if it is accepted that she could not have lived there after the first week of February 1984, then the occasion on which the offences alleged in counts 4 and 5 took place would have been in about early September 1983.
In these circumstances it was necessary for the trial judge to give careful consideration to whether the offences alleged in counts 4 and 5 were committed on an identifiable occasion which could only have been in about September 1983. These findings would have to be made in the knowledge that the complainant had said in evidence that these offences had taken place in early February 1984. As I have pointed out, the fact that the complainant had made the mistake identified was not fatal to the prosecution case on these counts, but it was a matter to be taken into account when assessing the accuracy of the witness's evidence.
Unfortunately there was some confusion in his Honour's mind when he came to consider the offences alleged to have taken place in the caravan. In summarising the evidence he said:
"Count five - before I deal with count four - in about February 1984 at Hamley Bridge, the accused had vaginal sexual intercourse with [the complainant].
The complainant had rented a caravan which she lived in at the premises of her employers, Inghams. The accused visited her in the caravan one night at about 9.30 or 10 p.m. She had left the caravan unlocked and had gone to sleep. She awoke to find the accused standing at her bed. She said `What are you doing here?' He replied `I've just been to the trots'. The complainant was wearing a blue silky night shirt. He pulled the blankets off the bed and started to `finger' her. He inserted his fingers into her vagina and moved them up and down. He was standing alongside the bed; she was in bed.
Other sexual activity followed, including the grabbing hold of her ankles and raising them up above his waistline to near shoulder height. He successfully penetrated her with his penis. The complainant did not give consent to any of this conduct, as the accused must have known. She struggled a little and said `No'. The accused then left after doing something with a handkerchief.
I turn to a consideration of count four. In about February 1984 at Hamley Bridge, about a month later, the accused indecently assaulted [the complainant] by placing his finger in her vagina. Again the complainant was in bed alone in the caravan.
The accused entered the caravan. The complainant sat up and turned on the light to see her father standing there. He said he'd been to the trots and that he's lost his money. She was wearing tracksuit pants and a nightie. He pulled off the blankets and then tried to pull down her tracksuit pants. She was lying on the bed and saying `Don't' and trying to push herself out of the way. When the complainant spoke about a man called Tom not being far away, the accused left. The complainant did not, as the accused well knew, give consent to this conduct."
It is apparent from these remarks that, despite the finding of no case to answer on the sixth count, the trial judge founded the conviction on count 4 on the incident upon which the sixth count was based. Furthermore he made no reference to the discrepancy as to time in relation to the earlier incident upon which counts 4 and 5 were based. The passage cited above suggests that he found this incident to have taken place "in about February 1984". This does not accord with the evidence. In view of this confusion I do not think that it would be safe to allow the convictions on counts 4 and 5 to stand.
I should point out, however, that the conclusion which I have reached in relation to these counts has only a limited bearing on the assessment of the complainant's reliability in relation to the other counts in the information. My concern as to the unsatisfactory nature of the convictions arises from the trial judge's approach to the evidence on counts 4 and 5. There is no basis for concluding that the complainant's evidence as to when she stayed in the caravan was concocted so as to fit in more readily with other evidence she gave in the case.
However Ms Powell argued that the complainant's error in respect of the period she stayed in the caravan was of significance in assessing her evidence concerning the incidents which were the subject of counts 1, 2 and 3. I have referred to the complainant's evidence that the incident referred to in the first count took place in about May 1983 when she said she was living with the family at Owen. In cross-examination she said that the incident occurred on Mother's Day in 1983. She said that the offence charged in count 2 (the stocking incident) took place a week later and the offence charged in count 3 (the car incident) occurred in about June 1983.
I have observed that if the complainant had lived in the caravan for about five months and if she completed her stay there in the first week of February, she would have commenced living there in about September 1983. On this evidence the incidents referred to in counts 1, 2 and 3 could have taken place at the times stated by her and alleged in the information. Ms Powell's argument that these incidents could not have taken place at Owen at the times alleged is based in part on the complainant's statement to the police that she lived in the caravan for nine months. But that was not the evidence of the complainant at the trial and, as I have pointed out previously, she explained why she was mistaken when discussing the matter with the police. The appellant and some of his witnesses said that the complainant left Owen in about April 1983, but there was no independent evidence to support either version and the trial judge formed an unfavourable impression of the defence witnesses. In my view the convictions on the first, second and third counts are not rendered unsafe or unsatisfactory simply by reason of the complainant's mistaken evidence as to the period she lived in the caravan.
Ms Powell made the further submission that there could be a danger that the offences alleged in the first three counts were statute barred. Section 76a of the Criminal Law Consolidation Act which imposed a time limit of three years on prosecutions of this nature was repealed on 1st December 1985. In R v Pinder (1989) 155 LSJS 65 it was held that the repeal did not affect accrued rights of immunity against prosecution. Such a right would have accrued if an incident took place on or before 1st December 1982. In my view, however, the evidence does not allow as a reasonable possibility that the events which are the subject of the first three counts took place on or before 1st December, 1982.
The appellant's argument that the convictions are unsafe and unsatisfactory is not restricted to the question of the timing of the earlier incidents and it is now necessary to turn to Ms Powell's further submissions. The submissions must be considered in the light of an appellate court's duty as explained in M v The Queen (1994) 181 CLR 487 at 494:
"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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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 jury, 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 Chamberlain v The Queen [No. 2] (1984) 153 CLR at pp 618-619; Chidiac v The Queen (1991), 171 CLR 432 at pp 443-444."
This test was reaffirmed by Gaudron, McHugh and Gummow JJ in Jones v The Queen (Unreported. FC 97/046 - reasons delivered 2nd December 1997).
In discharging this duty in the present case it is important to have regard to the matters put forward in the appellant's argument including the fact that the complainant's evidence was uncorroborated and that no complaint was made until eight years after the last incident is alleged to have occurred. Furthermore regard must be paid to the various conflicts between the evidence of the complainant on the one hand and that of the appellant and his witnesses on the other. These include matters such as when the complainant went to live in the caravan, whether she ever did housework of the type alleged by her at the time the incident in the first count is alleged to have taken place, whether she owned a blue Valiant car at the time of the car incident or a green Falcon as alleged by the appellant and two members of the family and whether it was possible to do a U-turn on the dirt track where the car incident is alleged to have taken place. I have commented in some detail on the complainant's mistaken fixing of the period she occupied the caravan. However most of the other matters relied upon by the appellant under this heading consisted of differences between the complainant's evidence and that of the witnesses for the appellant. Their resolution depended almost entirely on an assessment of credibility.
Consideration must also be given to the submissions made as to the inherent unlikelihood of some of the occurrences such as the occasion when the appellant is alleged to have attacked his daughter with a stocking over his head and the incident when he is alleged to have obtained her signature on the piece of paper. Other matters put forward as inherently unlikely include the claim by the appellant that he placed cream on his penis so as to apply it to thrush infected areas of her vagina and that she masturbated him over a period of years without knowing that he was circumcised.
It is true that the complainant attributed conduct to the appellant which might be described as bizarre in certain respects. But that is not to say that her version is inherently unlikely. The complainant's reaction to bizarre conduct may well be relevant, but so too are the trial judge's findings as to naivety and gullibility. The assessment of credibility was crucial and the trial judge's advantage in this respect must be recognised. That does not absolve this court from making its own assessment, but it is a relevant consideration in a case of this nature. And the manner in which the trial judge approached the task of assessing the witnesses must also be reviewed.
There is one passage in the reasons for judgment which calls for comment in this context. His Honour said:
"The disclosure by W that he had been sent a copy of the complainant's statement and was asked to go through it to identify matters with which he disagreed, was as important as he was honest in disclosing that fact. I am led to draw the inference that other defence witnesses were similarly asked and, that being so, that their objectivity was tarnished. They were likely to have become (as I conclude beyond reasonable doubt that they did become) something more in the nature of advocates for the accused, for whom they undoubtedly had feelings of loyalty and affection, than independent and totally objective witnesses."
With respect to the trial judge I cannot agree that the mere handing of the complainant's statement to a defence witness by the defence solicitor would affect the objectivity of the witness. Furthermore there was an assumption by the trial judge that the same occurred with other witnesses. However it does not seem that this was a crucial step in the trial judge's assessment of these witnesses and his general view of the reliability of the complainant's evidence in contrast to his assessment of the evidence of the defence witnesses was based on other relevant considerations.
The appellant's counsel also took issue with the trial judge's comments in the following passage:
"The defence witnesses (from the family) did not advance the defence case very far. Their evidence did not lead me to doubt the main thrust of [the complainant's] evidence. Their evidence mainly related to peripheral issues. Some of those peripheral issues include whether the complainant was ever truly locked out of the Auburn house, whether she had a key and whether a key was available to her, whether there were locks on the caravan door which would necessarily have prevented the accused entering the caravan unannounced, so to speak, whether the Canesten cream, which I am satisfied was used and was the subject of conversation, had been purchased on prescription, whether the complainant, as a usual thing, used much make-up, whether the bath water had within the family been shared, whether the accused regularly, or only occasionally, wore brown trousers, whether curfews had been imposed and the circumstances of the complainant's departure from the roadhouse. It is not necessary for me to identify each of the peripheral issues and indicate my specific finding in relation thereto. The accused's wife and the complainant's brothers all left me with the impression that they were doing what they could to help their husband or father (as the case may be), to whom they had understandable feelings of loyalty, in whatever way they could."
It was argued that it was wrong to describe these issues as "peripheral". Although I agree with the argument of counsel that in a case such as this issues of this nature can be important, I am not persuaded that the trial judge failed to give due weight to them. In the end, however, it is this court's function to decide for itself whether, by reason of discrepancies and deficiencies in the prosecution case, there is a significant possibility that the appellant was wrongly convicted.
There was no criticism of the warning which the trial judge administered to himself as to the dangers of convicting the appellant. In my view he identified correctly the factors which made the warning appropriate in the circumstances of the case. He referred to the family relationship, the fact that the alleged conduct took place a long time ago, the lack of a prompt complaint and the absence of corroboration. Elsewhere in his reasons for decision the learned trial judge dealt with the apparently friendly relationship between the appellant and the complainant on occasions over the period when the offences took place and after they had concluded, although he pointed out that the complainant explained her attitude by saying that the appellant was still her father.
The same factors are relevant matters to take into consideration by this court in applying the test formulated in M's case. They were also of importance in Jones v The Queen (supra), although in that case there was the additional factor arising out of an element of inconsistency between the verdicts of guilty and a verdict of acquittal on one count.
I have found this a difficult case. One of the particular problems which has arisen in cases of this nature since the abolition of the statutory time limit for prosecution is the difficulty which both the accused and the alleged victim have in recollecting relevant events. In the case of an accused person the means to test allegations may have been lost (Longman v The Queen (1989) 168 CLR 79) and this is an important matter to be taken into account when considering whether the convictions in the present case are unsafe or unsatisfactory. On the other hand, as noted previously, the court must pay full regard to the consideration that the trial judge had the benefit of seeing and hearing the witnesses in a case in which the issue of credibility was the central feature of the case. (M v The Queen supra at 493).
After considering all the evidence and the issues debated on appeal, I do not consider that the verdicts are unsafe and unsatisfactory with the exception of the convictions recorded on counts 4 and 5.
I would allow the appeal for the limited purpose of setting aside the verdicts on counts 4 and 5. In all other respects I would dismiss the appeal. I think it is inappropriate to direct a retrial on counts 4 and 5.
LANDER J
I have had the advantage of reading in draft the reasons of Duggan J. I agree with His Honour's reasons in relation to all grounds of appeal except the ground of appeal that the convictions are unsafe and unsatisfactory.
Having regard to the fact that this was a trial by judge alone, and the experience of the trial judge in matters of this kind, and the experience of the other members of this Court it is with considerable diffidence that I have reached a different conclusion.
The trial Judge had an advantage that no Court on appeal can enjoy. He had the advantage of seeing and hearing the complainant and the appellant. I do not and cannot overlook that advantage: M v The Queen (1994) 181 CLR 487 at 493 and 494.
The learned Trial Judge described the complainant:
"With reference to my task of assessing the witnesses in this trial, I find that S was essentially a truthful witness and was essentially consistent in recounting the important matters in issue. There were some inconsistencies. She was mistaken in some respects, her memory was defective in others and she exaggerated a little at times such as, for instance, as to how often she wore tracksuit pants. But, at the end of the day, her credibility was intact. I accepted her version of what occurred in substance. I have borne in mind the fact that she does not appear to be a very sophisticated young woman. She gave me the impression of having grown up as a somewhat naÔve country girl. She recognised her own naivety on several occasions whilst she was in the witness box. She was, I conclude, gullible, to say the least, especially in her dealings with her father."
He described her allegations as "complex and superficially bizarre" and "picturesque" but he believed the several incidents had "the ring of truth" about them. He said she was not shaken in a searching and persistent cross examination. Of her demeanour he said:
"I examined S's demeanour carefully while she was a witness in the witness box. Her periodic emotional outbursts and her periodic manifestations of being upset seemed to me to be more consistent with one who was reminded, on occasions with some poignancy, of the split in the family that had been caused by the sexual abuse in question than the theatrics of a liar who was asserting, repeating and maintaining a series of serious accusations that were false."
In concluding his discussion of her evidence he said:
"Notwithstanding some defects in the evidence of S and notwithstanding the sincerity and, in some respects, the force of the submissions presented by Mr Stokes in his final address, I remain firmly of the opinion that the onus of proof has been discharged by the Crown in relation to each count considered separately."
Of the appellant His Honour said:
"I was not impressed by the accused. I observed his demeanour carefully when he was in the witness box. Notwithstanding his consistent denials, I did not accept him as a witness of truth."
His Honour was not only critical of the appellant he was also quite critical of the appellant's witnesses.
He said of the appellant's witnesses:
"The disclosure by C [a son of the appellant and brother of the complainant] that he had been sent a copy of the complainant's statement and was asked to go through it to identify matters with which he disagreed, was as important as he was honest in disclosing that fact. I am led to draw the inference that other defence witnesses were similarly asked and, that being so, that their objectivity was tarnished. They were likely to have become (as I conclude beyond reasonable doubt that they did become) something more in the nature of advocates for the accused, for whom they undoubtedly had feelings of loyalty and affection, than independent and totally objective witnesses."
In that assessment he was, with respect wrong. I see nothing at all wrong with providing to a potential witness the complainant's statement. It is an economical method of directing the potential witness's attention to the matters in issue. It is quite different to providing a witness with the statement of another witness who is also to give evidence on the same matter. The provision of the complainant's statement to the potential witness simply focuses the witness's attention to the matters of which the complainant has complained. I cannot agree that the provision of the statement tarnished the witness' objectivity. Moreover to determine that the other witnesses had similarly been provided with a statement was also wrong. There was simply no evidence of that, and in the absence of any such evidence such a finding which was made by the learned Trial Judge was wrong.
It was not open to conclude that their objectivity was tarnished. It was not open by reason of the provision of the statement to C to conclude that all or any of the appellant's witnesses were in "the nature of advocates for the accused for whom they undoubtedly had feelings of loyalty and affection, than independent and totally objective witnesses."
It follows therefore that the appellant's case was not given appropriate consideration. Evidence which was not unimportant was dismissed as given by advocates whose objectivity was tarnished. In that respect the learned Trial Judge has not properly used the advantage he had in seeing the witnesses.
The complainant's account was picturesque and it was bizarre. More than that it contained a number of inconsistencies. After reading and re-reading the evidence I am left with feelings of disquiet and discomfort about the verdicts returned against the appellant on each of the counts. I have reached the conclusion upon the whole of the evidence that it was not open to the learned Trial Judge to be satisfied beyond reasonable doubt that the accused was guilty.
The complainant's evidence was uncorroborated. In some cases it was shown to be wrong. For example, her complaints in relation to the timing of counts four, five and six were wrong in time, but also wrong in another material particular. She said that in early 1984 (February) she became a supervisor at Inghams and as a result she had to live on the premises. The other supervisors, she said, were provided with houses but that hers was allocated to "the bigger boss". She therefore had to rent a caravan from her grandparents. A fortnight after commencing to live in the caravan the incident described as count four occurred. The payroll administrator of Ingham Enterprises, Mrs Edwards, was called and produced the employment records in relation to the complainant. Her evidence established beyond contradiction not only that the complainant ceased to work for Ingham Enterprises in the week ending 6 February 1984, but that the complainant was never employed as a leading hand or a supervisor. She only ever received the basic wage for employees at that company and never any of the higher allowance which would be paid to a leading hand or supervisor. Moreover Mrs Edwards' evidence was that only the farm manager was required to live on site. The complainant's evidence was contradicted not only in the dates, but her claim that the dates corresponded with her promotion to supervisor, which never occurred, and her reasons for living on site.
Her evidence in all those respects was just wrong.
True it is that the learned Trial Judge recognised inconsistencies in her evidence. He also said that in some respects her memory was defective and that she exaggerated a little at times. But none of that accounts for giving the wrong dates for reasons that never existed; that is the promotion to Supervisor and the necessity to live on site.
The complainant, who was born on 20 August 1961, gave evidence that she was first subject to sexual misconduct on the part of the appellant when she was fifteen. At that time the family were living at Warnertown. When she wished to go out her father would ask her to masturbate him whilst he decided whether he would allow her to go. Also he would put his finger in her vagina. The digital penetration of the complainant, who was then eighteen, continued when the family moved to Rynie. After about eighteen months, when the complainant was about twenty-one years of age, the family moved to Owen. It was at Owen that counts one, two and three occurred.
Count 1
The complainant said that in May 1983 she was asked by her father to sign a bank slip of paper which she believed was a withdrawal form. She did that. A short time thereafter, whilst she was in her brother's bedroom, her father came into the room and pulled her tracksuit trousers down about halfway. He then put his finger in her vagina. He then pushed her onto the bed and tried to penetrate her with his penis. He put her hand on his penis and pushed her further towards him. She said that she said no and that he replied that she had already given him permission and showed her the piece of paper she had signed.
She denied that she consented to his conduct and she said that she told him that she would tell her mother. She did not in due course tell her mother.
The incident referred to in count one happened when the complainant was twenty-one years of age and followed a course of conduct of the same type which had continued over six years up until the time of that incident. The appellant had, on the complainant's evidence, inserted his finger in her vagina on a number of occasions over that period. The complainant had always objected.
There does not seem to be any particular reason why the appellant would have gone to the trouble, on this occasion, of inducing the complainant to sign a consent form to this activity which notwithstanding her objection he had been performing for a period of six years before this time. There seems to be no particular reason why the complainant would have said on this occasion that she would report the matter to her mother when she had been subject to the same course of conduct over those six years.
In cross examination it was put to her, and she agreed, that she had not told the police that her father tried to have penile sexual intercourse. She said that she had not told the Police because there were so many other accounts. She said in further explanation for not telling the police that this was just one of a number of incidents.
She said:
"After a while one leads into the other. It is like it's one continual."
Count 2
About a week after the incident, the subject of the first count, the complainant arrived home about 2 o' clock in the afternoon. She tried to open the back door but found it locked, walked down to the chaff shed but no-one seemed to be home. She then went back to the back door again and this time it was open. She entered the house and when she got to the passage someone grabbed her from behind by her hair. She said: "What's going on". There was no reply but she was pushed to the ground and landed on the carpet. She saw that the man who was attacking her had a stocking on his head. He pulled down her tracksuit pants and she asked: "What the heck is going on."
Her attacker said: "Give yourself up. You're not a virgin."
Her attacker then inserted his fingers into her vagina and then tried to penetrate her.
She was asked;
"Q Did you, in fact, see a penis.
A Yes.
Q What could you see of it.
A It was little.
Q And was something then done to you by this person.
A Yes, he was trying to penetrate me.
Q What did he do then.
A Just got it up to about halfway.
Q I am sorry.
A He would have just got it up to about halfway into my vagina.
Q By that, do you mean his penis.
A Yes.
Q Was anything else said at or about this time.
A I just said "What the heck's going on?", again.
Q Were you doing anything while this was happening.
A Yes, I was struggling, trying to move my legs back.
Q What did you do once the penis was inside your vagina.
A I struggled more and then I just pulled the stocking off his head.
Q Did you see who it was.
A Yes, it was my father.
Q Did your father say something at or about this time.
A Yes, he just said that "I was just seeing whether you could stick up for yourself."
She said the incident concluded and:
"I was pretty upset and he just walked away and just yelled out "Have you had your dinner?"
Whilst I accept the learned Trial Judge's assessment of the complainant, and in particular that she was naive and gullible, the story presented in relation to count two is extraordinarily bizarre.
It is bizarre in the language which was said to be used, for example "What the heck is going on?" and "Have you had your dinner?". It is also bizarre in the circumstances of the offence in that she claimed the appellant attacked her for the purpose of seeing whether she could stick up for herself. It is particularly bizarre that he would have put a stocking over his head for the purpose of carrying out the attack, having regard to the fact that he had been sexually assaulting her, almost at will, for more than six years and had sexually assaulted her only one week before.
The evidence to which I have referred is also important not only in relation to the incident itself but also in relation to her credibility. It is to be remembered by the time of this incident in May 1983, the complainant on her account had been subject to sexual abuse for more than six years. That sexual abuse included her father requiring her from the age of fifteen to masturbate him.
In cross examination she was asked whether her father was circumcised or not. It was put to her that she had told the Police that she did not know if he was circumcised or not and she agreed that she had.
She was then asked this:
"Q But you have been telling us you have had to masturbate him for years.
A So I don't ever look down there. I wouldn't know what it looked like anyway. All I know is I haven't done my son, and I wouldn't like anyone else to be done. I don't know what it looks like."
That evidence is inconsistent with the evidence which I have set out above in relation to count two. She did say that she saw his penis and it was little.
I believe that to be a serious inconsistency in her evidence.
There is further evidence, although it is less clear, which suggests she might have seen her father's penis on another occasion. I will refer to that evidence in connection with Count 3.
I find it very difficult to believe that during all of the period that she masturbated her father she did not see his penis. However it is her evidence that she did see his penis at least in relation to the incident in count two and therefore her evidence that she did not know whether he was circumcised or not has to be viewed with suspicion. Having regard to what she said about her son she well appreciated the difference between a circumcised or uncircumcised penis. This is not, it seems to me, an incidence of her naivety.
Count 3
The complainant's evidence was that she and her father had taken her car for a run to test the battery of the car. He stopped the car.
She said that her father assaulted her by inserting two fingers in her vagina when she was lying on the seat of her car. She heard the zip of his pants operate. He was struggling with his clothing but he did not manage to get his pants fully down.
She said that she did not consent to the assault and she got out of the car and started walking and she heard the car start and her father told her to get in the car or he would kill her.
She said that her mother asked of her when she returned home: "What's the matter with Susan" and her father told her mother: "She's a bloody know all. She thinks she's a mechanic."
There was nothing inherently unlikely about her account in relation to count three.
She said in cross examination that it was like every other time. "It was like if he hypnotised me".
In evidence she denied he made her masturbate him. She was then asked:
"Q Did you tell the Police my legs were hanging out of the car and then tried to put himself between my legs and lie on top of me, with his right hand he forced my left hand onto his penis. His penis was soft. He put his hand over my hand and forced my hand up and down on his penis as if I was masturbating him. He was making me hold his penis really tight, forcing it up and down' et cetera, and reference to his penis being short and stumpy. Did you say those things to the Police.
A Is that in that incident?
Q Yes.
A Then I must have then.
Q You have just told me that that didn't occur. There was no masturbation this time. Can you explain that.
A No, I can't. Like I said, one day is no different to the next."
There are serious inconsistencies in her evidence to the Court and her statement to the Police. Her account to the Court included none of the matters mentioned above to the Police. She was also apparently, although the cross examiner did not make it clear, able to describe to the Police her father's penis as being short and stumpy. I have already commented on her knowledge of whether her father was circumcised.
Counts 4, 5 and 6
Counts four, five and six, on her account, all occurred in or after February 1984 when she was living in a caravan at Ingham's at Hamley Bridge. Counts four and five were said to have occurred in February 1984 and count six between 28 February 1984 and 30 April 1984. All of these counts were said to have occurred in the caravan at Hamley Bridge after the accused had been to the trots.
In the light of Mrs Edward's evidence the complainant was not employed by Ingham Enterprises after the week ending 6 February 1984. It is likely therefore that she was not living on the premises at Ingham's after that time.
There is one other general piece of evidence which is important. The complainant's mother and the accused's wife gave evidence. She said that the accused regularly went to the trots, but never without her and her son Michael. She said she could not think of any occasion that the accused went to the trots on his own, except occasions since they have lived at Kapunda. They have lived at Kapunda only in recent years and since any claim of sexual misconduct by the appellant.
As I have already indicated I agree with the reasons of Duggan J that the convictions in relation to counts four, five and six ought to be set aside.
However the incidents themselves as related by the complainant can still be considered for the purpose of an assessment of the credibility and reliability of the complainant herself.
Count 4
About a fortnight after the complainant began to live in the caravan at Hamley Bridge her father came to the caravan at night at about 9.30-10.00pm. Her father had come from the trots. She was alone, in bed and asleep. She woke to find her father standing next to the bed. She said he pulled the blankets off the bed and started "fingering me". He inserted his fingers into her vagina and moved them up and down.
Count 5
Immediately after the incident described the complainant said that her father grabbed hold of her ankles and raised them above his waistline and penetrated her with his penis. His penis remained in her vagina for about five minutes with her ankles on his shoulders. She said she struggled a bit and told him no. She said that she told him that Tom Brougham, the supervisor lived only 100 yards away. Her father then left.
There is nothing inherently unlikely about counts four and five.
The difficulty about the counts are that they were said to have occurred a fortnight after she became a supervisor with Ingham's.
For the reasons I have already given that, in my opinion, is not possible because the evidence of Mrs Edwards is that she never became the supervisor and she ceased to work at Ingham's in the week ending 6 February 1984.
Count 6
The complainant said that count six occurred one month after counts four and five. It was again at about 9.30pm when she was alone in bed in the caravan. Her father entered the caravan. He said he had been to the trots and lost his money. Shortly after he tried to pull down her trousers and her pants and tried to insert his finger into her vagina. He succeeded in doing that. During this conduct she was saying: "Don't". She again told him that Tom was not far away.
The complainant said that she knew that the trots were held every fortnight so she clothed herself for protection. She kept a frypan ready by her bed. She was cross examined about her statement that she kept a frypan by the bed which she said she kept for a fortnight after the incident in relation to counts four and five. She did not have the frypan near her bed when count six occurred which was one month after the incident referred to in counts four and five.
She was asked why she did not keep the frypan for the whole of the four weeks after the first incident. She said that she did not keep it next to her bed for the full four weeks because she had used it. She was pressed in relation to that answer and she gave rather unsatisfactory answers seeking to avoid the question.
Count six, of course, was subject to a finding of no case to answer.
There is one other piece of evidence relevant particularly to count six. The complainant gave evidence that her father entered the caravan unannounced. She had been concerned that he might return after the incident involving counts four and five. Her mother's evidence was that the caravan could be locked.
The complainant returned to live with her family after she left Ingham's. The family moved to Auburn where she and her brother ran the Roadhouse. The arrangement with her parents was that she and her brother would run the business for three years and at the end of that time they would take over the Roadhouse.
Her father had another property at Undayla which was a few kilometres from Auburn. During the time when the complainant lived at Auburn a further incident occurred at Undayla, which is the subject matter of count seven.
Count 7
The incident at Undayla occurred while she was living at Auburn and before she left to go to Coober Pedy in early 1985.
She and her father went to Undayla to work and to feed some horses, which her father owned.
In the course of that visit she went to the chaff shed and whilst she was getting a bucket of chaff her father came up from behind her and pulled down her trousers and stuck his finger in her vagina. He pinned her against the drum and rubbed himself against her. He took off his own trousers and forced her hand onto his penis, moving her wrist.
He then put his penis in her vagina where it remained for about five minutes. She said that there was a bit of a struggle. She went from leaning up against the back of the chaff on to the concrete floor. While he was doing this she said: "Don't" and "Stop it." She struggled and she managed to free her legs. She was wearing sandshoes, one of which fell off and she picked it up and hit him on the right ear with it. He said: "If you ever do that again, I'll kill you." She went back to cleaning the stables.
Her mother was asked about that chaff shed. She said that the shed at Undayla was a three sided shed with a dirt floor.
Whilst the complainant lived at Auburn with her parents she was going out with a Mr Tony Haynes. She said that her father disapproved of Mr Haynes and used to lock her out in the laundry. Some nights she would have to sleep in the laundry. The complainant's mother said that S was never locked out at Auburn or anywhere else. She said S had a key to the house. Her brothers, Kevin and Craig also said that the complainant had a key.
She said her father would come out to the laundry and ask her if she had had sex with "that bastard" and her father would stick his fingers in her vagina to see if she had had sex.
She said she was kicked out of home at Auburn because of her association with Mr Tony Haynes but in cross examination she admitted that she left before she was asked to leave. She further admitted in cross examination that she left because of a combination of factors, including the fact that her parents did not like Mr Haynes, and because there was a problem with the till at the Auburn Roadhouse.
Other members of the family gave evidence of the circumstances in which she left the family and the Auburn roadhouse. Her mother and her brother Craig said she left after an argument with her mother. It was their evidence that the complainant became very cross with her mother and ordered her out of the roadhouse. The appellant, they said, intervened and told her not to talk to her mother like that. Next day the complainant left.
Their evidence is inconsistent with the complainant's. If accepted it indicates unreliability on the part of the complainant.
The complainant also admitted that she told the Police that she did not see her father after she left Auburn for Coober Pedy and before she moved to Riverton. She admitted that what she had told the Police was wrong and that she had seen her father but there had been no incidents.
Count 8
In 1986 the complainant went to Riverton to live. By that stage she was twenty-five years of age. She bought a house at 4 Fredericks Place, Riverton, from her parents, and resided in the house. Later she moved into a flat at the rear of the house because she could not afford the house. She worked for a Mr Wigney between 14 November 1986 and 3 March 1987. She said while she was working for Mr Wigney her father came to see her at Riverton at about teatime one night. She said she saw her father sneaking past the kitchen door up the passage and asked him what he was doing.
Her father told her that he had just been to the doctor and the doctor had told him that if he did not have sex "because he had lovers balls, that he would rupture inside and die". She was asked:
"Q Did you say anything in reply to that.
A I said "Well, why don't you get Mum to do it?"
Q Did he reply to that.
A He just said "Mum and I haven't been talking."
Q Were other things said between you and your father.
A I just said, no, I didn't want to do it and he just kept saying that "Well, you know, you don't want me to die, do you?"
Her evidence was that he later said to her "it'll be alright", and although she protested he started pulling her trousers down. He said that he took off his trousers and started to finger her vagina. He had hold of his penis with his hand and he placed his penis inside her vagina. She said that this time she was protesting but he said "I won't hurt you" and just kept going. His penis was inside her vagina for about ten minutes.
She said she struggled and eventually he removed his penis and ejaculated into his hankie.
Again, whilst accepting that the complainant was found by the learned Trial Judge to be naive and gullible, it is difficult to believe a woman in her late twenties would believe that her father would die if he did not to have sex with her at that time. Her evidence in cross examination was that she believed her father. She said she did not want him to die and that "he had me believe that he would rupture inside."
The complainant did claim to be entirely naÔve in relation to matters of sex. At one stage when she was in her early twenties she said she contracted thrush. She said that her father produced some Canesten cream which he told her that he could more effectively introduce into her vagina if he put it on the end of his penis. He therefore put the cream on the end of his penis and on two successive days inserted his penis in her for the purpose, as he told her, of getting the cream further into her vagina. She said she believed him and that she believed that the Canesten cream on his penis would help in combating the thrush. She was then twenty years old. When pressed in cross examination as to how she could have believed such an unlikely story she said "Mum didn't even tell us about the birds and the bees when we were growing up".
When further pressed with these questions:
"Q You never heard anything about it in the schoolyard.
A No.
Q Or from your sister.
A No.
Q Or from any of your friends.
A No. When I got my periods, I thought I split myself in half. I didn't even know what the bleeding meant.
Q That would be when you were, what 14, 15, 13.
A 15 and a half.
Q I am asking you about things you knew when you were 20. You believed at the age of 20 that your father had to put Canesten on his penis to get it far enough into your vagina to make it work.
A Yes."
That evidence indicates remarkable naivety and rather incredible gullibility.
The Canesten cream evidence had another importance. The complainant gave further evidence in cross examination in relation to these incidents.
"Q If I suggest that no such incident ever took place, of course, you would disagree with me, won't you.
A That's right.
Q Did you ask your mother if she had thrush.
A No.
Q Your Dad is wandering around wanting to put stuff on his penis, did you ask Mum about the thrush so you would know what it was next time.
A After he had administered it, I seen it on the dressing table and it stayed there and it was as if it was used by Mum.
Q If I suggest that there was no Canesten cream around and you have made that up.
A Then you are fibbing because I'm not.
Q If Mum says to us later on she has never used Canesten cream, she is lying, is that right.
A If that is what she said, yes, she is because I have seen it on the dressing table.
Q I suggest you can't have seen it on the dressing table because, in fact, you can't get it except on prescription.
A Wrong because I got it about five or six years ago because the same reoccurring thing happened to me, and I can tell you what is on the side, it says anti-fungal cream.
Q Yes, I know.
A Because I had to use it myself and I didn't get it with a prescription, I got it from a chemist.
Q Back in the 1980s, you couldn't get it over the counter.
A I might have got it on prescription then. Of course, she is going to say he did."
Her mother said that she had on one occasion suffered from thrush for which she sought medical treatment and she was prescribed a card of alfoil dissolving tablets. She said she never had cause to use Canesten cream. Counsel for the Crown did not challenge her on that issue.
Evidence was also called by the appellant from a pharmacist, Nicola Liscombe, that contrary to the complainant's evidence Canesten only became available over the counter, as opposed to on prescription, on 18 December 1994, years after these incidents were alleged to have occurred.
The learned Trial Judge dealt with this evidence:
"The defence witness, Nicole Lipscombe, gave convincing evidence, but that related only to the unavailability (over the counter) of the drug Canesten at the relevant time. She did not, by her evidence, throw doubt upon the fact that the drug was obtained and was used in a manner suggested by the complainant. I do not accept that the complainant's evidence about the cream was unbelievable - unusual, yes (but so was much of the evidence in this trial), but unbelievable, no."
The learned Trial Judge clearly accepted the evidence of Nicola Liscombe. Indeed there would have been no reason not to because she was not cross examined at all. However, His Honour rather dismissed her evidence as only going to the availability of the drug over the counter. That was a matter that went to an assessment of the credibility and reliability of the complainant's evidence. The complainant said she got the drug without a prescription although to be fair to her she recognised she might have been wrong about that. Still, it was a matter which could not be overlooked. In dealing with this matter the learned Trial Judge said Ms Liscombe's evidence did not throw doubt upon the fact that the drug was obtained and was used in the manner suggested by the complainant. Of course he is right about that. Ms Liscombe's evidence was restricted to one issue only. His Honour then rejected a submission that the complainant's evidence about the cream was unbelievable.
The learned Trial Judge did not deal with the evidence of the complainant's mother. It must be inferred that His Honour treated that evidence, wrongly in my respectful opinion, as coming from an advocate for the accused, and as a person who was not totally objective. Mrs W was not challenged upon her evidence that she had never had Canesten in her possession.
It must be observed that the complainant much later had personal experience with this cream. She had obtained the cream for herself. It is not then a question of her obtaining an esoteric knowledge of the cream from her mother's use of the cream years earlier.
The evidence also has to be understood in circumstances where the complainant had other sexual experience. When she worked at Ingham's in 1983 and early 1984 she rang her mother and asked to speak to her father. She told him that she was at the Gawler Hospital where she was later admitted and had an abortion.
That evidence indicates other sexual experience apart from that of which she complained. It would also indicate that the complainant was prepared to turn to her father for assistance at a time when she was living in the caravan and when she said she had been subject to two sexual assaults by her father.
Count 9
In about October 1988, shortly after the complainant met her husband for the first time, her father came to her house at Riverton. By then she was living in the flat at the rear of the premises. It was a Saturday morning at about 10 o' clock and she heard her father at the door of the flat. She described the incident in evidence in chief:
"Q Did your father enter the flat.
A Yes.
Q Did he say anything once he had come in.
A I asked "What are you doing here?" And he said "I've been to Jordan's to get some silver frost paint."
Q Anything else said between the two of you.
A No.
Q In the course of this incident, did your father do something to you.
A Yes, he tried to stick his fingers in my vagina.
Q Did he in fact do so.
A Yes.
Q How many fingers.
A One.
Q How far into your vagina did it go.
A Fair way.
Q As he was doing this, was he doing anything else to you.
A No.
Q What happened from there.
A That was about it, I think.
Q Was that the last time that your father sexually assaulted you.
A Yes."
In cross examination her evidence was:
"Q On that last assault did he put his finger in your vagina.
A Yes.
Q One or two.
A Two.
Q I might have to find the evidence, but didn't you tell us yesterday he put one finger in your vagina.
A I don't know what I said.
Q I just read to you from p.45 line 20, and this is referring to the visit at the flat on silver frost paint day:
"Q In the course of this incident, did your father do something to you.
A Yes, he tried to stick his fingers in my vagina.
Q Did he, in fact, do so.
A Yes.
Q How many fingers.
A One."
A Fingers to me is two and I have said fingers up until you asked me by the sounds of it.
Q Line 25 from Mr Bowler for the DPP "How many fingers?", your answer "One".
A Yes.
Q Do you agree that what you said to Mr Bowler is as recorded here, one finger.
A I didn't look down to see how many.
Q Why didn't you say that.
A What was I supposed to do, say I could feel it but I didn't count them?
Q The questions Mr Bowler asked you were fairly clear, weren't they.
A Yes. You still don't count the fingers.
Q Why not say to Mr Bowler "Look, I don't know how many fingers, it was too traumatic" or something along those lines.
A Then I am writing the script, aren't I?
Q When Mr Bowler asked you how many fingers, was there any reason if you didn't know that you couldn't say "I don't know".
A I suppose so.
Q Why say one when you now are saying it is two.
A Because I didn't count them.
Q You didn't think you should say that to Mr Bowler.
A If I had my chance again I probably would."
The incident of which the complainant was speaking occurred about nine years before the trial. The complainant's evidence was that she was subject to continual sexual advances between the ages of fifteen and twenty-seven. In those circumstances it could be said that it is not surprising that the complainant became confused in her evidence about whether the appellant used one or two fingers. Two things can be said about that. First the complainant said in her evidence there were only two incidents of sexual assault at Riverton, that is in the period 1986 until 1988, although contrary to that evidence she told the Police it was three to four times. Secondly in circumstances where there is no other evidence available which bears upon the incident and the accused can do no more than deny the complainant's evidence, the complainant's reliability becomes so important. One cannot dismiss an inconsistency of this kind by pointing to the time which has passed since the incident. I will return to this but it was the complainant who allowed so much time to pass between incident and trial.
There was in fact other evidence which touched upon the question of whether this incident could have occurred. The complainant's mother said that her eldest daughter Julie commenced business in a roadhouse at Port Wakefield on the Monday before the long weekend in 1988.
She said that she and the appellant worked full time at Port Wakefield with Julie in that month and in November. There was no possibility, she said, that her husband could have travelled to Riverton on a Saturday, as claimed by the complainant, and committed the offence alleged in count nine. She was not cross examined on this matter.
It must be supposed that His Honour rejected that evidence for the reasons mentioned earlier.
The Complainant's Evidence Generally
The evidence given by the complainant was in a number of respects unreliable in that it was wrong. In a number of other respects inconsistency was demonstrated. In some respects exaggeration was proved.
It might be said that the unreliability, inconsistency and exaggeration only went to minor or peripheral matters. Whilst that is mainly so there were a number of inconsistencies between her evidence and what she told the Police. They were in fact matters of substance and cannot be overlooked.
The complainant was extensively cross examined.
I think it appropriate to refer to some of the cross examination where the complainant had some difficulty with her evidence and with previous statements that she had made to the Police.
I will refer to those matters generally. She admitted she did not tell the Police that her father had forced her to masturbate him before he would give her permission to go out. In admitting that she had not told the Police of that matter she said she also did not tell them about romps on the back lawn. She had not previously mentioned any romps on the back lawn. She admitted that she did not tell the Police that whilst they were living at Owen, as was the case when they were living at Rynie, the appellant would put her on the bonnet of the car to check whether she had had sex. Her explanation for failing to mention those matters was that if she had told them everything she would have been there for ages.
She was cross examined about going away with her father overnight. It was put to her that on two occasions she went away with him overnight but she said that she was unable to remember those trips. The members of the family gave evidence of these trips.
She was also cross examined about her behaviour from which the Court was asked to infer inconsistent conduct on her part. She sent her father cards for Christmas and his birthday including a card on his fiftieth birthday from herself and her husband with the words "May there be plenty of years in you yet". In Christmas 1994 she sent a card to "Nanna and Poppy", "Mum and Dad" written underneath with the further words "Love Christmastime and always, Crystal, Ben, Sue and Brian". She has given him numerous presents over the years and when that was brought to her attention she was asked:
"Q You did all those things not out of a sense of loyalty to a father who was abusing you, but because he was your father. No more, no less than that.
A He was my father, but I am still a generous person.
Q Generous to a man who you say has been abusing you since you were 15.
A I don't really love my husband but I still buy him gifts."
She did concreting work and painting for her parents at their home in Kapunda.
Her mother said that between the time of S's wedding and S's complaining to the Police she and her husband had constant contact with the complainant.
A constant source of difficulty was money. The complainant owed the appellant and her mother $20,000. She defaulted. There was, the appellant said, a big blow up about that. In the end the appellant and Mrs W accepted $6,000. At that time the appellant told the complainant they were finished. However it was the case that there was contact between the complainant and her family after that time.
It was put to her that she used to visit her parents up until shortly before she made these complaints to the Police. When her mother was in hospital and her father alone she invited her father to her home for Christmas in 1995. She took her children to their house and left her daughter alone in the company of her father.
Only a couple of months after she invited her father to spend Christmas day with her and her family the complainant made complaints of sexual abuse to the Police.
Conclusion
The complainant's evidence discloses internal inconsistencies. It is also inconsistent in some respects with the statement she made to the Police.
Her behaviour after the last of the alleged sexual assaults is inconsistent with the fact of the assaults but one must be careful not to assume that all victims to an assault or a series of assaults will act in a particular way. In some cases clearly young victims, especially within a family, are overwhelmed and overborne by their attackers, such that they still show overt affection to a person who is in fact causing them harm. The dynamics of the family and victim do not allow it to be said that a particular victim will or should behave in a particular fashion. However, whilst it is no means decisive it is a matter to be taken into account.
The complainant's evidence was uncorroborated. The learned Trial Judge gave himself a notional warning that it would be unsafe to convict the accused on the uncorroborated evidence of the complainant.
He said:
"Although I am not required in a rule of law or practice to give myself a warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim (see s35i [sic] of the Evidence Act ), I nevertheless (notionally) give myself such a warning in this case."
A notional warning was appropriate in this case. It was dangerous to convict on the uncorroborated evidence of the complainant, not because of any rule of law or practice but because of the circumstances of the case itself.
It was not only that the evidence was uncorroborated and that the complainant's evidence contained inconsistencies which, in my opinion, made it unsafe to convict, but the very long delay in the making of the complaint about the appellant's conduct was important.
The complainant did not complain to the Police about her father's conduct until early May 1994. That was eleven years after the incident alleged in the first count. Of course the complainant's evidence was that the appellant had been assaulting her since she was fifteen, some eighteen years before she first complained.
The complainant was an adult when the first of the incidents was said to have occurred. Therefore she was an adult over the whole of the time that the alleged offences occurred. The only explanation she gave in answer to why she left it so long before deciding to report these matters to the police was:
"A Because it wasn't until I had my daughter and I saw the innocence of her with her father and how I couldn't relate to how someone could treat their child like I was treated that I become angry and decided to do something about it."
Of course that is no explanation for the delay at all. That explains why she did report the matter to the police when she did but not why she did not report the matter before she did.
Her evidence was that she had a good relationship with her mother. She never complained to her mother about these matters. Her mother first heard about her complaints from her son.
I believe that when regard is had to the inconsistencies in her evidence and in some respects the proved errors, the fact that her evidence was uncorroborated and the lengthy and unexplained delay in the making of the complaints, the convictions can be said to be unsafe and unsatisfactory. Moreover the convictions were entered in circumstances where the learned Trial Judge wrongly rejected or at least gave in sufficient weight to the evidence called by the appellant in support of his case.
I would allow the appeal and set aside the convictions on all counts and enter verdicts of acquittal on all counts.
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