Walker v Police No. Scgrg-98-368 Judgment No. S6717

[1998] SASC 6717

WALKER v POLICE

Magistrates Appeal
Mullighan J

The appellant was charged on information that on 16th February 1997 at Elizabeth North he indecently assaulted a young girl, aged 8 years, whom I shall refer to as “the girl”.  He pleaded not guilty and the matter came to trial at the Magistrates Court at Elizabeth on 14th August 1997.  The trial continued from time to time thereafter and was completed on 12th February 1988.  The learned Magistrate found the appellant guilty as charged.  He was convicted and sentenced to imprisonment for nine months.  He appeals against the conviction but not the sentence.

At the time of the trial the girl was aged eight years.  She was born on 31st March 1989.  In February 1997 she lived with her mother, the defacto husband of the mother, two brothers and a sister and an uncle who is the brother of the mother in a house at Elizabeth North.  The appellant also lived with that family.  He is the stepfather of the mother but the father of the man I have referred to as the uncle.  In order to preserve the anonymity of the child, I shall refer to the relevant family members as the mother, the husband, the uncle and the brothers and the sister.  The sister was aged 6 years and the brothers were aged 4 years and 1 year respectively in February 1997.  The appellant and the brother moved into the house in November 1996 and they occupied a caravan at the rear of the premises.  The mother and the husband occupied a bedroom.  The brothers also slept in that room and the two girls occupied another bedroom.

On the day in question all of the family went to the Myer Centre in the City.  The mother worked there as a cleaner.  The family went to Dazzleland and when the mother commenced work at about 4.45 pm, the others went home.  The appellant and the uncle went to a hotel about 500 metres from the home leaving the husband with the children.  The mother arrived home at about 9.30 pm.  The children were in bed.  The appellant returned from the hotel at about 10.15 pm.  The mother and the husband went to the hotel room leaving the appellant to mind the children.  She claimed that she spent some time with the appellant beforehand to satisfy herself that he was not so intoxicated as not to be able to care for the children.  Having done so, she and the husband left the house at 11.15 pm.  At that time the appellant was in the lounge room watching television.

At the hotel the mother and the husband met up with the uncle and they played poker machines until closing time at about midnight.  The mother did not consume alcohol.  Upon returning home about twenty minutes later, they found the light and television on in the lounge room but the appellant was not there.  They saw him on the girl’s bed.  He was lying on his side facing the wall next to the bed with his back towards the door.  The girl was between him and the wall and they were curled up together.  There were double bunks in this bedroom and the appellant and the girl were lying on the top bunk which she normally occupied.  The light was on and the appellant and girl appeared to be asleep.  According to the mother, the appellant had his right arm around the girl’s lower abdomen.  Her knickers had been pulled down to near her knees.  The girl was wearing a black knitted singlet and a pair of pink knickers.  The appellant’s right hand was in contact with the bare thigh of the girl.  He was dressed wearing trousers, a shirt and socks but not shoes.  The sister was asleep in the lower bunk.  The appellant’s shoes had been neatly placed at the foot of the bunk.

The uncle went into this bedroom and remonstrated with the appellant.  He asked, “Why did you do this for?  Why?” and the appellant replied “What have I done?”  The uncle threatened him and the appellant replied “Stop being bloody stupid”.  The mother called the police who arrived at the home at about 1.40 am.

The girl gave evidence at the trial. After questioning the girl, the learned Magistrate declined to allow her to take an oath. He received her evidence pursuant to s12 of the Evidence Act 1929 upon being satisfied that she knew what it means to tell the truth and upon her promising to do so.

According to the girl, on the occasion which is the subject of the charge, she went to bed in the bedroom at about 7.30 pm and went to sleep in her bunk.  The appellant got into her bunk.  He woke her up and addressed her as “Princess”.  She said that he touched her “rude parts”, being her “front bum” and her “bottom and her boobies”.  By using the expression “front bum”, she was referring to her vagina.  He rubbed each of these areas with his hand.  The appellant made contact with her skin on each occasion.  The girl described this experience as “horrible”.  She told him she was tired because she wanted him to stop and the appellant went to sleep.

The uncle also gave evidence.  The uncle said that he and the appellant went to the hotel at about 7.30 pm.  According to him, the appellant drank about 10 or 12 cans of full strength beer and then went home.  According to the uncle, the appellant was considerably affected by alcohol.  He was swaying and slurring his words.  At times he was staggering in his walk.  Upon returning home, the uncle followed the mother into the girl’s bedroom.  He saw the appellant on the top bunk with the girl and was curled up with her lying on his left side.  His right arm was draped across the mid section of the girl with his hand near her navel.  Her knickers were down to around her knees.  He confirmed that he remonstrated with the appellant who said that he had done nothing.

The mother took the girl to her bedroom and questioned her. Over objection of the appellant, the mother gave the following evidence:

“Q....... What happened then.

A...... I walked her into the room, I sat her down.  I said to her ‘Did [the appellant] touch you?’”

The objection was then made.

“A....... I said, ‘Did [the appellant] touch you?’  She said ‘I’ve been asleep’.  I said to her [.....], your knickers have been pulled down.  Did he touch you?’  She said ‘He touched my front bum’, and I said ‘What with?’ and she said ‘His fingers’.

The girl said nothing further at that time about what had happened. 

There were conversations between the mother, the uncle and the appellant and between the mother, the uncle and the girl.  The girl was then brought into the company of the appellant and, as requested, she said what had happened.  Her version was as mentioned.  According to the mother, the conversation was as follows:

“Q       What happened then.

A...... So we took  out, we sat in the loungeroom, and my brother said to [the appellant] ‘Well, listen to this’, and [the girl] told the story and [the appellant] said ‘No. We were just playing games’.

QWhat did [the girl] say that time.

A...... [The girl] said ‘No, [the appellant], we were -  .’

QNo.  When she was speaking to [the appellant], what did she say.

A...... She said ‘You touched me on my front bum’.

QAnything else.

A...... [The appellant] said ‘No, we weren’t, we were playing games’.  She said ‘No. You touched me’.

QDid either of them say anything else at that point.

A...... [The uncle] just said ‘We’ll see’, and Dad said - by then I had said ‘I’m going to call the police’.  Dad said ‘I’d rather just leave’, and we said ‘No. You’re staying for this one’.”

When the police arrived, the appellant was in the caravan.  The police officers were Detective Mitchell and Detective Sharp.  They went to the caravan and arrested the appellant for indecent assault at 2.07 am.  He was cautioned and he said he had done nothing.  He was taken to the Elizabeth Police Station and interviewed by the two police officers which was recorded on video.  That interview commenced at about 2.28 am and occupied about 20 minutes.  Detective Mitchell formed the view that the appellant was slightly to moderately affected by alcohol.  Detective Sharp described the appellant as appearing to be tired and as being mildly to moderately affected by alcohol.  There was a smell of liquor on his breath, his speech was slightly slurred but he could not say if the consumption of alcohol was the cause.  A police medical officer, Dr Flock, saw the appellant at about 4.00 am.  He took various samples from him, including fingernail scrapings and blood.  The blood sample was analysed.  The appellant had a blood alcohol level of 0.173.

During the interview the appellant denied the allegation that he had sexually assaulted the girl.  The interview was recorded on video tape, perusal of which indicates that he appeared to understand the questions which were asked and that he answered them relevantly and appropriately.  He appears oriented and not to be significantly affected by alcohol.  He explained that on occasions he did sleep on the girl’s bunk with her, but never with the other children.  On other occasions he slept on the couch in the loungeroom.  He said it was not appropriate in the circumstances to have gone to the caravan to sleep as he would not have heard the children if he was needed.  However, he could not offer any satisfactory explanation as to why he went to the girl’s bunk and not to the couch.

The accused gave evidence at the trial.  He said that he did not have a great recollection of what happened.  He said that he remembered being tired and lying down and his next recollection was of arguing with the uncle who had accused him of assaulting the girl.  He denied assaulting her.  His recollection of when the family was at the Myer Centre is different from that of the mother.  According to him, they left the Myer Centre at about 3.00 pm and returned to the home at Elizabeth.  He and the uncle went to the hotel at about 4.30 pm.  He could not estimate how much beer he consumed.  He said that he did not consume any other type of alcohol on that day.  He is an experienced drinker of alcohol.  On the night in question he said that he was “pretty well drunk, yes.  Too much to stay in the hotel”.

The appellant called Dr McLeave who gave evidence about two matters.  The first was the degree of intoxication of the appellant at the time he was interviewed by the police.  Dr McLeave is a medical practitioner with a Bachelor of Science degree and diplomas in obstetrics and gynaecology.  He is a fellow of the Royal Australian College of General Practitioners and holds a diploma and masters degree in Medical Jurisprudence and a master’s degree in Social Science in Criminology.  Also, he is a fellow of the Australian College of Legal Medicine.  Regrettably he did not give any further evidence about those qualifications and fellowships or of his training and experience in relation to the subject matter of his opinions.  Dr McLeave calculated the blood alcohol level of the appellant at the commencement of the interview at 0.205, at 0.242 at 12.30 am, at 0.223 at 11.30 pm and at 0.214 at 11.00 pm.

Dr McLeave expressed opinions about the appellant’s cognitive ability and awareness at various stages.  It appears that he looked at a transcript of the video recording of interview of the appellant by the police.  He expressed the opinion that the appellant appeared to be quite confused.  Before he entered the witness box, he looked at the video recording.  He said that he noticed slurring in the appellant’s speech, that he was slow to comprehend some matters which were asked of him and that his overall appearance was slow which, in his opinion, was due to the effects of alcohol.  He said that the memory of the appellant would have been significantly impaired.

The other topic of Dr McLeave’s evidence was the impairment of the appellant’s capacity to form the intention to perform actions due to intoxication by alcohol.  In his opinion there would be some impairment when the blood alcohol level reached 0.09 and at a level of 0.20 intention would “be certainly well impaired”.  He was then asked:

“Q....... When you say ‘certainly well impaired’ I know it mightn’t be possible to pin you down any more than this, is a person over .2 capable of forming an intention to do something.

AWell I don’t believe they can.”

Dr McLeave also expressed the opinion that although the appellant was capable of making a free choice as to whether or not he should answer the questions asked by the police, it was “an impaired choice”, ie a choice which he could make as an impaired person which may be totally different than if he was not impaired.

In cross-examination Dr McLeave acknowledged that he had never examined the appellant or spoken to him.  He had never taken any history from him and he was not aware if he had any medical condition which could affect his calculations.  He had no information about the ingestion of food at any relevant time, but he had been informed that the appellant had consumed 10 cans of Victoria Bitter beer between 7 pm and 10.20 pm.  Nevertheless, he said he had sufficient information to speak generally about the appellant.  On the topic of slurring of speech, he acknowledged that he did not know if the appellant had a speed impediment.

The police prosecutor was given an adjournment to consider the evidence of Dr McLeave and to decide if he wished to call any evidence in rebuttal, including evidence contrary to opinions expressed by him.  When the trial resumed, the prosecution did not seek to call any further evidence.

As I have said, the learned Magistrate found the charge proved beyond reasonable doubt.  It follows that he found the girl to be a reliable, truthful, accurate and convincing witness.  He rejected the opinions of Dr McLeave.  He observed the video tape of the record of interview on a few occasions and felt that he was able to conclude that the interaction between the police officers and the appellant and the demeanour and responses of the appellant, indicated that the opinions expressed by Dr McLeave, in so far as they related to the appellant, could not be accepted.

The appellant raises various matters in the grounds of appeal.  The first ground is that the learned Magistrate erred in preferring the evidence of non-experts to the uncontradicted evidence of an expert in respect of the effects of a range of blood alcohol levels.  This is emphasised by the appellant because the police prosecution was declined the opportunity to call expert evidence in rebuttal.  In my view this ground is misconceived.  The fact that the evidence of an expert witness is not contradicted by the evidence of another expert witness does not mean that the evidence must be accepted.  Like any type of evidence, expert testimony must be considered along with all of the other evidence in the case.  Evidence as to intoxication must be considered along with the admissible evidence of the conduct and words of the person under consideration at relevant times. Such evidence will usually give an accurate guide to the effects of alcohol upon a particular person.  The evidence of the mother would suggest that the appellant was not substantially affected by alcohol before she went to the hotel at about 11.15 pm.  She returned a little over an hour later.  If the accused committed the offence, he did so during that period of time.  Upon her return, the appellant denied the allegations and challenged the girl about them.  There is no evidence of any witness, including him, that he was confused, disoriented or lacking in understanding of the events going on around him.  The two police officers spoke to him at the caravan.  Mention has been made of their observations of him.  The video recording of the interview speaks for itself.  The learned Magistrate said:

“I have seen the video several times.  It has been played in court.  The clarity of the film, in my opinion, is quite good.  In my opinion, I had an adequate opportunity to assess the responses of the accused to the questions that were put to him.  I do not share the opinion of Dr McCleave - the general criticism that the accused did not appear crisp is, I think, an unhelpful proposition - that responses or a specific response was slow, is in my opinion a criticism, even on the doctor’s evidence, of such a menial level that it could not in any event be seriously and properly regarded as forming a foundation for the exclusion of the reception of the material.  Taken individually, answer by answer and question by question, I was left in no doubt that the accused was in fact answering questions when he understood the nature of the allegations and when he was cognisant of what was being put to him.  The slurring of words that is spoken about by Dr McCleave, if present, in my opinion is not present to the extent asserted by him.  Much may be explained, as it was explained by Sharp and Mitchell, by the fact that the accused had been recently awakened, although as I said earlier, not awakened in the caravan.”
         

My observation of the video leads to the same conclusion.

Also it must be acknowledged that Dr McLeave’s calculations of the likely blood alcohol level of the appellant at various times were based upon absorption and metabolism rates taken from texts which represent averages across the population or something similar.  They could not be related precisely to the appellant.  They took no account of subjective considerations peculiar to the appellant such as his absorption and metabolic rates, his drinking experience, the ingestion of food and any other relevant matters.  The opinions based upon such calculations could not necessarily prevail over the evidence of all of the eye witnesses.

The appellant advanced a defence of lack of both general and specific intent based upon incapacity due to intoxication.  At the least that is how I interpret the position.  In my view, the totality of the evidence could not admit of involuntariness due to intoxication.  The appellant got on to the bunk.  He removed his shoes.  Accepting the evidence of the girl, he touched her in specific places of sexual significance.  He desisted when he told him she wanted to go to sleep.  Upon being awakened by the mother and the uncle, he spoke to them and the child relevantly and appropriately.  The theory that he lacked the requisite general and specific intent was clearly negated by the evidence.

I expect that the evidence about impairment of freedom of choice was mainly directed as to the weight which should be given to the answers of the appellant during the interview by the police because there was no challenge to the admissibility of the evidence on the ground of lack of voluntariness or on discretionary grounds due to unreliability.  The appellant denied the allegations although he did say that on occasions he got on to the girl’s bunk and slept with her and he desisted from doing so with the sister because she was a “bit boisterous”.  This evidence of Dr McLeave may have been led so that the learned Magistrate would not give undue weight and significance to that answer.  The learned Magistrate did not mention that answer in his reasons for judgment.  It was an odd thing for the appellant to say and it could be inferred that he accepted that he preferred the girl to the sister and felt obliged to give an explanation.  At all events, the learned Magistrate does not appear to have had regard to that answer in a way adverse to the appellant.  I do not regard the evidence about freedom of choice as of assistance.  It is not clear to me precisely what the witness was intending to convey.  It may be that an intoxicated person is more likely to answer questions because of a lack of inhibition due to alcohol.  It may mean that an intoxicated person is likely to tell the truth:  in vino veritas.   It may mean no more than that reasons not to answer may not be adequately evaluated and appreciated.  However, none of the evidence suggests that the freedom of choice of the appellant was impaired.

In my view the decision of the prosecutor not to seek to adduce evidence in rebuttal contrary to the opinions of Dr McLeave is of no significance in the present circumstances.  The prosecutor was entitled to have the evidence of Dr McLeave assessed in the context of all of the other evidence.  The failure to contradict his evidence in cross-examination or by other expert evidence could not give it a probative value beyond its true worth.

In my view, this ground of appeal fails.

The second ground of appeal is that the learned Magistrate erred in accepting the evidence of the child in that it was unreasonable and against the weight of the evidence.  The child was interviewed by a woman police officer soon after the alleged assault.  She told the police officer that she was asleep when the alleged assault took place.  When asked how she could have known what happened if she was asleep, she said that she knew what happened when she woke up and saw the appellant in her bed.  In her evidence-in-chief she said that she was asleep when the appellant got into her bed and he woke her up.  In cross-examination she said:

“Q....... When you were answering the questions before, you said that Pop came in when you were asleep.  Is that right.

AYes.

Q...... Did he wake you up.

AYes.

Q...... You said that he touched your front bum.  Is that right.

AYes.

Q...... Were you awake when he did that.

ANo.

Q...... You said that he had touched your boobs.  Were you awake when he did that.

ANo.

Q...... You said that he touched you on the back and by the bum.  Were you awake when he did that.

ANo.

Q...... What I want to say to you is this, Pop never touched you at all, did he.

AYes.

Q...... But you were asleep.  How do you know.

ABecause I had a feeling.

Q...... Even when you were asleep.

AYes.

Q...... Pop never woke you up, did he.

AYes.”

and later:

“Q....... You said that you can feel things while you are asleep.  Is that right.

AYes.

Q...... When you are asleep, can you hear people come into the house and go out again.

AYes.

Q...... Can you hear everything when you are asleep.

AYes.”

This evidence was of considerable importance in the defence case and, prima facie, it suggests that the girl may have been dreaming and the alleged assault did not occur.  However, in re-examination the following occurred:

“Q....... I just want to clarify one point.  What are you doing when you are asleep.

AJust sleeping.

Q...... Do you know whether your eyes are closed or not.

AMy eyes was closed.

Q...... What’s the difference between being asleep and being awake.

OBJECTION               Mr Gibbons objects.

QUESTION ALLOWED

QDo you know what the difference is between being awake and being asleep.

A...... When you are asleep your eyes are closed, and when you’re awake your eyes are open.

QYou said that when your eyes are shut you are asleep.

A...... Yes.

QWhy is that.

A...... Because I was tired.

QCan you close your eyes for me.

WITNESS CLOSES EYES

QAre you asleep now.

A...... Yes.”

In my view, the prosecutor simply established what the girl meant by the word “asleep”.  When she used that word she meant having her eyes closed.  I do not think this evidence suggests, or in the circumstances is capable of suggesting, that the girl, or her evidence, was unreliable or unclear.  She described the assault in clear and appropriate terms.  The learned Magistrate dealt with this matter in his reasons for judgment.  He said:

“Mr Gibbons is critical of the evidence of [the girl], referring me to the fact that at the close of her cross-examination she said that she was asleep at the time of the performance by the accused of the alleged act.  In my opinion, the issue was dealt with in a satisfactory manner by the prosecutor at page 17 of the transcript during the re-examination.  Mr Gibbons is critical that the questions did not direct themselves to the specific event occurring in February of 1997.  I do not share that criticism.  In my opinion, the child was conveying and intending to convey the fact that during the alleged interference by the accused that she closed her eyes.  Such a proposition, in my opinion, is consistent with her utterance that she found this experience horrible.”

I agree with those observations.

Mr Gibbons, for the appellant, also contended that such re-examination should not have been permitted as the child gave a complete explanation of what occurred in the record of interview, in her evidence-in-chief and during cross-examination.  I do not agree.  It became apparent during cross-examination that there may well have been some misunderstanding by what the girl meant by the word asleep.  For obvious reasons if she was asleep within the conventional meaning of that word, she could not have seen, felt and heard what the appellant did and said.  At the end of the cross-examination, clarification was appropriate.  The learned Magistrate was correct in allowing the re-examination.  It was unfortunate that there was an element of leading in some of the questions asked by the prosecutor but I do not think the probative force of the evidence was weakened for that reason.

The other evidence which, it is said, suggests the evidence of assault is not credible is an apparent inconsistency in what she told the woman police officer and what she said in evidence.  During the interview, she told the police officer that the appellant had touched her inside the vagina whilst in evidence she said that she had only been touched on the outside of her body.  This difference could not be decisive.  Clearly it was a matter to be considered by the learned Magistrate.  He had to decide if it undermined his confidence in the girl and caused him to doubt the evidence which she gave before him.  Obviously, he did not think so.  He saw and heard the girl.  As will be seen shortly, there was evidence which corroborated her evidence of sexual assault by the appellant.  Also, given her age and lack of experience, such a difference when relating what had happened, could not be of much moment.  There is no reason to suppose that the learned Magistrate was not entitled to accept the evidence of the girl if he was minded to do so.  This ground fails.

The next ground of appeal is that the learned Magistrate erred in admitting evidence of the interview of the appellant by the police because he had said that he did not wish to answer questions and because of Dr McLeave’s evidence as to his state of mind at the time.  The video recording of the interview indicates that the appellant did not say that he did not wish to answer questions.  Detective Mitchell reminded him that he had informed the appellant of his rights when he spoke to him at the caravan.  He repeated those rights at an early stage of the interview.  They included that he did not have to answer any questions unless he wished to do so and he was informed that anything he did say would be taken down and used in evidence at a later date.  he accused agreed that he had been informed of his rights and that he did not require to be informed of them again.  In the course of this exchange, the appellant mentioned, in his own words, his understanding of one of those rights.  He said, “I don’t have to answer any questions”.  Detective Mitchell misheard him.  He said, “You don’t want to answer any questions?” and the appellant said “No, I don’t have to answer any questions.  I have nothing to hide”.  At no stage did the appellant decline or refuse to answer questions or say that he did not want to do so.  I have mentioned the evidence of Dr McLeave and the other evidence, in brief terms, about the degree of intoxication of the appellant.  There was no reason to reject the evidence of the interview.  The appellant did not object to the evidence and there was no proper basis to do so.  Reference was made to R v Ostojic (1978) 18 SASR 188 and R v Smith (1992) 58 SASR 491 where the admissibility of a confession made by a person under the influence of alcohol was considered. In my view, there is no evidential basis in the present case for the application of the principles discussed in those cases. As has been seen, the appellant conducted himself relevantly and appropriately during the interview and denied the allegations made against him. Indeed, it may be seen on the video recording that when the appellant signed the notes made by Detective Mitchell of the conversation at the caravan, he reached for the pen and used it immediately and effectively without any indication of impairment of visual acuity, co-ordination or judgment. This ground of appeal fails.

The remaining ground of appeal is that the learned Magistrate erred as to the requirement and direction to be given to himself when dealing with s12 of the Evidence Act 1929 for the purpose of corroboration and the acceptance of relevant evidence under this topic. The girl was a young child as defined in the Evidence Act as she is under the age of 12 years: s4. The learned Magistrate correctly decided that she should not take an oath as she did not have the requisite beliefs. Section 12(2) of the Act provides:

“If a young child, who is not obliged to submit to the obligation of an oath, is to give evidence before a court and -

(a).... the child appears to the judge to have reached a level of cognitive development that enables the child -

(i).... to understand and respond rationally to questions; and

(ii)... to give an intelligible account of his or her experiences; and

(b).... the child promises to tell the truth and appears to understand the obligations entailed by that promise,

unsworn evidence of the child will be treated in the same way as evidence given on oath.”

It appears that the learned Magistrate accepted that the child qualified under this sub-section and therefore her evidence was to be treated in the same way as evidence given on oath. If so, corroboration of her testimony was not required as a matter of law or practice by reason of s12a of the Act. However, the learned Magistrate did not say whether the unsworn evidence of the girl was or was not assimilated in that way. If it was not the provisions of s12(3) of the Act applied which are:

“12(3)....... In any case in which unsworn evidence of a young child is not assimilated under subsection (2) to evidence given on oath -

(a).... the child’s evidence will be evaluated in the light of the child’s level of cognitive development; and

(b).... a person who has been accused of an offence and has denied the offence on oath cannot be convicted of the offence on the basis of the child’s evidence unless it is corroborated in a material particular by other evidence implicating the accused.”

..................................... I think it is likely that the learned Magistrate did treat the evidence of the child as assimilated. However, in case that is not the true position, it is necessary to consider whether her evidence was corroborated as required by s12(3). The learned Magistrate found corroboration in the evidence of the mother and the uncle of their observations of the appellant and the girl on the bunk when they entered the bedroom. He said:

“In this case, on the return to the residence of David and Tania, each of them speak of observing the presence of the hand of the accused across the lower abdomen of the child; each of them speak of the fact that the child’s underpants were in the region of the thigh.  Mr Gibbons’s submission is that there is no evidence as to how the pants got into that location.  Indeed, he puts it to me that the pants may have slipped down, and there was no observation made of the knickers being pulled down, and that the level of knickers on the child’s body were as consistent with the innocence of the accused as with the guilt of the accused, and that the height of the knickers on the child’s body were not therefore corroborative of anything.  In my opinion, the presence of the accused’s hand on the lower abdomen of the child is in fact corroborative of the evidence of the child.  In my opinion, it is evidence independent in nature by way of the observations of the child’s mother and the child’s uncle of a material fact implicating the accused and tending to confirm the performance upon the child of the alleged conduct.”

In my view, the learned Magistrate was correct.  The existence of corroborative evidence is so obvious that it is unnecessary to consider the case law in any detail.  I merely refer to the classic exposition in R v Baskerville [1916] 2 KB 658 at 667:

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.  In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it ...... The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.”

The appellant was on the bed with the girl.  Her knickers were down near her knees.  His arm and hand were touching her bare skin and in the vicinity of her lower abdomen.  The evidence of the mother and the uncle was clearly independent of the girl and confirmed, or tended to confirm, the evidence of the girl that the appellant indecently assaulted her as she alleged:  see Doney v R (1990) 171 CLR 207 at p211. Even if the learned Magistrate did not assimilate the evidence of the young girl, he evaluated it appropriate and the requirement of corroboration was satisfied.

It was also argued by Mr Gibbons that the evidence of the girl was so unreliable for the reasons previously mentioned that the question of corroboration did not arise.  If her evidence could not be relied upon, corroborative evidence could not make the difference.  In principle that contention is correct, but for the reasons previously expressed the evidence of the girl could not be so described.  There is no substance in this ground of appeal.

In my view the appeal must fail.  The learned Magistrate clearly accepted the evidence of the girl and the other witnesses in the prosecution case and was justified in reaching the conclusion beyond reasonable doubt that the appellant was guilty as charged.

The appeal is dismissed.