WJG v The Queen

[2020] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

WJG v THE QUEEN

[2020] SASCFC 56

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)

19 June 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - OTHER PARTICULAR CASES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

Appeal against convictions of Unlawful Sexual Intercourse (USI) and Indecent Assault, pursuant to ss 49(3) and 56 respectively of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

The trial Judge found the appellant not guilty in relation to one count of Indecent Assault (Count 1), but guilty of one count of USI with a person under the age of 17 years (Count 2) and one count of Indecent Assault (Count 3). The appellant was sentenced to five years and six months’ imprisonment with a non-parole period of four years, four months and 25 days.

Count 2 concerned allegations that on an occasion when the complainant, JH, went to stay with the appellant in Port Augusta, she went with him in his truck on an overnight trip to Adelaide. During the trip to Adelaide with JH, the accused had sexual intercourse with JH in the back of the truck. The trial Judge found that the offending in relation to Count 2 ‘must have occurred between 9 October 1976 and November 1977.’

Count 3 related to a 1991 statement by JH’s cousin, AH, that the appellant had sexually assaulted her in JH’s presence. At trial, AH’s evidence was that the vehicle was a green Valiant with number plates GOD-001. The trial Judge found beyond reasonable doubt that the incident occurred between July 1977 and November 1977.

The grounds of appeal are as follows:

1.  By virtue of the particulars of Count 2 being offending that occurred between 9 October 1976 and 22 January 1980, the appellant was denied a trial according to law and the convictions constitute a miscarriage of justice in that;

a) Section 49(3) of the CLCA requires that the complainant be under the age of 17 and of or above the age of 12. The complainant was not above the age of 12 until January 1977.

b) Section 49 of the CLCA only came into operation on 9 December 1976. Offending between 9 October 1976 and 9 December 1976 would be prior to the promulgation of s49.

2.  In relation to Count 2, Her Honour erred in determining that the changes in the recollection of JH regarding the description of the truck and her position in the cabin should not cause the court to doubt the reliability and credibility of her evidence.

3.  In relation to Count 3, Her Honour erred in determining that the difference in AH’s evidence to the Court and her 1991 statement did not raise a reasonable doubt as to when the events, that were the subject of Count 3, occurred.

4.  Further, her Honour erred in being satisfied beyond reasonable doubt that the 1991 statement was 'inaccurate in terms of its chronology and of the alleged date' of the alleged offending.

5.  Her Honour erred in failing to direct herself regarding the significant forensic disadvantage to the defendant associated with the green Valiant’s number plate.

6.  The verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

Ground 1 effectively complains that the charged period of 9 October 1976 to 22 January 1980 includes a time when the offence of USI was not known to law. On analysis, during the charged period in respect of Count 2, three separate offences existed. Count 2 alleged a single offence of USI, contrary to s 49(3). Accordingly, the Director conceded that it was not open for the appellant to have been convicted of USI on the charge in Count 2. Count 2, on the information, failed to contain ‘such particulars as are necessary for giving reasonable information as to the nature of the charge’. Prior to trial, the defect was not noticed and no application was made to quash the information on this basis.

During the whole of the date range particularised in Count 2, s 56 of the CLCA provided for the offence of Indecent Assault. The question with respect to Ground 1 then becomes whether this Court can substitute a verdict of guilty for the offence of Indecent Assault.

Held, per Bleby J (Kourakis CJ and Nicholson J agreeing), neither allowing or dismissing the appeal in respect of Ground 1, and dismissing the appeal in respect of Grounds 2, 3, 4, 5 and 6:

1. Instead of allowing or dismissing the appeal in respect of Ground 1, the verdict found by the trial Judge is substituted with a verdict of guilty of Indecent Assault pursuant to s 160(2) of the Criminal Procedure Act 1921 (SA).

2.  In resentencing on Count 2, based on a verdict of guilty of Indecent Assault, the appellant is sentenced to four years’ imprisonment. The term of imprisonment of six months that the trial Judge imposed in respect of Count 3 is to be served cumulatively upon the term of imprisonment in respect of Count 2, resulting in a total head sentence of four years and six months’ imprisonment. The non-parole period is fixed at three years, seven months and six days. Both the head sentence and non-parole period is to be backdated to commence on 3 October 2019.

3.  Neither JH’s evidence as to the description of the truck, nor her evidence about her initial position in the truck warrants the conclusion that upon the whole of the evidence it was not open to the trial Judge to be satisfied beyond reasonable doubt that the appellant was guilty of Count 2.

4.  As to the inconsistencies in AH’s evidence, the trial Judge’s approach to assessing the evidence as a whole was careful and orthodox.  It was open to her Honour to reach the result that she did, notwithstanding the inconsistencies. The manner in which her Honour approached the inconsistencies is not indicative of error.

5.  The trial Judge demonstrably paid ‘close attention to any forensic disadvantage arising from a delay in bringing a complaint’, in particular, when dealing with the evidence relating to the green Valiant’s number plate. Her Honour was required to, and dealt with the issue of delay.

6.  The trial Judge’s verdict is not unreasonable, nor cannot be supported having regard to the evidence. Her Honour gave particular attention to the inconsistencies in the evidence with respect to the position of JH and the description of the truck when considering Count 2, and to the inconsistencies in the evidence, in particular the evidence of AH, with respect to the timing of the incident the subject of Count 3.  It was open for her Honour to reach the conclusions that she did.

Criminal Law Consolidation Act 1935 (SA) ss 49, 56, 75, 354(2); Criminal Procedure Act 1921 (SA) ss 128, 160(2); Criminal Appeal Act 1912 (NSW) s 7(2); Evidence Act 1929 (SA) s 34CB; Sentencing Act 2017 (SA) ss 53(1)(c), 54, referred to.
R v D, WD (2013) 116 SASR 99, applied.
The Queen v De Simoni (1981) 147 CLR 383, distinguished.
Bensegger v The Queen [1979] WAR 65 at 68; Calabria v The Queen (1983) 151 CLR 670; R v D, WD (2013) 116 SASR 99; R v Coutts [2006] 4 All ER 353; R v G, WJ [2019] SADC 131; R v Sexton [2018] SASCFC 28; Spies v The Queen (2000) 201 CLR 603; The Queen v De Simoni (1981) 147 CLR 383, discussed.
Elias v The Queen (2013) 248 CLR 483; GHK v Western Australia (2014) A Crim R 178 at 185; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; R v T, WA (2014) 18 SASR 382, considered.

WJG v THE QUEEN
[2020] SASCFC 56

Court of Criminal Appeal:     Kourakis CJ, Nicholson and Bleby JJ

1. KOURAKIS CJ:  I would exercise the power in s 160(2) of the Criminal Procedure Act 1921 (SA) and substitute a verdict of guilty of indecent assault for the reasons given by Bleby J. I would join in the sentence proposed by Bleby J.

2. NICHOLSON J:  I would dispose of the appeal in the manner decided by Bleby J and for the reasons his Honour has given.  I agree that the appellant should be resentenced in the manner proposed by Bleby J.

3. BLEBY J:             This is an appeal from a District Court Judge against convictions of Unlawful Sexual Intercourse (USI) and Indecent Assault, pursuant to ss 49(3) and 56 respectively of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

4. The appellant was charged with two counts of Indecent Assault (Counts 1 and 3) and one count of USI with a person under the age of 17 years (Count 2). The complainant in each instance was JH, who is the niece of the appellant’s former spouse, CCB.

5. The information dated 18 March 2019 was as follows:

   [WJG] is charged with the following offences:

   First Count

   Statement of Offence

   Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [WJG] between the 9^th day of October 1976 and the 22^nd day of January 1980 at Port Augusta, indecently assaulted [JH] by performing cunnilingus upon her.

   Second Count

   Statement of Offence

   Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [WJG] between the 9^th day of October 1976 and the 22^nd day of January 1980 at Adelaide, had sexual intercourse with [JH], a person under the age of 17 years, by inserting his penis into her vagina.

   Third Count

   Statement of Offence

   Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [WJG] between the 9^th day of October 1976 and the 22^nd day of January 1980 at Mount Laura, indecently assaulted [JH] by touching her breasts.

6. On 12 September 2019, the trial Judge found the appellant not guilty of Count 1, but guilty of Counts 2 and 3.

7. With respect to Count 1, the trial Judge accepted the evidence of JH that a man had committed an act of cunnilingus on her when she was sleeping in the bedroom of her cousin, AH, in Port Augusta, at some time between 9 October 1976 and November 1977. However, her Honour could not exclude, as a reasonable possibility, that a person other than the appellant was the perpetrator.

8. On 5 November 2019, the appellant was sentenced to five years and six months’ imprisonment with a non-parole period of four years, four months and 25 days. The appellant initially appealed against both the conviction and the sentence. On 8 May 2020, counsel for the appellant advised the Court that the appellant would not be proceeding with the appeal against sentence.

   Background

9. JH was born on 22 January 1965. JH’s cousin and CCB’s daughter, AH, was born on 20 August 1968. In about September 1975, CCB commenced a relationship with the appellant.

10. As a young child, JH and her family moved frequently, such that she lived in many different locations and houses and attended many different schools.

11. On 9 October 1976, CCB gave birth to a daughter, HH, fathered by the appellant. At that time, the appellant was living with CCB and AH in Port Augusta, while JH lived in Port Pirie.

12. On 9 August 1991, AH gave a statement to police. She claimed that in 1983, the appellant had sexually assaulted her at Mount Laura in JH’s presence. The accused was subsequently arrested for offending arising from AH’s allegations and entered guilty pleas to the charges.

    Count 2

13. The allegations supporting Count 2 were, essentially, that on an occasion when JH went to stay with the appellant in Port Augusta, she went with him in his truck on an overnight trip to Adelaide. The appellant had a job driving trucks and would drive overnight from Port Augusta to Adelaide for the purpose of collecting stock.  CCB was working at night; JH travelled with the appellant so that she would not be left alone. During the trip to Adelaide with JH, the accused had sexual intercourse with JH in the back of the truck.

14. The trial Judge found that the offending in relation to Count 2 ‘must have occurred between 9 October 1976 and November 1977.’[1]

    [1]    R v G, WJ [2019] SADC 131 at 44, [276].

15. At trial, counsel for the appellant submitted that the trial Judge could not be satisfied of JH’s reliability and credibility due to differences between her evidence and the account that she had previously given to the police. These inconsistences related to the truck’s description and whether she was sitting up or had been asleep when the incident started.

16. The trial Judge accepted JH’s evidence that she went on a trip to Adelaide with the appellant in his truck and was staying with the appellant and CCB at the time, which was after HH was born. Her Honour rejected the appellant’s evidence that there had been no such trip.[2]  Further, her Honour was satisfied beyond reasonable doubt that the appellant had sexual intercourse with JH by inserting his penis into her vagina, which occurred between 9 October 1976 and November 1977.[3]

    [2]    R v G, WJ [2019] SADC 131 at 46, [293].

    [3]    R v G, WJ [2019] SADC 131 at 47, [298]-[300].

    Count 3

17. Count 3 related to AH’s claim that in 1983, the appellant had sexually assaulted her at Mount Laura in JH’s presence. On the evidence of both AH and JH, this incident occurred in a vehicle, with AH in the front bench seat. On JH’s evidence, JH was sitting in the back seat, where the appellant touched her breasts. The appellant admitted masturbating in front of AH while in a vehicle.  He gave evidence as to having memory problems.  He said that he did not recall an incident when he masturbated in the presence of both AH and JH and touched them both on the breasts, in that ‘It may be possible, but I don’t recall it’.[4] Given the other issues raised in respect of this count, the trial Judge appropriately, with respect, treated this as a denial of the offending.[5]

    [4]    R v G, WJ [2019] SADC 131 at 33, [186].

    [5]    R v G, WJ [2019] SADC 131 at 50, [333].

18. An issue was raised at trial concerning when the incident was alleged to have occurred. AH’s evidence was that the vehicle was a green Valiant with number plates GOD-001, which would have meant, based on other, objective evidence, that the incident could not have occurred in 1977. At trial, counsel for the appellant submitted that the number plates GOD-001 being on the car in question could only have been consistent with the incident having occurred after 1979.  Further, AH’s 1991 statement placed this incident in 1983. At trial, AH gave evidence that the police had put the dates into her statement.

19. After carefully scrutinising AH’s evidence, the trial Judge was satisfied beyond reasonable doubt that the incident did not occur in 1983.[6] Her Honour additionally rejected the submission that AH’s evidence that the car involved was the green Valiant with number plates GOD-001 meant the incident could not have occurred in 1977.[7]

    [6]    R v G, WJ [2019] SADC 131 at 49, [317].

    [7]    R v G, WJ [2019] SADC 131 at 49, [323].

20. As to the timing of the incident, the trial Judge found beyond reasonable doubt that the incident occurred between July 1977 and November 1977.[8] Her Honour was satisfied beyond reasonable doubt that the appellant assaulted JH by intentionally applying force to her, by touching her breasts, in a car at Mount Laura. She was also satisfied beyond reasonable doubt that the assault occurred in circumstances of indecency, in that it occurred at a time when the accused had unzipped his pants and AH was massaging his penis. [9]

    [8]    R v G, WJ [2019] SADC 131 at 50, [331], 51, [334]-[335].

    [9]    R v G, WJ [2019] SADC 131 at 51, [335].

    Grounds of Appeal

21. The appellant identified six grounds giving rise to the appeal:

    1.By virtue of the particulars of count 2 being offending that occurred between 9^th October 1976 and 22^nd January 1980, the appellant was denied a trial according to law and the convictions constitute a miscarriage of justice in that;

    a)Section 49(3) of the Criminal Law Consolidation Act requires that the complainant be under the age of 17 and of or above the age of 12. The complainant was not above the age of 12 until January 1977.

    b)Section 49 of the Criminal Law Consolidation Act only came into operation on 9^th December 1976. Offending between 9th October 1976 and 9^th December 1976 would be prior to the promulgation of section 49.

    2.In relation to count 2, Her Honour erred in determining that the changes in the recollection of JH regarding the description of the truck and her position in the cabin should not cause the court to doubt the reliability and credibility of her evidence.

    3.In relation to count 3, Her Honour erred in determining that the difference in [AH’s] evidence to the Court and her 1991 statement did not raise a reasonable doubt as to when the events, that were the subject of count 3, occurred.

    4.Further, her Honour erred in being satisfied beyond reasonable doubt that the 1991 statement was “inaccurate in terms of its chronology and of the alleged date” of the alleged offending.

    5.Her Honour erred in failing to direct herself regarding the significant forensic disadvantage to the defendant associated with the green Valiant’s number plate.

    6.The verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

22. Grounds 1 and 2 concern Count 2. Grounds 3 to 5 concern Count 3. I will address the grounds by reference to the counts to which they relate.

    Count 2

    Ground 1

23. This ground complains that, in effect, the charged period in respect of Count 2 includes a time when the offence of USI was not known to law.

24. The information had alleged that Count 2 occurred during the period between 9October 1976 and 22 January 1980. Section 49 of the CLCA did not come into operation until 9 December 1976. Further, JH did not turn 12 years old until 22 January 1977. The respondent contends further that the particulars set out in the information referred to the complainant being under the age of 17 years, but made no mention to the requirement that the complainant be over the age of 12 years.

25. From 9 October 1976 to 9 December 1976, the applicable offence in respect of the facts alleged was Carnal Knowledge. The CLCA created three different offences of Carnal Knowledge, under ss 50, 52 and 55. The relevant offence was dependent on the age of the complainant at the time of the offending. As JH was under the age of 12 years during the period of 9 October 1976 to 9 December 1976, s 50 applied:

    Any person who unlawfully and carnally knows any person under the age of twelve years shall be guilty of felony, and liable to be imprisoned for life.

26. From 9 December 1976, the relevant offence became USI, pursuant to s 49 of the CLCA. Relevantly, s 49 provided:

    (1)A person who has sexual intercourse with any person under the age of twelve years shall be guilty of a felony and liable to be imprisoned for life.

    …

    (3)A person who has sexual intercourse, …, with a person of or above the age of twelve years and under the age of seventeen years shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.

27. Thus, with respect to the period covered by Count 2 on the information, from 9 December 1976 to 21 January 1977, s 49(1) of the CLCA created the relevant offence. Once JH turned 12 years old on 22 January 1977, s 49(3) of the CLCA created the relevant offence.

28. Accordingly, during the period charged, three separate offences existed. However, Count 2 alleged a single offence of USI, contrary to s 49(3). As I have already noted, the trial Judge found that the act of sexual intercourse occurred on a date between 9 October 1976 and November 1977. She did not make, and with respect to her Honour, the evidence did not support her making, a finding as to when the offence occurred with any greater precision.

1. The Director conceded that it was not open for the appellant to have been convicted of USI on the charge in Count 2.[10]

   [10] Respondent’s Additional Written Submissions as to Appeal Against Conviction – Ground 1 at 2, [4], 8, [29].

2. An initial question arose as to the proper characterisation of Count 2, that is, whether it failed to disclose an offence known to law or whether it was defective by reason of uncertainty. The appellant contended for the former characterisation.

3. The question can be tested in this way.  If the trial Judge had been persuaded beyond reasonable doubt that the offending had occurred on a specific date after 22 January 1977, notwithstanding the date range particularised, it would appear that an offence known to law would have been proved as charged. However, as matters transpired, the trial Judge was persuaded beyond reasonable doubt only as to a date range which, as I have observed, encompassed different offences at different times. Nevertheless, the particulars disclosed offences known to law throughout the period charged. Count 2 on the information was defective for uncertainty in that in its disclosure of the date range, it failed to comply with ss 22A and 100 of the Criminal Procedure Act 1921 (SA). It failed to contain ‘such particulars as are necessary for giving reasonable information as to the nature of the charge’.

4. No application was made to quash the information on the basis of this defect. It appears that no-one noticed it. Section 128 of the Criminal Procedure Act 1921 (SA) provides, in part:

   128—Objections to informations in superior court, amendments and postponement of trial

   (1)   An application to quash an information on the basis of a formal defect apparent on the face of the information must be made before the jury is empanelled and not afterwards.

   (2)   Subject to subsection (3), the court may before trial, or at any stage of a trial, make an order to amend an information as the court thinks necessary if—

   (a)the information is defective; or

   (b)there is a variation between a particular stated in the information and the evidence offered in proof of that particular.

   (3)   An order should not be made under subsection (2) if, having regard to the merits of the case, the proposed amendment to the information cannot be made without causing injustice.

5. There having been no application to quash that part of the information, the trial proceeded.  However, given the defect in Count 2, the prosecution carried the additional risk of not proving which of the offences known to law the appellant had committed, if it otherwise proved the facts alleged.  That is what transpired.  It follows, as the Director conceded, the conviction in respect of Count 2 cannot stand.

6. However, that is not the end of the matter. During the whole of the date range particularised in Count 2, s 56 of the CLCA provided for the offence of Indecent Assault in the following terms:[11]

   Any person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence, liable to be imprisoned for any term not exceeding five years and for any subsequent offence to be imprisoned or any term not exceeding seven years.

   [11] Criminal Law Consolidation Act 1935 (SA) s 56 as in force between 1975 and 1981.

7. Section 75 of the CLCA, as currently in force, provides a statutory alternative to a finding of guilt in respect of certain offences at trial:[12]

   [12] Criminal Law Consolidation Act 1935 (SA) s 75.

   75—Alternative verdict on charge of rape etc

   If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse, or an attempt to commit rape, compelled sexual manipulation 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.

8. In R v D, WD,[13] Nicholson J observed that an accused is always at risk of being found guilty at trial of an available alternative offence where the trier of fact is not satisfied of guilt of an offence charged on the information.[14] In R v Coutts, Lord Bingham said in relation to alternative verdicts generally:[15]

   The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged.

   [13] (2013) 116 SASR 99.

   [14] (2013) 116 SASR 99 at 124, [91].

   [15] [2006] 4 All ER 353 at 359-360.

9. Further, while s 75 refers to ‘the jury’, it applies to trial by judge alone.[16]  The trial Judge in this case had the power to enter an alternative verdict of Indecent Assault, had the defect in the information been noticed prior to the conclusion of the trial.

   [16] R v D, WD (2013) 116 SASR 99 at 114, [55].

10. The appellant submitted that s 75 is not met as this is not a situation where the jury or trier of fact was not satisfied that the accused is guilty of the offence charged.[17] However, it is necessary to read s 75 with s 160(2) of the Criminal Procedure Act 1921 (SA), which enables this Court to substitute a guilty verdict found at trial for a guilty verdict for some other offence:

    Where an appellant has been convicted of an offence and the jury could, on the information, have found the appellant guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

    [17] T 7.20-23.

11. The predecessor to this section, s 354(2) of the CLCA, has been held to apply to trial by judge alone.[18] Section 354(2) of the CLCA having relevantly identical wording to s 160(2), s 160(2) also applies to trial by judge alone.

    [18] R v D, WD (2013) 116 SASR 99 at 114, [58], 125-126, [97].

12. Counsel for the appellant submitted that s 160(2) cannot apply, due to the inclusion of the words ‘on the information’ in that section. He submitted that the offence of Indecent Assault was not available ‘on the information’ as presented to the Court,[19] relying on the following passage in Calabria v The Queen (Calabria):[20]

    It is a condition precedent to the exercise of the power conferred by that section that the jury could on the information have found the accused guilty of some other offence, i.e., the substituted verdict must be one which the jury could have returned at the trial on the information which was in fact presented. Examples (which are not intended to be exhaustive) of the situations in which a jury which has returned a verdict of guilty of one offence could on the same information have returned a verdict of guilty of a different offence are the following: (1) when it appears that the accused did not complete the full offence charged, but that he was guilty of an attempt to commit it, the jury can return a verdict of guilty of an attempt to commit the offence (see s. 290 of the Criminal Law Consolidation Act); (2) where the jury is entitled to return an alternative verdict either by statutory provision (for example ss. 14a, 38a, 75, 157 of the Criminal Law Consolidation Act) or at common law (for example, under the rule, in some places now replaced by statute, that on an indictment for murder the jury can return a verdict of guilty of manslaughter); and (3) where alternative counts have been joined in the information under s. 278(1) of the Criminal Law Consolidation Act and the jury has convicted on one count and been discharged without returning a verdict on the other counts: see R. v. Grasso.

    (Footnote omitted)

    [19] T 4.20-28, T 5.25ff.

    [20] (1983) 151 CLR 670 at 676.

13. Counsel submitted faintly that the situation does not fall within one of the three examples in Calabria.[21] To the extent that submission was maintained, I do not accept it. An alternative verdict under s 75 of the CLCA is manifestly contemplated by the second example, where the facts alleged ‘on the information’ can support the alternative verdict.

    [21] T 11.24-29.

14. Counsel further contended that the discretion to act in accordance with s 160(2) should be regarded as akin to the application of the proviso, in that this Court must be confident that there would be no forensic consequences that might adversely flow to the appellant by reason of so substituting the verdict.[22] To this end, he submitted that because the issue with the dates on the information had not been noticed, there was no forensic inquiry that went to the relevant dates. Had there been, that might have had some bearing on the credibility of the complainant.

    [22] T 11.30-12.2.

15. In Spies v The Queen,[23] the High Court considered offences which were open on the indictment under s 7(2) of the Criminal Appeal Act 1912 (NSW),[24] which is in similar terms to s 160(2) of the Criminal Procedure Act 1921 (SA). The Court said: [25]

    …once the Court finds that the jury must have been satisfied of the facts constituting the other offence, there is no reason why the power under s 7(2) should be used sparingly. The need for caution is directed to the issue whether it really does appear that the jury were so satisfied. In some cases, it may be that, even though the Court is so satisfied, the legal error may have put the appellant at some forensic, as opposed to legal, disadvantage. In such a case, it would be proper not to substitute a verdict.

    (Footnotes omitted)

    [23] (2000) 201 CLR 603.

    [24] Spies v The Queen (2000) 201 CLR 603 at 612-613, [23]-[25] (Gaudron, McHugh, Gummow and Hayne JJ).

    [25] Spies v The Queen (2000) 201 CLR 603 at 621, [48] (Gaudron, McHugh, Gummow and Hayne JJ).

16. I do not accept that the hypothesis raised by the appellant has any content capable of forming a basis for this Court to decline to act under s 160(2). While the precise date of the offending within the alleged period of time (which exceeded three years) was not specifically in issue, the first of the three statutory periods was separated from the last by a period of less than two months. Further, this was over 40 years ago. In any event, the submission by counsel for the appellant could not rise beyond speculation about the potential for forensic disadvantage. In those circumstances, this Court is entitled to assume that the appellant would have taken up and cross-examined on any material matter that might have affected the complainant’s credibility.

17. In my view, there is no factor peculiar to this case that relevantly distinguishes it from the decision of this Court in R v D, WD.[26]  The analysis by Nicholson J of the operation of the former s 354(2) of the CLCA, the predecessor to s 160(2),[27] can be applied to this case, with appropriate adjustments for the different facts.

    [26] (2013) 116 SASR 99.

    [27] R v D, WD (2013) 116 SASR 99 at 129-131, [111]-[119] (Nicholson J, Anderson and Peek JJ agreeing).

18. The trial Judge found, beyond reasonable doubt, that ‘the accused had sexual intercourse with JH by inserting his penis in her vagina’.[28] Her Honour found that this occurred between 9 October 1976 and November 1977. It is clear that her Honour was satisfied of facts which prove the appellant guilty of Indecent Assault, contrary to s 56 of the CLCA as in force for the entire period alleged in Count 2 of the information.  The appellant was always exposed to the risk of conviction for Indecent Assault as an alternative to USI over that period.

    [28] R v G, WJ [2019] SADC 131 at 47, [300].

19. Counsel for the appellant submitted that if a conviction for Indecent Assault were to be substituted for that of USI, The Queen v De Simoni[29] (De Simoni) would require that the factual basis upon which the appellant is to be resentenced could go no further than that he touched JH’s vagina with his penis. As I understood the submission, in the absence of a conviction of USI, the particular of penetration amounted to an ‘aggravating feature’ that could not be taken into account for the purpose of resentencing for Indecent Assault.  There would then be an element of artificiality to any sentence, which had the capacity to bring the law into disrepute.[30]

    [29] (1981) 147 CLR 383.

    [30] T 13-14.

20. I do not accept that submission.  In De Simoni, a majority of the High Court held that where an indictment does not refer to aggravating circumstances, a sentencing Judge may have regard to those circumstances only if they would not render the accused liable to a greater punishment pursuant to the applicable statutory regime.   The respondent in that case had been charged with robbery, of which the use of actual violence was an element.  The relevant provision provided for a circumstance of aggravation, giving rise to a heavier penalty, being where the victim is wounded.

21. The Court held that the Judge, when imposing sentence, was not entitled to take into account the wounding of the victim, as that circumstance of aggravation had not been charged on the indictment.

22. Counsel for the appellant relied on the following passage in the judgment of Gibbs CJ:[31]

    At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

    [31] The Queen v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ).

23. However, Gibbs CJ then continued: [32]

    At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century: Dominus Rex v. Turner; and see Chitty, Criminal Law, 2nd ed. (1826), vol. 1, p. 231b. However, the modern authorities on the point normally commence with R. v. Bright. In that case the prisoner pleaded guilty to a charge of attempting to elicit information with regard to the manufacture of war material contrary to the Defence of the Realm (Consolidation) Regulations 1914 (U.K.). The trial judge took the view that it was the intention of the prisoner in doing the acts charged to assist the enemy. If such an intention had been charged and proved the prisoner was liable to the death penalty. He was sentenced to penal servitude for life. The Court of Criminal Appeal held that it was wrong of the trial judge to take this circumstance of aggravation into account when it had not been charged in the indictment. Darling J., who delivered the judgment of the Court, said that the judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation."

    (Emphasis added; footnotes omitted)

    [32] The Queen v De Simoni (1981) 147 CLR 383 at 389-390 (Gibbs CJ).

24. While it was not necessary to prove penetration to establish Indecent Assault in this case, the difficulty for the appellant’s submission is that penetration was particularised on the information. It was a particular that, if proved, made the Indecent Assault particularly serious. Subject to Ground 2, it was proved as alleged.  De Simoni does not apply. However, the substituted conviction, if entered, would be for Indecent Assault, not USI.

25. In my view, subject to considering Ground 2, this Court should, instead of allowing or dismissing the appeal, substitute for the verdict found by the trial Judge a verdict of guilty of Indecent Assault pursuant to s 160(2) of the Criminal Procedure Act 1921 (SA).

    Ground 2

26. Ground 2 is in the following terms:

    In relation to count 2, Her Honour erred in determining that the changes in the recollection of JH regarding the description of the truck and her position in the cabin should not cause the court to doubt the reliability and credibility of her evidence.

27. JH gave evidence to the effect that on the occasion that she had travelled with the appellant to Adelaide to pick up stock, they had arrived in Adelaide in the early morning and were waiting in line with other trucks to get into the market. She had been asleep in the back cabin when the appellant came into it, pulled off the blankets and then her knickers, climbed between her legs and had sexual intercourse with her.[33]

    [33] T 47.30-37.

28. She detailed that the appellant had climbed between her legs, spat on his hand and put it on his penis before putting his penis into her vagina. She said that he held his penis to enter, that she froze up and that it hurt a little.[34]

    [34] T 48.

29. He ejaculated inside her, got up, got dressed and then went and moved the truck into the yard or into where they pick up the fruit. Her evidence was that she then got dressed.  Once the appellant had stopped driving the truck, she went out to the toilet and wiped out the semen.  She could recall the smell in the toilet block and on her as she left the block. She said that the smell still makes her feel sick.[35]

    [35] T 48-49.

30. In cross-examination, counsel for the appellant put to JH two prior inconsistent statements. The first was that she had previously told police and prosecutors (in witness statements and in proofing) that she had been sitting up when the appellant had entered the truck cabin, as opposed to having been asleep and being woken by him pulling off the blanket.

31. JH accepted that she had previously given that account. When asked which account was true she said:[36]

    Well, I can remember sitting there, like – it was just all, like, scary and – I’m just, you know, like, a very fragile person for all the stuff that’s happened to me, and what happened to me, I know what happened.

    [36] T 62.10-13.

32. She went on to say to that it was hard to remember stuff, but that she did remember sitting in the corner of the cabin. She accepted that when she was sitting there she had been awake for a while, probably because the truck had stopped.

33. The following exchange then occurred:[37]

    Q.    So you weren’t lying down asleep when the blanket was taken off you.

    A.No, that was going back – I’m sorry, that was going back to the bedroom bit.

    [37] T 62.29-33.

1. It is apparent from this answer that JH was referring to the incident the subject of Count 1, in respect of which the trial Judge had accepted her evidence as to the incident, but had been unable to exclude the reasonable possibility that someone other than the appellant had been the perpetrator. Clearly enough, JH’s explanation for the difference was that in the course of her examination-in-chief, she had become confused at some point as between what had occurred in respect of Count 1 and what had occurred in respect of Count 2. The two counts were alleged to have occurred during the same period of time.

2. The second alleged inconsistency also occurred during cross‑examination.  JH was asked what brand the truck was and said that she thought it was a Kenworth.[38]  She was then asked a little later whether she remembered anything about the truck and her answer was, ‘No’.[39]  She did not remember if it had any writing on the sides of it.[40]  She did not remember what colour it was, other than that it was a plain colour.[41]  She said that she was, ‘not sure if it was, like whitey colour or bluey colour’.[42]  She said that the truck had a container on the back, which she thought was a refrigerated container, ‘or something’.[43]  She also said, when asked about whether she remembered any writing on the truck, she thought it had ‘Jack’s’ written on it.[44]

   [38] T 60.19-20.

   [39] T 64.7-8.

   [40] T 64.9-11.

   [41] T 64.12-13.

   [42] T 64.15-16.

   [43] T 64.21-24.

   [44] T 64.29-31.

3. JH was then asked whether the truck had a picture on it.[45] The following exchange occurred:[46]

   [45] T 65.7.

   [46] T 65.8-32.

   A.Not that I'm aware of. The picture that I saw was on another truck that I thought was on the truck but it wasn't.

   Q.Tell me about that.

   A.There was a picture of a person with a knife, like, holding a knife up (DEMONSTRATES).

   Q.Did you say there was a picture on another truck. What's this other truck you're talking about.

   A.Well, on a passer-by truck.

   Q.So when you say a passer-by truck, like -

   A.Well, there were many trucks on the road.

   Q.At what time. I mean, you said you got confused with another truck. The passer-by truck, was this at the time that this alleged intercourse was happening, or not.

   A.Yes.

   Q.So you remember seeing a truck with a picture on it drive past.

   A.Yeah.

   Q.And that's your recollection today.

   A.Yeah.

   Q.Tell me more about that. At what stage did you see this truck.

   A.I can't remember. It was, like, on the drive. It was a long time ago.

4. Counsel for the appellant then put to her a statement that she had given to the police in February 2016:[47]

   Q.And did you say this: 'I remember the truck being red and white with a picture on the side of the truck which was a picture of a butcher holding a knife'.

   A.Yep, but I don't know if that was his truck and I have only been in his truck. It was late at night.

   Q.    I'll pursue that in a minute but did you say that to the police.

   A.    Yes.

   [47] T 66.1-8.

5. Later in the cross-examination, counsel put to JH that the truck had a picture of a man in blue on it.  JH said that she did not remember what was on the truck, all she knew was what had happened in the truck.  It was then put to her that the truck had words to the effect, ‘Jack the Slasher Supermarkets’ on it.  JH accepted that it had the word ‘Jack’s’ written on it, but that was all that she could remember.[48]

   [48] T 76.13-19.

6. Other witnesses gave evidence about the truck as well.  AH gave evidence to the effect that the truck had an emblem that said, ‘Jack the Price Slasher’.  It had a picture of a butcher with his mallet and knife on the side.  She said the truck was a ‘reddy-maroon colour and the trailer was white’.  The truck had different trailers, including Jack’s and Foodland.  She said it was a Kenworth truck which had a dual cab with a sleeping area.[49]  She was shown some photographs which she discounted as depicting the truck.  Her evidence was that it was not a Mercedes-Benz truck.[50]

   [49] T 91-92.

   [50] T 114.

7. CCB gave evidence to the effect that the truck was owned by Jack’s Supermarket and was kept there.  She only saw the truck once.  Her memory was that it was mainly white with, ‘Jack’s’ in big letters on the side.[51]  She said that she was not very familiar with trucks and their makes and models.[52]

   [51] T 136.12-20.

   [52] T 136.21-23.

8. The appellant gave evidence about the truck that he drove.  He said he drove a Mercedes 1418 which did not have a sleeper cabin.  He said that when he was driving for Taylor’s Hotel Service, he would leave Port Augusta with a van on the back with ‘Jack the Slasher’ written on it.[53]  He said that the van on the back of the truck had a picture of a man which he thought was in blue. The man had a hatchet, or something, and in red it said, ‘Jack the Slasher’ which was the name of the supermarket.[54]

   [53] T 206.23-29.

   [54] T 207.30-35.

9. The appellant further gave evidence that he had never taken JH in the truck with him.[55]

   [55] T 208.29-37.

10. With respect to JH’s evidence as to whether she had been lying down asleep or sitting up in the cabin of the truck at the commencement of the incident, her Honour said:[56]

    I have carefully scrutinised all of the evidence, paying particular regard to the evidence JH gave by way of explanation for her change in recollection as to the description of the truck, and her position in the cabin when she claims the accused entered it. Having done so, this does not cause me to doubt the reliability and credibility of her evidence.

    [56] R v G, WJ [2019] SADC 131 at 47, [298].

11. Prior to reaching this conclusion, her Honour made detailed findings in respect of Count 2.[57] She gave particular attention to the appellant’s submission that she could not be satisfied as to JH’s reliability and credibility, having regard to the differences in her evidence, compared with her previous statement to the police.  This was as to both the description of the truck and to how she had been positioned at the beginning of the incident.[58]

    [57] R v G, WJ [2019] SADC 131 at 44-47, [276]-[297].

    [58] R v G, WJ [2019] SADC 131 at 44, [279].

12. With respect to the issue about JH’s position in the truck, it was open for her Honour to accept JH’s explanation for having given evidence-in-chief that was inconsistent with her statements to the police.

13. With respect to the description of the truck, JH’s starting point in cross‑examination was that she did not remember anything about the truck.  When she was pressed, aspects of her evidence about the description of the truck were consistent with aspects of evidence given by AH, CCB and the appellant himself.  This was in circumstances where the allegation concerned a single night some 40 years ago.  Moreover, at the time of the offending she had been a child.

14. I accept the respondent’s submission that it was open to the trial Judge to find that JH’s description of the truck was not such as to cause her Honour to have a reasonable doubt about the credibility or reliability of JH’s evidence about the incident.  Neither this aspect of JH’s evidence, nor her evidence about her initial position in the truck warrants the conclusion that upon the whole of the evidence it was not open to her Honour to be satisfied beyond reasonable doubt that the appellant was guilty.[59]

    [59] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).

15. I would dismiss Ground 2.

    Count 3

    Grounds 3 and 4

16. Grounds 3 and 4 centre on a statement given by AH to the police in 1991, which had placed the incident the subject of Count 3 as having occurred in 1983.  The effect of each of these grounds, both alone and together, is that her Honour was required to have a reasonable doubt as to the commission of the offence, and in particular, as to the necessary timing for the offence to have been made out.

17. Whether her Honour was so required requires an assessment in the context of the whole of the evidence.  Relevantly, and as her Honour took into account in considering the inconsistencies in AH’s evidence:[60]

    [60] R v G, WJ [2019] SADC 131 at 48-50, [309]-[329].

18. It was the evidence of both AH and JH that the touching at Mount Laura only occurred on one occasion.[61]

    [61] T 50-54; T 97-102.

19. JH gave evidence that this incident occurred when she was living in Whyalla.  She said that AH was staying with her and that the appellant and CCB were coming to collect AH.[62]   Similarly, AH gave evidence that she had been staying with JH at the house in Whyalla and that the appellant and CCB had come to pick her up to take her back to Port Pirie.[63]

    [62] T 50.

    [63] T 96.36-38; T 105.

20. JH gave evidence that the appellant, AH and she were going out to get something from the shop.[64]  AH gave evidence that they were going out for fish and chips and to the bottle shop, and that the appellant drove to Mount Laura before they went to the shop.[65]

    [64] T 50.34-51.1.

    [65] T 98.4; T101.26.

21. JH said that the car in which they drove had a bench seat in the front.[66] That was also the evidence of AH.[67]

    [66] T 77.31.

    [67] T 100.9-12.

22. Both JH and AH said that AH had been in the front passenger’s seat and JH in the rear.[68]

    [68] T 52-53; T 98; T100.5.

23. JH was not able to describe the car other than the fact that the front seat was a bench seat.[69] AH said that the car was a green car with number plates GOD‑001.[70]  She identified the car from a photo, Exhibit P3.[71]  CCB later gave evidence that that car had been the appellant’s vehicle for a time.[72]

    [69] T76.32-33.

    [70] T 102.

    [71] T 102-103.

    [72] T 137.

24. Both JH and AH gave evidence to the same effect, that the appellant had unzipped his pants and told AH to touch his penis.  She did so, and then he massaged JH’s breast.[73]

    [73] T 53; T 78; T 98-99.

25. JH said that she was in primary school at the time of this incident. She did not commence high school until 1978.[74] Further, she said that it did not happen in 1983.  She said that she would have been in Port Augusta by that time, having moved there to live with her aunt and uncle in 1981.[75]  This appears to have been uncontroversial.

    [74] T 54.

    [75] T 54.13-23; T79.29-80.3.

26. AH said that at the time of the incident, she had short hair. This correlated to a time when she was around 10 years old.[76]  AH turned 10 in August 1978.[77]  AH also said that she had started wearing bras at about the age of 13 and had not been wearing one when the incident occurred.[78]  She said that her breasts had not developed at the time of this offending.[79]  She also said that she had been in year 4 or 5 at Bevan Crescent Primary School at the time and that she had started at St Mark’s Primary School in year 6, which was after the incident had occurred.  She commenced at St Mark’s in year 6 in September 1979.[80]

    [76] T 97.

    [77] T 81.22.

    [78] T 97.

    [79] T 98.

    [80] T 103-104; T 105.16-18; Exhibit P17.

27. AH gave birth to a child on 28 April 1982. AH was adamant the Mount Laura incident occurred before her child was born. AH was only 13 at the time.[81]

    [81] T 123.19-30.

28. The description by AH as to the car having been a green car with number plates GOD-001 requires attention in the context of these grounds, notwithstanding that it is separately the subject of Ground 5.

29. In circumstances where the 1991 statement by AH placed the offending in 1983, the evidence of AH that it had occurred in the green car with these number plates attracts some significance.  As her Honour accurately characterised the issue,[82] the appellant had submitted that AH’s evidence that the car involved was the green Valiant with number plates GOD-001 meant that the incident could not have occurred in 1977.  It was an agreed fact that personalised number plates were first introduced in South Australia in 1979.[83]

    [82] R v G, WJ [2019] SADC 131 at 49, [323].

    [83] R v G, WJ [2019] SADC 131 at 35, [199].

30. Records of SAPOL and DPTI were tendered, showing that the GOD-001 number plate had been assigned for use to a pink Chrysler that the appellant had acquired on 26 August 1982.  This registration had only been current for that car between 7 April 1983 and 29 July 1983.  The history for that number plate prior to this time was not available.  Nevertheless, the photograph Exhibit P3 showed that at some stage that number plate had in fact been affixed to a pale green Valiant sedan.  CCB gave evidence that she had taken the photograph Exhibit P3 at an address in Port Pirie and that the appellant had owned that car while they were living there, but not for long.  She could not be more precise.

31. Her Honour found beyond reasonable doubt that the appellant did own a green Valiant and that he owned it when he was living at Port Pirie (which time coincided with the period as charged in Count 3).  Her Honour noted that the A‑pillar of that car and the front windscreen were visible in the photograph and that these were consistent with the vehicle having bench seats.[84]

    [84] R v G, WJ [2019] SADC 131 at 50, [328].

32. Having had express regard to the various aspects of the evidence as set out above, her Honour then found:[85]

    … that AH is now genuinely mistaken in any recollection she may now have that at the time of the Mount Laura incident the green Valiant bore the number plate GOD-001. Her mistake in this respect is understandable having regard to the fact the incident occurred over 40 years ago and that Exhibit P3 demonstrates that in fact, at a point in time, the green Valiant did have the number plates GOD-001 attached to it.

    [85] R v G, WJ [2019] SADC 131 at 50, [329].

33. This objective context meant that AH’s evidence as to the Valiant having had these number plates at the time of the incident in 1977, could not be correct. However, her Honour found that this did not cause her to have a reasonable doubt as to the reliability and credibility of JH’s evidence that the incident had occurred when she was at primary school in Whyalla, nor of AH’s evidence to similar effect.

34. AH was cross-examined on other inconsistencies between her 1991 statement and her evidence-in-chief.  As well as the statement placing the incident in 1983, which date AH said the police had inserted, the 1991 statement did not include the allegation that the appellant had taken her hand and placed it on the appellant’s penis, only that he had masturbated in front of her and touched her breast.  Further, the 1991 statement referred to her being touched under her jumper, whereas at trial she said it was under her T-shirt.[86]

    [86] T 108-113.

35. AH had also said in the 1991 statement that the incident had taken place after another incident that involved the appellant and a person called TH.  She had repeated that chronology in a statement of July 2018.  She said that she only realised her mistake the day before giving evidence and that in fact, the incident had occurred before she met TH.  She only met TH when she started at St Mark’s School and the incident had happened prior to that.[87]  She said that she had notified the police as soon as she realised the mistake.

    [87] T 108-112.

36. With respect to the 1991 statement not including her touching the appellant’s penis, AH said that she had told police but that they did not include it in the statement.  With respect to the question of whether she was wearing a jumper or a T-shirt, she said that she had ‘blacked a lot of that out’, but that her memory now was that it was a T-shirt, not a jumper.[88]

    [88] T 113.9-18.

37. Her Honour expressly took special care in analysing AH’s evidence and when approaching the question of her reliability and credibility.[89] She was not satisfied with the explanation given by AH as to how the 1991 statement came to refer to the incident as having occurred in 1983 or why she might have mistakenly referred to her jumper rather than to her T-shirt.[90]  Notwithstanding those concerns, her Honour concluded:[91]

    … having carefully considered all of the evidence, I am satisfied that the evidence AH gave as to her recollection of the accused’s truck and the trips she took in it, was reliable and credible. I am also satisfied that the evidence AH gave as to an occasion when she was about 10 and in the car with the accused and JH at Mount Laura was reliable and credible.

    [89] R v G, WJ [2019] SADC 131 at 41, [249].

    [90] R v G, WJ [2019] SADC 131 at 40, [247].

    [91] R v G, WJ [2019] SADC 131 at 41, [250].

38. I have set out the essentials of the matters that her Honour took into account when assessing the inconsistencies in the evidence of AH.  Her Honour’s approach to assessing the evidence as a whole was careful and orthodox.  It was open to her Honour to reach the result that she did, notwithstanding those inconsistencies.  The manner in which she approached the inconsistencies is not indicative of error.

39. I would dismiss Grounds 3 and 4 of the appeal.

    Ground 5

40. Ground 5 complains that the trial Judge failed to direct herself regarding the significant forensic disadvantage to the defendant associated with the green Valiant’s number plate.

41. I have set out the issue regarding the green Valiant and its number plate above, together with her Honour’s treatment of that evidence.

42. The trial Judge directed herself specifically in respect of the forensic disadvantage, including with respect to the issue of the green Valiant and its registration plate, at the outset of her Reasons for Verdicts:[92]

    [92] [2019] SADC 131 at [15]-[20].

    Forensic Disadvantage

    The allegations relate to a period spanning just over three years from October 1976 to January 1980, meaning there has been a period of delay of over 39 years between the alleged offending and the trial.

    That delay has resulted in forensic disadvantage to the accused in terms of challenging and responding to allegations so long in the past.

    But for the delay, the accused may have been better able to explore the circumstances of the individual acts of offending; to identify the occasions of the alleged offending; to make a defence other than a simple denial; and, to test the events that may have affected JH’s recollection or reliability.

    Had a timely complaint been made it is possible that forensic evidence such as the accused’s employment records and log books, which were relevant to count two, may have been available. Similarly, the issue as to precisely if and when the accused owned a green Valiant, bearing the registration GOD-001, may have been better clarified by the provision of records and extracts from the Registrar of Motor Vehicles.

    The accused may have been in a position to provide a relatively contemporaneous recollection of the nature of his interaction with JH at the time of the alleged incidents.

    I must take these forensic disadvantages into account when scrutinising the evidence for the prosecution and take them into account when assessing whether the prosecution has proved each element of the offence(s) as charged beyond reasonable doubt.

    (Footnotes omitted)

43. The appellant’s written submissions acknowledge these directions but then complain that her Honour failed ‘to properly apply’ the significant forensic disadvantage in making her findings regarding the date of the offending in Count 3.[93]

    [93] Written Submissions of the Appellant at 6, [21].

44. This submission appears to refer to [329] of her Honour’s Reasons for Verdicts, which I have set out above.  The short answer to this is that:

45. there was objective evidence that the appellant had, at one stage, had a pink Chrysler with that registration;

46. there was other evidence, including photographic evidence in the form of Exhibit P3, that the appellant had, at some stage, had a green Valiant and that at some stage, that number plate had been affixed to it;

47. further, CCB gave evidence that she had taken the photograph at an address in Port Pirie and that the accused had owned the green Valiant at that time, albeit not for very long;[94]

    [94] T 138.12-25.

48. the records did not assist in determining when the appellant had owned the green Valiant, nor when it might have been registered with that number plate; however

1. ultimately that did not matter when it came to her Honour’s conclusion at [329], as she found that AH was genuinely mistaken that at the time of the Mount Laura incident the green Valiant bore the number plate GOD-001; and

2. her Honour accepted AH’s evidence, notwithstanding finding that she was genuinely mistaken about the number plate, and did so on the basis of the objective evidence.  The putative forensic disadvantage to the appellant occasioned by the unavailability of records from the Registrar of Motor Vehicles was consequently of no moment.

3. On my reading of the Reasons for Verdicts, the trial Judge demonstrably paid ‘close attention to any forensic disadvantage arising from a delay in bringing a complaint’.[95] This being a trial by Judge alone, s 34CB of the Evidence Act 1929 (SA) did not apply.[96]  Her Honour was nevertheless required to deal with the issue of delay and did so.  The complaint that she did not then give proper effect to that direction when dealing with the evidence relating to the green Valiant, fails.

   Counts 2 and 3

   [95] R v T, WA (2014) 18 SASR 382 at 388, [22] (Kourakis CJ, Vanstone and Anderson JJ agreeing).

   [96] R v T, WA (2014) 18 SASR 382 at [19], [21]-[22] (Kourakis CJ, Vanstone and Anderson JJ agreeing).

   Ground 6

4. It is not entirely clear on the Amended Grounds of Appeal whether Ground 6, which complains that ‘the verdict’ should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, is raised in respect of both Counts 2 and 3, or just Count 3.  The appellant’s submissions proceeded on the basis that this ground relates to both counts and I am prepared to approach it on that basis.

5. With respect to Count 2, the appellant did not develop this ground beyond the matters raised in Ground 2.  With respect to Count 3, again, the appellant did not seek to develop this ground beyond those specific matters which I have already addressed.

6. The obligation of this Court is to consider whether, on the whole of the evidence, it was open to her Honour to be satisfied beyond reasonable doubt of the appellant’s guilt.[97]  It is not sufficient to show that there was material which might have been taken by the trial Judge to preclude satisfaction of guilt beyond a reasonable doubt.[98]

   [97] M v The Queen (1994) 181 CLR 487 at 492-493.

   [98] Libke v The Queen (2007) 230 CLR 559 at 597, [113].

7. Her Honour gave particular attention to the inconsistencies in the evidence with respect to the position of JH and the description of the truck when considering Count 2, and to the inconsistencies in the evidence, in particular the evidence of AH, with respect to the timing of the incident the subject of Count 3.  Her Honour’s reasons for reaching the conclusions that she did are clear.  It was open for her to do so.

8. I would dismiss Ground 6.

   Resentencing

9. It follows from the above that in respect of Count 2, I would, instead of allowing or dismissing the appeal, substitute for the verdict found by the trial Judge a verdict of guilty of Indecent Assault.  It would then be necessary to pass a sentence in substitution for the sentence for the offence of USI, not being a sentence of greater severity.

10. The sentence imposed for Count 2 (USI), was five years. That corresponds with the maximum penalty for a first offence of Indecent Assault under s 56 of the CLCA. The maximum penalty is reserved for an offence which falls within the category of the ‘worst case’.[99]  In Bensegger v The Queen it was said:[100]

    A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR at 18, "for the worst cases of the sort". That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was.

    [99] Elias v The Queen (2013) 248 CLR 483 at 494, [27].

    [100] [1979] WAR 65 at 68 (Burt CJ); See GHK v Western Australia (2014) A Crim R 178 at 185, [41] (Buss JA).

11. The appellant had originally appealed against sentence as well as conviction, but withdrew that appeal prior to the hearing.  That appeal against sentence only complained that the head sentence and the non-parole period were manifestly excessive.  It did not complain of any process error.  In resentencing the appellant for the substituted conviction of Indecent Assault the subject of Count 2, I take into account and adopt all of the factual matters detailed by the trial Judge in sentencing.  The facts of the offending the subject of the substituted verdict are unchanged.  It is also necessary to take into account the impact on the victim, the personal circumstances of the appellant and his criminal history as recounted by her Honour, as well as the other relevant matters set out in her Honour’s sentencing remarks.

12. Her Honour accepted that the appellant is a serious repeat offender within the meaning of s 53(1)(c) of the Sentencing Act 2017 (SA). The appellant had committed, on at least two separate occasions, a ‘serious sexual offence’ against a person or persons under the age of 14, namely, the two counts for which her Honour found him guilty at trial. That conclusion is not altered by the substitution of the verdict. It follows that pursuant to s 54(1), this Court must also fix a non‑parole period of at least four-fifths of the length of any head sentence.

13. The appellant gave evidence for the purposes of sentencing.  The trial Judge concluded that the circumstances about which he gave evidence did not fulfil the test of exceptional circumstances required by s 54(2)(a) that would be necessary to render s 54(1) inapplicable.  Neither did she accept, pursuant to s 54(2)(b), that it was, in all the circumstances, not appropriate that the appellant be sentenced as a serious repeat offender. The appellant not having taken issue with these conclusions, this Court should sentence for the substituted offence on the same basis.

14. At the appeal hearing, a question arose whether, if a conviction for Indecent Assault were to be substituted for Count 2, the appellant should be sentenced for Count 3 on the basis that this offence was a first offence or a subsequent offence. At the relevant time, s 56 provided that the maximum penalty for a first offence was five years imprisonment and seven years for a subsequent offence.

15. In R v Sexton this Court said: [101]

    The words “subsequent offence”, when used in a penalty provision, have a special meaning as a matter of settled construction. A subsequent offence is one committed after a conviction for an earlier offence.

    [101] [2018] SASCFC 28 at [252].

16. As the convictions for both Counts 2 and 3 were returned at the same trial, it was necessary that each be treated as a first offence.  In any event, however, there is no basis on which this Court could interfere with the sentence in respect of Count 3, although it remains relevant to the overall period of imprisonment to be served.  It is only necessary to resentence the appellant in respect of Count 2 and then to accommodate the consequences of that sentence.

17. This was a particularly serious case of Indecent Assault. However, the abandonment of the sentencing appeal does not carry any implication that it is consequently appropriate simply to sentence the appellant for five years for the substituted offence.  Having regard to the matters taken into account by the trial Judge, I would not sentence the appellant to the maximum penalty for a first offence of Indecent Assault in respect of Count 2.

18. In the circumstances relevant to Count 2, I would sentence the appellant to a head sentence of four years. The term of imprisonment of six months that her Honour imposed in respect of Count 3 should be served cumulatively upon that.  This results in a new total head sentence of four years and six months’ imprisonment. I would fix a non-parole period of three years, seven months and six days. Consistently with the sentencing Judge’s approach, and insofar as it is necessary for this Court to do so, I would backdate both to commence on the date that her Honour revoked the appellant’s bail, being 3 October 2019.  It was not suggested that this Court should interfere with the intervention order that her Honour imposed.