R v Y, DB - [2006] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, DB
[2006] SASC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Anderson)
16 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE
Appellant convicted of two counts of unlawful sexual intercourse with a person under the age of 12 years and one count of attempted unlawful sexual intercourse with a person under the age of 12 years - whether verdict was unsafe and unsatisfactory due to alleged discrepancies in evidence in relation to uncharged act relied upon to establish sexual attraction - trial judge reminded jury of defence criticisms of the evidence during summing-up - evidence not so unreliable as to vitiate the conviction.

CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
Whether trial judge erred in inviting jury to consider whether appellant's reaction to a comment made by complainant's father amounted to evidence of consciousness of guilt - father commented to appellant that complainant had shared a secret with the family - father testified that appellant reacted in a shocked manner - evidence was capable of being used as evidence of consciousness of guilt - trial judge not in error by leaving evidence to jury on this basis.

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
Whether trial judge erred in not directing jury to disregard evidence of complainant's distress when informing mother of allegations - complainant claimed she delayed in telling her parents about the alleged incident due to embarrassment - mother gave evidence of complainant's distress when she eventually informed her of the allegations - mother asked complainant if she could write down what happened and complainant did so - trial judge told jury it was open to them to consider whether complainant's distress supported her claim that she was too embarrassed - evidence of distress admissible for limited purpose identified by trial judge in summing-up.
Held: appeal dismissed.
Edwards v The Queen (1993) 178 CLR 193; Cross on Evidence (7th Australian ed) [33435], discussed.

R v Y, DB
[2006] SASC 141
Court of Criminal Appeal: Perry, Duggan and Anderson JJ

PERRY J. I agree that the appeal should be dismissed for the reasons given by Duggan J.
DUGGAN J. The appellant was convicted by a District Court jury on two counts of unlawful sexual intercourse with a person under the age of 12 years and one count of attempted unlawful sexual intercourse with a person under the age of 12 years.
According to the prosecution case, the offences arose out of an incident which occurred between 1 September 2002 and 30 November 2003 at Morphett Vale, when the complainant was about ten years of age.
The appellant was about 18 years of age at the time of the alleged offences. He and his family mixed socially with the complainant and her family. They were members of a Maori heritage group.
The two families were also members of the Onkaparinga Rugby Club, which has club rooms at Morphett Vale. It was alleged at the trial that, during a function held at the rugby clubrooms, the appellant led the complainant from the clubrooms to an area near the rugby field where he committed the offences charged in the information.
The appellant has appealed against conviction on the three charges.
The first ground of appeal asserts that the verdict is unsafe and unsatisfactory by reason of flaws in the evidence relating to an uncharged act relied upon by the prosecution to establish that the appellant was sexually attracted to the complainant.
There was no objection to this evidence at the trial and no issue was taken with the directions to the jury on the topic. However, the appellant’s counsel argued before this court that the evidence was unsatisfactory and should not have been left to the jury to be used by them for the purpose for which it was led.
According to the evidence of the complainant, the incident occurred about twelve months before the alleged offences.
The complainant’s family visited the appellant’s home from time to time and there were occasions when the complainant and her siblings remained in the home while their parents were out working.
The complainant said there was a television in the appellant’s bedroom. She said that on one occasion, she was lying in the appellant’s bed and he was lying beside her while they were watching television. According to her recollection, there were two single beds in the room. She said her brother A was also lying in the bed and her sister E may have been in the bed as well. She said she thinks her younger brother T was lying on the other bed.
The complainant said that the appellant started feeling her legs. She said he moved his hand higher and eventually placed it on her vagina. The complainant said the appellant started to rub his hand against her vagina and she felt some pain. She said that while this was occurring, the appellant said “What am I touching now?”. According to her evidence, he said this more than once. She said in evidence that she did not reply, although when giving her statement to the police she said she replied “my leg”.
Counsel for the appellant placed particular reliance on the evidence of the complainant’s brother A. He gave evidence that it was common for the children to go into the appellant’s room to watch television. He said in examination-in-chief that he could not remember any occasion on which the appellant, the complainant and himself were under the bed clothes watching television. However in cross-examination, he said there may have been such an occasion. He said “I never remembered it, it may well have happened”.
A said he had no recollection of an incident such as that described by the complainant. He agreed in cross-examination that, if the appellant had said something like “what am I touching now” in circumstances similar to those described by his sister, it would have been unusual. He agreed that if he had seen some sort of movement in the bed which looked as though the appellant was rubbing his sister’s leg he would have been concerned and would have remembered it.
The principal submission put by the appellant’s counsel on this ground was that, in the light of A’s evidence in particular, it would be dangerous to allow the convictions in relation to the subsequent incident to stand. He argued that it could not be said that the jury did not take this incident into account in finding the appellant guilty.
While the points raised by the defence in relation to this evidence were relevant matters for the jury to consider, I do not accept that the evidence of the incident was so unreliable as to vitiate the convictions on the basis that the jury might have taken it into account in finding the charges proved.
It would appear that, at the time of the earlier incident, the complainant would have been about seven or eight years of age. A was 17 at the time of trial and would have been approximately 14 years of age at the time of the alleged incident in the bedroom. On the complainant’s version, he would not have seen the actual touching because the complainant and the appellant were under the bed clothes at the time. He may have been in a position to hear what the appellant was saying, but there is a real issue as to whether he would have realised what was taking place. There is also a clear possibility that his attention was focused on the television. His failure to observe or recall anything untoward does not render the evidence of the complainant so unreliable as to prevent it from being used by the jury for the purpose for which it was led.
The jury were reminded of the defence criticisms of this evidence in the summing-up. They were also directed as to the permissible and impermissible uses of the evidence.
In my view this ground must fail.
The second ground of appeal complains that the trial judge was in error in inviting the jury to consider whether the appellant’s reaction to a comment made by the complainant’s father amounted to evidence of consciousness of guilt.
The prosecution led evidence of an incident which occurred on the occasion of a meeting attended by members of the Maori heritage group. The meeting was held to discuss the conduct of a previous function. At the meeting, there was some criticism of the way in which the appellant performed the duties to which he was assigned at the function.
When he was criticised, the appellant walked out of the meeting. The complainant’s father said he followed the appellant outside and had a discussion with him. By this time, the complainant had made the allegations of sexual misconduct against the appellant and, in the course of the discussion, the complainant’s father said that his daughter “has finally shared a secret with us that she has now carried for three to four years”.
The complainant’s father said the appellant’s reaction was one of shock. He gave the following evidence:
QWhat did you see him do?
AHe back-pedalled.
QWhat do you mean by “back-pedalled”, describe what he did physically?
AWalked backwards from where I stood in shock.
QDid you see his face?
AYes, I did.
QDescribe his face at the time?
AHorror, just shock, scared, afraid – all that type of –
QWhat did he do; he moved back?
AHe back-pedalled. I believe I repeated myself. I said “Yes, my daughter has finally shared a secret with us” after seeing that initial response to my first saying of this. He back-pedalled. What looked like to me was – I believe there was like a pole or something in the courtyard where he sort of lent up, turned away from where I was, bent over and looked like, to me, was dry retching, I suppose, not that I saw – it certainly sounded like that’s what was happening, but I couldn’t say whether it was or not, but certainly it sounded like it.
The appellant’s sister L was present during this incident. She gave evidence that the complainant’s father accused the appellant of interfering with his daughter and that the appellant denied it. She said the appellant was crying when he made his denial and that he put his head in his hands.
The complainant’s father denied the version given by L. He said he did not put the allegation to the appellant. He agreed that the appellant was crying, but he said that the appellant was crying before the conversation. He said the appellant could have put his head in his hands.
There was no objection to evidence of this incident being led.
In his closing address the prosecutor suggested to the jury that the appellant’s reaction “reveals a guilty conscience”.
During the summing-up, the trial judge reminded the jury of the prosecutor’s submission. He went on to say:
I should say this to you about that: evidence indicating a consciousness of guilt on the part of an accused person may be some evidence of guilt. Before you can use the evidence in the present case in that way, you must first be satisfied that the events took place as [the complainant’s father] said they did and, then, that [the appellant’s] actions are not explicable on some basis other than a consciousness of guilt of the particular offences with which he is charged.
Later he said:
So it is for you here to decide, on the whole of the evidence, what you think of that evidence, but I should add these observations: first, as I have said, you will need to be satisfied that the incident occurred as [the complainant’s father] described it. His account was squarely challenged over his credibility and because of what L said. So what you find about that is a matter for you. If you find you accept [the complainant’s father’s] evidence, you will keep in mind that he did not ever make any specific allegations against the accused, he spoke only of his daughter sharing a secret. You might think that such a comment could imply things other than those with which the accused is charged.
Thirdly, even if you think that [the complainant’s father’s] comment reasonably excited a response on the matters you are considering, you will then consider what inference should be drawn from the accused’s behaviour as described by [the complainant’s father]. It is a matter for you ladies and gentlemen, but if you accept [the complainant’s father’s] evidence, you might still think that [the complainant’s father’s] comment was so cryptic or vague and the accused’s behaviour so equivocal that you cannot draw any useful conclusion from it.
Further, if you think the event happened as L described it, then you will not likely regard the accused’s behaviour as exhibiting any consciousness of guilt. Indeed, he denied guilt. But those questions are for you.
I suppose I should say this though: even if, at the end of the day, you are minded to infer and be satisfied beyond reasonable doubt that the accused reacted in the way [the complainant’s father] said he did because of a consciousness of guilt, you must still, as I said earlier, be satisfied that that consciousness related to the charges that are now before the court and not because he behaved in the way he did for some other reason.
In that respect, you are entitled to consider he may have been apprehensive of [the complainant’s father], he might have been upset about events in the meeting, he might have thought the observation about secrets related to other matters than those with which he is charged.
I raise that topic for you to consider because it came out of the evidence. Having raised it, I repeat that you might think you can draw no firm conclusions from [the complainant’s father’s] account of the accused’s behaviour if you accept that account. If you think you are in that position, you will put that issue to one side and return to consider the rest of the evidence.
Since the judgment in Edwards v The Queen (1993) 178 CLR 193, there has been considerable discussion on the topic of lies which have the capacity to demonstrate consciousness of guilt. However, consciousness of guilt can be demonstrated by other types of conduct: Cross on Evidence (7^th Australian ed) at [33435].
On the prosecution case, the complainant’s father made a comment to the appellant which was prompted by the allegations made against the appellant by the complainant. However, the comment made by him did not refer to the allegations or the fact that the appellant was accused of the conduct to which they related. It was open to the jury to infer from the appellant’s conduct that he had knowledge of what lay behind the statement made by the complainant’s father and that his reaction indicated a consciousness of guilt in relation to the matter.
Of course, the jury could not reach this conclusion if the conduct of the appellant was equivocal. But the importance of assessing the evidence with this consideration in mind was brought home to the jury by way of an Edwards direction adapted to the circumstances of the case.
In my view, the evidence was capable of being used as evidence of consciousness of guilt and the trial judge acted correctly in leaving it to the jury on this basis. Careful directions were required in order to ensure that the evidence was to be used for this purpose only if the conditions outlined in the summing-up were satisfied. However, the directions which are set out above were adequate in this respect.
The final ground of appeal complains that the trial judge should have directed the jury to disregard evidence of the complainant’s distress exhibited at the time she complained to her mother about the alleged conduct of the appellant.
It was alleged in the information that the offences took place on an occasion between 1 December 2002 and 30 November 2003. The first police interview with the complainant took place in August 2004. At the hearing of the appeal, the court was told that, following agreement between the prosecution and the defence, evidence was led of the circumstances in which the complainant complained to her parents about the appellant’s conduct. In answer to questions asked in examination-in-chief, the complainant said she told her father about the matter and then wrote the allegations down on a piece of paper which she gave to her parents.
The complainant was cross-examined on the contents of the note and it was tendered by the prosecutor in re-examination.
When the complainant’s mother gave evidence, she was shown the note and she confirmed that her daughter gave it to her. She was asked why her daughter wrote a note instead of speaking to her about the incident and she said that the complainant was too embarrassed to talk about the matter. The complainant’s mother said she suggested to her daughter to write down what had happened. The witness was then asked to describe her daughter’s demeanour at the time. At this stage objection was taken to the evidence by the defence.
The trial judge allowed the questioning to continue and the complainant’s mother went on to say that her daughter was crying and upset. As a result, the complainant’s mother asked the complainant if she could write down what happened and the complainant then wrote the note.
The trial judge referred to this evidence in his summing-up:
In the first place, I should say to you that the fact that she then complained to her parents and made certain allegations against the accused in the note and otherwise to them, is not and cannot be treated by you as evidence that what she said to them or wrote to them in the note is in fact true. That evidence is put before you to explain, in part, how this matter comes before the court.
Secondly, the reliability of her evidence was attacked by the defence because of that delay, it being suggested that she could have and should have complained to her parents or brother at the time of or soon after each alleged incident. The fact that she did not do that for some time, said the defence, must affect your conclusions of her reliability and credibility as a witness.
You then heard the explanation she gave for the delay. At the time of the first incident she was too embarrassed to tell her brother or too embarrassed or too frightened to tell her parents. During and following the incident at the rugby club she was too embarrassed to object or complain about what was happening. Whether you think that claim is supported by her distress at the time she ultimately told her parents and the way in which she then told them, is a matter for you. Perhaps there were other reasons for that distress. It is for you to consider.
Counsel for the appellant submitted that these directions were tantamount to asking the jury to treat the distress as corroborating the claim of sexual assault.
I cannot agree with this submission. The defence raised the issue of the lateness of the complaint. The complainant explained that she was too embarrassed to tell her family about the incident. There was evidence that when she eventually reported the matter to her parents, she was in a state of distress and her mother suggested she write down what had happened. The trial judge told the jury that it was open to them to consider whether the distress of the complainant supported her claim that she had been too embarrassed to tell her parents about the matter. He commented that there may have been other reasons for the distress. These directions were appropriate in view of the issues raised at the trial. It was not suggested to the jury that the evidence of distress could be used for any other purpose.

In my view, the evidence of the complainant’s distress was admissible for the limited purpose identified by the trial judge in his summing-up. There can be no criticism of the directions which were given in relation to it.
I would dismiss the appeal.
ANDERSON J. In my opinion the appeal should be dismissed for the reasons given by Duggan J.