R v W, PK
[2016] SASCFC 5
•16 February 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, PK
[2016] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)
16 February 2016
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY
Appeal against conviction for the offence of persistent sexual exploitation of a child under the age of 17.
The appellant appeals on the basis that the Judge erred in admitting the evidence of a complaint and that inadequate or incorrect directions were given on the topics of forensic disadvantage and prior inconsistent statements.
Held by Kourakis CJ (Kelly and Nicholson JJ agreeing) allowing the appeal:
1. The evidence of the complaint was properly admissible.
2. The directions given with respect to prior inconsistent statements did not unfairly diminish the significance of the inconsistency.
3. The learned Judge failed to adequately direct the jury on the forensic disadvantage of the appellant arising out of the long delay in bringing the prosecution.
There has been a miscarriage of justice due to inadequate directions being given in respect of forensic disadvantage specific to the appellant’s case.
The appeal is allowed and the conviction set aside. Matter remitted to the District Court for trial.
Evidence Act (SA) 1929 s 34M, s 34CB, referred to.
R v Cassebohm (2011) 109 SASR 465; R v C, CA [2013] SASCFC 137, considered.
R v W, PK
[2016] SASCFC 5Court of Criminal Appeal: Kourakis CJ, Kelly and Nicholson JJ
KOURAKIS CJ: The appellant seeks permission to appeal against his conviction for the offence of persistent sexual exploitation of a child under the age of 17.
The victim of the offending, S, was the appellant’s younger sister. The charged offending was allegedly committed between August 1977 and January 1982, when the appellant was aged between 18 and 23 years and S was aged between 11 and 16 years. The offending was alleged to have occurred on and around the family farm in Mount Gambier.
The appellant was tried in the District Court and was found guilty of the offence by majority verdict of the jury.
The appellant appeals on the following grounds:
1The Judge erred in admitting the evidence of a complaint to S’s mother as initial complaint evidence;
2The Judge failed to give adequate directions on the topic of forensic disadvantage; and
3The Judge’s directions regarding the S’s prior inconsistent statements relating to the pool incident unfairly diminished the significance of the inconsistencies.
Permission to appeal on the first ground of appeal was granted by Nicholson J on 16 November 2015. Permission to appeal in relation to grounds two and three was referred to this Court.
I have concluded that the evidence of S’s complaint to her mother was properly admissible because it was an elaboration of her initial complaint. I would therefore dismiss that appeal ground. I have also concluded that the Judge’s directions on S’s prior inconsistent statements did not unfairly diminish the significance of the inconsistency, and I refuse permission to appeal on that (being the third) ground. However, I would grant permission to appeal and allow the appeal on the ground that the learned Judge failed to adequately direct the jury on the forensic disadvantage of the appellant arising out of the long delay in bringing the prosecution. I do so because the directions did not canvas the specific and significant disadvantages of the appellant in contesting the particular factual issues joined in the course of the trial.
Background
The appellant was born in 1959 and is S’s natural brother. S was born in 1967. The appellant is approximately seven and a half years older than S. The appellant and S grew up together on a family farm near Mount Gambier with another sister and their parents, both of whom are now deceased.
Even though the charged acts allegedly occurred between August 1977 and January 1982, evidence was given of offending alleged to have occurred on a regular basis from about 1975, when the appellant was about 15 years old and S was about eight years old. The offending was alleged to have occurred frequently, sometimes weekly, until the appellant went away to college in 1978. Thereafter the offending was less frequent, occurring when the appellant returned home every fortnight or so. The appellant also travelled overseas for a period of about eight months. The last alleged occasion of abuse occurred when S was approximately 16 years of age.
At the trial, S gave evidence of a number of specific offences which may be summarised as follows:
1Indecent assault over clothing. Tag wrestling in the lounge room when S was eight years old;
2Digital penetration when S was sitting on the appellant’s lap in ute a few weeks after the first incident;
3Digital penetration when appellant was teaching S to start ute a few months after the second incident;
4Digital penetration when tidying up the hayshed on the same day as the third incident;
5Object penetration when S was 10 years old;
6Object penetration a few months after the fifth incident;
7Digital penetration in the swimming pool when S was 10 years old;
8Indecent assault over clothing and digital penetration on VFL grand final day when the appellant was in second year of agricultural college;
9Indecent assault over clothing and digital penetration on Hundred Line Road after the eighth incident;
10First occasion of penile/vaginal intercourse in the shearing shed when S was 13 years old; and
11Indecent assault over clothing in the shearing shed when S was approximately 16 years old.
It is convenient to say something more about the seventh incident. S testified that her cousin, L, who she claimed was intellectually challenged, was present in the pool at the time and participated in the incident at the appellant’s instigation. L had died before the trial but S testified that he had apologised to her before his death. That testimony was strongly challenged at trial.
So much can be seen from the address of the appellant’s counsel on the issue:[1]
You’ve got [L] there, it was very unusual evidence about [L] ladies and gentlemen because it’s pretty clear from [P] and [H] that [L] does not have any intellectual disability so it was very curious evidence that she also said she suffered abuse at the hands of [L] and that [L], that [L] apparently apologised - it’s very convenient [L] is dead, very convenient indeed.
She places [L] at the scene, and in order to try and corroborate it she says ‘[L] actually apologised to me before he died’. No he didn’t because nothing happened in the pool. The accused told you the only time he did remember being in the pool with [L] there was when [M] was there as well. So very convenient that this story about [L], his intellectual disability, somehow explained he was really a victim. It was this man, the accused, who put [L] up to it, he had an intellectual disability, he was only a victim. Well he didn’t have an intellectual disability. See, according to [S] poor old [L] could barely mow the lawns yet we know he wasn’t held down for a year at school, we know he was in management at the football club, there’s a timekeeping box named after him. Timekeeping wouldn’t necessarily be an easy task given the time on and all the rest of it, there would be a bit involved, but according to [S] he could barely mow the lawns. I think that was one of the jobs he could do, mow the lawns, he might have mowed the lawns at the footy club as well, but other than that [L], according to her, was intellectually slow and he was a victim put up to this by the accused. That’s just rubbish, he wasn’t intellectually slow, you’ve heard that from his cousins and you might think they would know. You might think it curious that if [L] was intellectually incapacitated to the extent the complainant has him it would be highly unlikely he wouldn’t be kept down for one year at school let alone be at a normal school, you might think he would be at a special school. So it’s a matter for you what you make of that but it’s very strange evidence indeed.
[1] TT 221, 38
Incidents 8 to 11 comprise the conduct the subject of the charged offence. Incidents 1 to 7 occurred when the appellant was under the age of 18 and were led by the prosecution at trial as uncharged sexual acts.
Ground 1 – Complaint
The definition of “initial complaint” found in s 34M(6) of the Evidence Act 1929 (the Evidence Act) is:
Initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The appellant’s complaint is that evidence was wrongly adduced of a second complaint which was not an elaboration of the first. S testified that the first person she told that her brother had sexually abused her was VL. S was about 13 years old at the time.[2] S gave evidence that on this occasion, VL and her family were staying with S’s family on their farm and the two girls were sleeping in a caravan. S gave the following testimony:[3]
AI did mention to [VL] that [the appellant] had raped me and she –
QI’ll pause you there. Was that the term you used at the time or is that the term you are using now.
ANo, that’s is the term I used then. That’s what I said to her, that [the appellant] had raped me.
QHow did [VL] react when you said that.
APretty horrified and disgusted, shocked I suppose.
QWhat makes you say she was horrified, disgusted and shocked.
AI remember her kind of sitting up, turning and ‘What did you say?’.
[2] TT 38.25.
[3] TT 38.36.
S testified that she retracted her complaint because of VL’s reaction. S testified that she told VL “No I didn’t mean that” and said instead that she “would rape [the appellant]”. According to S, VL said that she would report the matter to her mother the next morning.
S testified that on the following morning VL did report their conversation of the night before to her mother. Her evidence continued:[4]
QHow did your mother react to that.
AShe was horrified and disgusted and [C] has come down the passage as well to ‘Stop talking like that, [VL]. You shouldn’t say things like that’. I’ve run off back out to the caravan, knew I was in pretty trouble because of my mother’s and [C]’s reactions. My mother has come out to the caravan and I’ve actually told my mother that [the appellant] had been raping me.
QAgain, were they the words that you used. What were the words that you used if they weren’t the words.
AThey were the words that I used.
QDid you provide any details about what exactly he had done or when he had done those things.
ANo, my mother was pretty shocked and horrified and I ended up taking it all back and said that it didn’t really happen. I was only making up the story.
[4] TT40, 16.
The evidence of VL on the subject was limited. She recalled teasing S and saying, “I’m going to tell your mum that you want to rape your brother” which she said S’s mother overhead. VL’s evidence continued:[5]
[5] TT 126, 25.
QDo you recall something that happened on that occasion.
AYes, I do. I remember I was teasing [S] and [S] was teasing me and I remember saying ‘I’m going to tell your mum that you want to rape your brother’ and it became a very upsetting moment.
QDid you, in fact, tell her mother about that.
AShe was there, she heard.
QHow did [S] react when you said that.
AShe became very distraught, very, very upset. Crying, she was inconsolable, really.
QHow did her mother react.
AShe was the same, very, very upset, probably even little bit angry. Yeah, just turned into a bit of a nightmare really.
As I earlier observed, S’s mother had died before the trial. The appellant had notice that S would give evidence about the conversation with her mother following the disclosure to VL through the provision of committal declarations. The appellant could have asked the Judge to direct the jury to ignore the evidence if he had been caught by surprise. However, there was no objection to any of the above evidence. The appellant’s counsel having failed to take an objection, it cannot be said that there was any error of law made by the Judge in the admission of evidence.
The appellant therefore puts this ground on the basis that the Judge left the evidence of the conversation with S’s mother as complaint evidence when it could not properly be used as such. Framing the complaint in this way illustrates the importance of the timely taking, and determination, of objections to the admissibility of evidence. Once evidence of this kind is admitted it is difficult to ignore it. If evidence is not admissible it is very difficult to give the jury any directions about its proper use.
Be that as it may, those theoretical difficulties do not arise in this case because as will shortly be seen the evidence was admissible as complaint evidence.
The oddity in this case is that the evidence of VL is not in fact evidence of complaint. Rather it is evidence which contradicts S’s evidence about the making of a complaint on the same occasion. The evidence of VL also contradicts S’s testimony that she made a complaint to her mother. However, the relevant evidence of complaint is found in S’s testimony. On the question of admissibility, the evidence of VL is relevant only for the purposes of determining when the complaint was made and whether there was one or two complaints.
If the timing of the exchange between S and her mother occurred, as described by VL, immediately after the conversation with her, then the exchanges between S and VL, and between S and her mother, were part of a single initial complaint and therefore admissible as such.
If the timing of the complaint is considered from the perspective of S’s evidence alone, two complaints were made. The first to VL at night and the second on the following morning to her mother, albeit again in the presence of VL.
On S’s testimony, the complaint to her mother was an elaboration of the complaint to VL because the complaint to VL was a complaint that the appellant had raped her on a single occasion, or, at the very least, a complaint which allowed for some ambiguity as to whether she had been raped on a single occasion or on multiple occasions. The statement made by S to her mother was a statement that the appellant had raped her on multiple occasions and for that reason was an elaboration of the first complaint by disclosing more of the charged conduct or, again at the very least, an elaboration because it removed some ambiguity from the first complaint.
I conclude that the statement made by the complainant to her mother was an elaboration of the initial complaint and therefore was admissible.
Ground 3 – Prior inconsistent statement
S testified that when she was about 10 years old she was in the pool with the appellant and her cousin [L] when the appellant inserted his fingers into her vagina on numerous occasions. This is the incident numbered 7 as set out in paragraph [9] above.
S’s evidence-in-chief was that:[6]
It all started off as fun and games. Had an inflatable basketball ring and inflatable ball, we were playing like basketball type thing, shooting hoops in the pool. There was also a Styrofoam surfboard in the pool. We were all playing around with that and then we started running around in circles created a whirlpool going in circles together which caused a bit of a current and then [the appellant] has come up from behind and it felt like he put his – I didn’t look down but it felt like he put his whole hand up inside me and I had felt his fingers and more than one finger before but it actually felt he put his hand up inside of me and just threw me up in the air and he done this on numerous occasions.
[6] TT 35.8.
Under cross-examination, S agreed that that in her witness statement she had described it in terms of “had his whole hand inside” her vagina.[7] S agreed that she had not said in her witness statement that it “felt like” his whole hand.
[7] TT 70-71.
When the issue of a prior inconsistent statement was put to S in cross‑examination, she stated:[8]
I don’t know, it is ridiculous, that is how it felt to me. I don’t know, is it physically possible? I am not a medical expert. To me it felt like at the age of 10 that he had his whole hand inside my vagina.
[8] TT 72.12.
During the summing up, his Honour directed the jury with regard to prior inconsistent statements.[9] On using the pool incident as an example, his Honour described the accounts in the witness statement and S’s testimony as “slightly different”.
[9] AB 43.
The Judge’s diminution of the difference in the account given in the police witness statement and S’s testimony appears to be premised on the accidental elision of the words “felt like” or “as if” from the witness statement.
For the purposes of this appeal, I accept that the jury might have understood the Judge’s comment to have gone further and to have been an observation about the evidential significance of the inconsistency. Even if so taken, it was a brief and passing comment on the evidence. The Judge explained to the jury in some detail the matters that they should weigh in determining the significance of the inconsistency. The Judge reminded the jury that the facts were for them. The Judge had made a similar observation at the very beginning and at the very end of his summing up.
I am satisfied that there is no risk that the jury’s own consideration of the significance of the inconsistency was compromised by the Judge’s observations.
Ground 2 – Forensic Disadvantage
Section 34CB of the Evidence Act provides:
(2)If, in a trial of a charge of an offence, thecourtis of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising theevidence.
(3)An explanation or direction under subsection (2)may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase “dangerous or unsafe to convict” or similar words or phrases.
In R v Cassebohm,[10] Doyle CJ outlined the requirements of a warning pursuant to s 34CB:[11]
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[10] (2011) 109 SASR 465.
[11] (2011) 109 SASR 465, 475 [32].
In R v C, CA, I observed:[12]
The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant’s forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial. The general direction given by the Judge did not draw the jury’s attention to the contradictions, in matters of detail, of the complainants’ testimony, which might have been more effectively pressed but for the lapse of time.
[12] [2013] SASCFC 137 at [117].
S reported the offending to police in 2010.[13] The trial took place in July 2015.
[13] TT 60.26; 63.16.
Counsel for the appellant addressed the jury on the topic of forensic disadvantage during closing submissions, as follows:[14]
My client has what’s called a forensic disadvantage in this trial ladies and gentlemen. He has put himself in a position where he has given evidence in a situation where he didn’t have to. He’s given that evidence, as I said. He has subjected himself to a skilful cross-examiner in my learned friend and he has given evidence in a scenario where he has a distinct disadvantage. His Honour will talk to you about this but a distinct disadvantage due to the timing of the complaint relative to the timing of the alleged incidents.
[14] T223.1.
The Judge addressed the topic of forensic disadvantage in general terms but did not make a finding or give a ruling about whether the requirement of a “significant forensic disadvantage” within the meaning of s 34CB(2) had been satisfied.
The trial Judge’s directions[15] provided a general explanation of forensic disadvantage and explained that the forensic disadvantage should be considered when “scrutinising” the prosecution case “very carefully” and satisfaction of its proof beyond reasonable doubt:
I want to turn to the topic that was mentioned by the defence as forensic disadvantage which is the common legal terminology for what I am about to talk about.
Because there was a delay in complaining in this matter a significant time elapsed before the police got any opportunity to do any investigation. That delay may have resulted in what is called a forensic or court disadvantage to the accused. By ‘forensic disadvantage’ I mean there may be difficulties for the accused in challenging and responding to allegations that are made so long ago in the past. If it is put to you ‘I suggest you did something wrong to someone two days ago’, you can remember what you were doing two days ago and you can say ‘I was not even in town two days ago, I was in Naracoorte, and you can ask the publican at the hotel in Naracoorte or the doctor in Naracoorte I was visiting’, but if it is put to you that ‘You did something wrong 10 years ago’, it is pretty hard for you to be able to marshal any evidence about what you were doing on that day 10 years ago, particularly if you are not even given a date or a day. So that is what is meant by ‘forensic disadvantage’.
The complainant gets the luxury of being able to be excused for vagueness due to the length of time that has passed, but the accused does not get the chance to prove the complainant wrong about certain of the allegations because witnesses are not around, you do not even remember who might be able to be a witness, objects are not around, the police have made no investigation, and even if there were witnesses it is unlikely they would be able to remember something that happened 10 years ago.
So you must take those forensic disadvantages into account when scrutinising the evidence of the prosecution. You must take them into account when [assessing] whether the prosecution has proved its case against the accused beyond reasonable doubt.
The delay may have led to the complainant being unable to remember some matters of detail. That may disadvantage the accused because of an inability to test the complainant’s account in detail.
From the accused’s perspective, if there had been a prompt complaint he would have been in a position to remember back to the relevant time and remember what, if anything, he was doing.
For these reasons you should scrutinise the evidence of the complainant very carefully and take these matters into account and only act on the evidence of the complainant if you are sure that it is true and accurate.
[15] AB44-45.
Section 34CB of the Evidence Act was clearly enlivened by the circumstances of this trial. The appellant’s counsel sought a direction pursuant to that section. The passage of time was, in and of itself, a reason to give such a warning. Some 40 years, or close to it, had passed. S’s evidence was that the offending occurred in the context of the day to day proximity of family life. Recollection of detail and of particular occasions will necessarily be difficult in those circumstances. The Judge explained the general difficulty occasioned by the lapse of time in defending accusations of this kind well when he told the jury that a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection.
However, s 34CB(3) of the Evidence Act requires more than a general explanation of that kind. It requires the direction to be tailored to the facts and circumstances of the particular case.
In this case, S’s testimony about her complaints to her mother and VL was fundamentally inconsistent with the evidence of VL. The testimony on this issue of S’s mother, if she were still alive, is likely to have been accorded substantial weight in resolving that issue and the ultimate outcome of the trial. If the appellant’s mother had given a similar account of the exchanges to that given by VL, the appellant’s position at trial would have been strengthened. The passage of time and the passing of his mother forensically disadvantaged him to a significant degree. That particular disadvantage should have been canvassed.
The incident described by S in the pool, and the involvement of her cousin L, was an important part of the prosecution case. On S’s testimony, it is likely that her cousin could have given material evidence with respect to that incident. There is good reason to think he would have recalled an incident of the kind described by S if it had occurred. The inability of the appellant to call his cousin because he had died in the intervening period was another significant forensic disadvantage to which the Judge should have referred.
The appellant’s defence included a challenge to S’s credibility on the ground that she had left him with the care of her child on frequent occasions. That she had done so was put to S in cross-examination. S explained that conduct by testifying that her mother was usually present when she did so and that she was satisfied that there was little risk of abuse because her mother was “paranoid” about the possibility of further abuse by her brother. The appellant’s inability to contradict that testimony by calling his mother significantly disadvantaged him. The passage of time and the passing of his mother meant that the appellant was effectively stuck with an answer, not only explaining why S left her child in his care but also adding, by way of hearsay, the appellant’s own mother’s belief as to his guilt to the case against him. True it is that the appellant could have refrained from challenging S’s testimony on this ground lest such an explanation be given. However, any such forbearance, in itself, would have equally manifested the forensic disadvantage under which he laboured by reason of the death of his mother in the period of delay.
I pause to make the observation that it cannot be known whether the testimony of L, or the appellant’s mother, would have supported or contradicted S’s testimony. However, in the circumstances of this case, there is no reason to discount the possibility that their evidence might have cast doubt on the prosecution case. The appellant’s inability to interview them, or call them as witnesses, therefore left him in a position of significant forensic disadvantage.
The Judge could have brought these specific disadvantages to the attention of the jury by making observations of the following kind:
There are three particular examples of the forensic disadvantage of which I have spoken in general terms, which you may wish to consider in this case. The assessment of the significance or otherwise of these matters is for you. The fact that I mention these three matters does not mean that there are not others. It is for you to consider whether and to what extent the accused has been disadvantaged. However, the three matters that I mention are these:
1. The accused’s cousin L may have been in a position to give evidence concerning the incident in the pool. He was an independent witness to the only one of the specific alleged incidents which was not committed when S and the accused were alone. The passage of time and his death has denied the accused the possibility of the assistance of an independent witness.
2. On the evidence of VL, S did not make a complaint to her or her mother. S’s mother would have been in a position to give evidence about whether S said that the accused had raped her, or that she wanted to rape the accused. The passing of the accused’s mother has denied him the opportunity to investigate what was said in his absence and possibly lead evidence from his mother.
3. Finally too, the accused’s mother may have been in a position to give evidence on the question of S leaving her children in the care of the accused.
Ladies and gentlemen, we cannot know what L and the accused’s mother would have said if called to testify. You are not to speculate about what they might or might not have said. However, in considering whether or not you accept S’s testimony and whether the offence has been proved beyond reasonable doubt, you should consider whether you can be so satisfied in the absence of any evidence from the accused’s mother or L.
Conclusion
I would allow the appeal on ground 2. There has been a miscarriage of justice because the Judge failed to give adequate directions on the forensic disadvantage specific to the appellant’s case. I would set aside the conviction and remit the matter to the District Court for trial.
I dismiss the first ground of appeal. The evidence of S to her mother was properly admissible as it was an elaboration of her initial complaint.
I dismiss the third ground of appeal. The Judge’s directions regarding S’s prior inconsistent statements did not diminish the significance of the inconsistency.
KELLY J. I agree with the orders proposed by the Chief Justice and with his reasons.
NICHOLSON J. I would allow the appeal. I agree with the orders proposed by the Chief Justice for the reasons his Honour has given.
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