HRNG ADELAIDE, 26 September 1996 (hearing), 20 December 1996 (decision) #DATE 20:12:1996 #ADD 28:1:1996

The appellant pleaded not guilty before Ms R H McInnes SM in the Magistrates Court at Port Adelaide to a charge for that on "the 11th day of December 1994 at Semaphore Park in the [State of South Australia he] indecently assaulted a person over the age of twelve years."

No particulars were sought or given. "The person" was Carrie Maureen Strong, then aged fifteen. The appellant was convicted and released upon a bond to be of good behaviour for eighteen months. He has appealed on the following grounds: "1. The Learned Magistrate erred in admitting into evidence the evidence of Mrs Ottens of the alleged victim's 'distress'.

2. The Learned Magistrate erred in admitting into evidence the 'complaint' made by the alleged victim to Mrs Ottens.

The Learned Magistrate erred in not giving reasons as to why she rejected the evidence of the appellant.

The Learned Magistrate erred in admitting as evidence, and gave undue weight to, the so called 'confession' to Mrs Ottens.

The finding of guilt by the Learned Magistrate is unsafe and unsatisfactory."

3. In the late afternoon of the date charged, the complainant, Mr and Mrs Ottens, some other children and the appellant all went to have a swim at a pool owned by a friend of Mr and Mrs Ottens. In addition to the complainant, both Mr and Mrs Ottens gave evidence and a police record of an interview with the appellant was tendered by consent. The appellant also gave evidence.

4. The learned Magistrate described the role of Mr and Mrs Ottens. She said: "At all material times Mr. and Mrs. Ottens were employed by the Department of Family and Community Services (FACS) as INC parents. INC stands for Intensive Neighbourhood Care. FACS had arranged for the Ottens family to care for the alleged victim for six months, on an 'INC placement'.

The INC programme is one which counsel and magistrates are familiar with, as young offenders are sometimes referred to INC placements.

During the trial, evidence was given about the INC programme. Children in need of short term intensive care outside their home are placed by FACS in a family environment where, for a limited period, they receive special intensive care. Certain families are approved as INC parents by FACS. INC parents take children (identified as being in need of special intensive care for some reason) into their homes, and provide short term intensive care under FACS supervision. INC placements are not 'foster' placements. While some adolescents who benefit from INC placement are young offenders, young offenders are a small minority of the juvenile population. The INC programme is a programme for all juveniles, not just juvenile offenders. It is a welfare or 'care'

It was clear from the evidence that the Ottens family, and Mrs. Ottens in particular, have had, over many years, extensive experience in providing the required standard of care to children and adolescents in need of this special intensive care. I am satisfied that as a result of this experience, carried on under the supervision of professional staff working with FACS, Mrs. Otten is a trained observer expert in identifying behaviour and behaviour patterns exhibited by young people.

The alleged victim was placed by FACS with the Ottens family because she was in need of special care. The placement was for six months. At the material time she had been living with the Ottens family for four months.

I have no hesitation in accepting Mrs. Ottens' evidence that during the four month period the alleged victim, (who was then in her mid teens) had responded to intensive care, and had settled. Her behaviour was normal for a girl of her age. In short, the aim

5. The indecent assault alleged, or to put it more accurately, the indecent assaults alleged, took place in the swimming pool. The complainant was not entirely consistent as to the order in which they occurred or as to the extent of the indecency on each occasion. There was clearly much horseplay involving the appellant Carrie and other children jumping and diving and playing with a ball. What the complainant essentially alleged was that on one occasion the appellant rubbed his penis against her leg, that on another occasion he put a hand on her right breast outside her bathers and on another occasion he put a hand on her hand and then placed her hand on his penis. I was not so informed, but I imagine it was the last allegation that the prosecution particularly relied upon. Mrs Ottens said that she was aware at times that Carrie appeared distressed. Mrs Ottens said she yelled at the appellant quite a lot, and that at one stage she went up to him and swore at him and told him to leave Carrie alone. Mr Ottens also noticed that the appellant paid close attention to Carrie, and that wherever she went the appellant was there all the time, but he did not give evidence about hearing his wife rebuke the appellant, and nor did Carrie. Carrie said that she got out of the pool because of the assaults. She said that when they all drove home in the Ottens' van, the appellant sat behind her in the van and stroked her hair. She said in her evidence that night when she got home that she had a shower, had a meal and went to bed. Mrs Ottens on the other hand said that when they got home Carrie seemed upset, and went to bed without having a meal.

I do not agree with the appellant's submission that her Honour erred in taking into account and giving weight to evidence of distress. Her Honour did not treat it as corroboration, but merely as supportive of the credibility of Mrs Ottens. Her Honour said: "A Prasad application was made in this case, which I rejected. At the time I rejected it, I was uncertain as to whether or not the behaviour observed by Mrs Ottens could amount to corroboration of the kind known as 'distress'. Upon reflection, having had the benefit of counsel's submissions, I am of the view that while this is not corroboration of 'distress' in the usual sense, the observations of a highly trained observer should not be lightly disregarded either, and while the evidence may not amount to corroboration in the formal sense it is supportive of the view that I reached about the victim's evidence, as opposed to being supportive of the defence version."

It is true that Carrie did not use the word "distressed" about her reactions to the alleged offence, but she did speak of feeling "sick", "dirty" and "disgusting". It is also true that Mr Ottens did not say he saw any evidence of distress. Mrs Ottens, however, said she noted that Carrie was visibly distressed two or three times in the pool, and it was that that caused her to tell the appellant to leave her alone. Later, at home, she said that Carrie said she did not feel like eating, and she noticed that she was very quiet the next day. Her Honour found Mrs Ottens to be a credible witness, and in my view she was entitled to take into account the observations of Mrs Ottens.

Carrie did not make any complaint that evening to Mrs Ottens or to anyone else. The following day the appellant spoke to Mrs Ottens on the telephone. Mrs Ottens told Carrie that the appellant had said that he was coming down to talk to her about the fact that he had recently fallen out with his girlfriend. Mrs Ottens said that Carrie said "Oh no, if he's coming over I'm going out". She said she sat Carrie down, and told her that she felt there was a problem, that something had occurred, and that she felt some tension in the swimming pool the day before. She said that Carrie then broke down and cried and told her what had happened. She said that the appellant touched her on the breast two or three times, and grabbed her hand under the water and put it on his penis. Mrs Ottens said her relationship with Carrie was very close and that she was like a daughter to her. Mrs Ottens then said she was going to ring the appellant and deal with the matter, to which Carrie replied "My God I can't face him, how am I going to face him", and that she was upset and agitated. Mrs Ottens told Carrie to seat herself, as I understand it, within hearing, but where the appellant could not see her when he arrived. Counsel who appeared for the appellant before the learned Magistrate objected to the admissibility of this evidence, first, because it resulted from leading questions or cross examination, and secondly, because it was not made at the earliest reasonable opportunity. I am bound to say that my mind has vacillated on this question, but having carefully considered the authorities, I uphold her Honour's ruling. As to the first point, the classical authority is Rex v Osborne [1905] l KB 551. The judgment of the Court for the Consideration of Crown Cases Reserved which consisted of five judges was read by Ridley J. The facts were in no way comparable, but at p556 his Lordship said: "It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible; but a question such as this, put by the mother or other person, 'What is the matter?' or 'Why are you crying?' will not do so. These are natural questions which a person in charge will be likely to put; on the other hand, if she were asked, 'Did

So-and-so' (naming the prisoner) 'assault you?' 'Did he do this and that to you?' then the result would be different, and the statement ought to be rejected. In each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding judge. If the circumstances indicate that but for the questioning there probably would have been no voluntary complaint, the answer is inadmissible. If the question merely anticipates a statement which the complainant was about to make, it is not rendered inadmissible by the fact that the questioner happens to speak first."

I also refer to Rex v Norcott [1917] 1 KB 347 where the Court of Criminal Appeal per Viscount Reading CJ said at pp350-351: "The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected. Consideration of the principals expounded by Ridley J. in the judgment in Rex v. Osborne [1905] 1 K.B. 551, 556, to which I have referred shows that that is so. With the view expressed by him this Court is in entire agreement. In the present case Miss Davies stood very much in the position of the girl's mother. She tried to befriend her and get

her to tell her what had upset her. But she neither suggested, nor led the girl into making a statement about the assault, nor did she suggest to her that she had been indecently assaulted. She knew nothing about the assault and tried to get the girl to tell her the reason why she was crying and her story, whatever it was. The evidence is not inadmissible because questions were put to the girl which might have had the effect of persuading her to tell her unassisted and unvarnished story. In our view, therefore, the circumstances of this case bring the evidence within the region of admissibility." (See also Reg v Dubois [1966] QWN 37.)

As to the second point, I refer to The Queen v Peake (1974) 9 SASR 458. There a girl aged nearly fifteen years alleged that she had been raped by the accused at night in a motor vehicle. She returned to her home at about 11.35 pm and had a short conversation with her mother and father, but said nothing to them about the alleged rape. At about 6 o'clock on the following morning she made a complaint to her mother that she had been raped. At pp 462-463 Bray CJ said: "No doubt this is a matter on which different minds could easily come to different conclusions. I am strongly impressed with the danger of admitting stale complaints. Where a girl who is not a mere child, but capable of some sensible calculation of the risks of alternative courses of conduct, has had sexual intercourse and refrained from complaining about it on the first available opportunity to her parents with whom she is living and on good terms but does complain after a night's reflection, it may well be that that is because she has come to the conclusion that, from the condition of her clothing or otherwise, her mother is bound to discover the fact of intercourse and that an allegation of rape will get her into less trouble than an admission of consent.

Most of the cases where complaints have been admitted despite the failure to take advantage of earlier opportunities to complain turn on the identity of the recipient of the complaint. A complaint to B has been admitted despite an earlier opportunity to complain to A, because it has been thought that it was natural for the complainant to wait until she could see B. But where there were earlier opportunities not availed of to complain to the very person to whom after a significant delay the complaint was ultimately made, I think it can only be in rare cases that the complaint should be admitted.

The reason given here for not complaining to the parents on the night of the occurrence was that the girl was scared by reason of the threats she said the appellant had made against her and her parents and her boyfriend if she informed on him. The fact is that when she did complain to her mother in the morning she said to her that she was scared. It might be asked why if fear had deterred her in the evening and the same fear was present in the morning it did not deter her then also.

But on the whole I do not think that we can say that her Honour could not judicially have come to her conclusion or that no reasonable tribunal could hold that the complaint was made as soon as could reasonably be expected after the event. The decision was for her and, in my view, this Court cannot say that she was in error in admitting this evidence, though if she had decided not to admit it we certainly could not have said that it had been erroneously excluded. The learned Judge posed the right question to herself and there was material before her on which she could answer it in the way she did."

I also refer to R v Corkin (1989) 50 SASR 580, and to S B King [1995] QCA 48; (1995) 78 A Crim R 53, where in a joint judgment Pincus JA and Thomas J said at p61: "... undue concentration upon the time factor may lead to too narrow and artificial a result."

The Court of Appeal in England has recently reviewed the law on the topic of recent complaints. The Crown case in Anthony Valentine (1996) 2 Crim App R 213 was that the complainant was raped by the appellant on the way home from a restaurant. She arrived home at 2.30 am. Her parents and elder brother were at home but were asleep. The next morning she went into her brother's bedroom and told him that she had been attacked with a knife. She told him that she did not want to tell her parents. She went to work during the afternoon and in the evening told a friend that she had been raped. Their Lordships reviewed some of the authorities, and at pp222-224 the Court said: " A more recent authority is Cummings [1948] 1 All E.R. 551, where the complainant alleged that she had been raped during an evening by Cummings. At the time she was living at a Landworker's camp. She did not complain to the camp warden that evening, although she saw him. She said she did not complain to the camp warden because he was a friend of Cummings. There was also a female welfare officer at the camp, who was known to the complainant, although there was no evidence that the complainant knew the Welfare Officer was available for her to speak to. The complainant made no complaint to other girls of her age living in the same hut at the camp. However, the next day, as early as she could, the complainant went from the camp to a much older woman who lived two miles away who was known to her and to whom she did make a complaint.

The trial judge permitted evidence of that complaint to be given and the appeal was mounted on the basis that as the complainant had not made a complaint immediately the evidence of that complaint ought not to have been admitted. In the course of giving the judgment of the Court of Criminal Appeal, Lord Goddard C.J. said at p.552: 'Who is to decide whether the complaint is made as speedily as could reasonable be expected? Surely it must be the judge who

tries the case. There is no one else who can decide it. The evidence is tendered, and he has to give a decision there and then whether it is admissible or not. It must, therefore, be a matter for him to decide and a matter for his discretion if he applies the right principle. There is no question here that Hallett J. did apply the right principle. He had clearly in mind the fact that there must be an early complaint. Whether it was reasonable to expect the prosecutrix to complain the moment she got back to the Camp to a man who she hardly knew, or whether it was more reasonable that she should wait till the morning and complain to Mrs Watson, her friend, were matters that the learned judge had to take into account. He did take them into account, and he came to the conclusion that in the circumstances the complaint next morning was in reasonable time. If a judge has such facts before him, applies the right principle, and directs his mind to the right question, which is whether or not the prosecutrix did what was reasonable, this Court cannot interfere.'

We accept that passage as a correct statement of the law and of the approach of this Court to a trial judge's ruling on the admissibility of complaints in cases of sexual offences.

The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity �

We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family.

Turning to the present case, we consider that the judge applied the principles applicable correctly and adopted the approach laid down by Lord Goddard in Cummings. We are content that we should follow Lord Goddard's approach and say that this Court cannot interfere in a case such as the present where the judge has such facts before him, applied the right principle and directed his mind to the right questions.

The judge saw and heard the complainant. He assessed her as a

person who was tense and who would bottle up this matter until she found a friend of her own age to confide in. We would echo the further words of Lord Goddard: 'In the circumstances, we think that there was nothing which could oblige this court to say that the complaint was not made as speedily as could reasonably be expected.'"

I repeat that in my opinion her Honour was correct in admitting the evidence of "complaint".

What has caused me more concern is the fourth ground of appeal. This arises from a conversation that Mrs Ottens had with the appellant after he was asked to come to her house early in the evening of the day after the alleged offence. The thrust of her evidence was as follows. She said that when he arrived she said she had something to talk to him about. She said that Carrie alleged that in the pool he grabbed her on the breast two or three times and he grabbed her hand under the water and put it on his penis. She said that she told him that before he answered anything she wanted him to know how stressful it was for Carrie and how she felt. She said that the appellant said "Oh how could you think I would do anything like this after everything you have done for me". She yelled at him "How dare you stand there and say this. I know you are not telling the truth. I believe Carrie". She said he just shook his head and went white. He said he did not do it. She said "Well I don't believe you and I do believe Carrie". She added "Before you say any more I want you to understand how she feels as a victim and what happened to her and how terrified she is of you". She said that she told him that if he felt any compassion and he knew what had happened and he truthfully understood and he was guilty for what he had done then the best he could do for Carrie was admit to her and apologise if he was guilty. She said that the appellant left slamming the sliding door. She said that about twenty minutes later the appellant came back, and made admissions. Mrs Ottens said that he apologised to Carrie. Carrie on the other hand admitted that it was possible that he said words to the effect "I'm sorry if I touched you whilst we were in the pool. If I did it was accidental and I didn't mean it. I hope you don't feel too upset about it and I'm very sorry if I have caused you any hurt. I have been under a lot of stress myself lately because I've just broken up with my girlfriend."

The learned Magistrate who heard the evidence said: "I have no doubt that the defendant's admissions were made after Mrs Ottens brought considerable psychological pressure to bear on the defendant."

Later he said: "It was inherent in [Mr Ottens'] evidence that he did not regard the defendant's admissions as reliable and truthful, because of the way in which they were obtained."

The Magistrate did not refer to the admissions again, but she did say later in her reasons in commenting on the evidence given by the appellant that he was "a remarkably unimpressive witness. I did not believe his evidence denying that he had committed the offence".

In his interview with the police the appellant said: "I know what this is about. If it's about Carrie Strong I've received legal advice and have been advised not to say anything. I am aware of what the allegation is and I totally refute this."

I have reached the firm conclusion that her Honour should have excluded this evidence of Mrs Ottens - and for that matter so much of the evidence of Mr Ottens and Carrie as included the alleged admission. Mrs Ottens was in a very real sense in loco parentis, and it was within her "power to place the wheels and a prosecution in motion". Within the meaning of the old authorities, she was "a person in authority" (see W B Scofield (1988) 37 A Crim R 197). It is clear to me that any admissions resulted from "undue insistence or pressure" (see The Queen v T Collins (1976) 12 SASR 501 at 508-509), and that they were involuntary. At the very least, a proper exercise of the court's discretion required their exclusion. Counsel for the respondent argued that their exclusion would not have affected the result. I do not agree. I have no doubt they affected her Honour's assessment of the appellant as a witness and his denials of guilt on oath.

The appeal will be allowed, the conviction set aside and the charge remitted for rehearing before another Magistrate.