Todd v Police No. Sccrm-02-1796

TODD v POLICE
[2003] SASC 62
Magistrates Appeal

BESANKO J: Benjamin Scott Todd was charged with two offences under the Criminal Law Consolidation Act 1935. It was alleged that he:
“1.Between the 1^st day of February, 2001 and the 12^th day of April, 2001 in the said State with a view to gratifying prurient interest induced JP, a child to expose part of his body contrary to s 58A(1)(b) of the Criminal Law Consolidation Act, 1935.
2.On the 12^th day of April, 2001 in the said State with a view to gratifying prurient interest attempted to induce JP, a child to expose part of his body contrary to ss 58A(1)(b) and 270A of the Criminal Law Consolidation Act, 1935.”
After a trial before a Magistrate the defendant was found guilty of the two offences. He was convicted and a sentence of 12 months imprisonment was imposed. The Magistrate exercised the power to impose one penalty (s 18A of the Criminal Law (Sentencing) Act 1988). The Magistrate fixed a non-parole period of six months. The Magistrate ordered that the sentence be suspended upon condition that the defendant enter into a bond in the amount of $200 to be of good behaviour for 12 months.
The defendant appeals to this Court against the Magistrate’s decision to find him guilty of both offences. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
THE PROSECUTION CASE
The defendant was a teacher at a secondary school in the north of the State. JP was a student at the school. ZB was also a student at the school. In the early part of 2001, J was 12 years of age and Z was about a year and a half older than J. Both students were in year eight.
The defendant taught a vocational education class at the school. J and Z were the only members of that class at the time of the alleged offences. At that time the school was about to participate in a “Come out” parade.
The prosecution case was that the first incident took place on a date between 1 February 2001 and 12 April 2001 during a vocation education class. The defendant wanted J and Z to try on costumes for the forthcoming parade and J agreed. The defendant, J and Z moved from the vocational education classroom to the drama room. There was a small room next to the drama room where the costumes were kept. I will call this room the costume room. The costume room had small, high windows on one side of the room.
The defendant and J went into the costume room. The defendant left the room while J changed. J found the bottom half of the costume he was trying on did not fit. He informed the defendant. J went back into the costume room to change his clothes. He had been directed by the defendant to change his clothes on the side of the room beneath the small windows. While changing his clothes in that position, J noticed a small flashing light. He looked at it and identified it as the light of a video camera. He could also see the lens. He said that the camera was protruding slightly from some of the clothes in the costume room. There was a large number of clothes in the room. The camera was pointed towards the position where the defendant told J to stand.
The prosecution case was that J came out of the room and the defendant went into the room briefly. J told Z that he had seen a camera in the room. When the defendant came out of the room, J said to him words to the effect, “What’s with the camera”. The defendant took umbrage at this comment and went back into the room. He came out and then invited the two boys to “Come in and check”. A cursory search was conducted but no camera was found.
The prosecution case was that the defendant had offered J and Z a Coca Cola drink if they agreed to try on the costumes. J asked the defendant for the drink a short time after the incident in the costume room and was given it.
The prosecution case was that the second incident took place on 12 April 2001 which was the last day of term. On the Monday of that week (ie., 9 April) J and Z attended a vocational education class taught by the defendant. The defendant raised the matter of checking sperm counts. J and Z asked the defendant, “How would they get it up for the purpose of a sperm count”. The defendant said that he had a “Playboy” magazine. Some discussion took place about checking for a change. J understood this to mean checking “for lumps and stuff for cancer of the genitalia”.
J was the only student in the class on 12 April 2001. He chose the option of sex education on that day. J followed the defendant into an office. The defendant offered J a choice written on a piece of paper of either trying on a condom or checking for a change. J asked the defendant to make the choice and the defendant chose checking for a change. The defendant asked J to undress in his presence. J refused to do this and said “too shame” twice. There were mirrors propped up against the wall in the office. J asked the defendant if he could take his clothes off and check his testes behind the door of a cupboard in the office. The defendant said, “I have to see you do it”. J refused to get undressed. The defendant said that they would do driver education instead of sex education. The defendant and J returned to the classroom. The defendant left the classroom and returned a few minutes later with a “Playboy” magazine which he put amongst a pile of books protruding from the pile on his table. The defendant called J, a “wuss”. While helping the defendant clean the classroom J put papers on top of the pile of books, but the defendant moved them so that the magazine was still visible.
J told one of his friends, LC, of the incident on 12 April 2001. With his encouragement J reported the incident to his home class teacher, Mr KD on the same day.
To prove its case, the prosecution called four witnesses, J, Z, LC and Mr D.
J gave evidence about both incidents and Z gave evidence about the first incident and about the vocational education class on 9 April 2001. LC and Mr D gave evidence relevant to the second incident.
The above summary of the prosecution case is taken from the Magistrate’s reasons and J’s evidence was in accordance with the above summary. J also gave evidence not noted in the above summary. He said that before he went into the costume room, the defendant went into the room by himself for two or three minutes. He closed the door behind him. The defendant told J where to stand in the room when J first went into the room. The defendant told him that he had to get completely undressed because of health regulations. The defendant told him that he could not keep his jocks on.
During cross-examination J denied that he first mentioned the presence of the camera when both the defendant and Z were present. He said that he first mentioned the presence of the camera when only Z was present. He also said in cross-examination, that he was not sure if the defendant mentioned the magazine on 9 April 2001, or whether it may have been Z or himself who mentioned the magazine. A short time later in cross-examination, he denied that either he or Z mentioned the magazine.
Z’s account was similar to that given by J, although there were differences. First, Z said that J came out of the costume room wearing clothes other than his school clothes and that he mentioned the fact that he had seen a camera to Z in the presence of the defendant. J then went back into the room to change. The defendant then went into the room by himself. By contrast, J said he first mentioned the camera when only Z was present. Secondly, Z was not asked and did not give evidence that the defendant offered both he and J a Coca Cola drink if they tried on costumes. Thirdly, Z said that it was either he or J who brought up the topic of being given a magazine on 9 April 2001. Fourthly, Z said that the only time before the mention of the camera that the defendant went into the costume room was when he was in there with J.
LC confirmed that J had spoken to him after the alleged incident on 12 April 2001, and Mr D confirmed the fact that J had complained to him about the alleged incident.
THE DEFENDANT’S CASE
As to the first incident, the defendant denied any knowledge of a camera in the costume room. He did not offer J and Z a drink if they tried on costumes and he did not buy J a drink after the alleged incident. There was no mention of a camera being in the costume room until the three of them were on their way back to the vocational education classroom. The defendant was upset by the suggestion and they went back to the room to carry out a search. No formal complaint was made by J at the time.
As to the second incident, the defendant admitted discussing sperm counts on the Monday 9 April 2001, but he said that this was necessary in order to explain to J and Z what was meant by impotence which was a topic that had been raised by the boys. Furthermore, it was one of the boys who raised the issue of the magazine. The defendant denied teaching sex education to J on 12 April 2001 and he denied mentioning the option of trying on a condom or checking for a change. He denied going into the office with J or producing a magazine.
THE MAGISTRATE’S REASONS
The Magistrate ruled that J’s complaint to Mr D about the first incident some weeks after it occurred was inadmissible because it was not a complaint made at the first reasonable opportunity. Accordingly, there was no evidence of a recent complaint in relation to the first incident. J’s complaint to Mr D about the second incident was evidence of a recent complaint and was admissible.
The First Incident
As to the first incident, the Magistrate found that the defendant had, before he started the lesson in the drama room, placed a video camera amongst the clothing opposite the windows in the costume room and had commenced to operate the camera before J was taken into that room. The defendant had directed J to take off all his clothes and to try on a costume of his choice with a view to him going in the event called the “Come out” parade. The Magistrate found that the defendant directed J to stand beneath the small high windows in the room opposite the camera. J put on a gold coloured upper garment and tried unsuccessfully to put on a pair of tight-fitting pants. The Magistrate found that J realised that there was a video camera pointed in his direction as he was changing back into his own clothes. In particular, he noticed a small red light blinking near the lens indicating that the camera was operating. The Magistrate found that J did not put on overalls under the costume he was trying on. The Magistrate found that J came out of the room and told Z that he had seen a camera there, while the defendant was back in the costume room. He found that J asked the defendant what was “with the camera” when the defendant came out of the costume room. The Magistrate found that the defendant took umbrage at the suggestion of there being a camera in the costume room and he suggested that they search the room for the camera. They searched the room cursorily and did not see a video camera. They saw an old camera out of use. The Magistrate found that the defendant had the opportunity to turn off the video camera and to conceal it elsewhere in the room when he entered the room after J had changed back into his normal clothes. The Magistrate found that the defendant did switch off the camera and conceal it. He found that the defendant had offered the boys an inducement of a drink of Coca Cola if they would try on the special costumes. The Magistrate found that J did follow up that request at the recess break and was supplied with such a drink by the defendant. The Magistrate found that the defendant carried out the above acts because he desired to view on film the actions of J undressing and changing clothes, and he reached the conclusion that he wished to do this in order to gratify a prurient interest. The Magistrate found that the defendant had induced J to perform the aforementioned acts. The Magistrate said that he was satisfied of the above matters beyond reasonable doubt, and that he had had regard only to the evidence relevant to the first incident.
Important aspects of the Magistrate’s reasoning in making these findings of fact may be conveniently summarised in the following way. First, there were irreconcilable differences between the evidence of the prosecution witnesses and the evidence of the defendant. It was necessary to consider the evidence carefully.
Secondly, corroboration of the evidence of a child witness was important in the circumstances of the case. The evidence of J was corroborated in important respects by the evidence of Z. Z’s evidence supported the evidence of J that he mentioned the camera immediately after he came out of the costume room. Z’s evidence supported the evidence of J that the defendant went into the costume room by himself after the camera had been mentioned. Z’s evidence supported the evidence of J that the defendant suggested that they check the room and that the search which was conducted was not thorough. Z’s evidence was that J did mention seeing “a little red light beeping like going on and off like”. I pause at this point to note the following matters about these observations of the Magistrate. Z’s evidence was to the effect that the defendant was present on the one occasion when J mentioned the presence of a video camera in the costume room. J’s evidence was that the defendant had gone into the costume room at the time he first mentioned to Z the presence of a video camera. I also note that Z did not give any clear evidence as to the extent of the search of the costume room.
Thirdly, the Magistrate noted there were differences between the evidence of J and the evidence of Z. Such inconsistencies in the evidence of the two boys were not crucial in the Magistrate’s assessment. He said that such inconsistencies were to be expected so long after the event, and in fact they negated any suggestion that the boys had put their heads together and concocted a story. The Magistrate observed that Z gave no evidence of the defendant offering to buy a Coca Cola drink for the boys if they tried on the costumes. Furthermore, Z could not remember any details of the conversation between the defendant and J in relation to the presence of the camera in the costume room.
Fourthly, the Magistrate found the defendant’s evidence was unsatisfactory. His evidence that he had told J to put on a pair of white overalls under the costumes because of the potential of bug infestation was not credible, particularly as the costumes were tight-fitting. In cross-examination, the defendant became defensive and evasive in relation to that issue. In addition, the defendant had no satisfactory explanation for why he did not ask Z to try on the costume after J had done so. The defendant became uncomfortable in cross-examination on this sequence of events. The Magistrate said that he drew the inference that the defendant became distracted from the course of the lesson by J having mentioned the presence of a video camera in the costume room, and that the defendant’s re-entry into the costume room before asking the boys to search the room also provided an opportunity for the camera to be relocated or concealed. The Magistrate said that it was common ground that the costume room had only small windows high up near the ceiling, yet the defendant said that he asked J to stand under the windows while changing clothes so that he would not be seen through the windows. The windows were not the sort of windows that anybody would normally see through, and the inference to be drawn said the Magistrate was that the defendant wanted J to stand in a spot in line with the camera. I pause at this point to note that the Magistrate erred in saying that the defendant said that he asked J to stand under the windows. The defendant never said that and he denied giving J any direction as to where to stand.
Fifthly, the Magistrate said that J’s evidence about his recognition of the video camera was convincing as was his evidence in relation to the inducement in the form of an offer of a Coca Cola drink for trying on the clothing. The Magistrate described J as a steadfast witness who adhered to his story and who had emerged from cross-examination substantially unshaken on his account of events.
Finally, for the purposes of this summary of the Magistrate’s reasoning in relation to the first incident, I note that the Magistrate said that he acknowledged that J did not make at an early date after the incident a complaint to a parent or a figure of authority, but he considered that this was not uncommon in the case of children who are affected by incidents of this nature. The Magistrate said that children in J’s position are frequently embarrassed and confused and do not know what steps to take.
The Second Incident
In relation to the second incident, the Magistrate found that in the vocational education lesson on Monday 9 April 2001 there was discussion of sperm counts led by the defendant. He found that either J or Z had asked whether the defendant was going to give them a magazine to assist them in getting an erection in connection with a sperm count. He found that on 12 April 2001 J was the only student in the defendant’s class for vocational education, and that the defendant took J to a small room off the classroom next to the vocational education classroom. The defendant asked J whether he wanted to try on a condom or check for a change and the choice was written on a piece of paper. J was unable to decide. The defendant decided upon check for a change. The Magistrate found that the defendant asked J to take off all his clothes in front of the defendant in the small room in which there were mirrors propped against the wall. J was embarrassed and asked if he could undress behind a cupboard door. He uttered the expression “too shame, too shame”. The defendant said to J, “I have to see you do it”. When J refused to undress and participate in the exercise the defendant said that they would do driver education instead of sex education. The defendant and J then returned to the vocational education classroom. The defendant left the room for a few minutes. He returned with a magazine which he put amongst a pile of books on his desk with part of the cover protruding. He continued to adjust the magazines and the papers on the desk so that the magazine cover was visible to J. The defendant called J a “wuss” because he would not perform the check for a change.
The Magistrate found that the defendant desired to watch J while he undressed and examined his testes and that by his actions on 12 April 2001, the defendant attempted to induce J to expose part of his body. He did this in order to gratify prurient interests.
Important aspects of the Magistrate’s reasoning in making these findings of fact may be conveniently summarised in the following way. First, Z’s evidence supported the evidence given by J that there was discussion about sperm counts on Monday 9 April 2001. Z’s evidence showed that the scene was set on 9 April for further discussion on sexual matters. Secondly, J’s reluctance to discuss the second incident with his home class teacher was explained by reason of the fact that he was ashamed of what had happened. The Magistrate said that that seemed understandable and had the ring of truth about it. He reminded himself that the matter involved boys aged twelve and thirteen years. Thirdly, Mr D’s evidence provided clear corroboration of J’s evidence concerning the incident of 12 April 2001. J made his complaint at the earliest opportunity. The content of the complaint as noted by Mr D was consistent with J’s evidence. The evidence of J, Z and Mr D was reliable. On the other hand, the Magistrate had some reservations about the accuracy of LC’s recollections.

Fourthly, in giving evidence concerning the alleged incident on 12 April 2001, the Magistrate said that the defendant gave a series of self-serving answers relating to his teaching practices. He was not a convincing witness. Where his evidence differed from the evidence of the prosecution witnesses, the Magistrate rejected it and he accepted the evidence of the prosecution witnesses.
THE APPEAL
The First Charge
It would seem that the Magistrate reminded himself of the importance of corroboration of J’s evidence because J was a child. He may also have had in mind the fact that the defendant was charged with sexual offences.
Section 12A of the Evidence Act 1929 provides as follows:
“There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence.”
Section 34I(5) of the Evidence Act provides as follows:
“(5)In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.”
The fact that the general rules have been abolished does not mean that the Judge is relieved of the task of giving a warning if it is necessary to give a warning in order to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case (Longman v The Queen (1989) 168 CLR 79; R v Corrigan (1998) 74 SASR 454 per Doyle CJ at 465). The nature of the warning will depend upon the particular circumstances of the case. In R v Corrigan, Doyle CJ said (at 465 – 466):
“There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. …
In my respectful opinion the court should avoid requiring resort to a particular formula. It is better that the warning be tailored to the circumstances of the case. The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury, and whether the overall effect of what the judge says to the jury is adequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: cf Longman at 86 Brennan J, Dawson J and Toohey J. As Longman illustrates, there are cases in which a warning of the traditional kind is called for, but it would be wrong to hold that if some sort of warning or caution is called for, it must always be in the traditional terms.”
The Magistrate has erred in saying that corroboration of J’s account was required because J was a child. Unless there were other circumstances in the case suggesting that it would be dangerous to convict without corroboration of J’s evidence, the Magistrate’s approach was unduly favourable to the defendant. I have considered whether there were such circumstances. I do not think that the fact that it was “oath against oath” required the Magistrate to take the approach which he did (R v T (1999) 74 SASR 486). Nor do I think J’s failure to complain to a parent or figure of authority at the first reasonable opportunity was a matter which required the warning the Magistrate gave himself. Clearly, that was a matter which the Magistrate needed to take into account and assess carefully in light of all the evidence. Nor do I think the fact that there were inconsistencies between J’s evidence and Z’s evidence justified the Magistrate’s approach. Again, that was a matter for the Magistrate to consider and a matter which meant that he was required to carefully assess J’s evidence.
Corroboration means independent evidence of some material fact which implicates the accused person and tends to confirm that person’s guilt of the offence charged (R v Baskerville [1916] 2 KB 658; R v Byczko (No 1) (1977) 16 SASR 506; R v Sherrin (No 2) (1979) 21 SASR 250; Doney v The Queen (1990) 171 CLR 207 at 210 – 212). Counsel for the prosecution submitted that there was corroboration of J’s account in the evidence of Z. Z said that the defendant went into the costume room by himself after the presence of a video camera had been mentioned by J. That was evidence of a consciousness of guilt on the part of the defendant, a knowledge of the presence of the video camera and a desire to remove it.
In his summary of J’s evidence the Magistrate states that having seen the camera J came out of the costume room and mentioned the presence of the video camera to Z in the absence of the defendant who at that stage was in the costume room. J mentioned the presence of the video camera again when the defendant came out of the costume room and at that point the defendant went back into the costume room by himself before the search was conducted. However, when he came to make his findings the Magistrate found that J came out of the costume room and mentioned the presence of the video camera to Z in the absence of the defendant who was in the costume room. When the defendant came out of the costume room, J mentioned the presence of the video camera again and all three of them then went into the costume room to carry out a search.
Z said that J mentioned the video camera once and that both he and the defendant were present, and that the defendant then went into the costume room by himself before the search was conducted.
There is clearly a difference in the evidence of the two boys as to the sequence of events. However, Z’s evidence is consistent with, and confirms, J’s evidence in an important respect, namely, that the defendant went into the costume room by himself before the search was conducted. That would have given the defendant the opportunity to conceal the video camera. However, I do not think that means Z’s evidence corroborated J’s evidence in the well understood sense of that term, particularly (although this is not decisive of the point) on the Magistrate’s finding that the defendant did not go back into the costume room by himself after the presence of the video camera had been mentioned to him.
In this case Z’s evidence did not corroborate J’s evidence in the well understood sense of that term. However I do not think that this was a case in which the absence of corroboration meant that it was dangerous to convict. In fairness to the Magistrate his reasons suggest that either from the outset or at least when he came to examine whether there was corroboration he may not have been using that term in its normal sense, but rather in a wider sense of some evidence confirming aspects of J’s account (Australian Evidence 3^rd ed. Ligertwood para [4.44]). If there was nothing more to the appellant’s complaints than what I have set out, it may well be concluded that the Magistrate’s apparent misdirection to himself did not affect his conclusions. However, there is more.
The Magistrate accepted J’s account that he first mentioned the presence of a video camera to Z in the absence of the defendant who was in the costume room. The evidence of what J told Z in the absence of the defendant could not constitute corroboration of J’s evidence. It appears that the Magistrate did treat Z’s evidence as corroborating J’s evidence, or at least there is a significant risk that he did so. The Magistrate erred in this respect.
I think the Magistrate also erred in finding that the defendant said in his evidence that he asked J to stand under the windows in the costume room. In my opinion this is a significant point. The fact (if found) is a powerful piece of evidence against the defendant and the Magistrate presumably had no difficulty making the relevant finding in view of his (erroneous) conclusion that the defendant had agreed that he told J where to stand while changing. The Magistrate also erred in finding that Z had given evidence that the search of the costume room was not thorough, although this is not a particularly significant point and by itself would not lead me to interfere with the Magistrate’s conclusion.
The conviction on the first charge must be set aside.
For the sake of completeness, I mention that I would reject a number of other arguments put forward by the defendant’s counsel in relation to the first incident. First, it was argued that the Magistrate erred as a matter of fact in concluding that Z’s evidence supported J’s evidence. It was argued that Z’s evidence was as consistent with the defendant’s evidence as it was with J’s evidence. I reject this submission. The Magistrate was alive to the inconsistencies between J’s evidence and Z’s evidence, and he did not err in finding that there was support in Z’s evidence for some aspects of J’s evidence. Secondly, it was argued that the Magistrate’s reasons suggest that he made the error of asking himself the question “which of the parties giving the competing stories is to be preferred” instead of the essential question “whether he was satisfied that every element of the charge was proved beyond reasonable doubt” (R v Calides (1983) 34 SASR 355; Harris v Mill (unreported, Von Doussa J, delivered 7 April 1988). I reject this submission. Read as a whole, I think the Magistrate’s reasons make clear that he asked himself the correct question, namely, whether on the evidence adduced by the prosecution he was satisfied beyond reasonable doubt of each element of the charge. Thirdly, it was submitted that the Magistrate erred in failing to place sufficient weight on the absence of a complaint in relation to the first charge. I reject this submission. It is true that although the Magistrate acknowledges the absence of a complaint at an early stage he does not refer to the difficulties to the defendant caused by the delay in making the complaint. However, I do not think, or at least I am not satisfied, that the length of the delay in this case called for particular weight to be put on this point.
The question then arises as to whether I should remit the matter to the Magistrates Court for further hearing under s 42(5).
In R v Leak [1969] SASR 172 the Full Court of this Court said (at 176):
“We think this is a case where, to adopt with respect the words of Barton J in Hargan’s Case, a jury properly directed would probably acquit. If anything said in Bailey’s Case can be construed as meaning that a new trial ought not to be ordered unless the appellate court can say that a jury properly directed not only could but ought to convict then that probably goes too far. We think that if there is evidence on which such a jury could reasonably convict and might not improbably convict, the interests of the administration of justice will generally demand a new trial unless in the particular circumstances that would be unjust to the accused: but that where the case is as weak as we think the present case is and a jury properly directed would probably acquit, as we think it would, then the considerations mentioned in Bailey’s Case and particularly the hardship on the appellant of having to bear the costs of two trials and an appeal, can assume a weight which they might not otherwise bear, and incline the court in its discretion to refuse to order a new trial.”
In addition to these principles, in Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 the High Court said that it would be unjust to put the accused on trial again merely to enable the prosecution to supplement a defective case (see R v Blobel (2001) 216 LSJS 239).
In my opinion, it would not be dangerous to convict the defendant on the uncorroborated evidence of J. Clearly, as the Magistrate observed in the present case, the evidence needs to be considered carefully. There is evidence upon which the Magistrate could convict the defendant and might not improbably convict the defendant. I take into account the fact that by the time the matter comes on for a second trial something in the order of two years will have elapsed between the alleged incident and the hearing. That is a substantial delay, but I do not think it negates the fact that the administration of justice demands a new trial. I mention that there is no evidence before me that the prosecution has been guilty of unreasonable delay. In all the circumstances I order that the first charge be remitted to the Magistrates Court for a further hearing before a different Magistrate.
The Second Charge
I can deal briefly with the appeal against the conviction on the second charge. Counsel for the prosecution accepted that the Magistrate erred in holding that J’s evidence was corroborated by the evidence of Mr D. The evidence of a complaint is an exception to the hearsay rule. It may be admitted as evidence showing consistency of conduct, and as therefore supporting credibility (Kilby v The Queen (1973) 129 CLR 460). It cannot be used as corroboration of a witness’s evidence.
The Magistrate erred in law in saying Mr D’s evidence provided clear corroboration of J’s account of the incident of 12 April 2001. Counsel for the prosecution argued in his written outline that as the Magistrate’s findings were based on an acceptance of J’s credibility, the absence of corroboration should not lead to a setting aside of the conviction. I disagree. It is by no means apparent that the Magistrate’s finding in relation to J’s credibility was not affected by his view that Mr D’s evidence corroborated J’s evidence, and in those circumstances the conviction cannot stand. I think that in his oral submissions counsel for the prosecution accepted that this must be so.
The debate before me in relation to the second charge centred on whether the second charge should be remitted to the Magistrates Court for a further hearing. I have already referred to the relevant principles. I do not think that this is a case where it would be dangerous to convict the defendant on the second charge on the uncorroborated evidence of J. There is evidence upon which the Magistrate could reasonably convict, and might not improbably convict. Again, I make the point that although any retrial will take place about two years after the alleged incident, in my opinion the administration of justice demands a new trial. I see no reason not to remit the second charge to the Magistrates Court for hearing before a different Magistrate.
CONCLUSIONS
The orders of the Court are that each conviction and sentence passed thereon is set aside. Both charges are remitted to the Magistrates court for further hearing before a different Magistrate.

[2003] SASC 62

27 February 2003