W, JD v Police - [2005] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
W, JD v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction in the Youth Court - whether trial judge erred in finding appellant guilty of alternative charge of indecent assault - whether any room for conviction of alternative offence - circumstances in which alternative verdict is available - appeal allowed.
Criminal Law Consolidation Act 1935 (SA), s 56, s 48, s 75; Evidence Act 1929 (SA), s 28, referred to.
R v Salmon [1969] SASR 76, discussed.
S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467, considered.

W, JD v POLICE
[2005] SASC 87
Full Court: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I agree with the orders proposed by Vanstone J, and with her reasons for making these orders.
VANSTONE J: A youth, whom I shall call J, was convicted in the Youth Court by the Senior Judge of indecent assault, contrary to s 56 Criminal Law Consolidation Act 1935 (“the Act”). He appeals against that conviction upon several grounds, the principal one of which raises important issues relating to the way in which the trial proceeded.
The information upon which J was tried charged two counts. The first was that of indecent assault. It was particularised as having occurred on 16 August 2002 at Burton. The second count charged rape, contrary to s 48 of the Act. The particulars alleged that on the same date and place, J had sexual intercourse with the complainant without her consent.
Further particulars were given in the course of the prosecutor’s opening address to the Judge. Only one incident gave rise to the charges. It occurred at the home of J and his sister, who was a friend of the complainant. It occurred in the living room of that home, late in the evening of the relevant day. It was alleged – and not disputed – that present in the living room at that time were the complainant and J, his younger sister and brother. In essence it was alleged that during a period in which the four adolescents were watching videos, the complainant fell asleep and that she awakened to find her nightdress pulled up to the level of her hips, and J’s erect penis in her vagina. It was said that the complainant could not be sure of the degree of penetration.
In his opening address the police prosecutor made no mention of what conduct was represented by the count of indecent assault. If it was there merely to provide an alternative offence, in case the Judge was left in doubt as to whether penetration had occurred, then it was superfluous. Section 75 of the Act makes available various alternative verdicts on charges of rape and unlawful sexual intercourse for circumstances such as those. Its terms are as follows:
75. Alternative verdict on charge of rape etc
If on a trial for rape or unlawful sexual intercourse, or an attempt to commit rape or unlawful sexual intercourse, the jury—
(a)is not satisfied that the accused is guilty of the offence charged; but
(b)is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the lesser offence),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
The fact that the indecent assault count appeared as count one on the information might suggest that the drafter had in mind that it should apply to other conduct occurring prior to the alleged rape. If that was so then it was necessary for the prosecutor to explain in opening the case what was that particular conduct. As I said, no attempt was made to do so. Indeed, after the evidence had concluded, the Judge asked the prosecutor whether the indecent assault was to be viewed as a separate charge, or merely an alternative to the rape. He indicated that it was not a separate charge. Unfortunately he did not go on to explain how, on the prosecution case, it could come into play. I think he was to be understood as meaning that it was based on the very same alleged conduct as gave rise to the second count, but falling short of penile penetration. If it was to be assigned to any other conduct then he was obliged to make that clear in the opening address, or, at the very latest, when asked to clarify the position. Having not done so the first count must be taken to have been of the same nature as the alternative provided by s 75.
In R v Salmon [1969] SASR 76, 81 the Court of Criminal appeal addressed the relationship, in terms of the facts alleged, between a charge of rape and the alternative of indecent assault provided by s 75 of the Act. The Court (comprising Bray CJ, Hogarth and Mitchell JJ) said:
In our view, the proper rule should be that the jury can convict of an indecent assault where they are not satisfied that the facts alleged to constitute the rape, attempted rape, carnal knowledge, or attempted carnal knowledge of a girl under the age of consent amount to any of these offences but are satisfied that those facts constitute indecent assault. Normally this will be so when the jury are not satisfied that there was penetration or attempted penetration, but are satisfied that there was some force used on the girl, accompanied by circumstances of indecency towards her during the period of the alleged intercourse or attempted intercourse … They should be told that they cannot convict of indecent assault in relation to any act clearly separable in time, place or circumstance from the alleged intercourse or attempted intercourse.
I think what flows from this statement of principle in terms of J’s trial is that there could only be a conviction on indecent assault if the Judge accepted that a transaction such as alleged by the complainant occurred, but that it fell short of rape or attempted rape and amounted to indecent assault.
The evidence upon which the rape charge was based was not much more detailed than that foreshadowed in the prosecutor’s opening. The complainant alleged that in the period when she was in the process of falling asleep she heard J’s younger brother urging J to “… leave her alone” and to “get off of her”. The complainant said she assumed that the “her” referred to was J’s sister and that J was “bugging” her. She slept further and then claimed to have been awakened by a sharp pain in the area of her groin or stomach. She saw that J’s arm was across her body and that he was facing her. She found that her nightdress was now near her waist and her panties pulled down on one side to about the middle of her thigh. Having taken in what was occurring she said she punched J to the area of his hip and told him to get off. She said that at this he took his blanket which was over them, wrapped it around him and went off to his bedroom.
Except in the most peripheral of details there was no support for the complainant’s evidence from J’s sister or brother.
In an interview with police J accepted that he and the complainant and his brother and sister had been watching videos on the occasion nominated by the complainant, but denied any sexual interaction with her. He did say however that they had both been on a sofa bed with his younger brother watching a video and that he had “whacked [the complainant] on the backside” with the back of his hand. He acknowledged that when he had done so she had not been wearing any underclothing. He gave no reason for having acted in that way. He denied having moved any of her clothing. He said she retaliated by punching him in the stomach and soon after he left and went to bed. The defendant did not give evidence at the trial.
It was proved before the Judge that the complainant had made a number of statements which were inconsistent with the allegations made in court. To her girlfriend, soon after the event, she apparently complained only that “J had tried to get his hand down the front of [her] nightie”. To the police who attended at the home on that night she made no allegation of intercourse. Rather she said that when she awakened she felt J’s hand on her left breast, which she thought he was squeezing. She said that J was trying to pull her panties down, but she was not aware of him touching her vagina.
Several weeks later, the complainant spoke to a counsellor at school and then wrote a letter to her mother. The girl said that the letter did not purport to be an accurate account of what happened, but was rather a means of informing her mother that something had occurred beyond that which she had earlier reported. The complainant acknowledged in evidence that the letter included the assertions that when she woke up she and J were side by side, that her leg was on J’s hip and that he was “trying to get his penis through the space between me and my underwear”.
This letter led to a second interview with police, in which the complainant claimed that she had felt J’s penis inside her vagina for between 30 and 95 seconds. On that occasion she denied that J had fondled her left breast.
In the face of the different accounts of the event given by the complainant the Judge found, not surprisingly, that he was unable to rely on her evidence. He found as a “real possibility” that the complainant was “gradually embroidering her testimony”. However, the Judge went on to draw certain conclusions about what must have happened, these being based partly on the complainant’s evidence and partly on the evidence of J’s admission to the police in relation to slapping her. Upon this basis he ultimately concluded that J had interfered with the complainant’s clothing and touched her on her bare skin in the vicinity of her thighs or bottom.
It seems to me that there are two difficulties with allowing the consequent finding of guilt of indecent assault to stand. The first is that what was charged against J was one transaction consisting of penetration of the complainant’s vagina by J’s penis. No indecent handling or touching of her by J leading up to that penetration was alleged in evidence by the complainant. The Judge ultimately was not satisfied that there had been any penetration of her by J’s penis, or indeed any such touching of her in the area of her vagina. Accordingly it seems to me that the charge and its alternative necessarily failed.
The second difficulty is that it is hard to isolate any evidence on which the Judge’s finding of a touching of the complainant by J, in the vicinity of her thighs or bottom could be based. The Judge relied on the fact that the girl’s nightdress had moved while she slept and that when she awakened she was upset enough to slap J, who rapidly left. But without more, these matters are equivocal and could not give rise to any safe inference as to an indecent assault. It is tempting to reason that the Judge resorted to the progression of accounts which the complainant had given to a variety of persons prior to the trial. Of course evidence of those accounts was admissible, and was given, only on the basis that they were previous inconsistent statements such as to call into question her credibility. They were to be admitted only upon the basis of the procedure outlined in s 28 Evidence Act 1929. The fact that the complainant admitted having made most of those statements did not constitute them evidence of the truth of those matters.
Without resort to those earlier statements by the complainant, and given the understandable rejection of her evidence of penile penetration, it is difficult to see that there was any evidentiary basis for a conviction on any charge.
For these reasons I would allow the appeal and quash the conviction. Since, on the facts of this case, the acquittal on the rape charge should have led to the same result in respect of the alternative, I would substitute a verdict of acquittal.
WHITE J: I agree that this appeal should be allowed for the reasons given by Vanstone J.
I add the following to those reasons. In my opinion, in the events which have happened, the appellant has been found guilty of an offence with which he was not charged.
The prosecution case as opened, and as later clarified by the prosecution in the manner indicated in the reasons of Vanstone J, was, in effect, that the conduct said to comprise the indecent assault alleged in Count 1 was the same conduct as gave rise to the allegation of sexual intercourse in Count 2, but without the penile penetration. The conduct which the Senior Judge found proved and which was said to constitute the offence of indecent assault was interference by the appellant with the complainant’s clothing, and his touching of her bare skin in the vicinity of her thighs or her bottom. In my opinion, this was conduct of a different kind from that alleged in Count 2: it involved a different physical act; it involved contact with a different part of the complainant’s body, and it was of a different character.
Had there been evidence of the acts relied upon by the Senior Judge in finding Count 1 proved, a charge of indecent assault, if based on that conduct, could have been established. But where there are two or more separate acts capable of constituting the offence charged, the prosecution ought to specify the particular act relied upon to make out the charge.[1] If this is not done, the charge will be uncertain or duplicitous.
[1] S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467.
In this case, as Vanstone J has noted, the prosecution did state that Count 1 was not a separate charge but, in effect, an alternative to the charge of sexual intercourse in Count 2. Furthermore, the prosecution gave that particularisation after the conclusion of the evidence. It knew then the state of the evidence before the Court. Where the prosecution does particularise the conduct relied upon as constituting the charge, it is not open to the Court to find the charge proved by reference to different conduct.[2]
[2] Johnson v Miller (1937) 59 CLR 467 at 487 and 489 per Dixon J.
In the present case, the Senior Judge held that he was not satisfied beyond reasonable doubt that the charge of rape in Count 2 had been established. He then said: “I must therefore turn to see if there is evidence which satisfies me [beyond] reasonable doubt of some other offence.” (Emphasis added).
Later, in the course of considering whether the evidence disclosed some other offence, the Senior Judge said:
“It is not the Court’s job to be a policeman or a detective, but the Court has to look at the whole of the evidence and see if, as a result of an examination of the evidence, there are things which are simply beyond argument. As I said in argument, is there some irreducible minimum that the Court must be satisfied about? I think here that there is …”
The Senior Judge then went on to consider the evidence and made findings as to what had “obviously happened”.
In my respectful opinion, the course adopted by the Senior Judge was in error. It involved the Senior Judge in determining the guilt or innocence of the appellant of an offence other than that with which he had been charged.
In my opinion, the Senior Judge has, in effect, departed from a consideration of whether or not the appellant was guilty of the offences with which he was charged to a consideration of whether he had, on the night in question, engaged in conduct of some kind which could be characterised as an indecent assault. Such a course was not appropriate.
For this reason, and for the reasons given by Vanstone J, I would allow the appeal and quash the conviction. I would also substitute a verdict of acquittal.