R v W No. Sccrm-98-215 Judgment No. S15

R v W
[1998] SASC 15

Court of Criminal Appeal. Millhouse, Olsson and Debelle JJ

Millhouse J. This is an appeal against conviction.
A jury found the appellant guilty of two counts of unlawful sexual intercourse with his step-daughter.
The first count was alleged to have occurred on or about the 27 October 1995 at some place between Frances and Adelaide in a blue Mitsubishi utility on the way to an athletic event in Adelaide known as the Coca-Cola games. V told of the appellant pulling off the main road and going for a walk. After a short time, he returned. V says that when he returned her legs were dangling along the passenger seat of the ute. The appellant approached her and proceeded to remove her shoes. He then had sex with her on the seat of the ute. When he had finished, he walked away from the ute and V got dressed. She was 15 years 8 months old at the time of this incident.
The second count was alleged to have taken place shortly after V turned sixteen on 21 February 1996. It occurred at a time when the family was living on a property at Frances owned by Arnie Pfitzner. The family had moved to this house because their own house in Kalangadoo had burnt down. V’s bedroom was a detached granny flat, separate from the rest of the house. The granny flat had a lock on the outside but not a lock on the inside. V told of a particular occasion when her legs were sore from running at her school sports day. The appellant had offered to massage V's legs and came into her bedroom. She was wearing a nightie and underpants, lying on her stomach. The appellant removed her clothing and put his penis into her vagina. They had sex.
The Crown case was of a course of conduct leading up to April 1997, the date when the police became involved. This course of conduct included four other occasions of sexual impropriety. The evidence was admissible as ‘relationship evidence’. It may be summarised:
(i)... In 1990 when V was ten the appellant allegedly groped the girl while she was sleeping upstairs in her parents’ bed. It involved touching the girl’s vagina through her clothing. They were then living at Kalangadoo. V's mother was not there at the time.
(ii).. In the second half of 1993 when V was about thirteen and a half, they were living at Frances. After a fire at Neurapurr the appellant allegedly went into a caravan where V was and proceeded first to tickle her and then to remove her clothes. She was rolled on to her stomach and there was intercourse. After this incident V found a used condom in the toilet and a packet of condoms in a shed.
(iii). Somewhere between 1993 and 1996, V said the appellant visited her while she slept. He proceeded to lick her vagina and then attempted to put his penis into her mouth. She refused. He then laid on top of her and put his penis in her vagina.
(iv).. Somewhere in 1995 and 1996 V and the appellant went to a property in Doondega. After having lunch in a shearing shed the appellant allegedly placed V onto a bale of wool and had intercourse with her while she was on her back with her legs above the appellant’s shoulders.

None of the above four incidents was subject to a formal charge. V gave evidence that the course of conduct stopped only after she had spoken to her boyfriend and realised what her stepfather had been doing was wrong. She then went to the police.
The appellant challenges the verdicts of the jury on four grounds:-
(i) .. the trial judge wrongly directed the jury that they should have regard to all the evidence in their separate consideration of each count;
(ii) the relevance of delay in reporting the allegations was overlooked;
(iii) the judge erred in failing to direct the jury as to the approach to take upon reaching a verdict on one count, in their consideration of the other count; and
(iv) the verdicts were unsafe and unsatisfactory and against the weight of the evidence.

I shall deal firstly with the issue of whether the verdicts were unsafe or unsatisfactory, as this was the point argued at greatest length.
The appellant attacked the verdict on the first count pointing to various inconsistencies in the evidence. When the offence alleged in count one occurred, was crucial. This was made clear to the jury by the trial judge's summing up when he said:
“Of course, in this respect the year 1995 is critical. An offence occurring in 1994 could not satisfy the relevant criterion having regard to the particulars that have been given by the Crown. Likewise, if you are not satisfied as to the whereabouts, namely in a ‘blue Mitsubishi utility’ in the location mentioned in the count, then the charge has not been proved. If it is reasonably possible that an incident as described in the count occurred, but in a different year or in a different vehicle or place, then the ingredients of the charge have not been made out.”
The learned judge has been careful to identify the required elements of unlawful sexual intercourse. It should have been quite clear to the jury what in law was required in order to find the appellant guilty.
The appellant directs our attention to evidence which suggests that V participated in the 1994 not 1995 Coca-Cola games. He had in his possession a bundle of documents relating to the 1994 games. There were no similar documents in the home for the 1995 games. Handwriting which resembled V's appeared on the back of one of the documents. When cross-examined on these documents V said:
“Q.    Do you think, having a look at the papers in front of
        you, that the year you competed in the Coca-Cola
        Games might have been 1994.
A.             Yes.
Q.             And not 1995.
A.             Yes.
S.             Are you quite clear on that now.
A.             Yes.
U.             There can’t be any mistake about it, can there.
A.             No”.
The appellant was also critical of the evidence of Mrs Keil. Mrs Keil was responsible for the administration of the Coca-Cola Games. Particular emphasis was placed upon the fact that Mrs Keil's evidence was not confirmed by any official record: the records for 1994 and 1995 no longer exist. Mrs Keil was cross-examined on a red participation certificate which V had and which Mrs Keil said could only have been produced in 1995. During cross-examination she agreed that the event numbers on a yellow certificate did not match up with the 1995 program but appeared to mirror the 1994 program. There was also evidence that in 1994 V would have qualified for the under 15 age group whereas in 1995 she would have been too old and consequently in the wrong age group if she had in fact participated in the 1995 games.
There was evidence about a blue Mitsubishi utility. The vehicle was purchased in February 1995. The appellant asserted that the blue ute was not working at the time of the Coca-Cola games. The assertion was based on invoices from a garage which shewed (not identified) that a vehicle was in for repairs at the time when the appellant and V would have been driving up to Adelaide for the 1995 games. The appellant also relied on a letter dated 20 October 1995 from V’s work experience coordinator which speaks of transport arrangements to get her to and from her place of work experience, the inference being that the appellant’s vehicles were out of action and V would have to get there in some other way.
The appellant reminded the Court of some background history prior to V going to the police. There had been arguments in the family especially over V's boyfriend, Sam.
As for count two, Mrs Marie Shaw QC for the appellant, pointed out that the original statement to the police was simply a bare allegation. Yet when V gave evidence, the story was much more detailed. Mrs Shaw argued that if the verdict on the first count is unsafe and unsatisfactory, that V's credibility with regard to count two is in doubt: Palmer v The Queen (1998) 52 ALJR 254. This I agree with.
Miss Wendy Abraham, for the respondent Crown, canvassed the complaint of the inconsistencies in the evidence of the appellant. Miss Abraham pointed out that the 1994 documents had been in the possession of the appellant and not of V. The documents included rules, a programme and entry form. Mrs Keil's evidence was that these were sent out to schools as an information package. The appellant was coaching athletics in 1995, coaching some of the top people in the school. It is highly possible that organisers of the games could have sent out a programme for the past year to help the appellant in his coaching. Furthermore, Miss Abraham argued, handwriting on the back of the 1994 programme could be dated to 1995 and linked to the appellant. On the back of the programme is a list of names of students whom the appellant was coaching in 1995. The appellant admitted writing the names and to the fact that the program was found in his possession.
The handwriting resembling V’s was subject to close scrutiny at the trial. Mr Reibling, a handwriting expert was called by the Crown. Mr Reibling concluded that the signature purporting to be V’s was done by a juvenile hand but he did note inconsistencies between the signature on the back of the program and V’s own handwriting, sufficient for him to conclude that the signature was not genuine. V said in evidence “That doesn’t look like mine”. It was put by the Crown that V’s sister who was fourteen at the time of the allegations when V went to the police, could have forged the signature.
As to V's admission during cross-examination that there could be no mistake that she competed in the games in 1994 not 1995, Miss Abraham argued that V could have been mistaken. The members of this Court were not at the trial: we did not see the witness giving evidence. The members of the jury did see V's demeanour, whether she seemed nervous, how the program had been put to her and so on. It was for them to make up their minds - consider this admission in the context it was given and give due weight to it accordingly.
So with the evidence of Mrs Keil. The jury were in the best position to assess her evidence. Mrs Keil remained adamant throughout cross-examination that the red certificate had been produced in 1995:
“Q.    I want to ask you whether you think there is any
        possibility you might be mistaken about the year that
        red certificates were used.
A.    No. 1994 was my first year with Athletics SA and there
        had been a lot of staff changes.   Sean Carlin, who was
        going to take on the position of Development Officer,
        was competing overseas and hadn't yet started. And
        another volunteer, who is now an employee of our
        association, stepped, in a voluntary capacity, to co-
        ordinate that event and would not have had the time to
        produce certificates for those involved. There would,
        however, have been medals produced in 1994 which the
        athletes would have been given if they received a
        placing.
Q.    They are the same event numbers to which the yellow
attachment refers, aren’t they.
A.    Yes, they are.
Q.    That seems mighty strange, doesn't it.
A.          It does. One answer I could give is that the program
doesn’t change very much from year to year, and the
original program that may have been inserted into the
computer program may have actually been this program.

Q. But you don’t know that.
A. No, I can't verify that.

Q. So we have got 1994 where the event numbers match
exactly, and the 1995 where they don’t match at all.

A. Yes, that’s right.

Q. So I said it is mighty strange, and I want to suggest to you
that perhaps another explanation for it might well be that
the certificate was, in fact, given in respect of the 1994
events.

A. The attachment, that is actually the yellow attachment to
the red certificate, could not have been produced in any
other year but 1995 and, for that reason, I can’t see that
there is any chance that it was 1994.

...
Q. There’s no other plausible explanation, is there, that
something went wrong in your office and perhaps
certificates were given in 1994.

A. No, there is no - there were no certificates in 1994.
Because this event is primarily run over the two days by
volunteers who do this as a spare time activity and not as
a professional occupation, there is no guarantees that the
information that is often used is double checked. In this
particular event it is only if an athlete or a participant
qualifies for a national title that they have their birth dates
and their entry into an event double-checked to ensure
that they are actually qualified for our national entry.”

Mrs Keil gave an explanation for the 1994 program numbers on the yellow attachment. The explanation is plausible. V in evidence thought that she was able to compete in her age group until the end of the calendar year and this is a complete misunderstanding of the rules. Mrs Keil said that ages were not checked unless a competitor had done well enough to go on to national level.
Miss Abraham also pointed to other evidence which supported the view that V actually participated in the 1995 games: the red certificate was awarded only to competitors in 1995 and not in 1994: the certificate was signed by Sean Carlin who was working for Athletics SA in 1995. V was listed as a potential competitor in 1995. There are no records of the competitors who actually competed but there is reference to her registration for the 1995 games.
The appellant had bought the blue Mitsubishi utility in February 1995. Mrs Shaw argued that invoices tendered shewed that the vehicle was off the road until necessary parts had arrived. Miss Abraham replied that the invoice does not indicate whether the parts actually relate to the blue Mitsubishi. The appellant owned two cars. The invoices do not indicate the condition of the vehicle and do not shew whether the car could or could not be driven.
As for the evidence of the work experience teacher, the conversation with the teacher occurred ten days before the competition while the actual work experience was at a time after the games.
Miss Abraham conceded that V was arguing with her family over many matters including homework, housework and her boyfriend: typical of adolescents Miss Abraham said. I accept what Miss Abraham put to us and I suggest there is nothing in this minor point.
The appellant’s credibility was in issue. When first interviewed by the police he accepted the police officer’s suggestion that he went to the games in 1995. It was suggested that the police officer had used a ‘false prompt’ to gain this admission. In a second interview, after having time to gather his thoughts, the appellant suggested a couple of other possible explanations for where he might have been in October 1995. During the trial the appellant offered several reasons why he couldn’t have been at the 1995 games. One reason he gave was that he was in Mount Gambier Hospital. The hospital records were checked and this was found to be incorrect, his only admissions having been on 7 and 8 November 1996. Another reason he gave was that he was not well and had pain in his ribs which prevented him from engaging in sexual intercourse: yet he was able single-handedly to pull down a house not long before the games. Finally he argued, V was doing work experience. We know this to be untrue. The Crown put to the jury that the appellant was ‘clutching at straws’. This was an acceptable conclusion if the jury were so minded.
As for count two, Miss Abraham said there was nothing wrong with an original statement to the police only three lines long. It was quite natural that this would be expanded upon in evidence. This is so.
I agree with Miss Abraham's contention, that this is a classic jury case. There was a lot of evidence, difficult but not impossible to reconcile. In cases like this the demeanour and behaviour of witnesses can be crucial to the jury in reaching a decision. The conclusion is not far-fetched or fanciful. Having thought about all the evidence I do not think the verdict is unsafe nor unsatisfactory.
Mrs Shaw argued that her client has been disadvantaged by delay: the appellant's ability to prove his innocence has been compromised by the length of time between the alleged events and the allegation being made. Mrs Shaw stressed that the Athletics SA records are no longer in existence and that these could have exonerated the appellant if they shewed that V had taken part in the 1994 games. On the other hand the records could have placed beyond doubt that V had taken part in the 1995 games.
Mrs Shaw asked us to follow the law as set out in Jones v R (1997) 149 ALR 598, with respect to delay. Particular reference was made to the following passages (@609-610):
“Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person’s right to defend him or herself. An innocent person’s ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is 'a matter of considerable importance to the person accused', and has the effect of relegating the accused from giving an account of what actually happened to 'what must have happened' (our emphasis).

As a result of the long delay in this case, the appellant’s opportunity to obtain evidence refuting the circumstances of each alleged offence was significantly reduced. ... The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater.”

In Jones v R, the appellant had been committed for trial on three counts of sexual intercourse with a child over a two year period. The jury convicted on the first and third counts and acquitted on the second. A reading of the judgments shews that this concerned the High Court and caused them to allow the appeal. In the majority judgment of Gaudron, McHugh and Gummow JJ under the heading “The adverse impact of the acquittal on the second count”:-
“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts on the indictment.
...
It is difficult then to see how it is open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count”.
Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care: (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence.”
The decisive factor in the view of the High Court was the acquittal on the second count. The delay and lack of corroboration were factors which strengthened the finding of an unsafe and unsatisfactory verdict. In the present case the appellant was found guilty on both counts. This indicates that the jury must have found V to be reliable in her account of events. Furthermore the actual delay in the making of the complaint was not so long. Count one was alleged to have occurred in October 1995, about two and a half years before the complaint. Count two was in February 1996, about a year from the time of complaint. These periods are not long enough to be regarded as serious. They certainly do not require an assessment of Longman (1989) 168 CLR 79 which dealt with a delay of 25 years.
The appellant argues that if the complaint had been made earlier, he would have had access to records to prove that V had taken part in the 1994 games. This is not necessarily so. As Miss Abraham pointed out, from the nature of this type of record, lists of participants in junior athletics competitions, there is very little reason to keep such records. Even if the complaint had been made say, in April 1996 there is nothing to suggest that the relevant records would have been available. Criminal trials are usually, but unfortunately, affected by delay to an extent. I do not think that the delay in this particular case warrants special consideration or has particularly prejudiced the appellant. I do not think the verdicts unsafe or unsatisfactory for reason of delay.

The last two grounds of appeal I shall deal with together as they both relate to the same passage in the trial judges summing up:
“In the result, you may find the accused guilty of both counts or not guilty of both counts, or you may find him guilty of a particular count and not guilty of the other count. However, in reaching your decision you will consider the whole of the evidence. A lot of evidence has been given with regard to the date of the Coca-Cola Games and whether on the date of the first charge the accused possessed a vehicle meeting the description in the charge. Although that evidence deals immediately with the first charge, the evidence bears upon V’s reliability as a witness, and in this sense also bears upon the second charge. The whole of the evidence is available to assist you in your deliberations as you deal separately with each charge, although there will be questions arising which are common to your consideration on both charges. That completes that direction.”
Mrs Shaw argued that the trial judge wrongly directed the jury by saying that all the evidence could be used in consideration of each separate charge, and that this has blurred the approach to be taken by the jury upon reaching a verdict in relation to one count and then their consideration of the remaining count.
The distinction between evidence relevant to credibility and evidence admissible on a particular count is an important one and must be made plain to the jury. At first glance there may be some ambiguity surrounding the words of the learned trial judge. It may appear he is saying that in the consideration of count one, evidence as to count two can be taken into consideration. This however, is not what I suggest he is saying. When the paragraph is read in context with the rest of the summing up his reference to “the whole of the evidence” is to the background or relationship evidence, evidence of incidents not subject to formal charges.
It is clear that the learned judge does not intend all evidence of each charge to be used on both counts or else why would he use the words “although there will be questions arising which are common to your consideration on both charges”. He contemplates that there will be some overlap of evidence and some evidence which is referable only to one charge.
Mrs Shaw directed us to R v MacDonald (1995) 65 SASR 322 and in particular to the words of Mulligan J (@331):
“Regrettably the learned trial judge also did not instruct the jury that they could not use evidence in relation to one charge as evidence in relation to another unless it was admissible in respect of both of them. He did not tell the jury that they may reach different verdicts in respect of some charges. They were not instructed that because they had reached a particular verdict on one charge, it did not follow that they must reach the same verdict on the other charges. In my view, the failure to give those directions, having given the direction which I have mentioned, amounted to a misdirection and in itself is sufficient reason to allow the appeal and set aside the verdicts.”
The summing up in this case does not have the defects mentioned by my brother.
Early in his summing up His Honour said:
“Now the real question in issue for you must be to determine separately with respect to each charge whether the accused had sexual intercourse with [V] on the occasion particularised in the information relating to that count.
Later on he explains what use is to be made of evidence with respect to the incidents alleged:
“Ladies and gentlemen, before you rely upon this evidence, you must be satisfied beyond reasonable doubt that the events in question occurred. If you are not satisfied beyond reasonable doubt as to an occurrence, then you will put that evidence aside and not use it. However, if you are satisfied beyond reasonable doubt as to such occurrence, then you may use it as background against which you will assess the relationship between the accused and [V]when you come to consider the facts relating to each of the two counts.”
His Honour gives a thorough direction on not using evidence for propensity reasoning:
“However, I direct you that you will not use evidence of the accused’s conduct on other occasions, before or after those which are subject of these charges, to conclude that he must have acted or was likely to have acted as he did because of other similar conduct. You will assess [V’s] evidence as to what she did, what she said she did, and what she says her stepfather did on the two occasions to which the charges relate upon the basis of using the relationship which you may find to have been established only as the background to considering [V’s] evidence and the circumstances in which she, on her story, continue to put up with her stepfather’s abuse of her on one view of the facts even after the occasions of the two charges.
If there were no such history of abuse, as [V] alleges, then you might question, for example, how it came about that the accused could suddenly assault his stepdaughter by the roadside and she could accept that treatment apparently without demur. I must emphasise and direct you that evidence of prior or subsequent unlawful conduct to the counts which are charged is not admissible and direct proof of an alleged offence. A person is not to be convicted upon the evidence of a mere disposition or propensity to commit a crime based upon any prior unlawful conduct. Evidence of such unlawful conduct can be highly prejudicial to an accused person, so it is vital that you understand the use which may be made of such evidence.
Evidence of unlawful conduct subsequent to the date of the charges suffers from the same criticism. As I have said, this evidence is admissible only as indicating the relationship between the accused and [V] and as establishing the setting in which the offences with which [the appellant] has been specifically charged are alleged to have occurred and without any immediate complaint by [V]. The evidence has no other use. You may only convict the accused on either or both of the charges against him if you are satisfied beyond reasonable doubt that the conduct identified as being the subject of the relevant charge occurred. It is not permissible to find the accused guilty to a charge simply because you might be satisfied that at least some of the prior or subsequent conduct alleged by [V] has occurred. Now I give you that direction as a matter of law which you will have regard to.
A little later in his summing up he said:
“In the result, you may find the accused guilty of both counts or not guilty of both counts, or you may find him guilty of a particular count and not guilty of the other count. However, in reaching your decision you will consider the whole of the evidence. A lot of evidence has been given with regard to the date of the Coca-Cola Games and whether on the date of the first charge the accused possessed a vehicle meeting the description in the charge. Although that evidence deals immediately with the first charge, the evidence bears upon [V’s] reliability as a witness, and in this sense also bears upon the second charge. The whole of the evidence is available to assist you in your deliberations as you deal separately with each charge, although there will be questions arising which are common to your consideration on both charges."
Towards the end of the summing up His Honour makes the following comments:
“If doubt is cast upon the reliability of the complainant’s story with respect to one incident, then the jury is entitled to question the reliability of the complaint with respect to some other incident.”
...
“Through his counsel he has gone on the attack and put forward a positive case that [V] is simply wrong in her evidence as to October 1995 and that her evidence should be regarded as unreliable so as to raise doubt as to count 2 as well as the defence says, positively destroying the prosecution case on count 1.”
...
“I simply say to you that I suggest to you that the way to go about your task most efficiently might be to look at count 1 and consider the evidence relating to count 1, then having considered that evidence, then apply your mind to count 2.”
...
“I remind you that the accused will only be found guilty if you are satisfied as to each and every element of the relevant charges beyond reasonable doubt.”
I have set out these passages from the summing up to shew that the jury could not have been mistaken on how they ought to treat the evidence. The learned judge made clear that the jury could find the appellant guilty of one offence while not guilty of the other. He gave directions explaining correctly how to use a finding of not guilty on one charge with respect to the remaining charge. The propensity direction is concise, easy to understand and again directs the jury on how to apply the evidence.
The trial judge’s summing up was thorough, possibly favourable to the appellant, clear and leaves no doubt as to the process of reasoning to be applied to the evidence.
I suggest dismissing the appeal.
OLSSON J: In my view there are some features of the evidence in this case which give rise to a need for careful consideration in relation to the issue of whether or not the verdicts against the appellant were unsafe and unsatisfactory. However, at the end of the day, these were classic jury questions and I am persuaded that there was adequate material on which the jury could properly have reached the decision to which it came. I therefore agree that the verdicts were not unsafe and unsatisfactory; and they cannot be said to be against the weight of the evidence.
I agree with the substance of the reasoning of Millhouse J as to the other grounds and the conclusions to which he has come.
I, too, would dismiss the appeal.
DEBELLE J. I also agree with the substance of the reasons of Millhouse J. I also agree with the observations of Olsson J. I would dismiss the appeal.

[1999] SASC 15

19 February 1999