BEAMES v POLICE No. SCCIV-02-1435 [2002] SASC 405

BLEBY J: This is an appeal against a conviction recorded in the Magistrates Court sitting at Elizabeth. The appellant was convicted of one count of indecent assault. The particulars alleged were that between 12 September 1984 and 13 January 1985 at a northern Adelaide suburb, the appellant, then aged about 38, indecently assaulted the complainant, a girl then aged 12 years old.

The complainant's first complaint to the Police was in about July 1999. The appellant was interviewed by the Police in October 1999. The information was dated 28 February 2001. The trial took place in May 2002.

The appellant was a friend of the complainant's parents. The complainant first remembered meeting the appellant when she was approximately five years old. At that time she was living with her mother, her step-father and her older sisters. The family lived at a house in a northern Adelaide suburb ("the first house"). Both parents worked. It was the responsibility of one of the complainant's older sisters to care for the two youngest children after school each day. The two youngest children were the complainant and her next older sister who was about 15 months her senior. On arriving home from school it was customary for the complainant and her next older sister to watch cartoons while one of the older sisters prepared the evening meal and completed other domestic chores.

It was alleged by the complainant that the appellant would often visit the household after school had finished for the day and before the girls' parents had returned home from work. Sometimes he would bring lollies and chocolates for the two youngest girls. He would sit in the lounge room with them while they watched cartoons.

While he was in the lounge room the complainant said that the appellant would ask her if she wanted a tickle. Over time, the complainant said she learnt what this meant. She would go and sit on his knee. He would move her knickers aside and fondle her genital area. She said that this included inserting a finger into her vagina. It was her evidence that this behaviour occurred regularly and over a number of years.

The family moved to another house ("the second house") in a different northern suburb at about the time when the marriage between the complainant's mother and her step-father broke down. The complainant's mother subsequently married another man who lived with the family in the second house.

After the move, contact with the appellant was lost for a short time, but was re-established, and the appellant recommenced visiting. He continued his behaviour with regard to the complainant at the second house. The complainant's evidence was that when the appellant visited the house during that period he was wearing a khaki Radio Rentals uniform, and was driving a Radio Rentals van.

As the complainant approached puberty, she became concerned about the potential for the continuation of the behaviour. It was when she was 12 years old that the last alleged indecent assault occurred. The course of behaviour ceased when the complainant once refused the appellant's offer of a tickle. The appellant had come to the house as usual, and had asked the victim if she wanted a tickle. She said "no". He asked her to repeat what she had said and she repeated her refusal, in a louder voice. The time of this refusal was fixed by reference to the complainant's older sister's wedding and the commencement of her first menstrual period. The offence alleged in the information was the last occasion on which an indecent assault had occurred before the complainant refused the appellant's invitation for a tickle.

Both the complainant's mother and the older sister who cared for her after school supported the complainant's evidence on what the Magistrate described as "peripheral events". The sister confirmed her evidence as to the frequency of the appellant's visits to the house when the girls' parents were still at work. She recalled seeing the complainant sitting on the lounge close to the appellant or on his lap. She confirmed that on one occasion both the complainant and her next older sister became very agitated when the appellant came to the door, and that they did not want to let him in. She supported the complainant's evidence regarding the gifts of lollies and chocolates. However, there was no evidence corroborating the alleged offence.

The complainant's mother confirmed that the appellant was a family friend, that she was aware that he was a frequent visitor to the house and that he was sometimes at the house when she arrived home from work.

The appellant gave evidence. He admitted being a visitor to the first house but only on four occasions, and never during after-school hours or before the evening meal. While the family was living in the second house, his visits were occasionally weekly, fortnightly or monthly, but were either during the evening after 7.00 pm or at weekends when one of the adults was present. He alleged that there was a period of three to four years when he seldom called at all because he was fully engaged in looking after his youngest child while his wife worked. His evidence was that he never called during the day when the children were at home, and that he was precluded from doing so by his pattern of work at Radio Rentals.

In her reasons for decision the Magistrate summarised the evidence of the complainant, that of her older sister and of her mother. She gave a brief summary of the appellant's evidence. She then continued:

"This matter encompasses a fairly limited factual situation, the basis of the one charge. In considering the evidence I remind myself of the onus and burden of proof. I also remind myself that any doubt I may have in relation to the evidence must be resolved in favour of the defendant. In assessing the evidence and the witnesses I have also borne in mind the period of time that has elapsed since the alleged offence. [The complainant] was giving evidence of events that occurred many years ago, as were her mother and sister as well as the defendant.

The complaint in relation to the matter was obviously late, but in my view she explained that more than adequately in her evidence.

............ I assessed [the complainant] as an exceptionally impressive witness. She impressed me as an accurate and reliable historian not prone to exaggeration. She was unshaken in cross-examination and in my view cross-examination strengthened her affect (sic) of her impression as a credible witness. She was supported in peripheral details by her mother and sister each of whom also struck me as reliable, honest and credible historians.

The defendant gave evidence. He did not strike me as particularly impressive although I note (and in making that assessment I take into account) the fact that he is a much older man. He has suffered in the past from various health problems and he has had memory lapses which were evident in his record of interview. However, even accepting all that he did not impress me as a witness of truth. I have no hesitation in accepting the evidence of the prosecution witnesses, particularly [the complainant]."

That is the extent of the Magistrate's comments on the evidence and her approach to it.

Although the notice of appeal contains several grounds, the essence of the appellant's complaint is that the Magistrate failed to give herself any adequate warning about the danger of acting on the evidence of the complainant in accordance with the principles expressed by the High Court in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In that case the defendant was charged with two counts of indecent dealing with his step-daughter and who was aged six and ten at the times of the respective alleged indecent dealings. When she gave evidence she was aged 32. Evidence was given of the two specific occasions both in respect of the nature and location of the activities the subject of the complaints. The complainant also gave evidence of other sexual touching by the defendant extending over some years.

In their joint judgment, Brennan, Dawson and Toohey JJ said, at 90 - 91:

"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s 36BD of the [Evidence Act 1906 (WA)] requires) that there may be 'good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at pp 31-32, 42-44, 56-57, 71-72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

As Gaudron, Gummow and Callinan JJ pointed out in the subsequent case of Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at 180 [39], that passage distinguishes between two different sets of circumstances: those which will generally require comment, and those in respect of which a warning is imperative.

However, it must also be borne in mind that Longman is discussing warnings that need to be given to juries. Deane J observed in Longman at 95-96:

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. The responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury."

Of the dictum of Brennan, Dawson and Toohey JJ in Longman's case to which I have referred, the Victorian Court of Appeal said in R v Miletic [1997] 1VR 593 at 604:

"It will be observed that their Honours distinguished between comment, which would not have been surprising and would have been proper, and a warning, which was required. The circumstances that might have been the subject of comment were such as the jury could evaluate for themselves but the factor requiring a warning was one of the full significance of which might not have been apparent to laymen unfamiliar with the way in which a criminal trial is prepared and conducted: see also at 95-96 per Deane J."

It might be questioned whether it is necessary for a judge or magistrate sitting alone to give himself or herself such a warning in similar terms. Unlike juries, they supposedly have a greater understanding of the forensic process and are or should be alive to the dangers caused by delay and the potential unfairness of a trial in circumstances to which the Longman imperative is directed. There is no statutory requirement in this State to the effect that, if any act or law requires a warning to be given to a jury, the judge is to take the warning into account in dealing with the matter: cf Fleming v The Queen (1998) 197 CLR 250 at 261-265. Nevertheless, in a judgment with which I concurred the Chief Justice said in R v Green [2001] SASC 25; (2001) 78 SASR 463 at 474:

"In the case of trial by judge alone, a warning that should be given to the jury by reference to an aspect of the facts of the particular case, should usually be recorded in the reasons of the trial judge, to ensure that the matter giving rise to the need for a warning is not overlooked, and also to demonstrate that the judge has properly directed himself or herself on the facts. The warning should be recorded in the trial judge's reasons even though there is no statutory requirement to that effect: Fleming v The Queen (1998) 197 CLR 250 at 263 [31]. The requirement to give reasons will usually include a requirement to give reasons that demonstrate that the requirements of law and practice, applicable to the circumstances of the case, have been discharged: cf Fleming v The Queen (1998) 197 CLR 250 at 263 - 264 [32] - [33]. If the circumstances of the case call for a warning, then it is necessary for the trial judge to show that the warning has been heeded.

It does not follow as a matter of course that a failure to give a warning that should be given will result in the appeal being allowed: Fleming v The Queen (1998) 197 CLR 250 at [32]. Whether the failure to give a warning that should be given will mean that an appeal must be allowed will depend upon whether the failure to give the warning gives rise to a substantial risk of miscarriage of justice. However, usually a failure to give a warning that is required would give rise to a real risk of a miscarriage of justice."

Thus, while a judge or magistrate may not need the type of warning that must be given to a jury, there must be some evidence, usually only to be gleamed from the reasons, that the judge or magistrate has in fact addressed the evidence in the manner that a jury would be required to.

If a full Longman type warning was required in this case, it would seem that the Magistrate did not direct her mind to the impact of the delay on the fairness of the trial to the appellant, nor did she remind herself that it would be dangerous to convict on the complainant's evidence alone unless, after careful scrutiny, she was satisfied as to its truth and accuracy. The only reference to delay in the Magistrate's reasons was by reference to her assessment of the evidence of the witnesses and not as to whether the appellant might have been prejudiced in his defence by reason of the delay. There is no suggestion that the Magistrate considered the danger of convicting on the complainant's evidence unless, after careful scrutiny for that reason, she was satisfied of its truth and accuracy.

However, the question in this case is whether such a warning was demanded by the circumstances of this case. A number of the circumstances mentioned in Longman applied in this case. There was the delay of over 17 years between the events and the trial. While it was not the most serious of sexual offences, it was an offence which carried a maximum penalty of eight years imprisonment. The complainant was aged 12 at the time of the offence. Those are factors which would normally require some comment from the trial Judge to a jury as to considerations relevant to the evaluation of evidence. I think there is sufficient in the Magistrate's reasons to demonstrate that she had those considerations in mind when assessing the evidence of the witnesses and in deciding to accept that of the complainant. The real question is whether the failure of the Magistrate to remind herself of the requirements of the full Longman warning gave rise to a real risk of miscarriage of justice.

Notwithstanding the delay and the other factors to which I have referred, in my opinion it did not. The date of the alleged offence could not be determined accurately. On the prosecution case it was the last occurrence of a number of similar acts performed in similar circumstances by the appellant over a period of many years. The appellant did not deny an association with the family and with the complainant. He did not deny visits to the family home. Besides denying any acts of sexual impropriety towards the complainant, his case was, first, that he never visited the complainant's house as often as the complainant alleged. He said there were only four occasions he visited at the first house, and that there was a substantial gap of some years when the complainant lived in the second house. More particularly, his case was that over the whole period of seven or so years, he never visited either house during the period of the girls' return from school and before the complainant's mother or step-father came home, being the times at which the acts of indecency allegedly occurred.

His case was clearly put in cross-examination to the prosecution witnesses. He expressed no doubt about his practices in visits to the complainant's houses and when such visits occurred. He had the opportunity to and did cross-examine the prosecution witnesses as to those issues in dispute. The reasons he advanced for not being able to visit the complainant's home at the times alleged were related to his work, which he performed regularly in company with the same fellow employee, and to his domestic situation. There was no suggestion that witnesses were not now available to be called to verify those aspects of his account if he chose to call them.

Because the event the subject of the charge could only be identified as being the last in a series of similar events, the prosecution case relied heavily on establishing a course of conduct over a number of years by way of visits by the appellant to the complainant's house at particular times of the day. The evidence of prosecution witnesses as to particular visits on particular days was necessarily lacking. The appellant was not prejudiced by being confronted with particular dates or times which he could not now be expected to remember. He was confronted with an allegation of a course of conduct ending with the alleged offence. The complainant's evidence was that her refusal was probably sometime in November 1984, and the last indecent assault about a week before that. His defence was to deny that course of conduct and to assert another one, inconsistent with that alleged by the complainant. The conduct and nature of his defence does not suggest that he was prejudiced in doing so.

There was evidence to support the complainant's evidence on the issue of the times and frequency of the appellant's visits. Once that question was resolved in favour of the complainant, and given the appellant's denials that anything untoward had happened when he did visit, it became a matter for the Magistrate to determine whether she accepted the complainant's evidence as to what happened by way of the alleged indecent assaults when the appellant did visit the house. She considered the complainant's evidence very carefully. She regarded her as "an exceptionally impressive witness.... an accurate and reliable historian not prone to exaggeration".

In the particular circumstances of this case and in the way it was presented and defended, I do not consider that there was any risk of a miscarriage of justice in the way the Magistrate directed herself. Accordingly, the appeal is dismissed.